Copyright: Its History and Its Law Part 8

In respect to translations, the new American law is specific, not only in its mention of "translations" (sec. 6), but in giving (sec. 1, b) the exclusive right "to translate the copyrighted work into other languages or dialects, or make any other version thereof, if it be a literary work." The early American precedent was the case of "Uncle Tom's cabin,"

in 1853, in which Mrs. Stowe had copyrighted not only the original work, but a German translation which she had provided; Justice Grier in the U.

S. Circuit Court held that she could not recover against one Thomas who was issuing another German translation, since it was not "_copies_ of her _book_." This case was previous to the statute permitting authors to reserve the right of translation, and the new code as above cited fully protects translations. The author of a copyrighted work thus has the exclusive right to translate his work, or license its translation, into any other language, and under such a license the translator with the consent of the author would have the right to copyright his translation.

Where the author employs a translator for hire, the copyright in the translation may be secured by the author of the original work, but under ordinary circ.u.mstances the copyright in the translation would be secured by or on behalf of the translator. In case of contest on this point, the issue would be a question of contract, and in the absence of contract or specific a.s.sent the courts would doubtless base their decisions on the circ.u.mstances of the case so far as they could be held to imply contract. The inclusion of the notice of copyright of the original work on a translation, without specific copyright of the translation itself, would be held, it seems probable, to protect the translation under the author's original copyright; but this would limit the copyright term on the translation to the copyright term of the original work, and for this and other reasons a specific copyright on each translation is desirable, in which case the notice of copyright of the original work need not be given on the translation.

{Sidenote: Translator's rights}

In the case of the translation of a copyright work, the author of the original work has the right to prevent other translations, but the translator has no such right to prevent translation by another translator except as exclusive right to translate is conveyed or implied to him by the author of the original work. A work in the public domain, as a non-copyright work or a work on which copyright has expired, may be translated by any one and the translation copyrighted, but such translator would not have the right to prevent translation by another translator.

{Sidenote: English practice}

In England, while the right of translation may be reserved under the international copyright act by notice on the t.i.tle-page, an English author could reserve his right of translation only by providing such translation, but the new code gives the full right.

{Sidenote: Translations in international relations}

The American provisions as to translations apply with especial importance to international relations. "The original text of a book of foreign origin in a language or languages other than English" is copyrightable in America without manufacture here; and such a work, duly copyrighted, can only be translated into English or any other language by authority of the foreign author or his a.s.signs, and such translation in English or any other language can be copyrighted only when manufactured in this country as provided in the act. If the original text of a foreign work is not duly copyrighted under the American law, then translation is open to any one and copyright can be secured only for the particular translation copyrighted, as above stated, and this cannot prevent independent translation into the same or any other language. Thus, a German original duly copyrighted may not be translated into English, French, or any other language without authority of the copyright proprietor, nor can an English translation be made, for instance, from a French translation of the copyrighted work; but any number of translations of the copyrighted German work into English or any other language may be separately copyrighted under the American law, subject to the manufacturing clause, if duly authorized by the copyright proprietor, and each translator could only prevent the copying of his particular translation or the translation of his own version into another language.

{Sidenote: Foreign translators}

A translation can be copyrighted by a translator only in case he is a citizen of a country with which the United States has copyright relations or is a resident of this country; thus a Swedish translation by a citizen of Sweden not resident in the United States could not be copyrighted unless the translator had been "employed for hire" by the author or proprietor of the original copyrighted work. If the entire copyright of the original work had been sold by the author to a citizen of Sweden, not a resident in the United States, it would seem to follow that the latter could not copyright a translation though he might retain the right to prevent unauthorized translation under the general copyright which he had purchased. In the case of an authorized independent translation made by a Swedish citizen not resident here, the general notice of copyright of the original work might be utilized to protect the translation, but in such case copies not manufactured in the United States could not be imported into this country; while if such authorized translation bore no copyright notice and were imported into the United States by the author or with his consent, it is probable that this translation, but not the original work or another translation from either, would be freed from copyright protection.

