of his patent in a court of law. (h) The courts having cognizance of the subject may award to the amount of treble the actual

(h) Sullivan v. Redfield, 1 Paine, 441; Hill v. Thompson, 3 Meriv. 622; Livingston v. Van Ingen, 9 Johns. 507, 585; Washburn v. Gould, 3 Story, 122. The measure of damages is, in each case, a matter of fact for the discretion of the jury under the circumstances; and the better opinion is, that it is not the legal operation of the verdict, in a case of piracy for making and using a patented machine (whatever measure of damages may be given), to transfer to the defendant the future right to the use of the machine. A verdict and judgment against a trespasser, for using the machine for one period, is no bar to a like action for the use in another and subsequent period. Whittemore v. Cutter, 1 Gall. 478; Earle v. Sawyer, 4 Mason, 12–14 The law of patents in France is founded on decrees of the Constituent Assembly of December 31, 1790, and January 7 and May 25, 1791; and it assures to inventors of discoveries in the arts, for a certain period, the exclusive right to make and sell their discoveries; and it makes no distinction between Frenchmen and foreigners, or between residents and non-residents. The French law admits of three distinct kinds of patents, viz.: Patents for inventions, patents for improvements, and patents for importations of foreign inventions unknown in France. Perpigna on the French Law of Patents, 23, 36, 47, 84. A decree of Napoleon of the 13th of August, 1810, placed patents for importations on the same footing with patents for inventions; but that law is not now in force, and therefore patents for improved inventions cannot extend beyond the term fixed for the expiration of the privilege in the foreign country. Ib. 84, 85. The patent may be taken out for five, ten, or fifteen years, at the option of the patentee, under the charge of a tax proportioned to the time; and whoever first imports a foreign discovery or improvement is entitled to the privilege of an inventor. The patentee must exhibit a true and accurate specification of the principles, plans, and models of his discovery or importation. If he obtains a patent for the same object in a foreign country, he forfeits his French patent. The French jurisprudence on this point is very fully considered by A. C. Renouard, in his Traité des Brevets d'Invention, de Perfectionnement et d'Importation, Paris, 1825. The conditions necessary to the validity of a French patent, says M. Perpigna, are, 1. The invention must be lawful. 2. It must be new. 3. The inventor, improver, or importer must disclose at once, in the specification, his whole secret. 4. Whatever improvements he makes, he must declare them, and obtain additional patents for them. 5. After having taken a patent in France, the patentee must not take a patent for the same thing in a foreign country. 6. He must put his invention into practice within two years. See the French law and practice of patents for inventions, improvements, and importations, by M. Perpigna, 62. The same questions concerning the priority of invention and the requisite proofs have disturbed the French tribunals, which have so long been agitated in ours. (Répertoire de Jurisprudence, tit. Brevet d'Invention. Questions de Droit, v. 187.) The law as to patents for new inventions and discoveries, in the dominions of the Emperor of Austria, rests upon an imperial decree of December 6, 1820. By that decree, foreigners, residents, and non-residents may obtain patents on the same terms as the native subjects. The objects of the patents are new discoveries; but those are considered as new which, although known in other countries, are not, at the time of the application, in practical use in the Austrian dominions, nor specifically described in any printed work. The patents may be taken out for fifteen years; and the application for them must describe, accurately and minutely, the invention, discovery, or improvement, and be accompanied with models, if the nature of the case requires them. The patentce must put his inven

damages found by the jury, for making, using, or selling the thing secured to another by patent; and all cases arising under the patent laws are made originally cognizable, as well in equity as at law, in the Circuit Court of the United States, and in the district courts having the jurisdiction of circuit courts, with the right to a writ of error or appeal, as in other cases, to the Supreme Court of the United States. (i)

