Chapter LXX: Section I: What Is a Piratical Copy

A copy of a literary or artistic work is such a reproduction of the original as will serve in whole or in part as a substitute for the original. Thus the plate from which a piratical engraving is intended to be struck is not a copy of the original engraving amounting to an infringement.[1487] Neither when several stones are required to produce a lithograph is an impression of the first stone only giving a mere outline an infringement.[1488] But a lithograph may be an infringement of a photograph if it produces the general conception even although the artistic detail and peculiar merit of the photograph are not reproduced.[1489] It has also been held that a photograph may be infringed by the design thereof being stamped on leather for a chair seat.[1490] A perforated scroll used for a mechanical musical instrument, such as a pianola or æolian, is not a piratical copy of the original music.[1491]

It is equally an infringement to make copies of a copyright work for a private distribution as it is to make them for sale.[1492] Strictly, even a single copy made for private use would be an infringement.

=Copying may be Indirect.=--A piratical taking need not necessarily be made direct from an authorised copy of the work alleged to be infringed. It may be taken from a derivative work, for instance, a painting may be infringed by copying an engraving made from it;[1493] or it may be taken from another unauthorised work. It would seem that it is not considered an infringement of copyright to publish and sell copies taken from the work before it was copyrighted, even although published and sold after it was copyrighted.[1494] It might be a breach of contract or common law right.

=The Intention need not be Bad.=--There is no necessity for the plaintiff in an action for infringement to show either that the defendant when he took the matter knew that it was protected by copyright, or that he believed the use which he was making of the plaintiff's work was an unfair one.[1495] The defendant may have been equally ignorant of fact and law, and yet he will be responsible for the result of his actions. Conversely, if in fact the defendant has not made an unfair use of the plaintiff's copyright work, it is immaterial to show either that he thought he was infringing the plaintiff's copyright or that he intended to carry his work further and actually to infringe the plaintiff's rights.[1496] The intention of the defendant, however, may be material as evidence in a doubtful case.[1497]

=Proof of Copying.=--The onus of proving an infringement is on the party making the charge.[1498] Mere similarity is not sufficient; he must show that the work charged as a piracy was taken from his copyright work. The strongest evidence is usually in the coincidence of errors; but a few solitary instances are not conclusive. In a question between the authors of two rival law works,[1499] it was held that the duplication of a few errors in citations was not sufficient evidence of piracy where there was obviously a great deal of further work and labour expended in the preparation of the alleged infringing work. In a question of an alleged infringing digest,[1500] it was held that the mere verbal identity of the summary of one case where a large number of cases had been digested was not sufficient proof.

=No Monopoly in Subject-Matter.=--The right of copyright is an exclusive right of reproducing the whole or any part of an original literary or artistic work. It differs from a right of patent in that it does not prohibit another from producing and reproducing a work identically the same as the protected work, provided that he does so by going to the common sources of information and not by copying the protected work. Copyright creates no monopoly in the subject-matter. One man may compile tables of shipping and railway statistics; another may, without infringing the former's copyright, collect the same material and work it up for himself, producing, if accurately done and on the same principle, a very similar result.[1501] In the same way arithmetics,[1502] translations,[1503] school grammars,[1504] maps of a particular country,[1505] biographies,[1506] lithographs,[1507] law books,[1508] and other works[1509] do not entitle their author to say to a subsequent worker in the same field that as he was there first he has a right to exclude others from competition. In one case[1510] it was attempted to set up a monopoly in the biography of President Garfield, on the ground that the President had selected a particular person for the work. The contention was rejected by the Court. Probably the only case in which an argument in favour of monopoly in a certain subject-matter has been sustained is that of _Thomas_ v. _Lennox_.[1511] The subject of the action was Gounod's Oratorio _The Redemption_. A pianoforte arrangement had been published without acquiring copyright, but the orchestral score had never been published. The defendants procured a composer to compose an orchestral score from the pianoforte arrangement. This they publicly performed. In an action for infringement of the common law right in the plaintiff's unpublished orchestral score, the Court, in granting an injunction, said:

"In this respect an opera is more like a patented invention than
a common book; he who shall obtain similar results, better or
worse, by similar means, though the opportunity is furnished by
an unprotected book, should be held to infringe the rights of the
composer."