{Sidenote: Abridgments}

In respect to abridgments, these are specifically mentioned (sec. 6) as copyrightable works, and by inference from this clause and the provision (sec. 1) giving an author the exclusive right to "make any other version," the author or proprietor of a literary work may prevent abridgment of his work. The courts had held to precedents which the best writers, such as Curtis, Drone and Copinger, declare to be contradictory to the true principles of copyright law. In 1740 Lord Hardwicke, deciding against a mere reprint, "colorably shortened only," of Sir Matthew Hale's "Pleas of the Crown," declared that he would not restrain "a real and fair abridgment," and in 1774 Lord Chancellor Apsley, after consultation with Blackstone, held that an abridgment of Hawkesworth's "Voyages," involving understanding and skill, was not plagiarism or a copyright wrong, but "an allowable and meritorious work." In the leading American case of Story's "Commentaries," Story v. Holcombe, in 1847, in the U. S. Supreme Court, Justice McLean, while expressing his own opinion that "an abridgment, if fairly made, contains the principle of the original work, and this const.i.tutes its value," added, "but a contrary doctrine has long been established in England ... and in this country the same doctrine has prevailed. I am, therefore, bound by precedent, and I yield to it in this instance, more as a principle of law than a rule of reason or justice." Similarly, in Lawrence v. Dana, in 1869, Judge Clifford, in the U. S. Circuit Court, declared that "an abridgment ought to be regarded as an infringement ... but the opposite doctrine has been too long established to be considered open to controversy." The language of the new code frees the courts from these precedents and settles the American law.

{Sidenote: Compilations}

In respect to compilations, these are protected by specific mention (sec. 6) in the new law, and also by the cla.s.sification as books (sec.

5, a) of "composite and cyclopaedic works, directories, gazetteers, and other compilations." Compilations can be protected even if consisting solely of non-copyright material, "because of the originality, arrangement, selection, abridgment, or amplification of such simple material," as stated in the Scotch Court of Session, in the case of Lennie v. Pillans in 1843, with which later English and American decisions are in accord.

{Sidenote: Collections}

Collections are copyrightable as compilations or otherwise, and where the use of copyrighted poems or other copyright material is permitted, these are protected by general copyright notice on the collection.

Permission to use a copyrighted poem, for instance, in a specified collection does not grant a license to use it in other form, though it could be used in a combination of such collections. In 1896, in Gabriel _v._ McCabe, Judge Grosscup in the U. S. Circuit Court in Illinois held that the licensor could not prevent the use of a song licensed for a particular collection in a combination of this collection in another collection or in an abridged edition of the collection, though an "abridgment" involving a reprint of the song by itself would have been an unfair use of the license.

{Sidenote: t.i.tles}

As to t.i.tles, which are not mentioned in the new code, both English and American court decisions are broadly and generally, though with some exceptions, to the effect that there is no copyright protection for the t.i.tle of a book _per se_, but it may be considered an essential part of the book. Judge Shepley held, in 1872, in his elaborate discussion of the question of t.i.tles in Osgood _v._ Allen as to the periodical _Our Young Folks_, that "the right secured is the property in the literary composition--the product of the mind and genius of the author--and not in the name or t.i.tle given to it. The t.i.tle does not necessarily involve any literary composition; it may not be, and certainly the statute does not require that it should be, the product of the author's mind.... It is a mere appendage, which only identifies, and frequently does not in any way describe, the literary composition itself.... If there were no piracy of the copyrighted book there would be no remedy ... for the use of a t.i.tle which could not be copyrighted independently of the book."

Judge Lacombe accepted this view in his decision of the "Trilby" case, cited beyond.

{Sidenote: Changed t.i.tles}

Conversely, the publication of a copyrighted work under a changed t.i.tle, with the original notice of copyright, would probably not invalidate the copyright, though it would make identification more difficult and prevent the copyright certificate being _prima facie_ proof; and change of t.i.tle is a practice altogether reprehensible. A new copyright of the same book changed only in t.i.tle, with a new copyright notice of later date, could scarcely be construed as a new edition and in the absence of the original copyright notice the copyright might thus be abandoned or forfeited and the work be dedicated to the public.

{Sidenote: General t.i.tles}

General t.i.tles cannot in any way be protected. The publishers of the "_Bibliographie Universelle_," in France, the "Post Office Directory,"

in England, and of "Irving's Works," in America, were all defeated in attempts to prevent the use of those t.i.tles.

{Sidenote: t.i.tles as trade-marks}

t.i.tles are rather to be considered as trade-marks, which may be registered in the United States under the Trade-Mark acts of 1905-6, and protected by the statutory penalties, or may be protected on general principles of equity. This doctrine was early upheld by the English courts, especially in regard to periodicals, as in the t.i.tles of _Bell's Life_ and the _London Journal_, and again came before the courts in the important case of Weldon _v._ d.i.c.ks, as to the specific t.i.tle of the novel "Trial and triumph," in which case, in 1878, Vice-Chancellor Malins enjoined quite another book under the same t.i.tle, though the t.i.tle was chosen in ignorance of the first book and in entire good faith. So, also, as to the t.i.tle "Splendid misery," used by Miss Braddon in 1879, Sir James Bacon, in the Chancery suit of d.i.c.ks _v._ Yates, in 1881, was inclined to support the claim of C. H. Hazelwood, who had used the t.i.tle in 1874, until it was shown that a forgotten novelist named Purr had used it in 1801, so that it had become, in a measure, common property.