tion into practice within one year from the date of the patent, or he forfeits it. See the substance of the Austrian decree, inserted in the Appendix to Mr. Phillips's Treatise on Patents. In the same appendix is also given the patent law of the Netherlands, made in 1817. It is very analogous, in its chief provisions, to the act of Congress of 1836. It allows patents, not exceeding fifteen years, to the persons who have made any invention or essential improvement (not already used in the kingdom by another person, or described in any work printed or published) in any branch of arts or manufactures, and also to those who shall first introduce or practice in the kingdom any invention or improvement made in foreign countries. Patents for foreign inventions or improvements, and under foreign patent, may be granted for the unexpired term; but the thing must be manufactured in the kingdom. A subsequent patent in a foreign country vacates the patent; and the thing patented must be put in practice within two years. The Spanish patent law is founded on a decree of the king and cortes, of October 14, 1820. It grants a monopoly of any art or manufacture to the inventor, for ten years; to him who improves it, for six years; and to him who imports it, for five years. The law is well drawn and guarded, and is annexed to the treatise of M. Renouard.

The valuable work of Mr. Phillips, of Boston, on The Law of Patents for Inventions, is an elaborate production, and contains a critical examination of all the English and American cases applicable to the subject; and they are well digested. He has likewise incorporated in his treatise much interesting information on the French law of patents, drawn from the excellent treatise of M. Renouard; so that the work gives us an enlarged and accurate survey of the English and French, as well as American, law of patents.

It may be here observed that although a merchant or trader has no patent right relative to the disposition of his goods and manufactured articles, yet the law will throw a protection over the particular marks or signs he may habitually affix to his goods, to distinguish them from similar articles belonging to others; and if another person fraudulently uses those marks and signs, with intent to injure him in his trade, he will be entitled to a special action on the case at law for damages, and to a much more prompt and effectual remedy in equity, by injunction to restrain such a fraudulent invasion of his private right. By statute of New York, of May 14, 1845, and of New Jersey, 1847, to counterfeit or forge any private stamp or label, with fraudulent intent, is made penal. Popham, 144, where Doderidge, J., stated a case of a successful action in 22 Eliz., against a clothier, by another clothier, who used his marks to ill-made cloth. Sykes v. Sykes, 3 B. & C. 541; Blofeld v. Payne, 4 B. & Ad. 410; Knott v. Morgan, 2 Keen, 213; Motley v. Downman, 3 M. & Cr. 1; Taylor v. Carpenter, [11 Paige, 292; 2 Sandf. Ch. 603. See 2 Woodb. & M. 1;} Coates v. Holbrook, before Ass. V. Ch. Sandford, 3 N. Y. Legal Observer, 404; 2 Sandf. Ch. 586; ib. 603.

(i) Act of Congress, July 4, 1836, c. 357, sec. 14, 17.

*

(2.) As to Copyrights of Authors. (a) 1y1-The authors * 373 of books, maps, charts, and musical compositions, and the

(a) Since the last edition of this work, George Ticknor Curtis, Esq., already favorably known to the profession by his work on Merchant Seamen, has published an essay "on the law of copyright in books, dramatical and musical compositions, letters, and other manuscript engravings and sculpture, as enacted and administered in England and America." It is an admirable work, and worthy of the attentive perusal of the professional reader.

y1 1. Literary Property. — At Common Law. The right of an author to have restrained any imitation of the title and appearance of his book is a common-law right, and not dependent on the copyright laws. It is analagous to trade mark. Dicks v. Yates, 18 Ch. D. 76; Kelly v. Byles, 13 Ch. D. 682; Metzler v. Wood, 8 Ch. D. 606; Robertson v. Berry & Co., 50 Md. 591. See Weldon v. Dicks, 10 Ch. D. 247, explained in Dicks v. Yates, supra. So the right of an author to his unpublished manuscript is protected independently of statute, so long as it is not published. French v. Maguire, 55 How. Pr. 471; Rees v. Peltzer, 75 Ill. 475.

2. Copyright.-(a) Statute. Sec. 97, supra, has been slightly amended by Stat. June 18, 1874 (18 St. at L. 78), and Stat. Aug. 1, 1882 (22 St. at L. 181).

