264 



PROPERTY. 



manuscript play by its author or owner is a dedication 

 of it to the public, so that thereafter any one could law- 

 fully reproduce it. has not been squarely decided, but 

 the tendency of the decisions seems to be in the direc- 

 tion of holding that sn.-li JH-I lormance is not a dedica- 

 tion and the unauthorized reproduction of the play is 

 piracy. It has been decided that the performance 

 of a play by its owner does not prevent him from after- 

 ward having it copyrighted ; and that die performance 

 of a drama which has been obtained from its owner by 

 fraud, breach of trust, or unfair means, will be pre- 

 vented. (K"-.if vs. \Vhfntlfy. y Am. Liw Keir. :\'.\; 

 Ji'inciciitilt vs. Hon./. ~2 Hiss. 34.) Some courts have 



decided, and others have to some extent approved this j term of years, or within a certain territory. The 1 



view, that reproducing a play from memory by one who [ to publish fora certain time would probably carry with 

 has seen its performance is not obtaining the play by it the right to sell copies of the work unsold at the ter- 

 mination of the jwriod. The only satisfaction the law 

 affords for the breach of a contract to write a work is 



composition. Every word of a work may lx> found in 

 a subsequent one and yet the last production be en- 

 tirely original ; as a Concordance of Shakespeare. An 

 abridgment, compilation, tnin.-lation. etc.. if the results 

 of original labor, fulfil the requirement* of the law. An 

 author docs not forfeit his claim to an original produc- 

 tion by employing some one to assist or prepare certain 

 portions of his work. 



Literary property is as much the suljjcct of contract, 

 under the statutory requirement* and limitations, as 

 any other sjiecies. The owner of a manuscript may 

 sell it outright, or part with an interest in it He may 

 retain the property and license its publication fora 



unfair means. This view has, however, been re|>u 

 dialed by courts of equal authority, and certainly 

 seems to be entirely inconsistent with common senx>. 



Literary property must possess the qualities of inno- 

 and originality in order that its possessor may 

 demand the protection of the law. The law does not 

 generally prohibit the publication of works which are 

 not innocent, but it refuses protection to the owner of 

 such works when others have infringed his rights. It 

 is impossible, perhaps, to give an accurate definition of 

 " innocence" within the meaning of the law. The ju- 

 dicial conception of this quality has varied consider- 



an action for damages. It would be impossible for a 

 court of equity to order a specific performance of such 

 a contract, as a court could not determine, aficr per- 

 formance in obedience to its order, whether the original 

 contract had been actually carried out Where the 

 breach consists not only in a refusal to carry out the 

 contract but in an attempt to perform the same work 

 fur some one else than the person with whom the 

 original contract was made, a court of equity can re- 

 strain such attempt. No contract to write a work 



ably. and protection was formerly denied in many cases j which the law regards as not innocent, as to violate the 

 here now it would be granted without question. In copyright of another, can be enforced. 



When an author who is producing a literary work 

 under contract with a publisher dies during the prog- 

 ress of the work, as his contract is one of personal skill 

 it dies with him, and his executors cannot be compelled 

 to finish the work or pay damages for its non-com- 

 pletion. The general rule of law is that all one's prop- 



England, some years ago, an injunction to restrain the 

 pirating of certain lectures on the " Physiology, Zobl- 



ogy, and Natural History of Man," was refused upon 

 the ground that they contained passages hostile to 

 natural and revealed religion and the doctrine of the 

 immortality of the soul. (Latcrcnce vs. Smith, 7 

 Jacob, 471.) And the owner of an edition of Byron's 

 Coin was refused protection, as, in the opinion of the 

 court, that production was intended to bring into dis- 

 credit portions of the Scriptures. (Murray \s. lirnlnw, 

 Shortl. L. Lit. 8.) In this day, however, of free dis- 

 cussion and expression of sentiment it may be safely 

 said that no work which discusses, criticises, or teaches 

 any branch of knowledge, faith, or practice, or which 

 expresses sentiments at variance with those generally 

 held on any subject, would be condemned as not inno- 

 cent But- works which arc openly blasphemous, in- 

 decent, immoral, or libellous, or put forth false pre- 

 tences to authorship which are calculated to deceive 

 the public, still fall under the ban. The certificate of 

 copyright has no effect upon the question of the inno- 

 cence of the work. 



Originality is, perhaps, as incapable of exact defini- 

 tion as ''innocence," but there is a legal conception of 

 originality, and this is what the law requires a literary 

 work to possess. The law does not merely refuser pro- 

 tection to a work which does not possess its own origin- 

 ality, but it may restrain the reproduction of the iden- 

 tity of a former work. Kvery original work possesses 

 an identity ; this consists, says Ulackstone, " in the 

 sentiments and the language. The same conceptions 

 clothed in the same words must necessarily be the same 

 composition ; and whatever method may be taken of 



i prop- 

 erty is liable to seizure to pay its owner's debts. This, 

 however, is true to a limited extent only in the case of 

 literary property. The products of literary property, 

 the books published, may be taken in execution. And 

 while a manuscript, or the stereotype plates of a book, 

 as a piece of property, may be seized under a levy, 

 such seizure confers upon the officer, or upon one who 

 purchases at his sale, no right to publish for the bene- 

 fit of the authors creditors or of any one else, because 

 all that is sold is the manuscript or the metal of the 

 plates, and the literary property the intangible thing 

 of which the manuscript is the form is not taken. It 

 might be possible, however, under some circumstances, 

 for equity to come to the assistance of creditors, by com- 

 pelling the taking out of a copyright and the publica- 

 tion of copies. 



The injury to literary property which the law is most 

 frequently called upon to redress is piracy which is 

 the illegal use of another's literary property. As prop- 

 erty of this kind is generally protected by copyright, 

 piracy is sometimes defined as the infringement of an- 

 other's copyright The literary property must be ap- 

 propriatea or used to render one guilty of piracy ; 

 merely stealing a manuscript is not this offence. Where, 

 for any reason, the law does not recognize the right of 

 property, the appropriation of it is not piracy. 



1 he mere taking of another's literary property con- 



exhibiting that composition, to the ear or the eye of istitutes this offence, without regard to the intention 



another, by reciting, by writing, or printing, in any 

 number of copies, or at any period of time, it is always 

 the identical work of the author which is so exhibited." 

 Any work which appropriates this identity of a former 

 work, in whole or in part, is not an original composition. 

 This originality, however, dues not mean absolute new 

 new, for there is no such thing ; nor docs it exclude all 

 imitation. It does not mean tin- addition of something 

 new, as a part, to something old, as a part No num- 

 ber of chapters added to one or more chapters of a 



with which the act was done, ana, therefore, ignorance 

 that the property belonged to another, or the absence 

 of any intention to injure, is no defence. Of course. :i 

 flagrant intention to injure might be ground for giving 

 greater damages. There mav be no pecuniary damage 

 done and the offence would be complete as in the. 

 case of the publication of a work which had been 

 printed for private circulation only and not for profit. 

 Nor is it necessary that t lie piracy be committed tor 

 profit ; it may In; done for convenience merely. As 



work formerly published would make the second publi- some one's property must be injured to constitute pi 

 saiion an entirely new work. The newness must con- j racy, the offence is not committed by resorting to the 

 list in some essential feature of the work. There uiut same sources of information, provided such sources aie 

 be original labor in the plan, selection, arrangement, or common and open to all alike. There is a fair use of 



