Section III Necessary Formalities1341
No person is entitled to copyright unless he—
I. In the case of a book, map, chart, dramatic or musical composition, engraving, cut, print, photograph, or chromo—
(i.) Delivers (or mails within the United States) to the Librarian of Congress, on or before the day of publication, in the United States or elsewhere a printed copy of the title of the work.
(ii.) Delivers (or mails within the United States) to the Librarian of Congress, not later than the day of publication in the United States or elsewhere two copies of the work.
II. In the case of a painting, drawing, statue, statuary, or a model or design for a work of the fine arts—1342
(i.) Delivers (or mails within the United States) to the Librarian of Congress, on or before the day of publication, in the United States or elsewhere a description of the work.
(ii.) Delivers (or mails within the United States) to the Librarian of Congress, not later than the day of publication, in the United States or elsewhere a photograph of the work.
The proprietor of every copyright book or other article must deliver (or mail within the United States) to the Librarian of Congress a copy of every subsequent edition wherein any substantial changes shall be made.1343 Each volume of a book in two or more volumes, when such volumes are published separately, and the first one has not been issued before July 1, 1891, and each number of a periodical is to be considered an independent publication.1344 The requirements of the statute as to delivery of title and copies, and printing of notice must therefore be complied with in the case of each volume of a book or number of a periodical.
Conditions Precedent.—The deposit of title and delivery of copies as prescribed by the statutes are conditions precedent to copyright and not merely declaratory.1345 There is no common law right after publication, and therefore if a work is published without the proper formalities having been observed it becomes publici juris, and any one may make what use of it he pleases.1346 Ignorance of the law is no excuse even although a new Act has just been passed altering the time within which copies must be delivered.1347 In an action for infringement the declaration must set out in detail a compliance with the law as to formalities,1348 and the burden of proof thereof is on the complainant.1349 He must prove the deposit of title, delivery of copies, notice of copyright, and the date of publication. The latter is essential, as on it depends the validity of the entry.1350
Delivery of the Title.—The copy of the title to be delivered must be “printed,” i. e. the characters used must be those ordinarily used in printing, but they may be made by hand with a pen.1351 The work must be published within a reasonable time after the deposit of the title-page, otherwise the formalities will not have been complied with.1352 Two months’ delay in mailing to the Librarian of Congress copies of a photograph after the filing of its title is not unreasonable.1353
It will not do to publish a book under a substantially different title from that deposited. Immaterial variations in the title, or sub-title, or complete alteration of a description on the title-page will not make the deposit void. In Donnelley v. Ivers1354 the title deposited was “Over One Thousand Recipes. The Lake Side Cook Book: A Complete Manual of Practical, Economical, Palatable, and Healthful Cookery. Chicago: Donnelley, Lloyd & Company, 1878.” The title on the book as published was “The Lake Side Cook Book, No. 1. A Complete Manual of Practical, Economical, Palatable, and Healthful Cookery. By N. A. D.” It was held that the requirement as to the deposit of title having been “substantially, in good faith complied with,” the objection was not tenable. What is required is, that the deposited title be sufficient to identify the book with substantial certainty. In Carte v. Evans,1355 the title filed was “Pianoforte Arrangement of the Comic Opera, The Mikado, or the Town of Titipu, by W. S. Gilbert and Sir Arthur Sullivan. By George L. Tracey.” The book as published bore the title “Vocal Score of the Mikado, or The Town of Titipu. Arrangement for Pianoforte by George Lowell Tracey (of Boston, U. S. A.) of the above-named opera by W. S. Gilbert and Arthur Sullivan.” This was held a sufficient deposit to protect the pianoforte accompaniment. In Black v. Allen1356 the title deposited was “An Outline of the Political and Economic History of the United States, with Maps and Charts: I. History and Constitution by Alexander Johnson, M. A.; II. Population and Industry by Francis A. Walker, LL. D.” The title of the book as deposited was “United States: Part III. Political Geography and Statistics, copyright, 1888, by Francis A. Walker.” In the absence of evidence that the defendant was deceived or misled by the change of the title the Court held that it was valid. In Daly v. Brady1357 the title of a drama deposited was “Under the Gaslight: A Drama of Life and Love in these Times.” The actual title as published was “Under the Gaslight: A Romantic Panorama of the Streets and Homes of New York.” The Court held that the change of title might deceive the public, and therefore the deposit of title was bad; but this decision was reversed in Daly v. Webster;1358 the variance was in the description. “The title required may include a sub-title, but it does not include a description of the book upon the title-page.”
