The New York herald., 1850-10-29

lille p6He, OF the next page, III u bOOk, or on IN
face, il musical. composition, the words, viz :
'EnteTed according to act OF Congress, &c., by
b.. in the Clerks Office of the District Court &c
II will be seen, therefore, by the provisions o
tins act, that there are three preliminary steps re
quisite to the securing of valid copyright l. Tn,
deposit of printed copy OF the title, before publ
cation, with the Clerk of the District Court. 2
Notice to the public, by printing, in the place desig
by the statute I; and 3 The deposit with the
Clerk, of the book, or musical composition WITHIN
three months from the date OF publication.
The tenth section OF the act of Congress, passed
August 10, 1916, (ch. 17S,) establishing the Smith
sonian Institute, provides that the author OF pro-
prietor Of any book, map, chart, musical compo.
sition, NC, for which copyright shall be secured,
under existing acts of Congress, or those which
shall there after be enacted, respecting copyrights,
SHALL within three months from the public alton OF
the said book, Ne, deliver, or to be deliver
ed, copy Of the same to the librarian of the In
stilute, and one To the librarian Of the Congress
library, for the use OF the libraries.
No penalty is declared III the act, as a conse-
quence of the omission TO comply with the proyi-
sion but il is insisted by the counsel for the de-
iendants that construction should be given to
the section, making the delivery of copies pre-
requisite TO title TO the copy right, under the act
of 1881, as, otherwise, the provision would be
practically Intellectual 10 accomplish the object in
tended
The law may be defective in this respect, for
want of penalty to enforce il; but we are unable
TO perceive how the construction contended for can
be supported upon any sound view of the section II
is found in an act establishing the Smithsonian
Institute, and does & not purpoEt to be an amend
ment of the act of 1881, providing for the copyright
of authors; and besides, the duty is Imposed upon
the author or proprietor of any book musical
composition for which copyright shall be secured
under existing acts of Congress-, or those which
shall hereafter (thereafter) be enacted, thereby
necessarily excluding any implication that il was
intended to make the delivery to the respective
libraries condition to the vestng OF the title to the
copyright. The duty is enjoined upon those who
have already acquired the right, and upon those
only land no forfeiture is declared in of non-
compliance. Ii would he a vioieat cons rIcion of
the provision TO annex this penalty by judicial in
depreciation. Every sound rule, on the the con-
struction of statutes, is against it. Courts lean
against the enlargement of penal statutes beyond
the fair and necessary import OF heir terms, much
more will they lean against the creation Of for
feirure by implication, In the absence of any words
indicating such an intent
In the case Of Wheaton VS.. Peters, g Peters,
59l, 663, 665) which arose under the acts of Con-
gress passed May 81, 1890, and April 20, 1902 il
was decided by divided court, thai the publica-
tion of copy Of the record, as entered in the
Clerks office of the District Court, in the newspa-
pers, within the two months, andthe delivery OF
copy OF the book TO the Secretary Of State within
the six months prescribed by tae Sd and ilh sec
lions Of the former act, were pre-. requisites to the
title to the copy right. But, the acts were parts
Of The system, and steps required to be taken by
the author or proprietor to entlle himself 10 the
elusive right granted under ii and besides, the
language of the first section of the act of 1902,
which was supplementary TO that of 1890, was re-
garded by ina joTity of the court, as having, in
Terms, made the publication IN the newspapers,
and the delivery TO the Secretary essential TO the
vesting Of q complete title But even in that case,
TWO CT the learned Judges dssented, maint aiming
that the title TO the copyright immediately rested
en- the deposit in the clerks Office OF copy of the
title of the book, and the insertion upon the ii lie
page of the fact that an entry had been made ac-
cordng 10 the act of Congress; and, that the 81
stquept steps prescribed by the statute were only
declaratory, and that the omission did not work a
forfeiture.
The question here is very different from the one
decided in that case. The provision is found IN a
separate act-one relating 10 a different subject,
and not referring to- or purporllng to be an anend-
meDt of. the copy night act OF 1881 nor embracing
within 1t any Language indicating an intent 10
make il a condition OF the title The delivery OF
the book, or musical composition is simply d duty
eDjolDed upon the author, or composer, who has
secured, and is already IN the enjoyment OF, his
cspy night, under existing acts OF Congress The
obligation TO deliver, does nct attach till the right
Is secured.
1t is very probable that Congress designedy
omitted to annex any penalty IN case OF neglect to
furnish the librarians with the copies-inlcnding
that the provision should be deciaratory only
leaving it optional with the authors 10 deliver them
or not.
would be uf great importance; bat ia the case OF
elaborate ard expensive works, and on the renewal
OF The copy right, after the expiration OF the twenty
eight years, OF series, the tax would be heavy
and exceedingly onerors 1t would deserve grave
con faiion, the part OF Congress- IL the ques-
ton was before them, whether u would be expe-
dent or just TO impose This burthen upon authors.
As this question IL one OF con siderable interest
10 authors, ind proprietors of works, the property
in which depends upon compliance with the re-
qulrements OF the COPY night act, II IS to be regret
led that any provision OF that act involving the
title should be open 20 observation. Although we
are quite clear that the view above taken is a
sound one, and supported by the application Of well
settled rules Of construction, yet II cannot Oe de-
nied, but that some doubt must rest upon the ques
ton until is settled by the paramount authorities
In the mean time, il will doubtless be most pru.
dent for authors to conform to the provisions OF the
act Of 1876.
The bill Of the complainant charges, that one
George Loder, musical director IN Burton 8
Theatre, prepared the music performed in con-
nexion with, and pat of, the comedy called and
known as The Serious Family" particularly the
music tor the polka dance IN said comedy; and,
that he bad expended much labor, time, and musi-
cal knowledge and skill in preparing and producing
the same; that he took and selected, as the basis
of said musical polka, certain composition Of a
German musician, published in Europe, bat not re-
published IN the United States, until taken and
selected by the said Loder; that said Loder made
a new application and use Of said German music
for the purposes Of this comedy; aud, with view
TO further publication, re-arranged the said COM
position, and, by improvements and additions, and
new forms and combinations, adapted the same to
tie dance forming part Of the comedy; and, fur
ther, that the said Loder also arranged the said
musical polka as performed at the theatre, for the
pisno.forie, for publication, and FOR public, and
general use; and assigned his interest IN the same
TO the compliments in this suit, who, on the lOh
February last, took cut copyright under the title
already stated. That the music was in great de-
mand and the sales very profitable, until the pira-
cIes committed by the defendants, also set forth in
the bill. The complainants pray for an injunction
and an account, NC.
The defendants in opposition to the motion for
the injunction, deny that they havei published or
are Engaged IN selling any polka which IS similar
in plan, or matters to- or is substantial copy of,
thtt published by the complainant; or, that they
have adapted, used or embodied IN the one pub
lished by them, either the matters, arrangement,
or additions Of the musical composition contained
that OF the complainant That the polka called
The Serious Family Polka" published by them,
was composed and written in different key, and
contains eight bars OF original matter and, that
the only similarity consists IN the melody, which,
IN both publications, was taken from German
COmpoafcpn called he Rcao Dalka-N we'll