It is almost certain that this is bad law;[1512] it is contrary to the whole principle of copyright, and there is no substantial reason why an exception should be made in favour of a musical adaptation and not in that of a map or any other literary or musical work.

=Taking a Substantial Part.=--In _Lawrence_ v. _Dana_, Clifford, J., said:

"Copying is not confined to literal repetition, but includes also
the various modes in which the matter of any publication may be
adopted, imitated, or transferred, with more or less colourable
alterations to disguise the source from which the material was
derived; nor is it necessary that the whole, or even the larger
portion of the work, should be taken in order to constitute an
invasion of copyright."[1513]

In _Folsom_ v. _Marsh_, Story, J., said:

"If so much is taken that the value of the original is
sensibly diminished, or the labours of the original author are
substantially, to an injurious extent, appropriated by another,
that is sufficient in point of law to constitute a piracy _pro
tanto_. The entirety of the copyright is the property of the
author, and it is no defence that another person has appropriated
a part and not the whole of any property."[1514]

To constitute an infringement there must be a taking of a material part of the original matter from another's work.[1515] To determine what is a material part is often a question of extreme difficulty and nicety. It depends on the quantity and quality of the matter taken, the object with which it is taken, the relation of the works to one another, the proportion of the matter taken to the complete works, but more particularly to the work of the borrower, the extent to which the work borrowed from is injured, and the extent to which the borrower makes profit from the introduction of the borrowed matter.[1516] In the case of _Morrison_ v. _Pettibone_,[1517] a district judge held that the taking of the mere outline of a copyright photograph was not a copying within the meaning of the statutes. In this case it had been intended by the defendant to make an entire reproduction of the photograph by the process of lithography. The stones were all in actual readiness, but only one had been used, giving the initial colour and exterior lines of the intended lithograph. In one case where a few references had been taken by the author of one law book from another, a preliminary injunction was refused on the ground of small amount.[1518] The alleged infringement of a copyright photograph need not, however, be substantially identical in order to ensure conviction; it is sufficient if a substantial portion of the main design, distinctive ideas, or characteristic features are taken.[1519] Taking the boundaries of townships from a copyright map has been held to be an infringement.[1520] The taking of a single scene from the drama of another may be an infringement.[1521] It is no answer to an action for infringement to say that the defendant's book in no way rivals or competes with the plaintiff's work.[1522] That is merely a question of damages.

=Fair Use.=--Although a man is not permitted to take the whole or part of another's work in the compilation of his own, he is entitled to make of that other's work what is known as a "fair use," for the purpose of a new work. One may use another's book as a guide to authorities;[1523] for supplying suggestions as to treatment of a subject;[1524] and for the purpose of checking the accuracy[1525] of a completed work. One may use it as a storehouse of information; but in a rival work it will be an infringement to take any of the facts as arranged, or to take any of the language of the other's book, except for the purposes of criticism.

Shipman, J., says in _Banks_ v. _M'Divitt_:[1526]

"I do not understand that the rule prohibits an examination of
previous works by the compiler before he has finished his own
book, or the mere obtaining of ideas from such previous works.

"It may be laid down as the clear result of the authorities in
cases of this nature that the true test of piracy or not is
to ascertain whether the defendant has in fact used the plan,
arrangements, and illustrations of the plaintiff as the model of
his own book with colourable alterations and variations only to
disguise the use thereof; or whether his work is the result of his
own labour, skill, and use of common materials and common sources
of knowledge open to all men, and the resemblances are either
accidental or arising from the nature of the subject."[1527]

