The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1853-12-27

NGLIsH UNCLE TON VS.. GERM a UNCLE TON "A
TRANSLATION NO ISfRiNdxME IT OF coryRIsHr
MRS. STOWE TO PAY TsE nsrs
In the United States Circ' AZ Court at phadepha.
N the oath inst the 'ol" wing opiaon delivered
~ Hon. r. Q. 1rer' n the case Of Mrs. Stowe,
author Of 8 Uncle II .ns CABIN Va. F. W. Thomas,
publisher OF 'e' man version of that work.
,pINIoN OF THE COURT
me oih IN this case alleges that Mrs. Stowe Is the
anthor I'D proprietor OF q work called "Uncle
Toms Cabin and has obtained copyright for the
sam = in due form Of law; that the defendant has
Anslated into German, printed published and sold
the same In newspaper and pamphlet form; that
such translation Is al infringement OF complainants
copyright; and therefore prays an Injunction ac-
couIt Z, &c.
The answer admits the facts stated in the bill,
but denies that such translaSing, printing publish
ing, &c, is an Infringement Of compliments copy
right.
The question raised by these pleadugs has not
been deciCed eithe in Goglsnd this country, in
case where it is directly involved.
lD many of the STATES OF Europe, il has been made
the subject Of special legislation. In France jurists
appear TO be divided in opinion. Psrdssus Is OF
opinion that translation is not Infringement OF
copyright. Repouard. on toe contrary, argues that
IL is. Mr.. Godsou. in his work On Patents, concurs
with Parossus. Mr. Curtis, in his treatise on Copy
right, agrees with Renouard
In this balance Of Opinions among learned Jurists,
we must endeavor 10 find some ascertained pr1nci-
pies OF the onmoa law, as esahtlshed by Judicial
decision, on which 20 found our conclusion.
IN order 10 decide what is an infringement of an
authors rights must inquire what constitutes
literary property, ana what Is recognized as such
by the act IF Cosgrsss ard secured aid protected
HEREBY.
an author nay be said to 2s the creator or inven,
tor, bih Of the idea. contained ia his book aad the
COZ bpation OF woIos to represent them. Before
uuhi Jatjon he bss tie exclusive possession Of his
ton His dominion il per'ece Bat 'vhen he has
published his hook, and given his thoughts, sent
nents knowled E, or dscoy ries TO the world he can
b 80 10 Logger exclusive session Of then.
Such IN appropriation becomes impossible, and is
Inconsistent with she object of pnbli lati The gu
ibor's Conceptions have become The common property
81 hs Ieade, who capn,t be deprived Of the use Of
Them or ther ri "a to Communicate them ID Others
clohed in their owe language, by lecture, or by
treatise.
The csiaa litersry property, therefore, sttsr pubi
cation cannot b IN the dss3, sentients Or the cre-
ations OF the imagination of TIE poet novelist,
Observed from he LANGUAGE i6om, style, or the out
wo1d semhanle 9nd exhibition OF TEEN. HE eXclu-
sise property in the creation OF his mind cannot be
vested il The author distractions, but only ia the
concrete form which he has give them, and the Ian
gpsge ia which he has clothed thea. When he mas
solo his book lie Only property which he reserTss 70
himself OF hCh the law gives 10 bin Is the eXclu-
sive right 70 mIitiy the copies of that particular
combI atom Of Characters which exhibits to the eye,
OF another the ideas intended TO DC conveyed This
IS w1at the law terms copy. or copyright See Car
The statute 4 s Anne, c. 49, (Which, SO far rs 1t
describes the rights and property Of sn author IS but
6eclarSory OF the common law Is ttied Ao act
for the eLcoura cement Of learning ny vestlDg the
copies of printed books in the authors, &c. 1t gives
The author the sole right OF printing and reprntng
such book or books aud describes those Who in
fringe the authors rights, as persons printing, re-
printing, or importing Such book or books without
the license o. tie author Our acts of Congress give
Substantially The same description, both Of the au-
tb0rs lights and what is an infringement of them
Now, although the legal definition Of a " book
may be much more extensive than that given by
photographers, ans may include sheet OF music rs
vel as a bound volume, yet it necessarily conveys
the idea OF thought, or conceptions clothed In Ian
guage il musical characters, written, printed
published. Us identity does not consist merely IN
tie ideas, knowledge, or Information commune ated
but in the sane conceptions clothsd 10 the same
words, which make il the same composition. (See
Black. Com 405) A 'copy' OF q book must, there
fore. be a transcript of the language ia which the
conceptions ct the author clothed; of some-
thing printed and embodied in tangible shape.
The same conceptions clothed in another language
cannot constitute the same co IMPOSITION nor eau
it he called Transcript, or copy" OF the same
'bt ok
have ssep literal translation # Burns poem
into + ench prose; bat to call it copy OF the orr
ginal would be rs ridiculous IS the Translation u
.elf.
The notion that translation is piracy Of the
original composition is founded on the aoalogy as
sumsc bet reen Copyrights and pate1s for inven.
tons, ard whsrs the iDfriI cling machine is only .
change of the form or proportions OF the orig nal
while it embadiss the principles or esscace OF the
invention. Bot as The sushor's exclusive property
in literary composition, " his copyright, consists
only in rRh; TO multiply copies OF his book aai
enjoy The profits therefrom and not in An exclusive
rig hit TO his conceptions and inventions, which may
be termed TIE powey o. his cOmpOsitiO0, the argu-
mens from the supposed ana'osy sSfallacious.
Hence, in questions of Infringement OF copyright,
the inquiry Is not whether the defendant has used
the thoughts, conce ptions, information or discoveries
promulgated By the original, but whether his COM
position may be considered new work, requiring
invention, learning and Judgment; or only mere
transcript Of The While parts OF the Original, WITH
merely toierabls variations Hence, also, the many
to be found in the Iepors which deci Je that
bona fde abr dgement of book is no. an infringe
ment of copy right.
To make good translation of "a work often re-
quires learning, talent aud Judgment, than
required to write the original Many cen transfer
from one language ~ another bit few can translate.
To cell the translation Of an authors ideas and con
cepnons into another language copy of his book
would be an abuse of terms, and arbitrary judicial
legislation.
Although the question now under consideration
rot Gree 3y ia issue in the great OF Miller
Taylor yet the Inference tina. translation is not
sn infrin cement Of copyright is logical result, and
stated by the judges themselves as necessary CO.
rcllaIy from the principles of law then decided by
the court.
That case exhausted the argument, and has finally
settled the question To the nature of the pro perty
which auhor 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 BOOK not
that he has such property in his original conoep-
lions, That he alone them in the composition
Of a work cothe them ia n different dress by
translation. He may be Incompetent 70 such task,
or to make work out OF his old materials, aud
neither the common law nor the statute give him
such monopoly, even OF his own creations.
an author, rays Lord Mansfield, mas the sane
property in his book which the King has to the EGG
lisa Translation OF the Bible. "Yet if any man
should turn the Psalms the writings OF Solomon,
CT Job, n.o verse, the King could not st the print
ing sale Of such work II IL the authors work
the King has No power or control over enc subject
matter. His po~er rests ia property. His wbos
right rests upon The foundation Of property in the
copy"
Mr.. Justice Willis in answer 10 the question
Wherein consists the iden,i of book n says =
Certainly boaa fde limitations, translate ms and
abrdgemeDts are different, and In respect Of property
ho ared rlu