Henry Wheaton and Robert Donaldson, Appellants v. Richard Peters and John Grigg

Citation33 U.S. 591,8 Pet. 591,8 L.Ed. 1055
Decision Date01 January 1834
CourtUnited States Supreme Court

[Syllabus from pages 591-593 intentionally omitted] APPEAL from the circuit court of the United States for the eastern district of Pennsylvania.

The case as stated in the opinion of the court was as follows:

'The complainants in their bill state, that Henry Wheaton is the author of twelve books or volumes, of the reports of cases argued and adjudged in the supreme court of the United States, and commonly known as 'Wheaton's Reports;' which contain a connected and complete series of the decisions of said court, from the year 1816 until the year 1827. That before the first volume was published, the said Wheaton sold and transferred his copyright in the said volume to Matthew Carey of Philadelphia; who, before the publication, deposited a printed copy of the title page of the volume in the clerk's office of the district court of the eastern district of Pennsylvania, where he resided. That the same was recorded by the said clerk according to law, and that a copy of the said record was caused by said Carey to be inserted at full length in the page immediately following the title of said book. And the complainants further state, that they have been informed and believe, that all things which are necessary and requisite to be done in and by the provisions of the acts of congress of the United States, passed the 31st day of May 1790 and the 29th day of April 1802, for the purpose of securing to authors and proprietors the copyrights of books, and for other purposes, in order to entitle the said Carey to the benefit of the said acts; have been done.

'It is further stated, that said Carey afterwards conveyed the copyright in the said volume to Matthew Carey, Henry C. Carey and Isaac Lea, trading under the firm of Matthew Carey and Sons; and that said firm, in the year 1821, transferred the said copyright to the complainant, Robert Donaldson. That this purchase was made by an arrangement with the said Henry Wheaton, with the expectation of a renewal of the right of the said Henry Wheaton under the provisions of the said acts of congress; of which renewal he, the said Robert Donaldson, was to have the benefit, until the first and second editions of the said volume which he, the said Donaldson, was to publish, should be sold. That at the time the purchase was made from Carey and Sons, a purchase was also made of the residue of the first edition of the first volume, which they had on hand; and in the year 1827 he published another edition of said volume, a part of which still remains unsold.

'The bill further states, that for the purpose of continuing to the said Henry Wheaton the exclusive right, under the provisions of the said acts of congress, to the copy of the said volume for the further term of fourteen years, after the expiration of the term of fourteen years from the recording of the title of the said volume in the clerk's office as aforesaid; the said Robert Donaldson, as the agent of Wheaton, within six months before the expiration of the said first term of fourteen years, deposited a printed copy of the title of the said volume in the clerk's office of the district court of the southern district of New York, where the said Wheaton then resided; and caused the said title to be a second time recorded in the said clerk's office; and also caused a copy of the said record to be a second time published in a newspaper printed in the said city of New York, for the space of four weeks, and delivered a copy of the said book to the secretary of state of the United States; and that all things were done agreeably to the provision of the said act of congress of May 31st, 1790, and within six months before the expiration of the said term of fourteen years.

'The same allegations are made as to all the other volumes which have been published; that the entry was made in the clerk's office and notice given by publication in a newspaper, before the publication of each volume; and that a copy of each volume was deposited in the department of state.

'The complainants charge, that the defendants have lately published and sold, or caused to be sold, a volume called 'Condensed Reports of Cases in the Supreme Court of the United States,' containing the whole series of the decisions of the court from its organization to the commencement of Peters's Reports at January term 1827. That this volume contains, without any material abbreviation or alteration, all the reports of cases in the said first volume of Wheaton's Reports, and that the publication and sale thereof is a direct violation of the complainants' rights, and an injunction, &c. is prayed.

The defendants in their answer deny that their publication was an infringement of the complainants' copyyright, if any they had; and further deny that they had any such right, they not having complied with all the requisites to the vesting of such right under the acts of congress.'

