BARONY
v.
BURROW-GILES LITHOGRAPHIC CO.
591
pEcable and not within the terms of the section, 955, above cited. All the cases invoked are consistent with this view. Our conclusion, therefore, is, that the right of action terminated with the death of the defendant.· Were it held otherwise, for the reasons urged by counsel, there would be one rule of action in this respect governing suits by the United States for penalties for infractions of its copyright laws in one state, and another in other states, dependent upon local legislation respecting the survival of action. Vide U. B. v. Richardson, 9 Co., infra. FED. REP.
80'!; Barony v. Burrow-Giles Lith.
SARONY
(Circuit Court, 8. D. New York. 1.
April Term, 1883.)
COKSTITUTIOKALITY OF STATUTE-\VIIEX COURT WILL DECLARE VOID.
The court should hesitate long, and be convinced beyond a rea'onable doubt, b'lfore pronouncing an act of congress invalid. The argument should amonnt almost to a demonstration. If doubt exists, the act should bc sustained -the presumption is in favor of its vaHdity. ' COPYIUOIIT-HEV. ST. § 4:);i2-PnOTOGllAPIIS AND NEGATIVES.
2.
The act of (Hcv. 8t. § 4952) granting copyright protection to photographs, and ncgatives thereof, is not so clearly unconstitutional a8to authorize the court at nisi prius to declare it invalid. IN COPYIUGIIT, N.A:\IE, ASD DATE.
3.
The olJject of inscribing upon copyright articles the word "copyright," with the year when the copyright was taken out, and the name of the party taking it out, (Laws 1874, c. 301,) is to giv" notice of the copyright to the pulJlic; to prevent:J. person from being punished who ignorantly and innocl'ntly reproduces the photograph without knowledge of the protecting copyright. 4. 8.UIE-IXITL\L OF CIIHlSTLIS K.uII': Al>D FULl, SURN.UIE.
Inscrting in such a notice the initial of the Christian nanw nnd the fnll surllllnlC is a suflicient compl'auce with the law; it does not violate the letter of the law, and accomplishes its olJjcct
This was an action at law for the violation of the plaintiff's copyright of a photograph of Oscar Wilde, ,,'hich the defendant had copied by the process known as chromo-lithography. It was admitted on the trial that the plaintiff had taken all the steps required by law to secure the copyright except to insert his Christian name in the notice, and there was no dispute as to the number of copies printed by the defendant, the value thereof, or the number on hand. The notice of copyright on the plaintiff's photographs "'as as follows: "Copyright, 1882, by :N. Sarony." A jury ,,-as waived, and the case was argued upon questions of law only, which appear in tLle opinion. Gllc1'Ilsey Sackett and A. T. Garlitz, for plaintiff. Stine d; Caiman and D. Cedman, for defendant. COSE, J. This is an action to recover-pursuant to section 4965 nf the Revised Statutes-fur the infringement of a copyrigllt of a pllOo
592
FEDERAL REPORTER.
tograph. Two defenses are interposed: First, that the act securing copyright protection to photographs is unconstitutional; second, that the plaintiff, in printing upon the photograph the initial letter of his Christian name, N., instead of the name itself-Napoleon-has not given the notice required by the statute. Article 1, § 8, of the constitution vests in congress the power to make laws "to promote the progress of science and useful arts by securing, for limited times, to authors and inventors, the exclusive right to their respective writings aud discoveries." Upon the authority of this constitutional grant congress extended, or assumed to extend, copyright protection to "any citizen * * * who shall be the author, inventor, designer, or proprietor of any * * * photograph or negative thereof." (Section 4952, Rev. St.) The contention of the defendant, briefly stated, is this: That there was no constitutional warrant for this act; that a photographer is not an author, and a photograph is not a writing. '1'he court should hesitate long and be convinced beyond a reasonable doubt before pronouncing the invalidity of an act of congress. The argument should amount almost to a demonstration. If donbt exists the act should be sustained. The presumption is in favor of its validity. This has long been the rule-a rule applicable to all tribunals, and particularly to courts sitting at nisi prius. Were it otherwise, endless complications wonld result, and a law which, in one circuit, was declared unconstitutional and void, might, in another, be enforced as valid. 'rhe result of a careful consideration of the learned and exhaustive briefs submitted, and of such further research and examination as time has permitted, is that I do not feel that clear and unhesitating conviction which should possess the mind of the court in such cases. Many cogent reasons can be and have been urged in favor of the validityof the statute. It is, however, sufficient for the purposes of this case to say that in the judgment of the court the question is involved ill doubt. This view is sustained by a recent decision of the judges of the eastern district of Pennsylvania, where the precise question was under consideration. The case (Schreiber v. Thornton) is not yet reported,! but the facts may be found in Schreiber v. 6 FED. REP. 175, where there was a controversy evidently growing out of the same transaction. Regarding the other defense, above stated, 1 ha"Ve little doubt. The object of the statute was to give notice of the copyright to the public; to prevent a person from being punished who ignorantly and innocently reproduces the photograpll without knowledge of the protecting copyright. It would be too narrow a construction to say that the plaintiff, ·when he placed "N. Sarony" upon the card, did not comply with the terms of the statute requiring "tl1e name of the party" to be placed there. If the letter of the law is not violated, 1 See
post, p. 603.
