labour.” No one, it has been said, has a right to take, whether
with or without acknowledgment, a material and substantial
portion of another’s work, his arguments, his illustrations, his
authorities, for the purpose of making or improving a rival
publication. When the materials are open to all, an author may
acquire copyright in his selection or arrangement of them.
Several cases have arisen on this point between the publishers
of rival directories. Here it has been held that the subsequent
compiler is bound to do for himself what the original compiler had
done. When the materials are thus in medio, as the phrase is, it is
considered a fair test of piracy to examine whether the mistakes
of both works are the same. If they are, piracy will be inferred.
Translations stand to each other in the same relation as books
constructed of materials in common. The animus furandi,
mentioned above as a test of piracy, does not imply deliberate
intention to steal; it may be quite compatible with ignorance
even of the copyright work. Abridgments, moreover, of
original works appear to be favoured by the courts—when the
act of abridgment is itself an act of the understanding,
“employed in carrying a large work into a smaller compass, and
rendering it less expensive.” Lord Hatherley, however, in
Tinsley v. Lacy, 1863, 1 H. & M. 747, incidentally expressed his
disapproval of this feeling—holding that the courts had gone
far enough in this direction, and that it was difficult to acquiesce
in the reason sometimes given that the compiler of an abridgment
is a benefactor to mankind by assisting in the diffusion of
knowledge. A mere selection or compilation, so as to bring
the materials into smaller space, will not be a bona fide abridgment;
“there must be real substantial condensation, and
intellectual labour, and judgment bestowed thereon” (Justice
Story). A publication professing to be A Christmas Ghost Story,
Reoriginated from the Original by Charles Dickens, Esq., and
Analytically Condensed expressly for this Work, was found
(Dickens v. Lee, 1844, 8 Jur. 183) to be an invasion of Charles
Dickens’s copyright in the original.
10. There can be no copyright in any but innocent publications. Books of an immoral or irreligious tendency have been repeatedly decided to be incapable of being made the subject of copyright. In a case (Lawrence v. Smith, Injurious works.1 Jac. 471) before Lord Eldon in 1822, an injunction had been obtained against a pirated publication of the plaintiff’s Lectures on Physiology, Zoology, and the Natural History of Man, which the judge refused to continue, “recollecting that the immortality of the soul is one of the doctrines of the Scriptures, and considering that the law does not give protection to those who contradict the Scriptures.” The same judge refused in 1822 to restrain a piracy of Lord Byron’s Cain, and Don Juan was refused protection in 1823. Compare also Cowan v. Milbourn, 1867, L.R. 2 Ex. 230, in which a contract to let a room for lectures of an irreligious character was held not to be binding.
11. The quasi-copyright in titles of books, periodicals, &c. is founded on the desirability of preventing one person from putting off on the public his own productions as those of another. This is, however, not copyright, but a Titles of works. question of ordinary fraud. The name of a journal (if sufficiently established) is a species of trade-mark in which the law recognizes what it calls a “species of property,” provided any misleading of the public is involved. Thus, the Wonderful Magazine was invaded (1803) by a publication calling itself the Wonderful Magazine, New Series Improved. Bell’s Life in London was pirated (1859) by a paper calling itself the Penny Bell’s Life. The proprietors of the London Journal got an injunction (1859) against the Daily London Journal, which was projected by the person from whom they had bought their own paper, and who had covenanted with them not to publish any weekly journal of a similar nature. A song published under the title of Minnie, sung by Madame Anna Thillon and Miss Dolby at Monsieur Jullien’s concerts, was invaded (1855) by a song to the same air published as Minnie Dale, Sung at Jullien’s Concerts by Madame Anna Thillon. On the other hand, the Sphere and Spear, titles of misleading similarity, assumed by two weekly periodicals that appeared almost simultaneously in London in 1900, could not successfully attack each other, because neither had an established reputation when first adopted.
12. Dramatic and musical compositions stand on this peculiar
footing, that they may be the subject of two entirely distinct
rights. As writings they come within the general
Copyright Act, and the unauthorized multiplication of
Drama
and
music.copies is a piracy of the usual sort. This was decided to
be so even in the case of musical compositions under
the act of 1709. The Copyright Act of 1842 includes a “sheet
of music” in its definition of a book. Separate from the copyright
thus existing in dramatic or musical compositions is the
stage-right or right of representing them on the stage; this was
the right created by the Dramatic Copyright Act of 1833, in the
case of dramatic pieces. This act gave the owner of the stage-right
(right of representation) a period of twenty-eight years, or
the duration of the author’s life if longer. The Copyright Act
1842 extended this right to musical compositions, and made the
period in both cases the same as that fixed for copyright. And
the act expressly provides (meeting a contrary decision in the
courts) that the assignment of copyright of dramatic and musical
pieces shall not include the right of representation unless that
is expressly mentioned. The act of 1833 prohibited representation
“at any place of public entertainment,” a phrase which was
omitted in the act of 1842, and it may perhaps be inferred that
the restriction is now more general and would extend to any
unauthorized representation anywhere. A question has also
been raised whether, to obtain the benefit of the act, a musical
piece must be of a dramatic character. The dramatization of a
novel, i.e. the acting of a drama constructed out of materials
derived from a novel, is not necessarily an infringement of the
copyright in the novel (supposing it to be possible to do it without
making any sort of colourable copy of the literary form), but to
publish a drama so constructed has been held to be a breach of
copyright (Tinsley v. Lacy, 1863, 1 H. & M. 747, where defendant
had published two plays founded on two of Miss Braddon’s
novels, and reproducing the incidents and in many cases the
language of the original). Where two persons dramatize the same
novel, what, it may be asked, are their respective rights? In
Toole v. Young, 1874, 9 Q.B. 523, this point actually arose.
A, the author of a published novel, dramatized it and assigned
the drama to the plaintiff, but it was never printed, published
or represented upon the stage. B, ignorant of A’s drama, also
dramatized the novel and assigned his drama to the defendant,
who represented it on the stage. It was held that any one might
dramatize A’s published novel, and that the representation of
B’s drama was not a representation of A’s drama. This case may
be compared with Reade v. Lacy (1861).
In the “Little Lord Fauntleroy” case (1888) the person who dramatized the novel of another without his consent, an operation up to that time believed to be unassailable in law, was attacked successfully, by preventing him from using printed or written copies of the play, either to deposit with the lord chamberlain or as prompt-books. In every case where much of the original dialogue of the novel is taken, this stops the production of the dramatization.
In music, statutes of 1882 and 1888 have prevented the use of the provisions inflicting penalties for the performance of copyright songs for purposes of extortion, by allowing the court to inflict a penalty of one farthing and make the plaintiff pay the costs, if justice requires it. Authors reserving the right of public performance are required to print a notice to that effect on all copies of the music.
An important decision (which appears to be a grave injustice) on musical copyright is the case of Boosey v. Whight (1899; followed in other cases—see Mabe v. Conner, 1909), in which it was held that the reproduction of copyright tunes on the perforated slips for an Aeolian or other mechanical instrument is not an infringement of copyright. In Germany it has been decided (Lincke v. Gramophone Co.) that the reproduction of copyright music on a gramophone is an infringement, and an injunction was granted. It has also been held in France that the production of copyright words (but not music) was an
