New-York tribune., 1869-01-08
n4NUSCRIPT-RIGHTS or AUTHORS-PtB-
LlCATION.

MaNISCRIPI-RIGHIS or ACIUOho-I D.
LlCATION
The Superior Court at Special Term, In the
case OF Palmer agt de Witt printed below holds that
the author Of an unpublished manuscript has at common
law an exclusive right OF property therein, the violation
OF which may be justly protected by Injunction But ths
exclusive right pertains only TO the Unpublished manu-
script without copyright protection After unrestricted
publication TO world neither the author nor his as
signee whether foreign domestic writer, can assert
an exclusive right property in the future use and pub
lcat,on oi the composition Unrestricted representation
upon the stage is publication and II spectators carry
away in memory the whole or any part Of the play
they cannot be restricted by an injunction from print
ing it. The full decision is as follows:
This Is motion TO dissolve injunction restraining
the defendant from printing and selling printed copies Of
a comedy called Play" Of which the plaintiff claims to
author The motion is made upon the complaint ana an
swer II alleged In the complaint that prior to lst
gland, eminent author was the composer OF comedy
called Play, and assigned to the painh The exclusive
right OF enactng representing the stage printing
and publishing, or causing licensing or permitting To be
stage throughout the United states in and he said
comedy together with all the authors rights and priyi
leges therein and thereto throughout the United states
and all benefits and advantages tobe derived therefrop
That at the time Of such assignment purchase, and
tation as dramatic author. having pro
duced some Of the finest comedies introduced
Caste ,e Ours and Society" had been eminentiy
successful 1t is also ALLEGED that any new comedy from
such an author was OF very great value TO the exclusive
proprietor thereof and the plaintiff IN the purchase OF
vantage from and by Of the celebrity and popu
%I 9 M Its 5g aTa9 aPa 4e ON ho aYsS M Of Fe epray a ge
1868 the said comedy an unpublished composition
SgaRsa HIa aSnea Sn e hn aa
that time nor has been SINCE printed OF pub
lshed in print by the plaintiff or It's author or by any
under MS sanction permission or consent or that OF
either of them. and at that time had never been repre-
any stage the 18th OF February 1863 in the City Of
London at the Prince OF Wales heaer, and under the
sanction OF the author but that the author dd not
thereby confer upon or abandon to the defendant or 10
any other person. the right or privilege OF printing his
comedy or otherwise interfering with his right OF prop
erty therein that the plaintiff nor tie author has ever
that on or about the 10Th Of February piant received
full and complete manuscript copy OF the said comedy
published, and is engaged in licensing the right to
ary 1865 he published The Ne,o. York Herald notice
OF his right OF Ownership In said play aud had the same
repeated In said newspaper trweeky during the months
February and March that about the 25th Of March
1863 the defendant, who Is publisher IN the city Of New,
without the knowledge OF the plaintiff and In
wifu disregard Of his rights proprietor Of sand play.
did print publish, ard sell printed copies OF the said play,
aud the plaintiff alleges that copies OF the play printed
and sold are identical with the comedy purchased by The
plaintiff from the author that the plaintiff s liable to
sustain irreparabe injury by reason Of the facility winch
defendant has afforded and actors produce
said comedy by means OF such printed copies
The answer denies the plaintiffs propretorshp, and
any willfu intention to injure the plaintiffs claims that
don great number OF times and that the defendant OBJ
sentation as spectators, and that there prohibit
the heaters where the same was heard nor upon
the memory by those Who saw heard IT, Mr. Warren
for defendant Mr. Booth Of counsel for plain
GARvIN 1.-THE plaintiff in this action claims to be the
assigee purchaser aud sole ana exclusive owner and
written by r. W. Robertson, eminent English dramagc
comedy on about the lst OF February, 1863 and re-
ceved the copy Of said play in manuscript on or about
the 10th Of February and aegeshe same has never been
printed published with the consent Of the plaintiff
the author 1t represented for the first tne on the
stage in London at the Prince OF Wales Theater on the
18th OF February 1865. That during the latter part OF
February and the whole OF March the plaintiff had no
tice published in The Meic York Herald tweekly Of his
right OF ownership ia the play. The defendant
on the 25h OF March N wliul dsIegad OF te rights 1i
Identical copies Of "Pay" thus owned by the plaintiff to
his great damage and reparable injury and depriyng
him OF all advantages and prohts he made thereby 1t
not pretended that either the plaintiff or the author
neither could either have such right foreign copy
right would not avail tho plaintiff here There be
copyright in published work al common law; copyright
exists only by statute Wheaton agt Peters 3Peers l99
The plaintiff must therefore, stand upon his common law
right of literary property in Play" the assignee OF
tile author to IT'S exclusive proietorship IN tie United
States with the right to enforce II as against others who
claim publish and circulate for their own profit and All
vantage Two principles are well settled upon authority
Tdst: The author OF unpublished manuscript has IN
IL at common law an exclusive right OF property the
Of which may Justly be protected & Hy hn
upon the subject uniform and clear IS Peters L. s.
/ K, 400; Duer., =, {. r.. 3S5l
Second This exclusive right pertains only 10 the I'M
published manuscript without copyright protection; hut
|
author his assignee whether foreign or domestic
winter, assert an exclusive right To property In the
future use and publication Of the composition. The i'm
portan question IN this is, whether there pub
licaton communication OF the comedy by the author
his assignee. Every communication says Cadwalader IN
kean agt Clark, Of aknowled Of the contents unless
sfcted OF manuscript IL more or less pncati0n And
this able Judge further IAN act which renders the
contents OF manuscript in any mode or degree an addl
tiOn 10 tie store OF human knowledge is publication.
In has been expressly held by this Court In keene agt
Ciafk, that nj common law the author proprietor Of
an uucOpyrighted literary composition paris with the
right 10 lie exclusive nSe and OF its contents
by communicating them to others" without some CON
.umstances. This is holding, in other words that
thor has no exclusive property IN published work or
one communicated 10 the public. except under some
statute. Wheaton ag Peters; Bartlett agt Crittenden
McIIans G. {. r., 32) The only question: therefore,
| Is that Of putl,cdii0H. As this question is urp.
scnted the fact of foreign authorship can make no
difference. There being copyright interest, plaintiffs
must rest upon his common law rights. After pub
lcaOD his exclusive right 90 exist Such publica.
ton may bc either by words by writing printing in
newspapers magazines or by lectures sermons Ora or
these NODES the public become possessed Of the con
tents of manuscript, without restriction express i'm
Piled IL must be regarded such adjudication IA divests
the author Of an exclusive property IN the work. what
may be- IL IL averred IN the complaint that the
comedy In question was represented on the stage
about the 18th Of February 1863 IN London. This
fact brings the clearly within the rule laid down
the heretofore referred 10 in this Doubtless
there series " representations Of the
play. There IN 40 prctcnho Of any restriction
upon hs se by those who Witnessed The Representation