descriptive writing underneath, referring to the emperor Napoleon III. In 1871, the defendant published a work called "The Man of his Time," consisting, first, of the "Story of the Life of Napoleon III., by James M. Haswell," and, secondly, of "The Same Story as Told by Popular Caricaturists of the Last Thirty Years." Among the caricatures in Part II. were copies in a reduced form, sometimes with, and sometimes without, the descriptive writings of the nine cartoons above mentioned. No consent from the proprietors of "Punch" to this reproduction had been obtained. In an action by them for infringement of their copyright in the several books or sheets of letterpress containing the cartoons, they were held entitled to recover therefor.

A collection of indices of abstracts of titles to the real estate in certain precincts, is an original work, and entitled to protection as such.1

2

172. An important aspect of this question presents itself in regard to school and college text-books, which in the United States are multiplied almost by hundreds yearly, and form, perhaps, the most profitable of publishers' ventures.

The originality of these productions consists entirely and exclusively in the method of treatment or arrangement of primary, cardinal, and fundamental rules and principles, and they therefore present this branch of our inquiry in its purest phases. As was well said by Mr. Justice Story, in a leading case,3

1 Banker v. Caldwell, 3 Minn. 94. See further discussion of this case in the chapter on Piracy.

As to school books, see also Lennie v. Pillans, 5 Sess. Cas. 2 Ser. 416. Constable v. Brewster, B. S. 215 (N. E. 152). Greene v. Bishop, 1 Cliff R. 186.

Emerson v. Davies, 3 Story, 786. Vid. also Gray v. Russel 1 Story, 17. As to how far a re-arrangement of scientific

"The preparing and adjusting of such writings require much care and exertion of mind. . . . . It does not require the exercise of original or creative genius, but it requires industry and knowledge."

The case of Emerson v. Davies1 is a leading one in the United States. In the year 1829, Frederic Emerson published a text-book entitled "The North American Arithmetic, containing Elementary Lessons, by Frederic Emerson." This book was extensively adopted; continued to be popularly used in schools; and was several times revised, re-copyrighted and re-published in various editions previous to the year 1843. In that year Professor Charles Davies published a work entitled "First Lessons in Arithmetic, Designed for Beginners, by Charles Davies."

Mr. Emerson thereupon brought his bill against Professor Davies for alleged piracy of his first-mentioned work, claiming that its distinctive features had been boldly pirated by Davies, in his work, and that the "First Lessons in Arithmetic, by Charles Davies," was really and substantially "The North American Arithmetic, by Frederic Emerson.”

The complainant claimed among other, that the progressive steps by which he (Emerson) had proposed to teach children the elements of arithmetic, was his own original invention. "That, in the execution of his plan he arranged a certain set of tables in the form of lessons, with a gradation of examples to precede each table, in such manner as to form, with the table, a peculiar and symmetrical appearance of each page;” and had further illustrated his lessons by artistic matter (as, for example, the arrangement of the score of an opera for the pianoforte), is an original work. See Wood v. Boosey, 7 B. & S. 869; 9 Id. 175; L. Rep. 22 B. 340; Id. 32 B. 223; 18 L. T. N. S. 145.

attaching to each example unit-marks, representing the numbers embraced in the example, which features were his own original contrivance and invention. He further alleged, that these peculiar features, ¿. e., the tables, the examples, and the unit-marks, were imitated, copied, and employed in the work by Davies. The defendant denied all the allegations, and claimed that, whatever resemblance there was between the two text-books, was owing to the identity of the subjects treated.

The ability and fullness of the arguments on both sides of this case, and the exhaustive opinion therein by Mr. Justice Story, entitle it to be considered as one leading in questions of this kind.

In his opinion in that cașe, Judge Story said: "It is a great mistake to suppose, because all the materials of a work, or some parts of its plan and arrangements. and modes of illustration may be found separately, or in a different form, or in a different arrangement in other distinct works; that therefore, if the plan, or arrangement, or combination of these materials, in another work, is new, or for the first time made, the author, or compiler, or framer of it (call him what you please), is not entitled to a copyright. The reverse is the truth in law, and, I think, in common-sense also. It is not, for example, in the present case, of any importance that the illustrating of lessons in arithmetic, by attaching unit-marks representing the numbers embraced in the example, may be formed by dots, in Wallis's Opera Mathematica,' or-in 'Colburn's Arithmetic,' in the form of upright linear marks, in a pamphlet detached from the main work. That is not what the plaintiff claims to found his copyright upon. He does not claim the first use or invention of unitmarks for the purpose above mentioned. The use of

these is a part of, and included in, his plan; but it is not the whole of his plan. What he does claim, is— 1. The plan of the lessons in his book. 2. The execution of that plan, in a certain arrangement of a set of tables, in the form of lessons to illustrate those lessons. 3. The graduation of examples to precede each table in such manner as to form with the table a peculiar and symmetrical appearance of each page. 4. The illustration of his lessons, by attaching, to each example, unit-marks representing the numbers embraced in the example. It is, therefore, this method of illustration. in the aggregate, that he claims as his invention, each page constituting, of itself, a complete lesson; and he alleges that the defendants have adopted the same plan, arrangement, tables, gradation of examples, and illustrations, by unit-marks in the same page, in imitation of the plaintiff's book, and in infringement of his copyright; and, in confirmation of this statement, he refers to divers pages of the book of the defendants. Now, I say that it is wholly immaterial whether each of these particulars the arrangement of the tables and forms of the lessons, the gradation of the examples to precede the tables, the illustration of the examples by unit-marks—had each existed in a separate form, in different and separate works, before the plaintiff's work; if they had never been before united in one combination, or in one work, or on one page, in the manner in which the plaintiff has united and connected them. No person has a right to borrow the same plan and arrangement and illustrations, and servilely to copy them into any other work. The same materials were certainly open to be used by any other author; and he would be at liberty to use unitmarks, and gradations of examples, and tables, and illustrations of the lessons, and to place them in the

same page. But he could not be at liberty to transcribe the very lessons and pages, and examples and illustrations, of the plaintiff, and thus to rob him of the fruits of his industry, his skill, and his expenditures of time and money. " 1

And in the case of Gray v. Russell, which was a suit brought to protect the well-known " Adam's Latin Grammar" against a so-called "improvement" thereon, the same eminent judge, with equal clearness, enunciated the principles from which our courts would very reluctantly depart. Said Story, J., in answer to the argument that there was nothing really new or novel in Mr. Gould's notes to Adam's Latin Grammar, and that all his notes were taken from works that had been subsequently printed: "That is not the true question before the court. The question is, whether these notes are to be found collected and embodied in any former single work. It is admitted, that they are not so to be found. The most that is contended for, is, that Mr. Gould has selected his notes from very various authors, who have written at different periods, and that any other person might, by a diligent examination of the same works, have made a similar selection. It is not pretended, that Mr. Cleveland undertook or accomplished such a task by such a selection from the original authors. Indeed, it is too plain for doubt, that he has borrowed the whole of his notes directly from Mr. Gould's work; and so literal has been his transcription, that he has incorporated the very errors thereof."

"Now, certainly, the preparation and collection of these notes from these various sources, must have been a work of no small labor and intellectual exertion

13 Story, R. 782.

2 I Story, II.