States; and upon the filing of a bill in equity by any party aggrieved, the court has power to grant injunction, according to the usual principles, to prevent the violation of a patent-right. The terms in such a case are such as the court may deem reasonable; and the complaining party, if successful, is entitled to recover not only the defendant's profits to be accounted for, but also the damages he may have sustained, which are to be assessed under the direction of the court.1

§ 534. Miscellaneous Points as to Patent Suits. —As a general rule, patents are liberally construed in our courts, and with a disposition to protect the patentee against every substantial violation of his rights. There is some uncertainty as to the province of court and jury respectively, in determining upon the validity and effect of an invention; but a fair distinction is to be taken between the construction of written instruments (which is a judicial duty) and discrimination as to the character of the thing invented in questions of unity and diversity of invention; and the court need not compare two specifications, and instruct a jury, as matter of law, whether the inventions are or are not identical.2 The rule of estimating damages in patent suits is now pretty well established. And, as to evidence, rules have been set forth in considerable detail by the Supreme Court.3 Our patent statutes, in this latter particular, require a defendant who relies upon special matter, such as the previous invention, knowledge, or use of the thing patented, to give thirty days' notice of the names and places of residence of his witnesses; and this requirement is strictly construed.*

1 Act July 8, 1870, § 56; U. S. Rev. Stats. § 4921. For practice in matters in equity, see Curt. Pat. c. 10. And see Moore v. Marsh, 7 Wall. 515; and Digests of Bright. and Abb. supra. Appeal or error lies in all patent controversies, whether at law or in equity, to the Supreme Court of the United States. Act July 8, 1870, § 56. See Philip v. Nock, 13 Wall. 185; § 357.

2 Bischoff v. Wethered, 9 Wall. 812; Curt. Pat. §§ 222-225. The court defines the invention to the jury. 155 U. S. 565.

3 Seymour v. Osborne, 11 Wall. 516; Rubber Co. v. Goodyear, 9 Wall. 788; Railroad Co. v. Dubois, 12 Wall. 47. See Tucker v. Spalding, 13 Wall. 453; Bates v. Coe, 98 U. S. 31.

4 Blanchard v. Putnam, 8 Wall.

And that there may be an end of patent controversies, our courts incline strongly to uphold all agreements made between rival patentees upon consideration and for the sake of peace.1

§ 535. Copyright; Statute Protection, etc. —II. Next, as to that sort of literary property which is known as "copyright," or the "right of copy," by which we mean the sole right of printing, publishing, and selling one's literary composition. Copyright is the creature of statute; and no common-law protection is given to a work of literature or art after it is once published. An author in this country has no exclusive property in his published work except as granted by the Constitution of the United States and the laws of Congress made in pursuance thereof; although he has at common law an absolute property in his work before its publication.3 And the act of July 8, 1870, as embodied in the Revised Statutes, defines the extent to which copyright is to be recognized and protected in this country. Not only bookwriters, but artists, are entitled to the benefits of a literary property; for it is expressly provided that "any citizen of the United States, or resident therein, who shall be the author, inventor, designer, or proprietor of any book, map, chart, dramatic or musical composition, engraving, cut, print, photograph or negative thereof, or of a painting, drawing, chromo, statue, statuary, and of models or designs intended to be perfected as works of the fine arts, and his executors, administrators, or assigns, shall, upon complying with the provisions of this chapter, have the sole liberty of printing, reprinting, publishing, completing, copying, executing, finishing, and vending the same; and in the case of a dramatic

420; Wise v. Allis, 9 Wall. 737; Agawam Co. v. Jordan, 7 Wall. 583.

1 Eureka Company v. Bailey Company, 11 Wall. 488. As between Federal and State jurisdiction all suits directly touching the validity of a patent, or raising a Federal question, should be brought in the United States courts; but a mere contract relating to a patent is not necessarily

of this character. Marsh v. Nichols, 140 U. S. 344; 125 U. S. 46, 54.

2 Jefferys v. Boosey, 4 H. L. Cas. 815; Reade v. Conquest, 9 C. B. N. s. 755.

3 Wheaton v. Peters, 8 Pet. 591. See Kerr Injunctions, cs. 13, 20; Jefferys v. Boosey, 4 H. L. Cas. 815; Prince Albert v. Strange, 1 Mac. & G. 25; 3 Cliff. 537.

composition, of publicly performing or representing it, or causing it to be performed or represented by others; and authors may reserve the right to dramatize or to translate their own works." 1

§ 536. The Same Subject; Legal Principles. The law of copyright has received, as yet, no great attention from the Supreme Court of the United States; but many interesting questions are discussed in the lower federal tribunals; the decision turning considerably upon the construction of statutes, which of course are liable to amendment. Some doctrines appear to be well established; and among them that neither the official report of a government officer is a subject of copyright, nor a newspaper, nor the republished work of any foreign author. Nor can judges themselves have any pecuniary interest in the fruits of their judicial labors as against the public. But by the common law a person had property in his own manuscripts; and a court of equity would enjoin the improper use of them by a third party; and hence, too, the author of letters is allowed to have a property—or, it may be, a copyright-in his own letters, and no person has a right to publish them without his consent, unless the publication be requisite to establish a personal right or claim or for self-vindication. The reporter of a court has no copyright in the written opinions delivered by the judges, although he may as author (unless restrained by statute) obtain a copyright for a volume of reports so as to cover such parts of the book as he prepares. Copyrights, then, are not permitted in the case of certain persons and certain subjects.

