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the invidents attending personal chattels. They were devisable by testaments before the statute of wills, (m) and at the death of the owner shall vest in his executor and not his heir; they are forfeitable by outlawry in a personal action;(n) and by the statute 11 Geo. II. c. 19, though not by the common law, they may be distreined for rent arrere. The reason for admitting the acquisition of this special property, by tenants who have temporary interests, was formerly given;() and it was extended to tenants in fee, principally for the benefit of their creditors: and therefore, though the emblements are assets in the hands of the executor, are forfeitable upon outlawry, and distreinable for rent, they are not in other respects considered as personal chattels; and particularly they are not the object of larceny before they are severed from the ground.(9)
6. The doctrine of property arising from accession is also grounded on the right of occupancy. By the Roman law, if any given corporeal substance received afterwards an accession by natural or by artificial means, as by the growth of vegetables, the pregnancy of animals, the embroidering of cloth, or the conversion of wood or metal into vessels and utensils, the original owner of the thing was entitled by his right of possession to the property of it under such its state of improvement :(r) but if the thing itself, by such operation, was changed into a different species, as by making wine, oil, or bread out of another's grapes, olives, or wheat, it belonged to the new operator; who was only to make a satisfaction to the former proprietor for the materials which he had so con*405]
verted.(s)10 And these doctrines are implicitly copied and adopted by
our Bracton, (t) and have since been *confirmed by many resolutions of the courts.(u)It hath even been held, that if one takes away and clothes un(*) Perk. (512.
Inst. 2, 1, 25, 26, 31. Ff. 6, 1, 5. in) Bro. Abr. tit. emblements, 21. 5 Rep. 116.
(*) Bro. Abr. tit. propertie, 23. Moor. 20. Poph. 35
Inst. 2, 1, 25, 31. () L. 2, c. 2 and 3.
0 1 Roll. Abr. 666. () Pages 122, 146. (6) 3 Inst. 109.
. But, by the 56 Geo. III. c. 50, no sheriff or other officer shall sell or carry off from any lands any straw, chaff, or turnips, in any case, nor any hay or other produce, contrary to the covenant or written agreement made for the benefit of the owner of the land; but the tenant must give previous notice to the sheriff, &c. of the existence of such covenant, &c. But the produce, &c. may be so sold, subject to an agreement to expend it on the land. And landlords are not to distrein' for rent on purchasors of crops severed from the soil, or other things sold subject to such agreement; nor shall the sheriff sell or dispose of any clover, rye-grass, or any artificial grass whatsoever, which shall be newly sown and be growing under any crop of standing corn. See sections 6 and 7.-CAITTY.
10 This also has long been the law of England; for it is laid down in the year-books that, whatever alteration of form any property has undergone, the owner may seize it in its new shape, if he can prove the identity of the original materials; as if leather be made into shoes, cloth into a coat, or if a tree be squared into timber, or silver melted or beat into a different figure. 5 Hen. VII. fo. 15. 12 Hen. VIII. fo. 10.-CARISTIAN.
The cases referred to (Bro. Abr. Propertie, 23 Moor. 20, Poph. 38) are very explicit. See also 2 Campb. 576. Com. Dig. Pleader, 3 M. 28. Bac. Abr. Tresp. E. 2.-Chitty.
If the materials of one person are united to the materials belonging to another, by the labour of the latter, who furnishes the principal materials, the property in the joint product is in the latter by the right of accession. Merritt vs. Johnson, 7 Johns. 473. Stevens vs. Briggs, 5 Pick. 177. Glover vs. Austin, 6 Pick. 209. Barr vs. St. John, 16 Conn. 322. Pulcifer vs. Page, 32 Maine, 404. Where one by his labour on another's property wrongfully or by mistake changes its form, he gains thereby no title to it, but the owner may seize it in its new shape, if he can prove the identity of the original materials. Betts vs. Lee, 5 Johns. 348. Silsbury vs. McCoon, 4 Denio, 332. Thus, where one cut down the trees of another and made them into shingles, it was held that the property in the shingles was in the owner of the trees. Chandler vs. Edson, 9 Johns. 362. So where coals were made out of another's wood. Curtis vs. Groat, 6 Johns. 168. Riddle vs. Driver, 12 Ala. 590. And where one converts the materials of another, at his request, into a different article by manufacturing process, the property in the manufactured article is in the owner of the original material. Babcock vs. Gill, 10 Johns. 287. Eaton vs. Lynde, 15 Mass. 242. Worth vs. Northam, 4 Iredell, 102. Where a manufacturer or mechanic agrees to construct a particular article out of his own materials, or where he is to furnish the principal part of the materials, the property of the article until its completion and delivery is in the maker. Gregory vs. Stryker, 2 Denio, 268.SuaRSWOOD.