{Sidenote: "Chatterbox" cases}

In the several American "Chatterbox" cases, Judge Wheeler's early decision restraining the use of this "name or word, or any name or word substantially identical therewith," in or upon any juveniles of the general character of the English book of that name, was followed by Judge Shipman, in 1887, in Estes _v._ Worthington, in the U. S. Circuit Court in New York, who also held that the word "Chatterbox" had become "a well-known trade-mark designating a well-known series," published in a distinctive style and enjoined the rival publication, simulating the external style, but of different contents. These decisions previous to 1891, resting on principles of trade-mark and not of copyright, indirectly a.s.sured a measure of international copyright.

{Sidenote: Other t.i.tle decisions}

In 1888 the publishers of _Life_ and of "The good things of _Life_"

obtained an injunction from the N. Y. Supreme Court, in Mitch.e.l.l & Miller _v._ White & Allen, to restrain the publication of "The spice of life," as seemingly a continuation or counterpart of the authorized collection of extracts from that periodical. In 1904, in Gannet _v._ Rupert, Judge c.o.xe in the U. S. Circuit Court of Appeals in New York, on suit of the publishers of _Comfort_, restrained the use of the t.i.tle _Home Comfort_ on a rival periodical "not as a case of unfair compet.i.tion" but as "founded on a technical common law trade-mark"; and characterized the name as "a badge of origin and genuineness. It is as much a part of the proprietor's property as his counting room or printing press. A rival publisher has no more right to appropriate the name of its owner,"--despite the defence that _Comfort_ is "a standard English word not fanciful or manufactured." This defence had precedent in the doubt expressed by Lord Cairns in 1867 in the _Belgravia_ case, cited beyond, as to copyright protection of a single word, and in the decision of Judge Curtis in Isaacs _v._ Daly, in the N. Y. Superior Court in 1874, as to the drama "Charity," that "the use of the word 'Charity' as a designation for any work of art or literature cannot ordinarily be monopolized by any one person"; but under trade-mark law a single word a.s.sociated by registry or in the public mind with a well-known product, may undoubtedly be protected as against misleading use of the word otherwise. The courts will go even farther in preventing the use of a t.i.tle by another person with intent to deceive or to utilize the reputation of another work or author, as a fraud upon the public, or as unfair compet.i.tion, without reference specifically to trade-mark principles. Thus Judge Newburger of the N. Y. Supreme Court, in 1910, in Eliot and Collier _v._ Jones and the Circle Publishing Company, restrained the issue under the t.i.tle "Dr. Eliot's five-foot shelf" of books by the defendants of a set of books selected by and issued under the authority of President Eliot of Harvard, under arrangement with the co-plaintiff. The English rulings are to the like effect, that while a t.i.tle has no copyright protection except as part of a book, the use of a t.i.tle to attract purchasers on the supposition that they are getting another book previously known by that t.i.tle is a fraud punishable at common law. Further citations of cases on these points are given in the chapter on infringement.

{Sidenote: Projected t.i.tles}

There can be no claim to protection for the t.i.tle of an unpublished book, as a trade-mark or otherwise, just as there can be no copyright in a projected book. This question was elaborately discussed in the leading English case of Maxwell _v._ Hogg, in 1867, in relation to the magazine _Belgravia_, when the rule was laid down that no matter what expenditure had been made or advertising done, a t.i.tle was not protectable previous to its a.s.sociation with a work actually before the public. Judge Shepley, in 1872, pointed out that "there is no such thing as property in a trade-mark as an abstract name," for a trade-mark simply shows that certain goods "were manufactured by a certain person." Nor can an abandoned t.i.tle, in the case of a periodical, be held against a person starting a new periodical of that name, providing it does not purport to be a continuation of the old, according to a French case quoted by English authorities.

{Sidenote: Projected works not copyrightable}

There can be no statutory copyright in a book or other work projected and not yet prepared, despite a very general notion that under the old law a projected book could be protected by registering a t.i.tle and depositing a t.i.tle-page of an unwritten or unpublished book. There is nothing in copyright law corresponding to the _caveat_ in patent law.

This is not in conflict with the protection of an unpublished work at common law or in equity referred to in the new American code (sec. 2) or the provision in the new law (sec. 11) permitting the registration of "a lecture or similar production or a dramatic or musical composition" or a work of art, before publication, with the deposit of a complete copy or identifying print.