5

But again, there is no copyright where the element of

originality is wanting in the production. Thus, to constitute one an author, he must by his own intellectual labor applied to the materials of his composition have produced an arrangement or compilation new in itself; and as to any inventor or designer, a similar observation applies; something new must have been brought forth. But exactly where the line should be drawn between a compilation which may be copyrighted and an appropriation of materials which may not, it is difficult to say; except that the plan, arrangement, and combination of materials should be new, or at least that there should be that substantial condensation of original materials which constitutes a bona fide abridgment; in short, that a fair degree of intellectual labor and judgment should have been expended by the person on whose behalf a copyright is claimed; and this, we may add, to some new and useful result.1 The "proprietor" of a work is allowed by our present statute to take out a copyright as well as the author, inventor, or designer; yet the courts have always discouraged such an interpretation of the law as would entitle mere employers to exclusive privileges of this sort.2

And again, the author, inventor, or designer of a work for which he might have obtained a copyright, may, under some circumstances, similar to other inventors, be considered to have dedicated his work to the public; though no such dedication is to be readily presumed.3 The further proposition is well established, that the literary composition intended to be protected is not to be chiefly determined by the

1 See Bright. and Abb. supra; Atwill v. Ferrett, 2 Bl. C. C. 40; Gray v. Russell, 1 Story, 11; Folsom v. Marsh, 2 Story, 100. See Callaghan v. Myers, 128 U. S. 617, where infringement by copying was shown. Copyright is infringed only when the persons produce a substantial copy of the whole, or of a material part of the book or other thing for which copyright was secured. Hence, maps of New York City having been copyrighted upon a certain plan, the publication of maps of Philadelphia upon

a similar plan constitutes no infringement. Perris v. Hexamer, 99 U. S. 674. Nor can the author of a peculiar system of book-keeping claim, under his copyright for a treatise on that subject, an exclusive property in the system itself. Baker v. Selden, 101 U. S. 99. See, as to the difference between a patent and a copyright, opinion of Mr. Justice Bradley, ib.

2 Act July 8, 1870, § 86. 3 Ib. And see U. S. Rev. Stats. (1878) § 4952.

title of the work, nor by the size, form, or shape in which it makes its appearance, but rather by the subject-matter which it contains.

The executive super

§ 537. Length of Copyright Term. The length of time for which copyrights are to be granted has long been twentyeight years; with the further right of an extension for fourteen years, which may always be secured by the author, inventor or designer, or his widow or children.1 And as no copyright existed at common law there is no authority for obtaining copyright beyond the extent to which Congress may have authorized it, generally or specially.2 § 538. How Copyright is procured. vision of our copyright system belongs now to the Librarian of Congress, at Washington; though until recently it was vested in the clerks of the various District Courts of the United States. And, in order that a copyright may be perfected, three things are essential on the part of the copyright claimant: first, a deposit in the mail, before publication, of the printed title, addressed to the Librarian of Congress (the legal fees being likewise payable); second, a deposit, within ten days after publication, of two complete copies of the work (or, in case of a work of art, a photograph of the same); and third, by way of public caution against infringement, the insertion or inscription upon each copy of the work of the words, "Entered according to Act of Congress, in the year by A. B., in the office of the Librarian of Congress, at Washington." 3

1 Act July 8, 1870, §§ 87, 88; U. S. Rev. Stats. §§ 4953, 4954. See Paige v. Banks, 13 Wall. 608. Amended by Act March 3, 1891, as to formalities of extension, by publication.

2 Banks v. Manchester, 128 U. S. 244.

3 Act July 8, 1870, §§ 90-97; U.S. Rev. Stats. §§ 4956-4959, 4962. See amendments, Act March 3, 1891. Government fees are to be paid in such cases. Cf. statute for full details. And see Wheaton v. Peters, 8 Pet. 591. Act June 18, 1874, per

mits the author to insert or inscribe, at his option, instead of the above notice, the following: "Copyright, 18- by A. B." See further, as to the place of copyright mark on certain works of art, Act Aug. 1, 1882.

The delivery or deposit of two copies of the copyrighted book within ten days after publication is an essential condition to the statute protection. As to the proof of such deposit, by certificate or otherwise, in a suit for infringement, see Merrell v. Tice, 104 U. S. 557. Deposit just