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of the language, but in reality leaving the ideas and thoughts the same, would not be held, by this exercise of disingenuous ingenuity, to be entitled to the rights of a translator.1 It is of the utmost importance that these classes of secondary works should be carefully approached and examined; for it is in regard to their construction that the questions of originality arise, which we are about to consider.

156. In the copyright law of the United States, these three classes of writers we have alluded to are undoubtedly included under the word "author," or at least under the three words "author," "designer," or "proprietor," in the first sentences, which are as follows:

"Any citizen of the United States, or resident therein, who shall be the author, inventor, designer, or proprietor of any book, map, chart, dramatic or musical composition, engraving, cut, print, or 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 the executors, administrators, or assigns of any such person shall, upon complying with the provisions of this chapter, 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."2 But,

The rights of a paraphraser do not appear to have ever been recognized as such in the law.

* Revision of 1873-4, § 4952; 3 Feb. 1831, ch. 16, § 1, v 4, 436; 18 Aug. 1856, ch. 169, § 1, V. II, 138, 139; 3 Mar. 1865, ch. 126, § 1, V. 13,540; 8 Pet. 662; 14 How. 530; Hopk.ch.`351; 1 Blatchf. 625; 1 Story, 17; 3 Story, 778; 4 McLean, 316, 317; 5 Id., 37; 2 Wood & Min. 46; 2 Bla. 46, 170, 336 2 Paine. 383.

in the interpretation of this law, the distinctions above alluded to arise, and make it of the utmost importance to carefully examine and determine them.

157. Whenever an author can identify his own labor in the book or production of another, he can claim damages for its use, or protection by injunction against its further illegitimate employment. It is a maxim of the law that wherever there exists a wrong, there also exists somewhere a remedy. But if it should appear that the portion used was so insignificant or so trifling as to be unworthy the consideration of the dignity of the bench, the above rule might not apply; -for de minimi non curat lex. Mere quotation (i. e., fair quotation) is always optional; the only test, as we have seen, is whether the author has been injured by the use of his language.'

If the unwritten law which prohibits larceny and theft were capable of being applied to a man's thoughts, as well as to his watch or his purse, no statutes of copyright would be necessary. Their existence is only important because of the impracticability of carrying the law's recognition of meum and tuum so far. Their principle and spirit is precisely the same; and the law of copyright is only the eighth commandment applied to intellectual and immaterial labor. Upon this point it is unnecessary to dwell further.?

The simple rule is, that a man is entitled to the product of his own literary labor. And the simple question that the law will ask, without reference to the form or the pretension of the work is, Is it inclusive of any genuine product of his own labor? is it an original conception, an original composition, an original compilation, an original translation, codification, ex

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In truth, in literature, in science, and in art,” says Judge Story, "there are and can be few, if any, things which, in an abstract sense, are strictly new and original throughout. Every book in literature, science, and art, borrows, and must necessarily borrow and use, much which was well known and used before. No man creates a new language for himself-at least if he be a wise man-in writing a book. He contents himself with the use of language already known, and used and understood by others. The thoughts of

every man are more or less a combination of what other men have thought and expressed, although they may be modified, exalted, or improved by his own genius or reflection. If no book could be the subject of copyright which was not new and original in the elements of which it is composed, there could be no ground. for any copyright in modern times; and we should be obliged to ascend very high even in antiquity to find a work entitled to such eminence."

158. "The law does not require that the subject of a book should be new, but that the method of treating it should have some degree of originality about it," not merely colorable.

Thus, for instance, the composing receipts, or arranging them in a book, will give a copyright to the compiler; but the mere collecting them and handing them over to a compiler will not. Or, one may have

1 Emerson v. Davies, 3 St. 779; Vid. also Gray v. Russel, 1 St. 16.

2 Copinger on Copyright, 21; Sayre v. Moore, 1 East, 361; King v. Reed, 8 Ves.; Jarrould v. Houlston, B. K. & J. 708; Reed v. Carusi, 98 Law Rep. O. S. 411; Wilkins v. Atkins, 17 Ves. 422.

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* Rundell v. Murray, Jac. 314; Newton v. Cowrie, 4 Bing. 234.

copyright in mathematical tables, actually calculated by himself, although, on a similar calculation, precisely the same tables would be produced from the same sources, upon an application of the same principles by anybody else, and although they may have been published previously, and before his appeared.1 Upon this principle, mere indices of title, and schoolbooks, no matter how elementary their character— as we have remarked elsewhere in this chapter-will be protected.

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Anything like absolute originality in the composition of a work nowadays," says a late and learned writer, "seems to be almost an impossibility. The range of human ideas on any subject is limited; and the productions of the busy brains and pens of preceding thinkers are so numerous, that, if books are to be written, the writers must be, to some extent at least, beholden for their materials to those who have written before. If no copyright exist in a work, of course subsequent writers may make of it what use they like, and reproduce it to any extent they please. But if a copyright does exist in it, then the important and somewhat difficult question arises: In what manner, and to what extent, may subsequent authors make use of the materials contained in it without an infringement of the copyright? In other words, how far may

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1 Bailey v. Taylor, 3 L. J. 66; "I admit," said Lord Eldon (in Matthewson v. Stockalde, 12 Ves. 275), "that no man can monopolize such subjects as the English Channel, the Island of St. Domingo, or the events of the world; and every man may take what is useful from the original work, improve, add, and give the public the whole, comprising the original work, with the additions and improvements."

2 Banker v. Caldwell, 3 Minn. 94.

3 Emerson v. Davies, 3 Story, 768; Lennie v. Pillans, 5 Sess. Cas. 2 Law, 416; Constable v. Brewster, 3 S. 215 (N. E. 152).

one writer avail himself of the product of another's labor in which copyright exists, without subjecting himself to the charge of piracy?"1

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He who claims the originality must show something which the law can recognize as the result of his own, and not of another's industry and skill. 'Something he must show to have been produced by himself; whether it be a purely original thought or principle, unpublished before, or a new combination of old thoughts and ideas and sentiments, or a new application or use of known and common materials, or a collection, the result of his industry and skill. In whatever way he claims the exclusive privilege accorded by these laws, he must show something which the law can fix upon, as the product of his own, and not another's labors. But, in order that the law should do this ample justice to the great variety of claimants, it is necessary that its rules should be capable of adaptation to the objects of their labor. They must include in their range everything that can be justly claimed as the peculiar product of individual efforts; otherwise, they would exclude from the benefits of literary property, objects which are as clearly the products of individual labor as the most original thoughts ever written, namely, new and important combinations and arrangements, or collections of materials known and common to all mankind.” 2

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159. No matter how original in his conception the author may be, or at what date he writes, or how soon after the discovery, or invention, or introduction of his theme, he clearly cannot copyright his subjectmatter. He may even own it, but still it is free to the

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