An author may wish to change his title entirely after he has deposited the title-page. He may do this before the deposit of copies by depositing a fresh title-page; but it is questionable whether the duration of his copyright will run from the first deposit of title or from the deposit of the altered title.1359
Delivery of Description.—Probably a short description is all that is required. If the title is in itself descriptive, probably that will be sufficient. The photograph of a painting, or other work of art which is required to be delivered, does not take the place of a description.1360
Delivery of Copies.—Under the Revised Statutes before 1891 the printed copies had to be delivered “within ten days from the publication thereof.” This was sufficiently complied with by the delivery of two copies on the day before publication.1361 The Act of 1891 now requires that the two printed copies shall be delivered “not later than the day of publication.”
The copies deposited with the Librarian of Congress do not require to bear the statutory notice as to copyright.1362
The memorandum given by the librarian is sufficient primâ facie evidence of the fact and date of deposit.1363 The librarian’s date stamp on the book is not conclusive, and may be rebutted by other evidence of the actual date of deposit.1364 If the copyright matter is ordinarily bound up with other matter, the Librarian of Congress cannot insist on the delivery of the bound volume complete. It is a sufficient delivery to take the volume to pieces and deliver the loose sheets on which the copyright matter is printed.1365 Before 1891 the two copies deposited had to be of the “best edition,” but this appears to be no longer necessary.
Printing in the United States.—In the case of
i. books,
ii. chromos,
iii. lithographs,
iv. photographs,
the two copies required to be delivered must be printed from type set within the limits of the United States or from plates made therefrom, or from negatives or drawings on stone made within the limits of the United States, or from transfers made therefrom.1366
This requirement was introduced in 1891, when the privileges of copyright were extended to subjects and citizens of foreign countries. Formerly there was no obligation to print within the United States.
It has been held that a volume of music is not a “book” within the meaning of the provision in the statute enacting that the two copies delivered shall be printed in the United States.1367 It would seem to follow that the necessity of printing in the United States does not extend either to maps or charts, or even to dramatic compositions in book form. These are all dealt with specifically in the Act, and therefore, on the authority of Littleton v. Oliver,1368 do not come within the generic term “books.”
Retrospective Provision.—By an Act of March 3, 1893, it is enacted—
“That any author, inventor, designer, or proprietor of any book or other article entitled to copyright, who has heretofore failed to deliver in the office of the Librarian of Congress two complete copies of such book, or description or photograph of such article within the time limited by title sixty, chapter three of the Revised Statutes relating to copyrights and the Acts in amendment thereof, and has complied with all other provisions thereof, who has before the 1st day of March 1893 delivered at the office of Librarian of Congress or deposited in the mail addressed to the Librarian of Congress two complete printed copies of such book, or description or photograph of such article, shall be entitled to all the rights and privileges of such title sixty, chapter three of the Revised Statutes and the Acts in amendment thereof.”
Notice of Copyright.—No person can maintain an action for infringement of his copyright unless each published copy of his work bears one or other of the following notices:1369
“Entered according to Act of Congress in the year ——, by A. B., in the office of the Librarian of Congress at Washington.
Or:
“Copyright, 18—, by A. B.”
Books must bear the notice:
“On the title-page or page immediately following.”1370
Designs for moulded decorative articles, tiles, plaques, or articles of pottery:
“Upon the back or bottom of such articles or on such other place upon them as it has heretofore been usual... for the placing of manufacturers, merchants, and trade marks thereon.”1371
Other works, including musical compositions, photographs, pictures, engravings:
“Upon some visible portion thereof, or of the substance upon which the same shall be mounted.”1372
The statutory requirements as to notice must be strictly complied with, and a departure from the exact words of one or other of the alternative forms may be fatal to the right of action. When the only notice on a book was “Entered according to Act of Congress, in the year 1878, by H. A. Jackson,” it was held an insufficient notice as complying with neither of the two alternative forms.1373
Slight variation.