A dramatist must not take the plot, the characters, the scenes, or situations from the drama of another.[1528] A musician must not take his melody from that of another composer.[1529] The compiler of a digest must not borrow verbatim from the headnotes in the reports.[1530] The compiler of a directory must discover and make his own selection of the matter to be comprised in it.[1531] The designer of a map must not take the position of his towns and boundaries from a copyright map.[1532] The compiler of a dictionary must not take his definitions from another's copyright dictionary.[1533] The writer of a law book must not take his citations and references from the work of another.[1534] It is no answer to a charge of infringement for the defendant to say he could have produced the same result with a little extra trouble. He is not thereby entitled to appropriate the plaintiff's labours.[1535] A man may take ideas from the work of another and put his own material into a similar form.[1536] If one man writes a book on physiognomy on a new system, another may adopt his system and from his own research write a similar book. So the copyrighting of tables showing the standing and credit of the citizens of a state does not prevent another from compiling similar tables.[1537] The sketch of a detective which was said to convey an original idea was held not to have been infringed by another drawing carrying out the same idea but differently executed.[1538] There is no copyright in a method of advertising,[1539] so that if a tradesman issues a circular describing a particular method of obtaining goods by collecting discount coupons, although another tradesman may not copy his circular he may adopt the same system and issue a catalogue of his own, describing the system in his own words.[1540] There is no infringement of a drama in adopting from it a mechanical contrivance, such as a tank filled with water to represent a river on the stage.[1541] In the case of _Bullinger_ v. _MacKay_[1542] it is suggested by Benedict, J., in his judgment that there might be copyright in a novel system of arranging matter in a statistical work. It is submitted that this is wrong, and that even if the arrangement was an original one there would be no infringement in taking the method of arrangement and applying it independently.

=Improvement no Excuse.=--It is no answer to an action for infringement for the defendant to say that he has made a good work out of a bad one, and so benefited the literary or artistic world.[1543] Even although I correct errors and make necessary additions so as to create from a worthless a useful book, I am not entitled so to deal with another author's work without his permission. Good or bad, an author is entitled to do what he likes with his own work and to prevent others making an unfair use of his labours.[1544]

=Different Object.=--When a subsequent book is written with a different object from a previous publication it may be legitimate to take considerable extracts from the earlier work. To what extent this will be permitted must depend upon the relative value of the matter taken, and the purpose for which it is taken.[1545] It is not an absolute answer to an action for infringement to say that the matter was taken for an entirely different purpose from that for which it was used in the original work. If the taking in any way supersedes the uses to which the matter taken might have been put by its original author there is an infringement.[1546] Thus where the main design of a photograph was reproduced on stamped leather,[1547] and where the author of a life of Garfield for the young borrowed largely from a biography of Garfield written for political campaigns,[1548] there was held to be infringement. It is the nature and value of the extracts more than their length or number that must determine whether it was legitimate to take them or not.

In _Gray_ v. _Russell_,[1549] Story, J., says:

"_Non numerantur, ponderantur_; the quintessence of a work may
be piratically extracted so as to leave a mere _caput mortuum_,
by a selection of all the important passages in a comparatively
moderate space."

=Extract for Review.=--Extracts may be taken from a work for the purpose of reviewing or criticising it, or writing a treatise in answer.

"Reviewers may make extracts sufficient to show the merits or
demerits of the work, but they cannot so exercise the privilege as
to supersede the original work. Sufficient may be taken to give a
correct view of the whole; but the privilege of making extracts
is limited to those objects, and cannot be exercised to such an
extent that the review shall become a substitute for the book
reviewed."[1550]

A reviewer must not tear the heart out of a book.

=Abridgments.=--What is called a _bonâ fide_ abridgment is held to be a fair use of another's work.[1551] The opinions of the judges in the older cases were derived from the English case law on the subject. I think it is doubtful whether the English abridgment cases would now be sustained, as the principle involved is clearly against all the more recent doctrines as to infringement. In America, however, the judges, although disagreeing more or less with the case law as to abridgment, have felt themselves bound by precedent to hold that a fair abridgment is not a piracy.

