he may use the copy, such as assisting him in work for which a course of instruction prepares him, the full right to copy does not pass nor does the exclusive right.24 This proprietorship may be lost by publication, in the manner shown in the previous section, before application is made for copyright under the stat ute. The statutes provide that the formalities requisite to obtain a copyright shall be performed “before the day of publication," and that if they are not complied with "on or before" or "not later than the day of publication thereof," no copyright shall be granted.2

25

A proprietor must trace his rights and title to the author or designer, and hence it is well to consider who is an author or designer. These terms, of course, include all those whose matter presented for copyright is purely the product of their own mental efforts. But it is not necessary that literary or artistic skill should be evinced. Nor is it essential that the work be entirely the product of the intellectual labor of the author alone. He may take old materials, and if he rearrange or combine them in a new form or apply them in a new manner, he is the author or designer of the new arrangement, combination or application.26

When one employs material from other sources, he cannot obtain a copyright which will give him the exclusive right as an author to the reproduction of these materials. That remains the property of the public or of the persons who permit him to use them. Thus,

24 Bartlett v. Crittenden, 5 McLean, 32, Fed. Cas. No. 1076. 25 Rev. Stats., sec. 4957; 26 Stats. at Large, 1107.

26 Greene v. Bishop, 1 Cliff. 186, Fed. Cas. No. 5763; Bullinger v. Mackey, 15 Blatchf. 550, Fed. Cas. No. 2127; Schuberth v. Shaw, 19 Am. Law Reg., N. S., 248, Fed. Cas. No. 12,482; Gray v. Russell, 1 Story, 11, Fed. Cas. No. 5728; Emerson v. Davies, 3 Story, 768, Fed. Cas. No. 4436; Atwill v. Ferrett, 2 Blatchf. 39, Fed. Cas. No. 640; Boucicault v. Fox, 5 Blatchf. 87, Fed. Cas. No. 1691; Brightley v. Littleton, 37 Fed. 103; Hanson v. Jaccard Jewelry Co., 32 Fed.

a court reporter cannot obtain a copyright over the opinions of the judges and other matter prepared by them, and embodied in the report,27 although they may over their own work included in such reports, such as headnotes prepared by the reporter and his annotations.28 Further than this the judges of the court cannot confer upon the reporter the rights of a proprietor, as the "judges can themselves have no pecuniary interest or proprietorship, as against the public at large, in their labors; and no copyright can, under the statutes passed by Congress, be secured in the products of the labor done by judicial officers in the discharge of their judicial duties."

29

§ 627. What may be the Subject of Copyright.--Although formerly only books, maps and charts could be copyrighted, the list has been extended from time to time and at present "any book, map, chart, dramatic or musical composition, engraving, cut, print, photograph or negative thereof, painting, drawing, chromo, statue, statuary and . . . . models or designs intended to be perfected as works of the fine arts" 30 may be copyrighted by one who satisfies the conditions of the statutes as to his rights over such matters and conforms to the formalities required. Although these terms seem plain, the courts have frequently been called upon to decide whether certain matters are included by the list, especially when the list was not so comprehensive as it now is. Thus it

27 Gould v. Hastings, Fed. Cas. No. 5639; Little v. Gould, 2 Blatchf. 165, Fed. Cas. No. 8394; Banks v. Manchester, 128 U. S. 244, 9 Sup. Ct. Rep. 36; Chase v. Sanborn, 4 Cliff. 306, Fed. Cas. No. 2628; Wheaton v. Peters, 8 Pet. 593.

28 Same cases.

29 Banks v. Manchester, 128 U. S. 244, 9 Sup. Ct. Rep. 36; Wheaton v. Peters, 9 Pet. 591.

30 Rev. Stats., sec. 4952.

Torts, Vol. II-77

has been held that a painting is not a manuscript,31 that a photograph is not a "print,"32 that a label for marking bottles or vials is not a "book,"33 and that a system of outlines for cutting out dresses is a "book."34 Again, it has been held that a combination of dramatic events is a dramatic composition,35 and so, also, is a written play consisting of directions for its representation by action without speech by the actors,36 but it has been held that a mere exhibition or spectacle is not a dramatic composition within the statute,37 nor is a mechanical contrivance entitled to a copyright under this description.

38

There are a few limitations placed upon the right to copyright under the statute which are not contained therein. Thus, by a well-recognized principle the law is held not to apply to matters of an immoral nature.39 It is also an obvious limitation that the matter for which a copyright is sought must be in existence. "There can be no copyright in an inchoate intended publication. The book is the subject of copyright, not the subject."40 "40 Again, it has been said that the provision of the constitution limits the purpose of these statutes to the promotion of science and art, and en

31 Parton v. Prang, 3 Cliff. 537, Fed. Cas. No. 10,784. 32 Wood v. Abbott, 5 Blatchf. 325, Fed. Cas. No. 17.938.

33 Scoville v. Toland, 6 West. L. J. 84, Fed. Cas. No. 12,553; Higgins v. Keuffel, 140 U. S. 428, 11 Sup. Ct. Rep. 731.

34 Drury v. Ewing, 1 Bond, 540, Fed. Cas. No. 4095.

35 Daly v. Webster, 56 Fed. 483.

36 Daly v. Palmer, 6 Blatchf. 256, Fed. Cas. No. 3552. The "composition" in dispute was a scene commonly known as the "Railway Scene."