A very slight variance in the words or the orders of the slight words, if the matter is substantially the same, will not, however, make a bad notice. Thus “1889, Copyrighted by B. J. Falk, N. Y.,” has been held a good notice.1374 So also has “Copyright entered according to Act of Congress, 1889, by T. C. Hefel, civil engineer.” It was held to comply with the short alternative notice, viz.: “Copyright, 18—, by A. B.,” the superfluous words being disregarded on the doctrine of utile per inutile non vitiatur.1375
The name of the proprietor who takes out the copyright is an essential part of the notice. In Osgood v. Aloe1376 the following notice was printed on the page following the title-page, “Copyright, 1891; all rights reserved.” This was held a bad notice, and the name of the publishers, who were also the proprietors, printed on the title-page was insufficient. There was nothing to show that they were proprietors as well as publishers. Copyright may be taken out in the name of a firm or a conventional trade name, and if that name is on the notice it is sufficient.1377 But it must be the full and proper name under which the proprietors are trading. Thus when The Illustrated American Publishing Company issued a paper entitled The Illustrated American, the following was held an insufficient notice on a crayon drawing published by the Company, viz.: “Copyrighted 1891, by The Illustrated American.”1378 It seems, however, that it is not necessary for an individual to give his full name if what is given is sufficient for the purposes of identity. Thus the surname and the first letter of the Christian name,1379 and in one case the surname alone have been held sufficient.1380 The latter case was that of a photographer in Brooklyn. It was shown that there was only one photographer of that name in Brooklyn, and the notice ran “Copyright, ’93, by Bolles, Brooklyn.”1381 If the full name is given there is no necessity to give the address of the proprietor, even although he be a foreigner resident abroad.1382
It will not do to put the name of an agent on the notice. In Nifflin v. Dutton1383 the authoress of “The Minister’s Wooing” took out a copyright in the whole book in her own name. Subsequently several chapters of the story were published serially in the Atlantic Monthly. The only notice of copyright in that magazine was in the name of the publishers, Ticknor and Fields. It was held that these chapters had not a sufficient notice. Great care must be taken in the case of serial publications. If a story is published in a magazine each part must be treated as a separate book, and must contain a notice of copyright by the author if he is the owner. When the book is published as a whole these notices must be repeated; it will not do merely to copyright the whole book afresh and print a new notice.
Date of Entry.—The date required is the year only; neither the day nor the month is necessary. The statement of a wrong year has been held fatal to the notice. In Baker v. Taylor1384 the true date of taking out copyright was 1846. The notice stated 1847 as the year, and this was held as bad notice, even although the error arose from mistake. But in Callaghan v. Myers1385 the notice put an earlier instead of a later date than the actual date of deposit; the true date being 1867, the notice declared copyright to have been entered in 1866. This was held an immaterial error, since it deceived no one, and would only operate to shorten the claimant’s copyright by one year. In Schumacher v. Wogram1386 Wallace, J., doubted whether the declaration in the notice of a date earlier than the true date would not make the notice void. It is immaterial that the date on the notice is abbreviated if it is sufficiently clear what date is meant; thus, “Copyright, ’94, by A. B.,” is a good notice.1387
It is extremely difficult to determine what date the law requires to be placed upon the second or subsequent edition of a book wherein substantial alterations or additions have been made. In the case of a reprint, I think it is clear that the date of the first edition, and that only, is the correct date; and even where alterations or additions have been made I think that that date is necessary, and I doubt whether it is necessary to add another notice giving the date of the revised edition. It would seem that a subsequent edition does not require to be “entered” in the same manner as the original edition; the statute is complied with by the deposit of a copy of every subsequent edition wherein any substantial changes shall be made. If this is done copyright in the alterations seems to have been procured. In Lawrence v. Dana1388 Clifford, J., held that it was not necessary in a subsequent edition to give the date of the entry of the first edition1389; but I doubt if this is sound. On the whole, I think the correct view is that the matter peculiar to the first edition, whether it be printed in the first or any subsequent edition, must bear a notice with the date when that matter was first entered, and that the matter peculiar to any subsequent edition will be protected until the expiry of the copyright in the first edition, if it bears a notice with the date of the first edition only, and if a copy has been sent to the Librarian of Congress. I further think that the matter peculiar to subsequent editions may be protected for the full term of twenty-eight or thirty-two years from the date of the first publication of the edition in which it is first contained, if such edition is separately entered, by two copies of the title-page and of the book being deposited, and if it bears a notice with the date of such separate entry. I think, therefore, in every new edition in which there is a substantial alteration or addition there should as a matter of practice be a separate entry of copyright and separate notices on the title-page, one for each edition of the book.