SARONY V. BURROW-GILEil LITHOGRAPHIC CO.
593
and its object accomplished, it is enough. The strict technical rules of pleading in the criminal courts furnish but slight analogy for the guidance of the court in determining what interpretation shall be given to the statute. The English courts, construing an act very similar in terms, have frequently upheld notices of copyright obnoxious to all of the defendant's criticisms. Although innumerable notices have in this country been worded in the precise form adopted by the plaintiff, and many of the3e copyrights and notices have been the subject of judicial investigation, the precise question here presented, though it might have been raised, has not apparently been decided. No American authority directly in point has been cited by counselor fonnd by the court. It follows that the plaintiff is entitled to judgment, pursuant to the terms of the stipulation. LITERARY PROPERTY AT CmmON LAW. At the common law an author had the sole right of tirst printing and publishing for sale his writings; 1 yet, after such publication made by him, it has been doubted whether he possessed any property rights in the production which could be infringed by republication by a stranger. Such, at any rate, seems to have been the opinion of the supreme court of the United States,2 although the house of lords, by a vote of seven to four, laid down the proposition that the author and his assigns had the sole right of printing and pUblishing in perpetuity by the common law. 3 But copyright protection was secured in England by 8 Anne, c. 19, and in this country in 1790, when congress passel.! the lirst of our copyright acts. And it is now agreed, both in Eugland and in this country, that copyright exists only by statute; 4 that an author has no exclusive property in his published works, except when he has secured and protected it by compliance with the copyright laws of the United States. 5 "When a person enters the field of authorship he can secure to himself the exclusive right to his writings by a copyright under the laws of the United States. If he publishes anytlling of which he is the author or compiler, either under his own proper name or an assumed name, without protecting it by copyright, it becomes public property, and any person who chooses to do so has the right to republiflh it, and to state the name of the author in such form in the book, either upon the title-page or otherwise, as to show who was the writer or author thereof." 6 ·WHO ARE PROTECTED BY COPYRIGHT. The proprietor or owner of a work has not, in that character alone, any right of copyright. It is only to authors and inventors, or to persons repreflPlltillg the author or inventor, that congress hafl any authority to grant a copyright. Ami when a person comes into court, asking for the protection of a copyright. it is necessary for him to s.holV .that he is the anthor or inventor of the work. or that he has an exclUSIve lawfully derived from the anthor or illventor. 7 To constitute oue an autllOr, 1 v. Taylor, 4 Rurr. 2303. (1761;) French
v.l\I:lguire, 53 How.Pr.471; Boucicault v.Fox,
5 BlatehL SS. 97. 2See v Peters, 8 Pet. S91, 657. S DU!lalllsQII V. Becket. 4 Burr. 2113. iJerl'reys v. Boosey. -l H. L. 83.:3; Re:l(le v. Con.. quest,9 C. B. (X. S.) 76:3; \Vhe,llon V. Pet!:!':;, 8
Pet. 591; Parton v. Pran;. 3 Cliff. 537; Rees v Pellzer. 75 Ill. 4i5, 418. 5CLlyton v. Stone, :2 Paine. 3g2; Bartlett v. Crittenden. 5 1\lcLean, 31; Pulte v. Derb,r, Id. 323; Stowe Y. \V:dl. Jr. 5i7. GClemens v. Belforil, 11 Fed Rep ;2S, 73'1. 7Gree:\e v. Bi·hop. 1 Cliff. 136, Eb; v. Gould, 2 Bbtchf. lSI.
