Copyright: Its History and Its Law. Bowker Richard Rogers

Arthur, "found no difficulty" in deciding that a catalogue of old books was a subject of copyright "notwithstanding that the catalogues were for the purpose of advertising the plaintiffs' stock-in-trade, and were not in themselves offered for sale"; but in 1872 Lord Romilly, in Cobbett v. Woodward, made an absolutely contrary decision, saying: "But at the last, it comes round to this, that there is no copyright in an advertisement. If you copy the advertisement of another, you do him no wrong in doing so, unless you lead the public to believe that you sell the articles of the person whose advertisement you copy." This last decision was definitely overruled and in 1882, in Maple v. Junior Army & Navy Stores, the English Court of Appeal, in protecting an advertising catalogue consisting mostly of engravings of furniture, said through Justice Jessel: "The case which has done all the mischief is Cobbett v. Woodward… I think that is not law. I am not aware that the use to which a proprietor puts his book makes any difference in his rights." In 1906, in Davis v. Benjamin, the Chancery Division held a sheet of advertising illustrations with headlines and prices a book.

      Undistinctive advertising not protectable

      An advertisement per se of an ordinary character, the courts may decline to protect, either on behalf of the advertiser or of the publisher of the periodical in which it appears; thus possibly ordinary advertisements might be copied by another paper, to give an inflated impression of its advertising patronage unless enjoined for intent to deceive. On the other hand, characteristic advertisements, as those for which department stores pay large sums to advertisement writers, could doubtless be copyrighted to prevent their use by rival firms, though the advertiser would scarcely be interested in preventing the wide diffusion of his advertisement with his name by its gratuitous publication elsewhere. Some street-car advertisements, however, bear copyright notices. Whether the proprietor of a copyrighted periodical could prevent the use of a copyrightable advertisement not protected by specific copyright, in a rival newspaper, would be questionable, though a publisher might be granted an injunction for the combination or arrangement of copyrightable advertisements in his periodical. In 1892, in Lamb v. Evans, Lord Justice Lindley, in the English Court of Appeal, said: "I do not see myself the difficulty in the publisher's having a copyright in a sheet of advertisements. I do see a difficulty in his having a copyright in one advertisement, because, as Mr. Justice Chitty pointed out, that might prevent the advertiser from republishing his advertisements in another paper, which is absurd." An advertisement appearing in several publications, some of them not copyrighted, could only be protected in these latter by specific copyright notice, even though covered in the copyrighted periodicals as a component part. The Copyright Office can make no clear line of demarcation in advance as to advertisements, but it has declined in a recent instance to accept for registry recipes printed on tin and inserted in packages of flour to advertise the flour, which could scarcely be accepted as a "book" or other copyrightable matter.

      New editions

      New editions are protected under the American code as new works (sec. 6), to the extent that they include new material; and this is in accord with the whole trend of court decisions. In 1852 Vice-Chancellor Kindersley stated the doctrine that "if a man prints a second edition, not being a mere reprint of the first edition, but containing considerable and material alterations and additions, quoad those, it is a new work." So in 1870, in Black v. Murray & Son, Lockhart's edition of Scott's "Border Minstrelsy" was protected, on Lord President Inglis' decision, to the full extent of the notes: "Questions of great nicety and difficulty may arise as to how far a new edition of a work is a proper subject of copyright at all; but that must always depend upon circumstances. A new edition of a book may be a mere reprint of an old edition, and plainly that would not entitle the author to a new term of copyright running from the date of the new edition. On the other hand, the new edition of a book may be so enlarged and improved as to constitute in reality a new work, and that just as clearly will entitle the author to a copyright running from the date of the new edition." A few colorable alterations or unimportant notes may not justify a new copyright; a Scotch justice, however, contended that Walter Scott's change of a single word in "Glenallan's Earl" authorized a copyright for the new edition, though another law lord differed, and the case was decided on other grounds. It is doubtful indeed whether there can be protection of a single word, a question which arose in the Belgravia case, unless having association in the public mind as a trade-mark. In any event, the copyright on a new edition, whether made by rewriting, extending, condensing, annotating, or otherwise altering, runs independently of the term of the original or any other edition, covers only the new parts, and cannot prevent the issue by others of the original or any other edition on which copyright has expired. This is made entirely clear in the new code (sec. 6).

      Copyright comprehensive

      "A book must include every part of the book; it must include every print, design, or engraving which forms part of the book, as well as the letterpress therein, which is another part of it," according to the ruling decision of Vice-Chancellor Parker, in 1852, in the English case of Bogue v. Houlston. To the same effect Drone says: "The copyright protects the whole and all the parts and contents of a book: when the book comprises a number of independent compositions, each of the latter is as fully protected as the whole." The copyright under the new law protects (sec. 3) "all the copyrightable component parts of the work copyrighted." The practice of some publishers in copyrighting a magazine and also specific articles or engravings seems, therefore, a work of doubtful expediency. The new law specifically gives to the proprietor of "composite works or periodicals" (sec. 3) "all the rights in respect thereto which he would have if each part were individually copyrighted."

      Non-copyrightable parts excepted

      On the other hand, copyright cannot extend to any part of a book not subject in itself to copyright, even under the old law, and the new law (sec. 3) is perfectly plain. The general copyright is not, however, vitiated as to copyrightable portions by its seeming to cover non-copyrightable portions, as was held by Lord Kenyon, in 1801, in Cary v. Longman. But when copyright is claimed on a work partly composed of uncopyrightable matter the courts may require the claimant, on interrogatories, to designate which parts are and which are not original. "If the parts cannot be separated," says Drone, "it would seem that copyright will not vest in any of it." The new code is to the same effect.

      Book illustrations

      The application of these principles to the protection of a "new edition" which is new only with respect to added illustrations, is very simple. It is only the new illustrations which can be copyrighted, and it is matter for question whether the endeavor to protect an edition of unaltered text by a general copyright notice which really covers only a few added illustrations would not be a false use of the copyright notice. A proper copyright notice on an illustrated book will, however, protect the illustrations against indirect as well as direct reproduction; thus in 1908 in Harper v. Kalem, Judge Lacombe in the U. S. Circuit Court in New York protected certain illustrations in "Ben Hur" against their reproduction in moving pictures.

      Translations

      In respect to translations, the new American law is specific, not only in its mention of "translations" (sec. 6), but in giving (sec. 1, b) the exclusive right "to translate the copyrighted work into other languages or dialects, or make any other version thereof, if it be a literary work." The early American precedent was the case of "Uncle Tom's cabin," in 1853, in which Mrs. Stowe had copyrighted not only the original work, but a German translation which she had provided; Justice Grier in the U. S. Circuit Court held that she could not recover against one Thomas who was issuing another German translation, since it was not "copies of her book." This case was previous to the statute permitting authors to reserve the right of translation, and the new code as above cited fully protects translations. The author of a copyrighted work thus has the exclusive right to translate his work, or license its translation, into any other language, and under such a license the translator with the consent of the author would have the right to copyright his translation. Where the author employs a translator for hire, the copyright in the translation may be secured by the author of the original work, but under ordinary circumstances the copyright in the translation would be secured by or on behalf of the translator. In case of contest on this point, the issue would be a question of contract, and in the absence of contract or specific assent the