The question may be raised as to whether a book is a subsequent edition or an entirely new book. In Banks v. M’Divitt,1390 the plaintiff had annotated the rules of the Supreme Court of New York. He had published such annotated editions in 1858 and 1871. In 1874 the rules were extensively amended, and the plaintiff published an annotated copy. It was held that this was not a subsequent edition of the original annotated rules, and therefore no notice of the original date of publication was required. I very much doubt whether this is a sound decision. It seems to me that in so far as the new book was the same as the old, it was a subsequent edition, and in order to retain protection required a notice of original publication.
Every published copy of every edition1391 of a work must have the statutory notice thereon; every proprietor who sues must have printed the notice on every copy published by him. If an assignee of a copyright fail to print a proper notice he will have no remedy even against his assignor for infringement.1392 From the wording of the Act of June 18, 1874, it seems that the printing of the notice is not now a condition precedent to copyright, but is only a condition of the right of action upon infringement. It is, I think, questionable whether the failure of A to print a proper notice will affect the right of B, his assignee, to sue for an infringement subsequent to the assignment. One who makes an unauthorised copy of a literary or artistic work is not exempt from liability merely because he can show that the copy from which he copied had no notice. His defence must be that such copy left the proprietor’s hands without a proper notice.1393 The question has been raised, but not answered, whether if the proprietor grant a licence, and the licensee omits to insert a proper notice, the proprietor is without a remedy.1394
Formerly if a book were published in several volumes at different times, it was sufficient to place the notice on the first volume only,1395 but now since the Act of 18911396 each volume of a book and each number of a periodical is to be considered an independent publication, and the notice must be placed on each volume or part accordingly.
There is no special provision in the law of the United States as to newspapers and other periodical works, therefore each issue must be considered a separate work, and the requisite formalities complied with in each case.
Notice on Painting.—It was contended in one case1397 that there was no necessity to place the notice on an original painting, the Act only requiring notices to be placed on copies made therefrom. The Court held, however, that the original work was a “copy” within the meaning of the provision in the Act, and must be inscribed with the notice accordingly.
Maps in Atlas.—Each map contained in an atlas does not require to be separately copyrighted, or bear a separate notice of copyright. They are protected by a copyright of the entire work.1398 The same would, no doubt, apply to a volume of engravings or other works of art.
