PROGRESS OF COPYRIGHT LAW. 343 



long ago as 1801, a novel written by still another author had been 

 published under the same title "Splendid Misery." Partly on the 

 ground that this publication had rendered the title common property, 

 so that now any one may use it, the Court of Appeal decided in favor 

 of Miss Braddon's publisher. Apparently, however, the judges con- 

 sider the general English law to be : 1. A title has no special protec- 

 tion by the copyright law ; that protects it only as any other part 

 of the book ; 2. Another person who uses the same title only, with- 

 out either imitating the book or deceiving the public, can not be 

 stopped by a copyright suit ; 3. Appropriating a title under circum- 

 stances which show an intention to attract people to buy the book 

 under the supposition that they are getting another well-known one 

 as, if one should publish an anonymous, inferior story under the title 

 " Vanity Fair," for the purpose of leading buyers to think it was the 

 celebrated story by Thackeray is a fraud on the public, which may 

 be published or stopped, independent of copyright law. But the 

 question of holding a title by force of the copyright law should, 

 perhaps, be deemed an open one in England ; two vice-chancellors 

 have decided that it may be ; but the judges of the Court of Appeal 

 have said that they do not think so ; this was said, however, in a 

 case in which the facts did not enable them to make an authoritative 

 decision. 



In America, when the copyright of " Irving's Works " expired, 

 recently, a rival publisher issued a volume of selections, using, the 

 same title " Irving's Works." The former publisher, though he could 

 not complain of the publication of the substance of the volume, did 

 bring his suit to forbid using the title ; it was, as he claimed, his trade- 

 mark. But the judge said that the public were not misled ; the selec- 

 tions comprised in the book were genuine writings of Washington 

 Irving ; and, now that any one may publish Irving's writings, he has 

 the right to style them " Irving's Works." 



There has been a decision on a matter very germane to copyright, 

 the affixing of an author's name to a book. The story of the plain- 

 tiff, who was an American publisher, was, that he devised a new plan 

 for compiling illustrated guide-books to towns, according to which a 

 Mr. Kenny prepared several such books relating to towns in America. 

 They were known as " Kenny's Guide-Books." Subsequently the pub- 

 lisher agreed with Kenny for the use of the latter's name upon a guide- 

 book for London ; and he employed Mr. Marsh (against whom the 

 suit was brought) to write the London book. The engagement was on 

 the distinct understanding, so the publisher said, that Marsh's name 

 would not appear as author. The publisher, however, announced the 

 book as being " by D. J. Kenny (assisted by John B. Marsh) " ; but 

 Marsh, then, although he had drawn his pay for preparing the work, 

 withheld the manuscript. The publisher asked the court to compel 

 him to deliver it. The author, Marsh, denied positively that he ever 



