Page:Popular Science Monthly Volume 20.djvu/357

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343
PROGRESS OF COPYRIGHT LAW.

long ago as 1801, a novel written by still another author had been published under the same title—"Splendid Misery." Partly on the ground that this publication had rendered the title common property, so that now any one may use it, the Court of Appeal decided in favor of Miss Braddon's publisher. Apparently, however, the judges consider the general English law to be: 1. A title has no special protection by the copyright law; that protects it only as any other part of the book; 2. Another person who uses the same title only, without either imitating the book or deceiving the public, can not be stopped by a copyright suit; 3. Appropriating a title under circumstances which show an intention to attract people to buy the book under the supposition that they are getting another well-known one—as, if one should publish an anonymous, inferior story under the title "Vanity Fair," for the purpose of leading buyers to think it was the celebrated story by Thackeray—is a fraud on the public, which may be published or stopped, independent of copyright law. But the question of holding a title by force of the copyright law should, perhaps, be deemed an open one in England; two vice-chancellors have decided that it may be; but the judges of the Court of Appeal have said that they do not think so; this was said, however, in a case in which the facts did not enable them to make an authoritative decision.

In America, when the copyright of "Irving's Works" expired, recently, a rival publisher issued a volume of selections, using, the same title—"Irving's Works." The former publisher, though he could not complain of the publication of the substance of the volume, did bring his suit to forbid using the title; it was, as he claimed, his trademark. But the judge said that the public were not misled; the selections comprised in the book were genuine writings of Washington Irving; and, now that any one may publish Irving's writings, he has the right to style them "Irving's Works."

There has been a decision on a matter very germane to copyright, the affixing of an author's name to a book. The story of the plaintiff, who was an American publisher, was, that he devised a new plan for compiling illustrated guide-books to towns, according to which a Mr. Kenny prepared several such books relating to towns in America. They were known as "Kenny's Guide-Books." Subsequently the publisher agreed with Kenny for the use of the latter's name upon a guidebook for London; and he employed Mr. Marsh (against whom the suit was brought) to write the London book. The engagement was on the distinct understanding, so the publisher said, that Marsh's name would not appear as author. The publisher, however, announced the book as being "by D. J. Kenny (assisted by John B. Marsh)"; but Marsh, then, although he had drawn his pay for preparing the work, withheld the manuscript. The publisher asked the court to compel him to deliver it. The author, Marsh, denied positively that he ever