Stowe v. Thomas , 2 Wall. Jr. 547 ( 1853 )

GRIER, Circuit Justice.

In the balance of opinions among learned jurists, we must en-deavour to And some ascertained principles of the common law as established by judicial decision on which to found our conclusion.

In order to decide what is an infringement of an author’s rights, we must inquire what constitutes literary property, and what is recognised as such by the act of congress, and secured and protected thereby.

An author may be said to be the creator or inventor, both of the ideas contained in his book, and. the combination of words to represent them. Before publication he has the exclusive possession of his invention. His dominion is perfect. But when he has published his book, and given his thoughts, sentiments, knowledge or discoveries to the world, he can have no longer an exclusive possession of them. Such an appropriation becomes impossible, and is inconsistent with the object of publication. The author’s conceptions have become the common property of his readers, who cannot be deprived of the use of them, nor of their right to communicate them to another clothed in their own language, by lecture or by treatise.

The claim of literary property, therefore, after publication, cannot be in the ideas, sentiments, or the creations of the imagination of the poet or novelist as dissevered from the language, idiom, style, or the outward semblance and exhibition of them. His exclusive property in the creation of his mind, cannot be vested in the author as abstractions, but only in the concrete form which he has given them, and the language in which he has clothed them. When he has sold his book, the only property which he reserves to himself, or which the law gives to him, is the exclusive right, to multiply the copies of that particular combination of characters which exhibits to the eyes of another the ideas intended to be conveyed. This is what the law terms copy, or copyright. Curt Copyr. 9-11, et seq.

The statute of 8 Anne, c. 19 (which so far as it describes the rights and property of an author, is but declaratory of the common law), is entitled, “An act for the encouragement of learning, by vesting the copies of printed books in the authors, &e.” It gives the author “the sole right of printing and reprinting such book or books,” and describes those who infringe the author’s rights, as persons “printing, reprinting, or importing such book or books” without the license of the author. Our acts of congress give substantially the same description both of the author’s rights and what is an infringement of them.

Now, although the legal definition of a “book” may be much more extensive than that given by lexicographers, and may include a sheet of music as well as a bound volume; yet, it necessarily^ conveys the idea, of thought or conceptions clothed in language or in musical characters, written, printed or published. Its identity does not consist merely in the ideas, knowledge or information communicated, but in the same conceptions clothed in the same words, which make it the same composition. 2 Bl. Comm. 406. A “copy” of a book must, therefore, be a transcript of the language in which the conceptions of the author are clothed; of something printed and embodied in a tangible shape. The same conceptions clothed in another language cannot constitute the same composition, nor can it be called a transcript or “copy” of the same “book.” I have seen a literal translation of Bums’ poems into French prose; but to call it a copy of the original, would be as ridiculous as the translation itself.

The notion that a translation is a piracy of the original composition, is founded on the analogy assumed between copy-right and patents for inventions, and where the infringing machine is only a change of the form or proportions of the original, while it embodies the principle or essence of the invention. But as the author’s exclusive property in a literary composition or his copyright, consists only in a right to mu'tip’y copies of his book, and enjoy the profits therefrom, and not in an exclusive right to his conceptions and inventions, which may be termed the essence of his composition, the argument from the supposed analogy is fallacious. Hence, in questions of infringement of copyright, the inquiry is not, whether the defendant has used the thoughts, conceptions, information or discoveries promulgated by the original, but whether his composition may be considered a new work, requiring invention, learning and judgment, or only a mere transcript of the whole or parts of the original, with merely colourable variations. Hence, also, the many cases to be found in the reports, which decide that a bo-nfi fide abridgment of a book is not an infringement of copyright.

To make a good translation of a work, often requires more learning, talent and judgment, than was required to write the orig--inal. Many can transfer from one language to another, but few can translate. To call the translations of an author’s ideas and conceptions into another language, a copy of his book, would be an abuse of terms, and arbitrary judicial legislation.

Although the question now under consideration, was not directly in issue in the great case of Millar v. Taylor (4 Burrows, 2303),' yet the inference that a translation is not an infringement of copyright, is a logical result, and stated by the judges themselves as a necessary corollary, from the principles of law then decided by the court. That case exhausted the argument, and has finally settled the question as to the nature of the property which an author has in his works; and it is, that after publication, his property consists in the “right of copy,” which signifies “the sole right of printing, publishing and selling his literary composition or book," not that he has such a property in his original conceptions, that he alone can use them in the composition of a new work, or clothe them in a different dress by translation. He may be incompetent to such a task, or to make a new work out of his old materials, and neither the common law nor the statute give him such a monopoly, even of his own creations.

An author, says Lord Mansfield, has the same property in his book, which the king has to the English translation of the Bible. “Yet if any man should turn the Psalms, or the writings of Solomon, or Job, into verse, the king could not stop the printing or sale of such a work. It is the author’s work; the king has no power or control over the subject-matter. His power rests in property. His whole right rests upon the foundation of property in the copy.” Mr. Justice Willes, in answer to the question, “Wherein consists the identity of a book?” says, “Certainly, bo-na fide imitations, translations and abridgments are different, and in respect of property, may be considered new works.” And Mr. Justice Aston observes: “The publication of a composition does not give away the property in the work. But the right of copy still remains in the author. No more passes to the public from the free will and consent of the author, than unlimited use of every advantage that the purchaser can reap from the doctrine and sentiments which the work contains. He may improve it, imitate it, translate it, oppose its sentiments; but he buys no right to publish the identical work.”

The- distinction taken by some writers on the subject of literary property, between the works which are public! juris, and of those which are subject to copyright, has no foundation, in fact, if the established doctrine of the cases be true, and the author’s property in a published book consists only in a right of copy. By the publication of Mrs. Stowe’s book, the creations of the genius and imagination of the author hare become as much public property as those of Homer or Cervantes. [Uncle Tom and Topsy are as much publici juris as Don Quixote and Sancho Panza.] - All her conceptions and inventions may be used and abused by imitators, play-rights and poetasters. [They are no longer her own — those who have purchased her book, may clothe them in English doggerel, in German or Chinese prose. Her absolute dominion and property in the creations of her genius and imagination have been voluntarily relinquished.] ² All that now remains is the copyright of her book; the exclusive right to print, reprint and vend it, and those only can be called infringers of her rights, or pirates of her property, who are guilty of printing, publishing, importing or vending without her license, “copies of her book.” A translátion may, in loose phraseology, be called a transcript or copy of her thoughts or conceptions, but in no correct sense can it be called a copy of her book.

Bill dismissed, with costs.

2 [From 2 Am. Law Reg. 210.]