v.17,no.7-3S
594:
he must, by his mvn intellectual labor applied to the materials of his compo ::lition, produce an arrangement or compilation new in itself.I DIFFEUENCE BETWEEN COPYltIGIIT AND LETTERS PATENT. In Baker v. Selden,2 decided in the United States supreme court in 1879, Mr. Justice BRADLEY stated and illustrated the difference between a copyright a11l1letters patent. The complainant had copyrighted a book explaining a particular system of book-keeping, to which book were annexed certain forms or lIlan.t,s, consisting of ruled lines and headings illustrating the system, allli shOWIng how it was to lie used and carried out in practice. It was claimed that the copyright protected the system, because no one could use the system withollt lIsing substantially the same ruled lines and headings which he had to his book in illustration of it. The court held otherwise, and that there was a clear distinction between the book as such and the art which it was intended to illustrate. The copyright protected the lJook, but the protection of the art was within the province of letters patent. "To give to the author of the book an exclusive property in the art described therein, when no examination of its novelty has ever lJeen otllcially made, would be a surprise and a fraud upon the public." NmI DE PLU)!E AS A TUADE-XA)!E au TRADE-:\IAUK. In Clemens v. Belford,3 better known, perhaps, as the" Mark Twain" case, the !lovel idea was advanced that an author who hall not copyrighted his work had an exclusive right to his literary property under the law applicalJle to tl'allemarks, upon the theory that the assumed name under which he had written Was a trade-name or trade-mark. This ingenious idea was very seriously urged upon the attention of the cOllrt, but all to no pnrpose; and it was laid down that the invention of a nom de plnllle gave a writer no increase of right over another who nsed his own name; that an author could not, by the adoption of a nom de plllme, be allowed to defeat the well-Reltled rules of the COlllmon law, that the pnLlication of a literary work, without copyright, was a dedication to the public, after which anyone might repulJlish it. .. X 0 pseudonym, however ingenions. novel, or quaint, can give an author any more rights than he would have under his own name." LECTURES. The deli very of a lecture is not such a publication of it as deprives the lecturer of his property rights therein. 4 And it seems there is no right to report phonographically or otherl\'ise a lecture which has been deli vered before a public audience, and which the lecturer desires to use again in like manner. In England it was provided by statute that no person, allowed for a certain fee to be present at any lecture delivered at any place, should be deel11e'1 to be licellsed to pulJlish such lecture on account of having been permitted to attend the lecture, etc. 5 Am:IDG3IExTS. Abridgments are considered to be in the nature of new amI meritorious works, and if done in good faith they constitute no violation of copyright. 6 Where books are only colorably shortened the rule would be flifferent.' For a long time consiLlerable doubt was entertained as to whether the mere act of givin"g to a literary composition the new dress of another language entitlell une to the protection of cOPJright. Dut it is now 1 -"will \". Ferrett, 2 Bbtcbf. 46; Groy \". Rn"..;eli.l Story, 11. 21'11 l·. S. 31-l Fell. Hep. 723. 4See Crowe Y. Aiken. :"2 2;)3; Keene v. hllni J all.16 Grar, 3-1.j, 5j1; Palmer v. De 4; S. Y. :d2. 55 & 6 Wm. IV. c. 65. See Ahernethy \". L. J. Ch. 20:l. 6 Gyles Y. \Vilcox. 2 Atk. IH; v. Ambler, .10:3; 'Yllitting1am v. \\'ooler, 2 Swanst. 423, 43\Jj TonsOll '\". \\Yalker, 3 S\\anst. 672. 'See Cop. Cop)"r. 37.
