studio may declare as much as the writing-table. A man may employ himself in private, in a manner very harmless, but which, disclosed to society, may destroy the comfort of his life, or even his success in it. Every one, however, has a right, I apprehend, to say that the produce of his private hours is no more liable to publication without his consent, because the publication must be creditable or advantageous to him, than it would be in opposite circumstances. Addressing the attention specifically to the particular instance before the court, we cannot but see that the etchings executed by the plaintiff and his consort for their private use; the produce of their labor, and belonging to themselves, they were entitled to retain in a state of privacy-to withhold from publication. That right, I think it equally clear, was not lost by the limited communication which they appear to have made; nor confined to prohibiting the taking of impressions, without or beyond their consent, from the plates, their undoubted property. It extended also, I conceive, to the prevention of persons unduly obtaining a knowledge of the subjects of the plates, from publishing (at least by printing or writing, though not by copy or resemblance) a description of them, whether more or less limited or summary, whether in the form of a catalogue or otherwise." And said Lord Cottenham, upon the appeal: "It being admitted that the defendant could not publish a copy—that is, an impression—of the etchings, how in principle does a catalogue, list, or description, differ? A copy or impression of the etching would only be a means of communicating knowledge and information of the original, and does not a list and description do the same? The means are different, but the object and effect are similar; for in both, the object and effect is to make known to the public more or less of the unpublished work and composition of the author, which he is entitled to keep wholly for his private use and pleasure, and to withhold altogether, or so far as he may please, from the knowledge of others. . . . . Upon the first question, therefore-that of property-I am clearly of opinion that—the exclusive right and interest of the plaintiff in the composition or work in question being established, and there being no right or interest whatever in the defendant-the plaintiff is entitled to the injunction of this court to protect him against the invasion of such right and interest by the defendant, which the publication of any catalogue would undoubtedly be." "The elaborate judgments in this important case," says Shortt,' in his valuable work, "have established the following points:-That the right of property of the author or composer of any works of literature, art, or science, in such works, so long as they remain unpublished, is so complete and absolute that no one else, without his permission, may publish even a list or descriptive catalogue of them; that the circulation amongst a few private friends of impressions of etchings not otherwise published, is not such a publication of them as disentitles the owner to the protection of the aforesaid right, and that this right is but part of the general common-law right of property." 189. A manuscript being, as we have seen, the personal property of its author, that peculiar value, differing from the value of other personal property, which is in the future, and which it is to derive from publication of some sort, is also the property of its author. He can part with it by barter or sale; in which case the right to publish most probably would 1 L. Lit. 54. 1 go with the manuscript, unless reserved by contract. The question does not appear even to-day to be fully settled. As nearly, perhaps, as the rule may be stated, it will doubtless be, that the license to publish must be express and unmistakable. The present copyright law of the United States, however, has stepped in to settle the question, enacting, "That any person who shall print or publish any manuscript whatever, without the consent of the author or proprietor first obtained (if such author or proprietor be a citizen of the United States, or resident therein), shall be liable to said author or proprietor for all damages occasioned by such injury, to be recovered by action on the case in any court of competent jurisdiction." 1 Under a like provision in the English statute, Lord Macclesfield, C., is said to have held that the author might grant the right of the copy to a subsequent publisher, after it had been once published by the person to whom he had originally delivered the manuscript, the bare delivery amounting only to a license to print the first edition. In a more modern case, Lord Ellenborough said, that "the statute having required that the consent of the proprietor, in order to authorize the printing or reprinting of a book by any other person, shall be in writing, the conclusion from it seemed irresistible that the assignment must also be in writing; for if the license, which is the lesser thing, must be in writing, à fortiori the assignment, which is the greater thing, must also be." 1 1 Rev. Stat. U. S. (Rev. 1873-74) § 4967. And this consent. must be in writing, signed by two witnesses. And see the English act, 8 Anne. c. 19, § 1; 54 Geo. III. c. 156, makes the consent of the proprietor first had and obtained in writing, signed in the presence of two or more credible witnesses, a requisite of the lawful publication of a manuscript. 2 Vin. Abr. 278. But if he part with it by gift merely, or loan it, or allow it to be copied, without express license to publish, it will not be implied to be dedicated. Even in the case of a manuscript work that is too extensive and elaborate for mere personal perusal in that form (such as a history, for example), the gift of, or license to, copy the manuscript will not imply a right to publish. Where the son of the Earl of Clarendon gave permission to a Mr. Gwynne to take a copy of the manuscript of his deceased father's "History of the Reign of Charles II.," and Mr. Gwynne's son and administrator sold it to a Dr. Shebbeare, the court of chancery, at the suit of the Duke of Queensberry (the personal representative of the Earl of Clarendon and his son), restrained Dr. Shebbeare from printing and publishing the copy of the manuscript. Lord Keeper Henley said, "It was not to be presumed that Lord Clarendon, the younger, when he gave a copy of his work to Mr. Gwynne, intended that he should have the profit of multiplying it in print; that Mr. Gwynne might make every use of it except that."1 We have seen, however, that where the author of a poem had sent it to a bookseller, and had allowed it to remain in his hands unpublished for twenty-three years, Lord Eldon was of opinion that the writer had abandoned his right, as an author, and refused to grant an injunction to prevent the publication of the poem by the bookseller." 190. A prior publication by the author himself, in a foreign country, or in the country itself, if without a copyright, is a dedication of the second publication to the public in the country in which it is made. 2 Duke of Queensberry v. Shebbeare, 2 Eden, 329. Southey v. Sherwood, 2 Meriv. 434; and see Rundell v. Murray, Jacobs, R. 311. This question will be found to mainly arise in the case of dramatic manuscripts. In the case of manuscripts other than dramatic, a publication of their contents by their author, or any one entitled to publish them, through the press, without a formal compliance with the statutes of copyright, would be a waiver of the author's rights therein.1 But in the case of dramatic copyright, the question as to what amounts to a waiver is more complicated. Publication may be either a publication to the ear or to the eye. To the latter, through the medium of printing, or of some other art; or to the former, from the rostrum, the stage, or the pulpit. The value of a literary work, such as a novel, a history, an essay, or a poem, intended for the perusal of the public, is measured by, and depends upon, the ability of the publisher to multiply and circulate copies of it over as extensive a territory as possible. The value of a dramatic work, on the contrary, consists entirely in the ability of its author to prevent the multiplication of copies thereof; to prevent its publication, through the printing-press, absolutely; and to limit its publication, by word of mouth, to one or more particular places and occasions, and to the knowledge and audience of the comparatively few who shall have obtained, for value, the license to witness it. Hence, to prevent any other publicity to his work, it is manifestly to the interest of the dramatic author to confine literal copies of his production to a manuscript form; or if he print it, to do so privately, and for his own use alone.2 1 2 See post, chapters on Copyright and Piracy. The value of dramatic productions, in these days, has largely increased, and the dramatic author is now more or less protected by statute, as well as by common law, in the enjoy |