other's wife or son, and afterwards they return home, the garments shall cease to be his property who provided them, being annexed to the person of the child or woman.(w)
h. But in the case of confusion of goods, where those of two persons are so intermixed that the several portions can be no longer distinguished, the English law partly agrees with, and partly differs from, the civil. If the intermixture be by consent, I apprehend that in both laws the proprietors have an interest in common, in proportion to their respective shares. (x) But if one wilfully intermixes his money, corn, or hay with that of another man, without his approbation or knowledge, or casts gold in like manner into another's melting-pot or crucible, the civil law, though it gives the sole property of the whole to him who has not interfered in the mixture, yet allows a satisfaction to the other for what he has so improvidently lost.(y) But our law, to guard against fraud, gives the entire property, without any account, to him whose original dominion is invaded, and endeavoured to be rendered uncertain without his own consent.(z)"
8. There is still another species of property, which, (if it subsists by the common law,) being grounded on labour and invention, is more properly reducible to the head of occupancy than any other; since the right of occupancy itself is supposed by Mr. Locke, (a) and many others,(6) to be founded on the personal labour of the occupant." And this is the right which an author may be supposod to have in his own original literary composition: so that no other person
without his leave may publish or make profit of the copies. When a man by the exertion of his rational powers bas produced an original work, he seems to have clearly a *right to dispose of that identical work as he pleases, and any attempt to vary the disposition he has made of it appears to be an in
[*406 vasion of that right. Now the identity of a literary composition consists entirely in the sentiment and the language; the same conceptions, clothed in the same words, must necessarily be the same composition: and whatever method be taken of exhibiting that composition to the ear or the eye of another, by recital, by writing, or by printing, in any number of copies, or at any period of time, it is always the identical work of the author which is so exhibited; and no other man (it hath been thought) can have a right to exhibit it, especially for profit, without the author's consent. This consent may perhaps be tacitly given to all
() Poph. 38. 2 Bulstr. 325. 1 Hal. P. C. 513. 2 Vern.
(a) On Govt. part. 2, ch. 5.
(w) Moor. 214.
11 Where one so confounds another's property with his own that it cannot be distinguished, he must bear all the loss caused by the confusion, (Brackenridge vs. Holland, 2 Blackf. 377. Nast vs. Ten Eyck, 2 Johns. C. R. 62. Haseltine vs. Stockwell, 30 Maine, 237. Bryant vs. Ware, ib. 295,) but not where the confusion has arisen from mere negligence, and not from fraud or design. Pratt vs. Bryant, 30 Verm. 333. If the mortgagor of personal property mix other property of his own with the mortgaged goods, without the consent of the mortgagee, such goods become subject to the lien and operation of the mortgage. Dunning vs. Stearns, 9 Barb. Sup. Ct. 630.
But the rule in regard to confusion of goods is carried no further thau necessity requires ; and if goods can be easily distinguished and separated, as articles of furniture, for instance, then no change of property takes place. Colwill vs. Reeves, 2 Campb. 575. Holbrook vs. Hyde, 1 Verm. 286. So if the corn or flour mixed together were of equal value, then the injured party takes his given quantity, and not the whole. This is ford Eldon's construction of the cases in the old law. Lupton vs. White, 15 Ves. 442. But if the articles were of different value or quality, and the original value not to be distinguished, the party takes the whole. It is for the party guilty of the fraud to distinguish his own property satisfactorily or lose it. No court of justice is bound to make the discrimination for him. 3 Kent's Com. 365.SHARSWOOD.