The acts against which the copyright laws protect are: (a) Publication of unauthorized editions, or introduction and sale of foreign reprints, i. e. literary piracy. (b) Unlawful appropriation of the fruits of a previous author's literary labor, i. e. literary larceny. James, L. J., in Dicks v. Yates, 18 Ch. D. 76, 90.

who shall be the author, inventor, designer, or proprietor of any of the things mentioned in the text, any dramatic composition, photograph or negative thereof, or of a painting, drawing, chromo, statue, statuary, and of models or designs intended to be perfected as works of the fine arts, and his executors, administrators, or assigns, shall, upon complying with

In order that there may be copyright in a title to a work, the title itself must be original, either in matter or in combination. Dicks v. Yates, 18 Ch. D. 76. See Osgood v. Allen, 1 Holmes, 185.

(b) Infringement. — A dramatization of an existing novel is not an infringement of the copyright of the novel or of a different dramatization of the same novel. Toole v. Young, 9 L. R. Q. B. 523. A person may use previous works, maps, &c., as guides and helps, providing he bestows such labor on the materials gained as to produce an original result. Silas Farmer v. The Calvert, &c. Co., 1 Flip. 228.

(c) Co-owners. In Powell v. Head, 12 Ch. D. 686, a case of dramatic copyright, it was held by Jessel, M. R., that one part owner of a copyright had no power to grant a license to represent the play without the consent of the others, and that one representing it under such license was liable to the penalty provided by St. 3 Will. IV. c. 15. But in Carter v. Bailey, 64 Me. 458, it was held that co-owners of a copyright are under no obligation to account inter se for their use of the right. Compare cases on co-ownership in patents, ante, 366, n. y1, (d).

inventors and designers of prints, cuts, and engravings, being citizens of the United States, or residents therein, (b) are entitled

(b) A bill was introduced into the Senate of the United States, in February, 1837, by Mr. Clay, extending the privilege of the act to the non-resident subjects of Great Britain and France in respect to future publications. It was stated that as American authors could be protected abroad in their productions, under the copyright laws of those two kingdoms, such an extension of the privilege was called for on a principle of reciprocity as well as of justice. The bill, we regret to say, did not pass into a law. Mr. Lieber, in a letter to Mr. Preston on international copyright (1840), has urged the justice of such a law with his usual ability and force. In Bentley v. Foster, 10 Sim. 329, the vice-chancellor of England held, that an alien, resident abroad, who composes a work abroad and publishes it first in England, was entitled to the protection of copyright. By the statute of 7 & 8 Vict. c. 69, the queen in council may grant a copyright in any book, print, or works of art, which at the time of such order shall be first published in any foreign country, to the authors, &c., and their representatives and assigns, for a term not exceeding that of the author's copyright therein in England.

The earliest instance of a protected copyright for printing books was granted by the senate of Venice in 1469; and as early as 1486, a censorship of the press, or restraint on the sale of printed books, was introduced in Germany. Hallam's Introduction to the Literature of Europe, i. 344, 348.

the provisions of the act, have the sole liberty of printing, reprinting, publishing, completing, copying, executing, finishing, and vending the same; and, in the case of a dramatic composition, of publicly performing or representing it, or causing it to be performed or represented by others; and authors may reserve the right to dramatize or to translate their own works. The provisions as to the original term of twenty-eight years, and the extension for fourteen, are continued in §§ 87, 88; that as to assignment, post, 383, n. (c), in § 89. No person is entitled to a copyright unless he shall, before publication, deposit in the mail a printed copy of the title of the book or other article, or a description of the painting, &c., addressed to the librarian of Congress, before publication, and, with in ten days from publication, deposit in the mail two copies of the book, &c., or a photograph of the painting, &c., addressed in like manner. $$ 90, 93-96; Struve v. Schwedler, 4 Blatchf. 23. By § 97, the notice of copyright to be printed on the book, &c., is, " Entered according to act of Congress, in the year -, by A. B.,

in the office of the Librarian of Congress, at Washington." § 98 punishes the insertion of such a notice contrary to the truth; and infringements are punished by $$ 99-101. The provision mentioned on p. 380, as to infringement of MSS., is found in § 102; and the exclusion of foreign works from the operation of the act (375) is in § 103. By § 106 all actions, &c., in equity or at law, whether civil or penal, arising under the copyright laws of the United States, are originally cognizable in the circuit courts, &c., and § 107 gives a writ of error or appeal to the Supreme Court without regard to the sum or value in controversy.

