Chapter LXXIII: Section II: Unpublished Work

Unpublished work is protected from interference by the common law of England, which was brought to and adopted by the United States.[1647] When the common law is asserted one must look to the law of the State in which the controversy originated,[1648] since although the common law of England was adopted, it was adopted only so far as its principles were suited to the conditions of the colonies at the time, and some States have incorporated with their laws more and some less. The rights at common law in unpublished work were not abrogated by Acts of Congress establishing copyright in published work.

The author of an unfinished work has the right at common law to prevent any one from making any unauthorised use of his work.[1649] The author may without publishing make a communication of the contents of his work to a limited number,[1650] and he may prescribe to them what conditions he pleases.[1651] A play or song is not published by performance nor a lecture by delivery.[1652] A work of art is probably published by public exhibition,[1653] but not by a private view. A spectator of an unpublished play is not entitled to reproduce substantial parts of it even from memory.[1654] Similarly with a musical work or lecture.

An alien author has an equal right with a citizen of the United States to sue at common law for interference with his manuscript.[1655] A statutory remedy is given for the unauthorised printing or publishing of any manuscript. The offender is liable "for all damages occasioned by such injury."[1656] This statutory remedy neither destroys nor limits the common law right.[1657] No new right is secured.[1658] The practical result is that an alternative remedy in the Federal tribunals is provided where the parties are subjects of the same State. The plaintiff may proceed either in the State Court or the Federal Court.[1659] Manuscript under this section is limited to the meaning of a written document. It does not include a picture.[1660]