12 The right to the exclusive use of particular distinctive trade-marks, or of a particular partnership firm, (7 Sim. 421,) for enabling the public to know if it is dealing with or buying the manufactures of a particular person, is somewhat analogous to literary copy. right, and, though partially founded on the notion of protecting the public from fraud, (3 Myl. & Cr. 338. 8 Sim. 477,) is an example of a right much more evidently arising out of occupancy. See 3 Doug. 293. 3 B. & Cr. 541. 2 Ves. & B. 218. 2 Keen, 213. 3 Myl. & Cr. 1, 338. 5 Scott, N. R. 562.SWEET.
mankind, when an author suffers his work to be published by another hand, without
any claim or reserve of right, and without stamping on it any marks of ownership; it being then a present to the public, like building a church or bridge, or laying out a new highway; but, in case the author sells a single book, or totally grants the copyright, it hath been supposed, in the one case, that the buyer hath no more right to multiply copies of that book for sale, than he hath to imitate for the like purpose the ticket which is bought for admission to an opera or a concert; and that, in the other, the whole property, with all its exclusive rights, is perpetually transferred to the grantee. On the othor hand it is urged, that though the exclusive property of the manuscript, and all which it contains, undoubtedly belongs to the author before it is printed or published; yet, from the instant of publication, the exclusive right of an author or his assigns to the sole communication of his ideas immediately vanishes and evaporates; as being a right of too subtle and substantial a nature to become the subject of property at the common law, and only capable of being guarded by positive statutes and special provisions of the magistrate.
The Roman law adjudged, that if one man wrote any thing on the paper or parchment of another, the writing should belong to the owner of the blank materials :(c) meaning thereby the mechanical operation of writing, for which *407]
it directed the *scribe to receive a satisfaction; for in works of genius
and invention, as in painting on another man's canvas, the same law(d) gave the canvas to the painter. As to any other property in the works of the understanding, the law is silent; though the sale of literary copies, for the purposes of recital or multiplication, is certainly as antient as the times of Terence, (e) Martial,(f) and Statius (9) Neither with us in England hath there been (till very lately) any final(h) determination upon the right of authors at the common law.18
(9) Si in chartis membranisve tuis carmen vel historiam (*) Since this was first written, it was determined in the vel orationem Titius scripserit, hujus corporis non Titius sed case of Miller vs. Taylor, in B. R. Pasch. 9 Geo. III. 1709, tu dominus esse videris. Inst. 2, 1, 33. See page 404. that an exclusive and permanent copyright in authors sube (*) Ibid. & 34.
sisted by the common law; but afterwards, in the case of
Donaldson vs. Becket, before the house of lords, 22d Feb. l) Epigr. i. 67, iv. 72, xiii. 3, xiv, 194.
1774, it was held that no copyright now subsists in authors () Juv. vii. 83.
after the expiration of the several terms created by the statute of queen Anne.
Prol. in Eunuch. 20.
13 Whether the productions of the mind could communicate a right of property or of exclusive enjoyment in reason and nature, and, if such a moral right existed, whether it was recognised and supported by the common law of England, and whether the common law was intended to be restrained by the statute of queen Anne, are questions upon which the learning and talents of the highest legal characters in this kingdom have been powerfully and zealously exerted.
These questions were finally so determined that an author has no right at present beyond the limits fixed by the statute; but, as that determination was contrary to the opinion of lord Mansfield, the learned commentator, and several other judges, every person may still be permitted to indulge his own opinion upon the propriety of it without incurring the imputation of arrogance. Nothing is more erroneous than the common practice of referring the origin of moral rights and the system of natural equity to that savage state which is supposed to have preceded civilized establishments, in which literary composition, and of consequence the right to it, could have no existence. But the true mode of ascertaining a moral right, I conceive, is to inquire whether it is such as the reason-the cultivated reason-of mankind must necessarily assent to.
No proposition seems more conformable to that criterion than that every one should enjoy the reward of his labour,-the harvest where he has sown, or the fruit of the tree which he has planted.
And if any private right ought to be preserved more sacred and inviolable than another, it is where the most extensive benefit flows to mankind from the labour by which it is acquired. Literary property, it must be admitted, is very different in its nature from a property in substantial and corporeal objects, and this difference has led some to deny its existence as property; but whether it is sui generis, or under whatever denomination of rights it may more properly be classed, it seems founded upon the same principle of general utility to society, which is the basis of all other moral rights and obligations.
Thus considered, an author's copyright ought to be esteemed an inviolable right, established in sound reason and abstract morality.
But whatever inherent copyright might have been supposed to subsisi by the common law, the statute 8 Anne, c. 19 (amended by statute 15 Geo. III. c. 53) hath now declared that the author and his assigns shall have the sole liberty of printing and reprinting his works for the term of fourteen years, and no longer ; (i) and hath also protected that property by additional penalties and forfeitures : directing further, that if, at the end of that term, the author himself be living, the right shall then return to him for another term of the same duration :14 and a similar privilege is extended to the inventors of prints and engrav.
By statute 15 Geo. III. c. 53, some additional privileges in this respect are granted to the universities and certain
other learned societies.