In _Story_ v. _Holcombe_,[1552] M'Lean, J., said:

"If this was an open question, I should feel little difficulty in
determining it. An abridgment should contain an epitome of the
work abridged--the principles in the condensed form of an original
book. Now it would be difficult to maintain that such a work
did not affect the sale of the book abridged. The argument that
the abridgment is suited to a different class of readers by its
cheapness, and will be purchased on that account by persons unable
and unwilling to purchase the work at large, is not satisfactory.
This to some extent may be true, but are there not many who are
able to buy the original work who will be satisfied with the
abridgment.... The reasoning on which the right to abridge is
founded therefore seems to me to be false in fact. It does to
some extent in all cases, and not unfrequently to a great extent,
impair the rights of the author--a right secured by law.... But
a contrary doctrine has been long established in England under
the Statute of Anne, which in this respect is similar to our own
Statute, 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."[1553]

In _Lawrence_ v. _Dana_,[1554] Clifford, J., took a similar view:

"Whatever might be thought, if the question was an open one, it is
too late to agitate it at the present time, as the rule is settled
that the publication of an unauthorised but _bonâ fide_ abridgment
or digest of a published literary copyright, in a certain class of
cases at least, is no infringement of the original."

The learned judge then lays down some restriction on the free right to abridge:

"Unless it be denied that a legal copyright secures to the
author 'the sole right and liberty of printing, reprinting,
publishing, and binding the book' copyrighted, it cannot be held
that an abridgment or digest of any kind of the contents of the
copyrighted publication, which is of a character to supersede
the original work, is not an infringement of the franchise
secured by the copyright. What constitutes a fair and _bonâ fide_
abridgment in the sense of law is, or may be, under particular
circumstances, one of the most difficult questions which can well
arise for judicial consideration; but it is well settled that a
mere selection or different arrangement of parts of the original
work into a smaller compass will not be held to be such an
abridgment."[1555]

I think that to-day the Courts in America as well as England would, if the question of abridgments were to come before them, cut down the right of the abridger very considerably. I could not advise any one that he was safe in making an abridgment of another's work; certainly he must avoid making any extracts from the work abridged; the use of any of the author's language literally or colourably taken would undoubtedly be piratical.

=Translations.=--Authors and their assigns have the exclusive right of translating their works into any language.[1556] Before 1891 the translating right had to be expressly reserved by the author, presumably by notice printed on every published copy of his work.[1557] No reservation is now required. Before 1870 there was no exclusive right of translation at all.[1558] The same remarks apply to the right of dramatization. The right of dramatization probably does not prevent a stranger from making a dramatic version for his own private use; but it would prohibit any public use of such a version whether by publication in print or representation on the stage.

=Dramatic Performing Right.=--In the case of dramatic works the author and his assigns have the sole right of performing the same in public.[1559] This right was first given by Act of Congress in 1856.[1560] In _Daly_ v. _Palmer_,[1561] Blatchford, J., defines the scope of the Act:

"A composition, in the sense in which that word is used in the Act
of 1856, is a written or literary work invented or set in order.
A dramatic composition is such a work in which the narrative is
not related, but is represented by dialogue and action. When a
dramatic composition is represented in dialogue and action by
persons who represent it as real by performing or going through
with the various parts or characters assigned to them severally,
the composition is acted, performed, or represented; and if the
representation is in public, it is a public representation.
To act in the sense of the Statute is to represent as real by
countenance, voice, or gesture that which is not real. A character
in a play who goes through with a series of events on the stage
without speaking, if such be his part in the play, is none the
less an actor in it than one who, in addition to motions and
gestures, uses his voice. A pantomime is a species of theatrical
entertainment, in which the whole action is represented by
gesticulation without the use of words. A written work consisting
wholly of directions, set in order for conveying the ideas of
the author on a stage or public place by means of characters who
represent the narrative wholly by action is as much a dramatic
composition designed or suited for public representation as
if language or dialogue were used in it to convey some of the
ideas."[1562]

It will be an infringement of performing right to take a single scene from another's drama.[1563] It is more important to consider what is a dramatic representation than what is a dramatic composition. If a composition not primarily intended for representation is publicly represented without permission, even if it was not a "dramatic composition," the person representing will be liable for having dramatized it if the representation is dramatic. There can be a dramatic representation by one actor only, and many music hall songs are undoubtedly dramatically represented.

=Musical Rights.=--Before 1897 there was no exclusive performing right in musical compositions as such. It might have been protected from performance if it could be shown to be part of a dramatic piece.[1564] By the Act of January 6, 1897, performing right in musical compositions was first created. The protection is now substantially the same as in the case of dramatic pieces.