The bill of the complainants was dismissed by the decree of the circuit court; and they appealed to this court.(a)

The case was argued by Mr Paine and Mr Webster, for the appellants; and by Mr Ingersoll, by a printed argument, and Mr Sergeant, for the defendants.

Mr Paine, for the appellants, contended:

1. An author was entitled, at common law, to a perpetual property in the copy of his works, and in the profits of their

(a) The case was decided in the circuit court by Judge HOPKINSON, Mr Justice BALDWIN having been absent on the argument and decision thereof.

The opinion of Judge Hopkinson is inserted in the Appendix, No. II publication; and to recover damages for its injury, by an action on the case; and to the protection of a court of equity.

The laws of all countries recognize an author's property in his productions. In England, beyond all question, an author had, at common law, the sole and exclusive property in his copy. This was decided in Miller v. Taylor, 4 Burr. 2303. This property was placed by its defenders, and they finally prevailed, upon the foundation of natural right; recognized by the laws, ordinances, usages and judicial decisions of the kingdom, from the first introduction of printing.

The opponents of literary property insisted, that an author had no natural right to his copy; and resorting to those laws which are supposed to have governed property before the social compact, they maintained, that because the copy was incapable of possession it was impossible to have property in it. Mr J. Yates, the great opponent of literary property, and who has probably said all that ever was or can be said against it, urges that it is impossible to appropriate ideas more than the light or air (4 Burr. 2357, 2365); forgetting that books are not made up of ideas alone, but are, and necessarily must be clothed in a language, and embodied in a form, which give them an individuality and identity, that make them more distinguishable than any other personal property can be. A watch, a table, a guinea, it might be difficult to identify; but a book never. Cited Blackstone's Commentary and Christian's notes, to show the nature of literary property.

The court are referred to the able opinions of Willis, J. Aston, J., and Lord Mansfield, in Miller v. Taylor, 4 Burr. 2310, 2335, 2395. They agreed not only, that an author had a property at common law, but that it was perpetual; notwithstanding the statute of Anne.

Not long after that decision, however, the question as to the perpetuity of an author's property, was brought before the house of lords; and it was there decided, that it was not perpetual, its duration being limited by the statute of Anne. Yet even upon this point, the twelve judges were equally divided (if we include Lord Mansfield, who did not vote, as he was a peer), and there were eleven out of twelve who maintained, that an author had a property at common law, in his copy. See Donaldson v. Beckett, 4 Burr. 2408; 2 Br. P. C. 129.

The decrees of the star chamber show, that that court admitted and protected authors, as early as 1556. Maugham 12, 13. Ordinances of parliament, as early as 1641, recognize and protect the owner's property in his copy. These ordinances were several times repealed. Maugham 13, 14. In 1662 and 1679, acts of parliament were passed, prohibiting any person from printing, without the consent of the owner of the copy. Maugham 15, 16.

In the reign of Charles II., there were several cases in the courts, in which the ownership of the copy by authors, is treated as the ancient common law: and in one case, the case in Croke's Reports, the right of the author was sustained, even against the claim of the king's prerogative to publish all law books. Chief Justice Hale presided. Maugham 19; 4 Burr. 2316.

In the reign of Anne, when the perpetual ownership of literary property was thus firmly established, the booksellers, annoyed by the piracy of unprincipled and irresponsible adventurers, applied to parliament for protection. A bill was accordingly brought in for the purpose, entitled 'an act to secure the property of authors.' In committee, its title was changed to that of 'an act to vest authors with their copies, for the times therein mentioned.' Maugham 20-27. And the act declared, that authors should have an exclusive right for twenty-one years and no longer. In this shape it was passed.

Notwithstanding the strong and explicit terms of the statute of Anne, both as to vesting the author with his right, and limiting its duration, (terms not to be found in our act); the courts, by an uninterrupted series of decisions, from the passing of the statute down to the case of Donaldson v. Beckett, maintained, that an author still had his original perpetual common law right and property; and we have seen, that had Lord Mansfield voted in that case, the twelve judges would have been equally divided.

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