V. BURROW-GILES LITHOGRAPHIC CO.
well settled that a translator may copyright his translation. 1 It is no infringement of the copyright to translate a work which the author has had translated into the same language, although he may have secured a copyright for that translation. 2 In Lhe case first citell in the above note, .Mr. Justice GmElt said: "To make a gooJ translatIOn of a work ofteu requires more learning, taleut, and judgmeut than was required to write the original. Many can transfer from one language to another, but few can translate. To call the translations of an author's ideas and conceptions into another languaglJ a copy of his book, would be an abuse of terms, and arlJitrary judicial legislation." MUSICAL CO:\IPOSITIONS. In Thomas v. Lennon 3 the composer of an oratorio permitted the words and vocal parts of his oratorio, set to an accompaniment for the piano, to be published in a book. This publication contained all the melodies and harmonie:> of the original oratorio. It had in the margin references to the particnlar instruments which were to be employed in playing the different parts of the piece, or many of them. Two questions were involved in the case. The first was, whether the publication of the book, witil the score for the piano and the marginal notes, gave to everyone the right to reproduce or copy the orchestral score if he conld. And it was answered in the negative. And the second question was, whether a new orchestration, not copied from the original by memory, report, or otherwise, but made from the book, was an infringement of the plaintiff's rights. In answering this question the court said: "An opera is more like a patented invention than like a common book; he who shall obtain similar results, better ,worse, by similar means, thongh the opportunity is furnisheJ by an unproteclteLt Look, should be held to infringe the rights of the composer." 4 DRA:\L\.TIC CmIPosITIONS. The representation upon the stage of an unprinted work is not a pnblication which deprives tlJe author or his assignee of his property rights therein, and does not interfere with h:s claim to obtain a copyright therefor." As the mere representation of a play does not of itself dedicate it to the public, it has been held. where a copy of such a play has Leen unlawfully made by persons witnessi ng its performance, and who have reproduced it by phonographic report or notes, that its representation from such copy will Le restrained by injnnction." In 1/:;00 the supreme court of )Iassachusetts, in Keene v. Kim.ball,' decided" that the literary proprietor of an unprinted play cannot, after making or sanctioning its representation before an indiscriminate audience, maintain an objection to any such literary or dramatic republication by others, as they may be enabled, either directly or secondarily, to make from its being retained in the memory of any of the audience." In 1882 the same question again came up in this same court in Tompkins v. Halleck. 8 The whole qllestion was elaLorately argued, and very carefully considered, being rightly deemed one of great importance. An injunction was asked to restrain the representation of a drama called" Tile 'World," which had been reproduced by a person who had attended the representation of the play at 'Wallack's theatre in Xew York all se\'eral occasions, and on each occasion had committed as much of the playas he could to memv. Taylor. 4 Burr. 2J..lS; Bl'trnet v. ChetwQod.:2 )Ier. 4H; Prince Albert v. Strange, 2 De G. & S.693; Wyatt Yo Barnard, 3 Ye< . .Ie B. 77; Emerson v. Davies,3 StorYJ 763, 7St; Shook ,.. Rankin, 6 Bi:=:s. 480. . 2Stowe v. Thomas. 2 ""'all. Jr. 547. See )Iur. ray Y. Boque, 11 Jor. 219; 1 Drew, 3j3. 314 Fed. Rep. 849. {See, al.so, to same effect, Boo"ey"V. Fairlie, L. R.7 Ch. Diy, 301; affirmed,4 App. Cas. 711.
5Roberts '\". ::Uyers,
e. S. C. c.
Dist.
Law Rep.396; Keene v. Kimball, 16 Gray, 54:3. 6 Eoucicault v. Fox, 5 Blatchf. C. C. 8i; Shook v. Da1r,49 Bow. Pro Palmer v. De V.... itt, 2 Sweeney, 53:\; 7 Rob · .'j:JO; 3G How. Pr.2"22; and 47 S. Y. 5.3'2; Y. :\hguil'e, 55 How. Pro -171; Shook Y. Rankin, 6 ",;;7; Boncicault V. 'Vood.
2 Bis'!=. 34; Crowe v..\lken, Id. 20S. 716 Gray. 545. 813:3 32.