to the exclusive right of printing, reprinting, publishing, and vending them, for the term of twenty-eight years from the time

c. 45, it has been held that an American who went to Canada for a few days by arrangement, while her book was being published in London, was entitled to the protection of the law; and it was thought by Lord Cairns and Lord Westbury that the same was true of every author who first published in the United Kingdom, wheresoever he might then be residing. Routledge v. Low, L. R. 3 H. L. 100; s. c. Low v. Routledge, L. R. 1 Ch. 42. See also Low v. Ward, L. R. 6 Eq. 415. The American law has been less liberal, and it has been held that a transient sojourner is not a "resident" entitled to the protection of the earlier acts of Congress. Boucicault v. Wood, 7 Am. Law Reg. N. s. 539. Cf. § 86 of the present act, supra.

(c) What will be protected. The subject of a book need not be new, nor the materials original, in order to entitle an author to a copyright, provided he has made a new arrangement and combination of materials by his own intellectual labor. Greene v. Bishop, 1 Cliff. 186; Emerson v. Davies, 3 Story, 768; Boucicault v. Fox, 5 Blatchf. 87; Atwill v. Ferrett, 2 Blatchf. 39; Jarrold v. Houlston, 3 Kay & J. 708; [Bullinger v. Mackey, 15 Blatchf. 550.]

(d) Infringement. - Judge Story's proposition as to infringement at the end of n. (a), post, 383, is sustained by Emerson v. Davies, 3 Story, 368; Webb v. Powers, 2 Woodb. & M. 497; Greene v. Bishop, 1 Cliff. 186; Lewis r. Fullarton, 2 Beav. 6; Jarrold v. Houlston, 3 Kay & J. 708; [Chatterton v. Cave, 3 App. Cas. 483; Bradbury v. Hotten, 8 L. R. Ex. 1; Perris v. Hexamer, 99 U. S. 674. See especially Lawrence v. Dana, 4 Cliff. 1, in which the subject is discussed at great length. In Baker v. Selden, 101 U. S. 99, it was held that a copyright of a book did not protect an art described therein.]

So the use of all that is substantial and material in a scene of a copyrighted play in the same order, and so as to convey similar impressions to the spectators, is an infringement, although it consists more of action according to stage directions, than of words; as when the railroad scene in "Under the Gaslight" was used by Boucicault in "After Dark." Daly v. Palmer, 6 Blatchf. 256; 3 Am. Law Rev. 453. See, as to a picture, Turner v. Robinson, 10 Ir. Ch. 121; ib. 510; Parton v. Prang, 7 Am. Law Rev. 357. So is a copy of the title and general appearance of a book, with colorable variations. Mack v. Petter, L. R. 14 Eq. 481; compare Osgood v. Allen, 7 Am. Law Rev. 568. But it is no infringement to make use of original authorities or common sources, although the one so doing is led to refer to them by a work protected by copyright. Pike v. Nicholas, L. R. 5 Ch. 251. See ib. 287. Thus it is a breach of the copyright of a directory to simply ascertain that it is accurate, and then to copy it. Kelly v. Morris, L. R. 1 Eq. 697; Morris v. Ashbee, L. R. 7 Eq. 34. But it is no breach to use it to direct the subsequent compiler to the persons whose addresses are to be obtained, and then to obtain them from such persons. Morris v. Wright, L. R. 5 Ch. 279. It has been held that there is no copyright in an illustrated advertisement. Cobbett v. Woodward, L. R. 14 Eq. 407; [Ehret v. Pierce, 18 Blatchf. 302. But see Grace v. Newman, 19 L R. Eq. 623; Maple v. Junior Army & Navy Stores, 21 Ch. D. 369]

(e) Abandonment. - Representation of a play in public is not such a publication as will prevent the copyright being afterwards taken out for it under the American act, or destroy its claim to protection, as an unpublished manuscript, apart from copyright. Roberts r. Myers, 23 Law