Page:The Green Bag (1889–1914), Volume 16.pdf/700

 Names of Literary Compositions.

643

NAMES OF LITERARY COMPOSITIONS. BY BERNARD C. STEINER, Dean of the Baltimore Law School. THE name of a literary production is not protected by copyright, but is an ap pendage to the production.1 A number of decisions of the courts speak of the name as property-, but there is some authority against this view3, and it seems better to rest the remedy for improper use of the name on the ground of fraud. Here, as in other cases of competition, the fraud is to be proven, in case the defendant simulates a name composed of a word or words not arbitrary but descriptive in char acter, and is presumed, when he imitates words distinctly used by the plaintiff. After all, it is the literary production, t. e., the book or periodical of which the name is the symbol, and not the name itself which is protected. Names may be divided into two classes; those of single books and of periodical publications. In the case of the latter, there is a continuance of issue, which gives rise to good will attaching itself to the name of the periodical rather than to the place of publication. The probability of the title continuing to attract custom in the way of circulation and advertising patronage gives a value which may be protected and disposed of.* In the case of the former, 'Jolie г: Jacques, Fed. Cases 1437; Kelly r. Hutton, .17 L. j. Ch. 297: I,. R. a Ch. Ap. 703; Dicks v. Yates, 18 Ch. D. 76. A series of valuable articles on this subject appeared in 1880 in ю Cent. L. J. 82, 104, 123. 'Name is property: Met. Nat. Bank i St. Louis Despatch Co., 149 U. S. 436: Gannett v. Ruppert, 119 Fed. 221; Rose v. McLean, 24 Ont. A. R. 240: Walter v. Head, 25 Sol. J. 742, 757; Giblett v. Read, 9 Mod. 459. "It is as much a part of the proprietor's property as his count ing room or printing press." Gannett v. Ruppert (CCA), 65 Pub. Wkly. 68: Reid v. Bishop. 4 N. Z. L. R. 222j Munro r. Toucey, 129 N. Y. 38. "Bowen said in Walter v. Emmott, 53 L. T. N. S. 437. the "name is not property, but the value of the name is the reasonable expectation of using it profitably in business." Black v. Ehr lich, 44 Fed. 793; "neither author nor proprietor

the good will preserved is that attaching to the sale of additional copies of what has been already published, rather than to the future publication of new matter under the same name. Of course, the plaintiff must establish his title by proof of use in publication. When publication occurs, is sometimes a question of difficulty. In the case of a professor who delivers lectures orally in a class room, the British cases hold that he does not so com municate them to the world so that one may publish them without his consent and that there is an implied contract with the hearer not to publish the notes without the lec turer's consent. Even a third party, to whom the notes are sold and who published them, has been enjoined.5 Publication of a literary production like dedicating a private road to the public, is abandonment"; unless there be copyright; but the abandonment is only to the fair use of a literary work has any property in its name. It is a term of description which serves to iden tify the work, but any other person can with impunity adopt it and apply it to any other book, or to any trade commodity, provided he does not use it as a false token to induce the public to believe that the thing to which it is applied is the identical thing it originally designated." 'Met. Nat. Bank v. St. L. Dispatch Co., 140 U. S. 436. The rights to publish newspapers are goods and chattels; Foss ex parte, 30 L. T. O. S. 354, on appeal 2 De G. & J. 230; and may be assigned Kelly v. Hutton, 37 L. J. Ch. 297 L. R. 3 Ch. Ap. 703; and then other persons may be enjoined from using the name of the paper, or a similar one, at suit of the assignee; Lawrence v. Times Printing Co., 90 Fed. 24. In a curious case the defendant agreed to publish a magazine, and the plaintiff enforced a clause in the contract that he might use the name and prohibit the de fendant's use of it, if the latter failed to bring out the numbers on time. N. Y. Polyclinic School v. King, 57 N. Y. Supp. 796. "Abernethy i'. Hutchinson, 3 L. J. O. S. Ch. 209 (1825); Caird v. Sime, 13 Ct. Sess. Cas. 4th Ser. 23, reversed by 12 A. C. 326. "Jeffreys v. Boosey, 4 H. L. C. 965.