of works criticised by them. But the case viewed by his lordship was that of an encyclopædia, which had taken from the plaintiff's book and reprinted seventyfive of the one hundred and eighteen pages of which it consisted. Said he: 'The question is, whether the defendant's publication would serve as a substitute for the plaintiff's? A review will not, in general, serve as a substitute for the book reviewed; and even there, if so much is extracted that it communicates the same knowledge with the original work, it is an actionable violation of literary property.' The intention to pirate is not necessary in an action of this sort; it is enough that the publication complained of is, in substance, a copy whereby a work vested in another is prejudiced."

Upon the appearance of Dr. Johnson's "Rasselas," it was seized upon by "The Gentleman's Magazine," which printed the story, leaving out the "moral reflections." Now this was claimed to be an abridgment only; and the court held, with a reasoning that later decisions can hardly be said to sustain, that an abridgment was an advantage to the author, as being not only, perhaps, a testimonial to the value of his work, but as serving the end of an advertisement. This reasoning of the Master of the Rolls was very much the same as saying, If your goods are stolen, it is testimony that they are worth stealing; and the gratification of the compliment should compensate you for your loss. And perhaps it might, if writers wrote for "glory," as we have seen, unhappily for this line of argument, is not the case. "This latitudinarian right," said Chancellor Kent, in commenting upon this case, "is liable to abuse, and to trench upon the copyright of the author. The question as to a bona fide abridg

ment may turn not so much upon the quantity, as the value of the selected materials." 1

Somewhat later, in the case of Charles Dickens's "Christmas Carol," where the defendant had taken the story, and without altering incident, character, scene, or name, had set out the narrative in somewhat fewer words; the court would not permit the defense, of abridgment to be set up, saying that it "was not aware that one man had the right to abridge the works of another; that—although it would not pronounce that such a thing as a lawful abridgment was impossible to say that one man had the right to abridge, and publish in an abridged form, the work of another, without more: was going much beyond his notion of what the law of this country was.

2

And so an injunction was granted against the sale of a work entitled "An Abridgment of Cases," &c., which appeared to be a verbatim copy of a preceding work of the same name, except that the former work left out certain portions of the cases, such as the arguments of counsel. The injunction was granted.s

Where the publication of the quotation is a substitute for the quoted work, or for so much of it as may be, the quotation is an infringement. As to the "giving of credit," that goes merely to the question of the intention of the quoter, and is mainly immaterial; for, as an injury may be inflicted without in

1

2 Com. 382 (note), and see Gyles v. Wilcox, 2 Alk. 141. 2 Story Eq. Jur. § 939; Campbell's Lives of the Chancellors, v. 56.

3

2 Dickens v. Lee, 8 Jur. 183.

3 Brellerworth v. Robinson, 5 Ves. 709; and see Bell v. Walker, 1 Bro. C. C. 451, and see also Sweet v. Shaw, 1 Jur. 212; Whittingham v. Wooler, 2 Swanst. 428; Mecklin v. Richardson, Amb. 694.

tention, so no injury may result from an intention to injure. The law will look at the effect, as we have said before, whether intentional or unintentional.1 This question, and the questions arising in the cases of abridgments, are often so inseparable as to be practically identical.

167. To constitute a true and proper abridgment of a work, the whole must be preserved in its sense. The act of abridgment thus becomes an act of the understanding, employed in carrying a large work into a smaller compass, and, by rendering it less expensive, and more convenient both to the time and use of the reader, making the abridgment a new and meritorious work. In the case of an abridged edition of an extensive work, which might be read in a fourth part of the time, and all the substance preserved and conveyed in language as good or better than in the original, and in a more agreeable and useful manner, Lord Apsley said that he and Mr. Justice Blackstone were agreed, "that an abridgment, when the understanding is employed in retrenching unnecessary and uninteresting circumstances, which rather deaden the narration, is not an act of plagiarism upon the original work, nor against any property of the author in it, but an allowable and meritorious work.” 2

But though a bona fide abridgment of another work is no infringement of the copyright in that work, a merely colorable abridgment may be. “Where books are colorably shortened only," said Lord Hardwicke, "they are undoubtedly within the meaning of the act of parliament, and are a mere evasion of the statute, and cannot be called an abridgment;" and

341 his lordship considered a book published by the defendant entitled "Modern Crown Law," not to be a bona fide, but a mere colorable abridgment of Sir Matthew Hale's "Pleas of the Crown," with the omission of some repealed statutes, and a translation of the Latin and French quotations.

A mere selection or different arrangement of parts of the original work, bringing it into a smaller compass, will not be regarded by the law as an abridgment. "There must be," said Mr. Justice Story,1 "real, substantial condensation of the materials, and intellectual labor and judgment bestowed thereon; and not merely the facile use of the scissors; or extracts of the essential parts constituting the chief value of the original work." Many mixed ingredients enter into the discussion of such questions. In some cases, a considerable portion of the materials of the original work may be fused-if I may use such an expression-into another work, so as to be undistinguishable in the mass of the latter, which has other professed and obvious objects, and cannot fairly be treated as a piracy; or they may be inserted as a sort of distinct and mosaic work, into the general texture of the second work, and constitute the peculiar excellence thereof, and then it may be a clear piracy.

In the case from which the above remarks are taken, the question was as to whether a "Life of Washington," in two volumes of 866 pages, was an invasion of the copyright in "Sparks's Life and Writings of Washington," a work in twelve volumes; 353 pages of the former work being copied from the latter, 64 pages being official letters, and 255 being Folsom v. Marsh, 2 St. Rep. 107, and see Lewis v. Fullerton, 2 Beavan, 6, 8.

private letters of Washington, first published by Sparks under a contract with the owners of the original papers of Washington. of Washington. It was held by Story, J., to be such an invasion, and the injunction was granted.1

The question of quotation will constantly arise. In volumes of "Elegant Extracts," where the defendant published a book of specimens of modern English poetry, with criticisms and biographical notices, and inserted therein entire poems and extracts from the poems of Campbell, which were under the protection of copyright, an injunction was granted against the publication, and the animus furandi held to be implied by law, from the taking? And said Story, J., " If a person should, under color of publishing Elegant Extracts' of poetry, include all the best pieces at large, of a favorite poet, whose volume was secured by copyright, it would be difficult to say why it was not an invasion of that right, since it might constitute the entire value of the volume."

The addition of words, prelude, and accompaniment to an old air was held to give the adapter a copyright in the whole composition; and where a a person adapted words to an old air and procured a friend to compose an accompaniment, his assignee was held entitled to describe himself, in an action for piracy, as proprietor of the copyright in the entire composition. And it was said in Bogue v. Houls

2

Folsom v. Marsh, 2 Story, 100.

Campbell v. Scott, 11 Simons, 31.

In Folsom v. Marsh, 2 Story R. 100, 115, and see also Mawman v. Feof, 2 Russ. 383, post chapters on legal reports and piracy.

4

Leader v. Purdy, 7 C. B. 4. As to how far an arrangement for the pianoforte of the score of an opera is an orginal work, see Wood v. Boosey, 7 B. & S. 869; 9 B. & S 175;