No less than eight of the twelve judges were of opinion that this was a right allowed and perpetuated by the common law of England; but six held that the enjnyment of it was abridged by the statute of queen Anne, and that all remedy for the viilation of it was taken away after the expiration of the terms specified in the act; and agreeable to that opinion was the final judgment of the lords.
See the arguments at length of the judges of the King's Bench and the opinions of the rest in 4 Burr, 2303.
Before the union of Great Britain and Ireland, in 1801, no statute existed to protect copyright in Ireland; but now, by the stat. 41 Geo. III. (U. K.) c. 107, provisions similar to those in the statute of Anne are re-enacted, and extended to the whole of the united kingdom. These provisions are also enforced by additional remedies and increased penalties, and an action on the case for damages is specifically given to the party injured. Previous to this act, men of genius and learning in Ireland were stimulated only by the incentive which lord Camden splendidly describes in the conclusion of his argument against literary property. "Glory is the reward of science, and those who deserve it scorn all meaner views. I speak not of the scribblers for bread, who tease the press with their wretched productions. Fourteen years are too long a privilege for their perishable trash. It was not for gain that Bacon, Newton, Milton, Locke, instructed and delighted the world. When the bookseller offered Milton five pounds for his Paradise Lost, he did not reject it and commit his poem to the flames, nor did ho accept the miserable pittance as the reward of his labour: he knew that the real price of his work was immortality, and that posterity would pay it.”—CARISTIAN.
In Wheaton vs. Peters, 8 Peters, 591, the question of copyright was discussed by counsel with great learning and ability, and a majority of the Supreme Court held that an author had no common-law copyright in his published works; that if such a commonlaw right ever existed in England, yet there was no common law of the United States on the subject; and that there was no evidence or presumption that any such common-law right had ever been introduced or adopted in Pennsylvania where the controversy in that case arose; and that as in England, since the statute of 8 Anne, an author's exclusive right of literary property in his published works was confined to the period limited by the statute, so in that case the author's right depended upon the acts of Congress of 1790 and 1802. 2 Kent's Com. 376, n. -SHARSWOOD.
14 The statute of 54 Geo. III. c. 156 enacts that the author of any book printed and published subsequently to the said act, and the assignee or assigns of such author, shall have the sole liberty of printing and reprinting such book for the full term of twentyeight years, to commence from the day of first publishing the same; and also, if tho author shall be living at the end of that period, for the residue of his natural life; and that if any person, in any part of the British dominions, shall, within the terms and times granted and limited by the said act as aforesaid, print, reprint, or import, or cause to be printed, reprinted, or imported, any such book, without the consent of the author or other proprietor of the copyright first had in writing, or, knowing the book to be sa printed, reprinted, or imported without such consent, shall sell, publish, or expose to Bale, or cause to be sold, published, or exposed to sale, or shall have in his possession for sale, any such book, without such consent first had and obtained as aforesaid, then such offender shall be liable to a special action on the case, at the suit of the author or other proprietor of the copyright of such book, and the author shall recover such damages as the jury on the trial of such action, or on the execution of a writ of inquiry thereon, shall give or assess, together with double costs of suit; and every such offender shall also forfeit such book or books, and shall deliver the same to the author or other proprietor of the copyright thereof, and the said author or proprietor shall make waste paper of such book or books; and every offender shall also forfeit three-pence for every sheet thereof, either printed or printing, or published or exposed to sale: provided that all actions, suits, bills, indictments, or informations for any offence committed against the said act shall be brought, sued, and commenced within twelve months next after such offence mmmitted. The title to the copyright of books is dire :ted by the act to be entered at
ings, for the term of eight-and-twenty years, by the statutes 8 Geo. II. c. 13, and 7 Geo. III. c. 38, besides an action for damages, with double costs, by statute 17 Geo. III. c. 57 All which parliamentary protections appear to have been suggested by the exception in the statute of monopolies, 2i Jac. I. c. 3, Stationers' hall, within a limited time, under a penalty of forfeiture of five pounds, together with eleven times the price at which such books shall be sold or advertised for sale: provided that no failure in making such entry shall in any manner affect the copyright, but shall only subject the person making default to the penalty aforesaid under. the said act.