Publication.—There appears to be some doubt as to whether publication is necessary as a condition precedent to the statutory rights. The duration of copyright is to be measured from the date of the deposit of the title or description with the Librarian of Congress; but probably that in itself gives no proprietary right either in the title or the book. It has been suggested that it gives an “inchoate right,” or an “equitable right, which Chancery will protect until the other acts may be done.”1399 It may be that when the formalities have been completed by deposit of copies the right then acquired dates back to the deposit of title so as to give a statutory remedy against an infringement made between the two dates.1400 When the copies of the book have been deposited, the express conditions precedent of the statute have been performed; but the question has been raised whether there will be copyright unless within a reasonable time thereafter the book or other work is put in circulation among the public. In Boucicault v. Hart1401 the Court held that although the title-page had been filed there could be no copyright without “a deposit of copies and publication.” In The Jewellers’ Mercantile Agency v. Jewellers’ Publishing Company1402 the New York Supreme Court, on a question as to whether an action should be founded on the Statute or at Common Law, held that although there had been deposit of title and deposit of copies in accordance with the Acts there could be no copyright, but only a common law right unless there had been a “publication.” In Ladd v. Oxnard,1403 the circuit judge, Putnam, thought that the statutory right was perfected by deposit of copies, and that from then, until “publication,” there were concurrent remedies under the Statute and at Common Law. After the decision in Ladd v. Oxnard1404 the decision in The Jewellers’ Mercantile Agency v. Jewellers Publishing Company was reviewed by the Appeal Court of New York.1405 The Court was unanimous in reversing the judgment below, and holding that the plaintiff’s right of action was a statutory right and not a common law right. Three of the judges gave their decision on the ground that the facts proved showed a publication subsequent to deposit; but the other three gave it on the ground that the deposit itself was a publication and completed the statutory copyright. It is submitted that this latter is the correct view, and that, therefore, after deposit of the title-page and deposit of copies in due form nothing further is necessary to acquire copyright.
Apart from the question as to whether publication is necessary to complete the statutory right, several questions of importance may arise on the fact or date of publication, e. g.:
1. The remedy at Common Law depends entirely on the absence of publication.
2. The due performance of the formalities of deposit of title and copies are relative to the date of publication.
The essence of publication consists in a disclosure of the thing itself, so that the public without discrimination of persons have an opportunity of enjoying its use.1406 The most usual method of publication of a literary or artistic work is the offering for sale, selling, or giving away of copies.1407 It is not necessary that a copy of the book be actually sold, it is sufficient if it be offered to the public. The act of publication is the act of the author, and cannot be dependent on the act of the purchaser.1408 Gratuitous distribution to members of the public, or leaving copies in a place to which the public have access, such as an hotel, is publication.1409 The sale or distribution of copies, however, may be so limited to individuals, or particular classes of individuals, as not to amount to publication. When before the advertised date of publication an advance lot of books in quires unbound were sent to different publishers, with a request not to publish until bound copies should be sent, it was held, in the absence of evidence that the request was not complied with, that there had been no publication.1410 The author of a literary or artistic work may circulate it among his friends, or among a restricted class subject to conditions, and at the same time retain his common law right in unpublished work.1411 A teacher may circulate copies of his work among the members of his class without publishing the work.1412 In one case a sheet of miniature copies of engravings was sent round to picture dealers solely for their inspection and to solicit orders. This was held not to be a publication.1413 Copies of an unpublished opera given to the performers marked “Right of Representation and Reproduction Reserved” is not a publication.1414 The transmission of news over telegraphic instruments does not constitute a general publication.1415 In order to protect the common law right the distribution of copies must be strictly confined to individuals or to a class. If the man in the street may buy it there is a publication even although the work is of such a nature (e. g. a trade journal) as will practically be confined to a limited class.1416 It does not make it the less a publication that every purchaser of, or subscriber to, a literary or artistic work is bound by restrictive conditions as to its use. So long as the work is put within the reach of all and not limited to a class, it matters not what conditions are imposed on the individual subscriber.1417 Thus the sale of a book to all who paid for a course of instruction in a system for training the memory was held to be a publication notwithstanding that each sale was made under a contract not to disclose the contents to others.1418 A book may be published although it is not sold but issued on loan to subscribers with an express condition that the copy must be returned on the expiry of the subscription.1419 Publication of a book in a serial form reserving all other rights to the author, is such a publication as to abandon the copyright to the world, if steps have not been taken to copyright it before such publication.1420
I have little doubt, but there is no definite authority, that a book may be published so as to destroy the common law right, although it is not printed. Circulation in manuscript would be enough.1421
The public performance of a dramatic piece is not a publication of it so as to deprive the proprietor of his common law right in the manuscript.1422 The same rule probably applies to the oral delivery of a lecture or sermon, unless there is some act or circumstance from which it can be implied that the speaker intended to abandon the literary matter to the free use of the public.