{Sidenote: Immoral works}

There can be no copyright in an immoral book, and Lord Eldon, in Southey _v._ Sherwood, carried this doctrine so far as to deny the common law right of an author in a non-innocent ma.n.u.script, because there could be no right to hold what there was no right to sell. His opinion, resulting in the wide sale of a book which the author desired to suppress, has been severely criticised by later authorities. In the American case of Broder _v._ Zeno Mauvais Music Co., Judge Morrow, in the U. S. Circuit Court in California, in 1898, held that as a song which the plaintiff sought to protect contained indecent words, it was not ent.i.tled to protection under the copyright law. There can be no copyright in blasphemous, seditious, or libelous books; but though this rule was very strictly enforced by English judges a century ago, the later courts hesitate to rule strictly on this point, lest the rule be perverted to sectarianism or despotism. There can be no copyright in books involving fraud, as those which spuriously obtain salable value by being represented to be the work of writers who did not write them, or to contain matter which they do not contain; but this rule does not extend to books under a.s.sumed names or innocently pretending to be what they are not, as when Horace Walpole's "Castle of Otranto" was put forward as a translation from the Italian.

{Sidenote: Periodicals}

In addition to the inclusion of "composite works," the new American law specifically covers (sec. 5, b) "periodicals, including newspapers," and by other provisions of the law above cited, this covers "all copyrightable component parts." It is further provided (sec. 3) that "the copyright upon composite works or periodicals shall give to the proprietor thereof all the rights in respect thereto which he would have if each part were individually copyrighted under this Act." While the American code does not specifically provide as to the separate rights of authors in articles in periodicals or composite works, which must therefore be a matter of contract, or of practice or precedent implying contract, provision for separate copyright is implied in a clause (sec.

12) requiring the deposit of only one copy instead of two in the case of "a contribution to a periodical, for which contribution special registration is requested"--although the specific article is fully protected, as indicated above, by the general copyright.

{Sidenote: Definition of periodicals}

The new Rules and Regulations of the Copyright Office define periodicals as follows:

"(6) This term includes newspapers, magazines, reviews, and serial publications appearing oftener than once a year; bulletins or proceedings of societies, etc., which appear regularly at intervals of less than a year; and, generally, periodical publications which would be registered as second cla.s.s matter at the post office."

{Sidenote: Periodicals under manufacturing clause}

Periodicals, as well as books, are subject to the manufacturing clause (sec. 15), but affidavit is not required, and the importation of "a foreign newspaper or magazine, although containing matter copyrighted in the United States printed or reprinted by authority of the copyright proprietor," is not prohibited (sec. 31, b), "unless such newspaper or magazine contains also copyright matter printed or reprinted without such authorization"--but these and other conditions are treated in later chapters.

{Sidenote: Periodicals copyrightable by numbers}

The law provides (sec. 19) in the case of a periodical, that the notice of copyright may be "either upon the t.i.tle-page or upon the first page of text of each separate number or under the t.i.tle heading," "provided that one notice of copyright in each volume or in each number of a newspaper or periodical published shall suffice." This implies that each issue of a periodical must be separately copyrighted as though a separate work, although the t.i.tle may be registered as a trade-mark and possibly protected in this way. A daily newspaper may thus be copyrighted day by day at a cost of $365 per year, so as to protect all its original material of substantial literary value. This was done in fact under the American law previous to 1909, though periodicals were not specifically mentioned; a daily price-list of the New York Cotton Exchange was so entered day by day, but the question of maintaining such a copyright under the old law seems never to have been tested in the courts, and New York dailies copyrighted their Sunday cable letters separately.

{Sidenote: News}

In respect to news, there is no provision in the new code. A bill to protect news for twenty-four hours was at one time before Congress, but was never pa.s.sed. There is, therefore, no copyright protection for news as such, but the general copyright of the newspaper or a special copyright may protect the form of a dispatch, letter, or article containing news. Thus the New York _Herald_ copyrighted without question Dr. Cook's Arctic dispatches, and the question as to the copyright by the New York _Times_ of Commander Peary's dispatches describing his dash for the pole hinged solely on the question of ownership or authority to copyright, as set forth in a later chapter. But any such copyright could not prevent publication by other newspapers of the news that Cook and Peary claimed to have reached the North Pole, at stated dates and under stated circ.u.mstances, though their own form of statement of the facts could not lawfully be copied except within "fair use."

In 1892 Justice North in the English Court of Chancery, in Walter _v._ Steinkopff, said that "although it is sometimes said that there is no copyright in news, there could be copyright in the particular form of language or mode of expression by which information is conveyed." The English courts went further in two actions brought by the Exchange Telegraph Co., 1895-97, in the first of which Gregory & Co. were restrained from using information furnished to subscribers first as unpublished matter before publication, second after publication because of copyright on the publication, and third as "unfair compet.i.tion." In 1902, in Nat. Tel. News Co. _v._ West. Union Tel. Co., the U. S. Circuit Court of Appeals protected news on ticker tapes, and in 1910, in Press a.s.soc. _v._ Reporting Agency, the English Chancery Division protected election reports on the last-named ground alone.