Whenever an action at the suit of the author would lie against a person pirating books, (Lord Byron vs. Johnston, 2 Meriv. 29. Hogg vs. Kirby, 8 Ves. 225. Stockdale vs. Onwhyne, 5 Barn. & Cress. 177,) or music, (Platt vs. Button, 19 Ves. 447. Clementi vs. Walker, 2 Barn. & Cress. 861,) or prints, or charts, (Blackwell vs. Harper, Barnard, Cha. Rep. 120. Wilkins vs. Aikin, 17 Ves. 425. Harrison vs. Hogg, 2 Ves. Jr. 323. Longman vs. Winchester, 16 Ves. 271. Newton vs. Cowie, 4 Bingh. 245,) a court of equity will grant an injunction to restrain a fraud on the author's property; but, where the character of the publication is such that no damages could be recovered in respect thereof at law, equity will refuse to interpose. Lawrence vs. Smith, Jacob's Rep. 472. Walcot vs. Walker, 7 Ves. 2. Southey vs. Sherwood, 2 Meriv. 440. Lord and Lady Percival vs. Phipps, 2 Ves. & Bea. 26. Gee vs. Pritchard, 2 Swanst. 415. The plaintiff must also, in order to entitle him to an injunction, show the property in the pirated work to be clearly vested in himself, either as the author, or as an assignee, for his own benefit, or in trust for others; and this interest must be distinctly stated in the bill; for the injunction ought to be warranted by what appears in the bill, not by what is brought forward merely by affidavit. Nicol vs. Stockdale, 3 Swanst. 689.
The collection of materials may establish a claim to copyright in a work, notwithstanding the subject may be obvious to all mankind; and an injunction will issue to stop the publication of a work which is a servile copy of a preceding one, with merely colourable alterations. Matthewson vs. Stockdale, 12 Ves. 273, 276. Butterworth vs. Robinson, 5 Ves. 709. Tonson vs. Walker, 3 Swanst. 679. The case would be different if the new work contained not only alterations, but corrections and improvements of the original work, (Cary vs. Faden, 5 Ves. 26;) and such additions and corrections may properly be made the subject of copyright. Cary vs. Longman & Rees, 1 East, 380. But it will not be permitted that one man should, under pretence of quotation, in fact publish another's work and defraud him of the fruit of his labours, (Wilkins vs. Aikin, 17 Ves. 424;) for, although an abstract or fair abridgment of a publication is allowable, (Dodsley vs. Kinnersley, Ambl. 403. Gyles vs. Wilcox, Barnard, Cha. Rep. 368. Bell vs. Walker & Debrett, 1 Br. 451. Whittingham vs. Wooler, 2 Swanst. 431,) a colourable abstract will be restrained. Butterworth vs. Robinson, 5 Ves. 709. Carnan vs. Bowles, 1 Cox, 285. Macklin vs. Richardson, Ambl. 696. Gyles vs. Wilcox, 2 Atk. 142.
No property can be acquired in any article copied, in the same language, from a prior work, (Barfield vs. Nicholson, 2 Sim. & Stu. 1;) but a translation is as much entitled to protection as an original production. Wyatt vs. Bernard, 2 Ves. & Bea. 78.
Forms of indictments, it has been decided, cannot be the subjects of copyright; nor can a statement of the evidence necessary to support indictments, and subjoined thereto, be so appropriated. And further, though an author, after the publication of one or more editions of his work, sells the copyright, with an undertaking to prepare and edit the subsequent editions of the work at a fixed price, he may publish any new matter on the same general subject in a separate publication on his own account, notwithstanding the insertion of such new matter in the subsequent editions of the work of which he has sold the copyright may be absolutely necessary to their proper completion. Sweet vs. Archbold,
,--so held by the vice-chancellor in Hil. T. 1828, and by the lord chancellor during the sittings after that term.
No one who chooses to copy and publish a specification of patents can thereby acquire a right to restrain another from copying the same; for these are common property. Wyatt vs. Barnard, 3 Ves. & Bea. 78.
When a plaintiff has permitted repeated infringements of his copyright for a length of time, equity will not interfere (by injunction, at any rate, whether it may be proper to direct an account to be kept or not) before the right is determined at law. "Platt vs. Button, 19 Ves. 448. Rundell vs. Murray, Jacob's Rep. 316.
Whether the act of publication abroad makes a work at once publici juris may be very questionable; but there can be no doubt that, where an author prints and publishes abroad omly, or where he does not take prompt measures to publish here, he cannot, after a reasonable time for his publishing here has elapsed, and after some other person, in the regular and fair course of trade, has published the work in this country, sustain an injunction against such person. Clementi vs. Walker, 2 Barn. & Cress. 866, 870.