It has been held by the Circuit Court of Appeals1423 that the exhibition of a picture in a public gallery is a publication of the picture so as to destroy the owner’s rights, unless he has taken steps to secure a copyright. One of the three judges dissented from the judgment, but on what ground does not appear. In a case decided by a district judge,1424 shortly before the one just cited, the judge thought that the exhibition of a painting in a public saloon did not work a forfeiture of the right to obtain copyright unless the general public was permitted to take copies at pleasure, and such permission would not be assumed in the absence of direct evidence. The same judge decided that neither the sale of a replica in a different size made before the principal picture by way of a study nor the publication of a crayon sketch in an exhibition catalogue was a publication of the picture. It is submitted that the exhibition of a picture in a public gallery is a publication. It seems to afford the public an opportunity of making every legitimate use of the contents of the picture. They could not make any greater use of the contents if they bought an engraving of the picture. It would not even then be lawful for them to make copies of the picture. As to the replica and the rough sketches in the catalogue, no doubt they were not “copies” of the picture, and therefore their publication could not entirely destroy the copyright in the picture; but if these were published without being copyrighted or without statutory notice, clearly the public could copy them, and to that extent the copyright in the design of the original picture would have been forfeited.
An unauthorised publication will not operate to forfeit the common law rights;1425 but if authorised by the owner it is immaterial that the publication constitutes a breach of contract with a licensee or part assignee.1426 Thus the author of a German unpublished play conveyed the performing rights in the United States to a citizen of the States, and contracted with him that he would not publish the play as a book. In breach of this contract the play was published in Germany under the authority of the author. It was held that such publication destroyed all literary rights in the United States.1427 When the defendant relies on previous publication he must definitely prove such publication, and that it was made with the consent of the owner.1428
The Library of Congress.—All the copyright records are in the Library of Congress at Washington, and are kept by the Librarian of Congress, who makes an annual report to Congress of the number and description of copyright publications.
The Librarian of Congress must record the name of each copyright work in a book kept for the purpose. The form of entry is as follows:
“Library of Congress, to wit,—Be it remembered that on the day of A. B. of, hath deposited in this office the title of a book (map, chart, or otherwise as the case may be, or description of the article), the title or description of which is in the following words, to wit: (here insert the title or description), the right whereof he claims as author (originator or proprietor as the case may be), in conformity with the laws of the United States respecting copyright.—C. D., Librarian of Congress.”
The librarian must give a copy of the title or description under the seal of the Librarian of Congress to the proprietor whenever he requires it.
The Librarian of Congress is entitled to receive from the persons to whom the services are rendered the following fees:1429
| 1. For recording title or description | 50 | c. |
| 2. For a copy of such record under seal | 50 | c. |
| 3. For recording and certifying a written consignment | $1 | |
| 4. For a copy of an assignment | $1 |
All fees so received must be paid into the Treasury of the United States.
The charge for recording the title or description of the work of a person not a citizen of, or resident in, the United States is $1.
The Librarian forwards a note of the title-entries to the Secretary of the Treasury, who must prepare and print, at intervals of not more than a week, catalogues of such title-entries for distribution to the collectors of customs of the United States and to the postmasters of all post-offices receiving foreign mails; and such weekly lists as they are issued are furnished to all parties desiring them at a sum not exceeding $5 per annum.1430
The Secretary and Postmaster-General are empowered and required to make and enforce such rules and regulations as will prevent the importation into the United States of all articles prohibited by the Copyright Acts.1431
The Postmaster to whom a copyright book, title, or other article is delivered for the Librarian of Congress must, if requested, give a receipt therefor, and when so delivered he must mail it to its destination.1432
For every failure on the part of the proprietor of any copyright to deliver or deposit in the mail either of the published copies, or description, or photograph, the proprietor of the copyright is liable to a penalty of $25, to be recovered by the Librarian of Congress in the name of the United States in an action in the nature of an action of debt in any district court of the United States, within the jurisdiction of which the delinquent may reside or be found.1433