CARTE V. EVANS.
an essential element of the offense. The regulations and requirements of the internal revpnue laws are very strict and positive, and constitute a complicated system of duties and arrangemente, which cannot be easily and accurately comprehended by persons of ordinary intelligence and experience, and mistakes will often be made by persons who undertake to carryon business in conformity with such laws. TIle penalties and punishments for noncompliance with such laws are very severe, and I cannot suppose that congress intended that a jury should convict any persoll whom they believPd to be innocent of any criminal purpose in doing a forbidden act, and of whose guilt there was any reasonable doubt. Congress has the power to change the principles of the common law by a statute, but I believe that when a material departure from long-established principles of justice is intended, such change will be made in plain and unmistakable words; and a court of justice is not warranted in inferring such intentions from the perhaps inadvertent or accidental omission'in a statute of a word or words which at the common law are material in the description of a crime, and which are ordinarily used in statutes creating criminal offenses.
v. EVANS and others.
(Oircuit Oourt, D. Massachusetta. June 21,1886.)
COPYRIGHT-TRANSFER-RIGHTS OF ALIEN ASSIGNEE-INFRINGEMENT.
Where a piano-forte arrangement of the orchestral score of an opera was made by a United States citizen, with the consent of the non-resident foreign composers of the opera, and then transferred by him to a fellow-citizen, who procured a copyright, which he assigned'to a non-resident foreigner, acting as agent of the original composers of the opera, held, that there was nothing of evasion or violation of law, and that the assignee was entitled to the protection of the court against infringers.
If the published title of a book is sufficient to identify it with substantial certainty with the registered copyright, the copyright will not be forfeited on account of slight variations between the two.
SAME-VALIDITy-REGISTRATION-TITLE OF BOOK.
In Equity. Causten Browne, for complainant. Prentiss Cummings, for defendants. NELSON, J. This case was heard in February last, but the decision has been delayed to enable the parties to complete certain proofs which were found to be necessary for its proper determination, and it is only recently that it has been in a condition to be finally disposed of. The suit is a bill in equity for an inj unction to restrain the infringement by the defendants of the plaintiff's copyright in an arrangement or adaptation for the piano-forte of the orchestral score of an opera called "The Mikado, or The Town of Titipu." It appeared that Will· iam S. Gilbert and Sir Arthur Sullivan, both British subjects resident in London, were the authors and composers of a comic opera entitled "The Mikado, or The Town of Titipu," the words of the opera.
being the work of Gilbert, and the musical parts being composed by Sullivan. It was admitted that the orchestral score of the opera has always remained in manuscript, or in print only for the use of the performers, and has never been published, either in this conntry or in England. Tile piano-forte arrangement for which the plaintiff holds a copyright was composed by George Lowell Tracy, a professional composer and arranger of music, residing in Boston, and a citizen of the United States. The work of composition was performed by Tracy, in London, under an agreement made by him with Gilbert and Sullivan, and with the plaintiff, who is the representative of their interests in this country, the latter being also a British subject resident in London, that a copyright of the piano.forte arrangement, when completed, should be taken out in this country by Tracy, and transferred to the plaintiff. For his part of the work Tracy was paid a salary. After the completion of the work, with the consent of Tracy and the plaintiff, a copyright was taken out here in the name of Alexander P. Browne, a resident of Boston, and a citizen of the United States, acting as the attorney for all the parties, and was afterwards, with Tracy's approval, assigned by Browne to the plaintiff. The original orchestral score, as composed by Sullivan, was, of course, designed to be played by numerous performers, and on a great number and variety of musical instruments, ranging in compass from the highest to the lowest; and rrracy's work consisted in reducing, condensing, and reconstructing a score composed for a full orchestra of wind and stringed instruments, and producing from it a score that could be played by a single performer on an instrument of the limited capacity of the piano·forte. The Tracy arrangement was intended to be played as an accompaniment to the vocal score, and in that respect to take the place of the orchestral score, as played when the opera was given on the stage. That an arrangement for the piano-forte of the orchestral score of an opera, sllch as 'l'racy has produced, is an original musical composition, within the meaning of the copyi"ight law, is well settled. In executing such a work the ideas of the composer of the opera cannot be wholly reproduced, and other ideas, more or less resembling them, or wholly new, have to be substituted and added. To do such a work acceptably requires musical taste and flldll of a high order, and a thorough knowledge of the art of musical composition, and especially of instrumentation. No two arrangers, acting independently, and working from the same original, would do the work in the same way, or would be likely to produce the same results, except so far as they might both resemble the original. An arrangement of this character would undoubtrdly be a piracy of the original opera, unless the arranger has in some way acquired the right to make such use of the original; but if he has acquired that right, the arrangement is substantially a new and distinct composition, aud as such is entitled to the protection of the court. Wood v. Boosey, L. R. 2 Q. B. 340;
CAInE V. EVANS.
affirmed, L. R. 3 Q. B. 223; Boosey v. Fairlie, 7 Ch. Div. 301; affirmed,4 App. Cas. 711; Thomas v. Lennon, 14 Fed. Rep. 849; Drone, Copyr. 176. Tracy's work was done with the consent of the original composers of the opera, and in their interest. There is nothing in our copyright law to prevent one of our own citizens from taking out a copyright of an original work composed by him, even though the work of composition was performed at the procurement and in the employment of an alien; or from assigning his copyright to an alien under an agreement made either before or after the composing of the work. A nonresident foreigner is not within our copyright law, but he may take and hold by assignment a copyright granted to one of our own citizens. The proprietor as well as the author is entitled to enter the work for copyright. The consent of Tracy was sufficient to constitute Browne the proprietor for the purpose, without a formal assignment. Lawrence v. Dana, 4 Cliff. 1, 65. The effect of the transaction was the same as if Tracy had made the entry in his own nama, and then assigned to Carte. The defendants insist that the method of proceeding by which the copyrigh t was procured, and afterwards vested in the plaintiff, a nonresident foreigner, was a mere evasion of our copyright act, and as such is not entitled to the protection of the court. But I am unable to perceive how it can properly be called an evasion, if by that is meant a proceeding by which the letter or spirit of the law is directly or indirectly violated. The thing coIfyrighted was an original work, by an American composer, and therefore the lawful subject of copyright. All the steps taken to secure the copyright, and vest it in the plaintiff, were authorized by our statute. Undoubtedly the plan adopted displayed great ingenuity, and the effect is to vest in these foreign authors valuable American rights in their work; but there is nothing of evasion or violation of law. The plaintiff is therefore entitled to the protection of the court against infringers, if his copyright is otherwise valid. Another question in the case relates to the title of the published book. The act provides that no person shall be entitled to a copyright of a book unless he shall, before publication, deliver at the of· fice of the librarian of congress, or deposit in the mail addressed to him, a printed copy of its title, nor unless he shall also, within 10 . days from the publication, deliver at the office of the librarian, or deposit in the mail, addressed to him, two complete printed copies of the book, of the best edition issued; and the librarian is required to keep a record of the names of all books entered. Rev. St. §§ 4956, 4957, 4959. The act does not say, in so many words, that the pub. lished. book shall bear on its title-page the same title as that registered. But as the object of the registration is to give notice to the world that the author or proprietor has acquired the exclusive right of publication, the inference is that by "two complete printed copies"