37 Maguire v. Martinetti, 1 Abb. U. S. 356, Fed. Cas. No. 9173; Fuller v. Bemis, 50 Fed. 926. See Serrana v. Jefferson, 33 Fed. 347. 38 Freligh v. Carrall, Fed. Cas. No. 5092; Serrana v. Jefferson,

33 Fed. 347.

39 Maguire v. Martinetti, 1 Abb. U. S. 356, Fed. Cas. No. 9173.

40 Centennial Catalogue Co. v. Porter, 3 Cent. L. J. 460, Fed. Cas. No. 2546.

couragement of learning, not mere industry,11 and yet it can hardly be said that any literary, artistic or scientific merit is the standard. A digest is as much entitled to copyright as the most exquisite poem. Probably the most that could be said is that copyright cannot be obtained unless some effort intellectually has been expended to prepare the matter sought to be protected.

§ 628. Infringement-What Constitutes.-From the term "copyright" it is evident that the right which is protected by statute and the common law in regard to mental labor is the right to copy that which embodies the result of such labor. It follows then, that whoever else produces a copy thereof wrongs the one to whom the common law or statutes have given a copyright. Such a wrong is termed an infringement. It is not necessary that a copy of an entire work or of any very large part of a production be made to constitute an infringement.42 Nor, on the other hand, will every act of copying a portion of a work protected by copyright constitute an infringement thereof. Reviewers are allowed considerable latitude in quoting from books reviewed.43 But any subsequent work containing copious extracts from a copyrighted work, and which on that account might serve as a substitute for the previous work, is an infringement. "If so much is taken that the value of the original is sensibly diminished, or the labors of the original author are substantially to an injurious extent appropriated by

41 Clayton v. Stone, 2 Paine, 382, Fed. Cas. No. 2872.

42 Folsom v. Marsh, 2 Story, 100, Fed. Cas. No. 4901; Drury v. Ewing, 1 Bond, 540, Fed. Cas. No. 4095; Gilmore v. Anderson, 38 Fed. 846; Lawrence v. Dana, 4 Cliff. 1, Fed. Cas. No. 8136; Harper v. Shoppell, 26 Fed. 519; Reed v. Holliday, 19 Fed. 325; Greene v. Bishop, 1 Cliff. 186, Fed. Cas. No. 5763.

43 Roworth v. Wilkes, 1 Camp. 94.

another, that is sufficient, in point of law, to constitute a piracy pro tanto." 44

But the originality and quality which is copyrighted in the matter claimed to be pirated may consist in the arrangement of the parts or subjects as well as in the words. The ideas, as we have seen, may not be copyrighted, but the arrangement or combination of the ideas may be protected as well as the arrangement of the words. When such is the case, there does not have to be a verbatim reproduction of any part of the work. It is an infringement to follow the arrangement or combination of ideas of a copyrighted work.45 This sort of piracy is probably the most frequent and the most difficult of detection. In many cases it is dangerously close to permissible abridgment, and the border line is often hard to see. Ideas may be clothed in different language, colorable alterations may be made in unimportant places, and new ideas inserted without destroying the identity of the pirated plan or arrangement, and so long as this is retained it constitutes an infringement. A number of decisions may be found which hold that an abridgment of a literary work is not a piracy, nor an infringement. A distinction is drawn between a compilation and an abridgment, the former consisting of selected extracts from one or more authors and the latter being a condensation of one work and containing an epit

44 Folsom v. Marsh, 2 Story, 100, Fed. Cas. No. 4901. See Gilmore v. Anderson, 38 Fed. 846; Drury v. Ewing, 1 Bond, 540, Fed. Cas. No. 4095, and also cases cited in the preceding notes.

45 Greene v. Bishop, 1 Cliff. 186, Fed. Cas. No. 5763: Lawrence r. Cupples, Fed. Cas. No. 8135; Bartlett v. Crittenden, 5 McLean, 32, Fed. Cas. No. 1076; Drury v. Ewing, 1 Bond, 540, Fed. Cas. No. 4095; Emerson v. Davies, 3 Story, 768, Fed. Cas. No. 4436; Lawrence v. Dana, 4 Cliff. 1, Fed. Cas. No. 8136. But compare Stowe v. Thomas, 2 Am. Law Reg. 210, Fed. Cas. No. 13,514.