to own and to dispose of literary property for value, seems never to have been doubted or denied. 9. The first recorded sale of intellectual property was by Homer, who delivered his Iliad at feasts and celebrations, for his own support; receiving, probably, in those early days, not money, but food and presents. This right of authors to the profit arising from the sale of their original labor, is of frequent mention by the classic writers. Juvenal, lamenting at the same time the impecuniosity of his craft, and the nonlucrative character of literary fame, alludes to it: "Sed, quum fregit subsellia versu Esurit, intactum Paridi; Nisi vendat Agave.": So Martial, “Sunt quidam, qui me dicunt non esse Poetam So also, "Constabit nummis quatuor emta tibi Quatuor est nimium; poterit constare duobus And again, "Exigis, ut donem nostros tibi, Quincte, libellos Juvenal, Sat. vii. 86. "But, while the very benches groan under the applause with which his verses are received, he will starve unless he sells to Paris his as yet unpublished Agave." Martial, Epig. xiv. 194 [192 in Ed. Paris, 1754, and see Id. lib. i. 117 (118)]. "There are some who say that I am not a poet; but the bookseller who sells me, thinks I am.” 2 3 Martial, Epig. xiii. 3. "The whole multitude of presents contained in this little book will cost you, if you purchase it, four small coins. If four is too much, perhaps you may get it for two; and the bookseller, Trypho, will even then make a profit." Martial, Epig. iv. 72. "You beg me, Quintus, to present But the songs of Homer were written only in his memory; while those published works to which Martial and Juvenal allude so much later, were only themselves neatly-copied manuscripts, written upon one side of slips of parchment, and wound upon smooth sticks for preservation. 1 While literary matter was preserved by such methods as these, copyright acts were unnecessary. It was only when the invention of printing made a multiplication of copies of the author's work practicable and profitable, that statutory forms and observances became necessary. Such statutes coming to aid the unwritten law, in protecting-not a peculiar right-but a peculiar kind of thing possessed. Literary property is a property in ideas; and the sole right of their author to their use and enjoyment, it was the intent and spirit of the Roman Law,' as well as it is of the common and statute law, to recognize not only, but to make absolute and secure. 2 IO. "Si in chartis membranisse tuis carmen vel historiam, vel orationem Titius scripserit, hujus corporis non Titius sed tu dominus esse videris,” said the Institutes, and ever since, all arguments in support of the rights of learned men in their works, have been heard, as Lord Kenyon said they always must be heard, "with great favor by men of liberal minds." To make the laws of recognition of literary prop you my works. I have not a copy; but the bookseller, Trypho, has. Am I going to give money for trifles, and buy your verses while in my sober senses? I shall not do anything so ridiculous. Nor shall I." 1 1 Hor. Sat. i. 10, 72. • Inst. 2, I And so by decreeing to whom sentiments should belong, the Institutes recognized a property in such sentiments. 27 I. R. 627. erty available, then, it becomes necessary, from the nature of things, that these ideas should be put into some tangible and material form.' 1 The law can not deal with purely invisible matters. It can enforce, indeed, the subject's right to walk in the public streets, or over the King's highway; but only inasmuch as-though the franchise is immaterial-the street and the highway are material and tangible, so that the law can exercise its jurisdiction over them in rem, if necessary, in enforcing that franchise. And so, when an author's ideas are written down upon a substantial substance, or a visible, tangible surface, the law will, from that instant, recognize and protect them, and whether the idea so written down be in the form of a manuscript, a drawing, a book, a plan, or a picture, it will equally decree that its author and originator shall thenceforth deal with it as he pleases, to the exclusion of all others, until he voluntarily parts with his title so to do. II. It seems, on the other hand, that the law will make no effort to take cognizance of any ownership in ideas not written down, or otherwise embodied in material form. Were the blind father of poetry wandering in our streets to-day, chanting his divine songs, 1 1 It is a well known and established maxim, which I apprehend holds as true now as it did two thousand years ago, that nothing can be the object of property which has not a corporeal existence. Per YATES, J., in Millar v. Taylor, 4 Burr. 2631. "Among the many intricate and interesting questions which a student of the law of literature can foresee in the future dealing of courts therewith, is the right—if any—of an ex tempore speaker (for instance) to restrain the publication of his efforts. Such protection would be, indeed, but a step in advance of the present position of courts, which have latterly, as will been further on in these pages, gone to great lengths to protect authors in their properties. the law could not secure any by-stander who had listened to them, from chanting them over again himself, for hire. Nay, more, it has been held that the law will not protect ideas or sentiments, even after they have once been written down, from being carried and conveyed-so that they be not carried and conveyed in some material form-to the use of others not their proprietors. Thus, it has been said that the law will not interfere to prevent an author's ideas from being transported in the memory of one who has heard them repeated; should their author, or another, have announced or repeated them in conversation or by natural speech. It is not that the right of the individual to his own thoughts or conceptions is not the same in one case as in the other: the difference would appear to arise solely from the impossibility of protection, for the law is a practical science, and recognizes no right which it cannot enforce or protect. For it is one of its maxims that ubi jus ubi remedium.2 12. The twofold right of an author to his literary property, consisting, 1. in his right to publish, and 2. in his right to enjoy, we have said is the same as his right to any other possible possession. There is, however, one difference; from grounds of public policy, which is the supremest law, it would appear that the right to enjoy has been limited by the statute as to duration and time.* 1 Coleman v. Wathen, 5 T. R. 245. Wallack v. Williams, Sp. T. N. Y. Sup. Court, 1867 (unreported, but see post chapter on Dramatic Copyright); Palmer v. De Witt, 7 Amer. 480; 47 N. Y. 532. 2 Broom. Leg. Max. 180. 3 * Copyright is not of a simple, but a complex nature, involving two conditions: one of publication, the other of exclusion. Prince Albert v. Strange, 2 DeG. & Sm. 674. 4 Vide chapter on Copyright. Subject to certain copy For it would seem that, just as the owner of lands and houses pays to the state a certain percentage of their value, as his contribution to the wealth and power of the government whose protection he enjoys; so is it but fitting that after the author shall have enriched himself from the store of his own culture and thought, that culture and thought should pass into the general fund of the culture of the commonwealth and enrich the stores of art and learning of his mother land, to which, as the Greek poet said, he owes the whole honor of his rearing.' For the writings of an author belong to the history of his race to the history of the thought and culture and speculation of his country; and even though his own self-love or vanity might lead him to suppress. what to his maturer judgment appears crude or feeble, or though time or circumstance may have led him to alter his views and opinions, neither his contemporaries nor posterity will be interested other than in his work as a part of those common intellectual stores which they have inherited as citizens of the same soil. right, deemed sufficient to encourage genius and learning, ? published book is the heritage of the public, and can not be taken from them by the author himself. Letters on Literary Copyright, Hotten, p. 114. 1 1 Euripides. Glory is the reward of science, and those who deserve it scorn all meaner views. It was not for gain that Bacon, Newton, Milton, and Locke instructed and delighted the world. When the bookseller offered Milton five pounds for his Paradise Lost, he did not reject it and commit his poem to the flames, nor did he accept the miserable pittance as the reward of his labor; he knew that the real price of his work was immortality, and that posterity would pay it."— Lord Camden's Argument against Literary Property. 2 See the case of Southey v. Sherwood, 2 Meriv. 434, where the poet sought to restrain the publication of one of his |