Music Trade Review -- © mbsi.org, arcade-museum.com -- digitized with support from namm.org
THE MUSIC TRADE REVIEW.
12
DOtS COPYRIGHT
PROTECT?
$ays Yes ;
Say
AN INTERESTING QUESTION.
BOSTON, Mass., Nov. 22d,
M R . E D W A R D TOYMAN BII,I,,
1893.
New York. N. Y.
:—Replying to your favor of Novem-
ber 20th, calling attention to the article in the
Music TRADE REVIEW, headed "Copyright is
no Protection," will say that the writer of the
article in question is all wrong, as it is a well-
known fact that the title of a piece of music, or
a book, is protected, not by the copyright, but
by the common law covering trade-marks.
In support of this statement, we will quote
from a letter received by us from an eminent
authority on copyrights in this city, a gentle-
man of no less consequence than Alex. P.
Browne, of the firm of which Causten Browne is
the other member, as follows :
The question presented, therefore, is broadly
this : What right has the prior publisher or
owner of any publication bearing a certain title
to prevent other persons subsequently from pub-
lishing other publications under the same or a
similar title ?
I will say at the outset, that the copyright
laws have nothing to do with this question.
It is a question purely analogous to that of
trade-mark ; a matter of common law, not of
any copyright statute.
The rule of law which governs in such cases
is well stated in "Drone on Copyright," page
145, as follows: "The mere title of a book,
magazine, newspaper, or other publication, is
not a subject of copyright. A title is treated
as a- trade-mark, in which the owner's rights
are recognized ^and protected on general prin-
ciples of equity."
'
Again, page 535, "There can be no copy-
right in a mere title, but on general principles
of equity an injunction will be granted restrain-
ing a person from appropriating the title of a
well-known publication for a rival work. Nor
will a person be allowed to use a title which is
a mere colorable imitation of another, for the
DEAR SIR
purpose oi misleading the public into buying
one publication in the belief that it is the other. "
This rule has many times been laid down by
the courts. For example, in Matsell v. Flani-
gan, the title of the plaintiff's publication was
" The National Police Gazette," that of the de-
fendant "The United States Police Gazette."
The court enjoined both the publisher, the
wholesale dealer and the retail dealer, and said
as follows:
"There is neither honesty nor honorable com-
petition in adopting for a similar purpose the
name used by another, if it be used in such a
manner that the public may be imposed upon.
The adjudged cases, both in England and in
this country, establish these principles."
To show what the courts have enjoined as im-
proper imitations of titles, the owners of " Bell's
Life in London " enjoined the use of the title
"The Penny Bell's Life and Sporting News."
The court held that the name of the defendant's
publication was too near that of the plaintiff's,
and that whether this imitation was accidental
or intentional made no difference.
In the case of " Chatterbox," the well-known
English annual, whose contents could not be
protected under copyright law, American courts
have repeatedly enjoined the use of the title
"Chatterbox," "Frank Leslie's Chatterbox,"
and " Chatterbook."
In the case of writing-books, the use of the
title '' National System of Penmanship '' was
enjoined, although no copyright of the plaintiff
was infringed.
The same rule exactly applies to musical com-
positions. In a recent English case, the plain-
tiff published under the name of " Minnie " the
old American song of '' Lillie Dale.'' He ob-
tained injunctions against two parties who sub-
sequently published the same song, one under
the title of " Minnie Dale " and the other under
the title of " Minnie, My Minnie, " although no
pretence was made that the song itself was not
common property.
In another recent case the plaintiff published
a pianoforte instruction book with the title
"Hemy's Royal Modern Tutor of the Piano-
forte." The defendant subsequently employed
the same Hemy to prepare a revision of an old
pianoforte book, and publish it as "Hemy's
Edition of Jousse's Pianoforte Tutor." The use
of this title was enjoined, althongh the two
books were totally different in subject matter,
the court holding that the second title was suf-
ficiently like the first to deceive the public.
From the foregoing it will be seen that it is
well settled law that the title of a book or a
piece of music is property, and that a wrongful
use of the title by others will be enjoined, and
of course, damages awarded.
Yours truly, OLIVER DITSON COMPANY,
JOHN C. HAYNES, President.
MR. MOUNEWS
To THE EDITOR OF THE MUSIC TRADE REVIEW :
I have read, with much interest, your article
upon the United States Copyright Laws. I
trust this preliminary paper is but the begin-
ning of the agitation of a question of such vital
importance to publishers and composers.
If all concerned will give to this matter the
attention it deserves, results will doubtless fol-
low which will amply repay all efforts that may
be forthcoming.
As the law now reads, few definite conclusions
can be drawn from it. It should be so explicit
and concise that no exceptions could be taken
to it.
In cases where the law might appear obscure
to some, an application to the department
should secure information of a definite and final
character.
Such is not the case, as an appeal to Wash-
ington, some time since, for light upon a ques-
tion which should have been perfectly plain to
the department, brought the reply that, accord-
ing to the ruling of a certain judge, such and
such was the case.
Should it be necessary to apply to the courts
for information which, as I have previously re-
marked, ought to be perfectly plain and intel-
ligible ?
It has usually baen considered that the title
of a book or musical publication was subject to
protection, being a part of the work or contents,
the work being as incomplete without the title
as the title without the work.
Recently, a publisher, who had gone to much
labor and expense in the compilation and pre-
paration of a work, the title of which was exten-
sively advertised, and duly covered as he
thought by copyrights, became aware that a
similar work had subsequently been put upon
•YOU-AT-SHORT-NOTICE
•ILLUSTRATED "BROCHURE
^vsmoRCom
fiEGANT?RICn-U5T5-MENU-CARDS'etc,efc.
CUTS-TOR- ADVERTISEMENTS-
MUSIC-TITLES - B R A S S DIES • FOR-ALL-
PEH-DRAWINGSBUILDIHG5LASD5CAPESFORTRAIT5
PHOTO-£NGRAVIHG HALF-TONES &