bind them. Many authors lived to see their early works thrown open to the public, when perhaps they greatly needed the royalties and they faced the fact that their families would shortly be deprived of all returns.

A great injustice to American writers had thus been done. The new term, however, was twenty-eight years, with a right of renewal for twenty-eight years more, to the author if living, otherwise to the widow, widower, children, executor, or next of kin, leaving open the old question as to the length of time for which publishing contracts could be made. What had been sought was a term which would cover the life of the author in any event and a period of twenty, thirty, or fifty years beyond. However, it was better to see the bill enacted and the term extended than to have it fail altogether. The two terms of twenty-eight years each will usually cover the life of the author, though in the case of early writings it may make but slight provision for his family. One of the duties still owed by our country to the men who dignify and enrich its literature is to protect them and their families to the same extent that England and France protect their writers.

PENALTIES

I want to say a few words with regard to penalties and confiscation. That idea has run through all the statutes down to the present time, and was carried to an absurdity in the Acts preceding 1909. Not only was the copyright owner given remedies, but some of the penalties were divided one half to some litigious volunteer and the other half to the United States.

The penalty sections were practically inoperative, and illustrate the unwillingness of the Courts to enforce extravagant legislation. Justice Brewer said, in a Western case, where one million dollars was sought to be recovered, namely, one hundred dollars penalty on each of ten thousand chromos:

"Plaintiff is not suing for the value of his services or for injury to his property, but merely to make profit to himself out of the wrongs of others, and when a man comes in as an informer and in that attitude alone asks to have half a million dollars put into his pockets, the Court will never strain a point to make his labors light or his recovery easy."

The penalties with reference to the infringement of a copyright upon a book were, however, not divided with an informer, but were based upon the idea of compensation, and went to the owner of the copyright. In the case of a map, chart, musical or dramatic composition, the statute was inconceivably drawn. The penalty was to be divided between the proprietors of the copyright and the United States. No copyright need actually exist, but the recording of the title of such a work was sufficient to base proceedings upon. The plates on which the infringing work was printed were to be forfeited as well as the sheets printed, and a penalty was fixed of one dollar per sheet in certain cases and of ten dollars per copy in others. The liability to the money penalty was limited to "the number of sheets found in his possession," meaning the infringer's possession, irrespective of the number which he may have circulated. The Boston Globe was sued for $150,000 for printing a song, Papa Wouldn't

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Buy Me a Bowwow "in its Sunday issue. It was a severe test, but the paper owned up that its circulation was 150,000. The suit, however, came to an untimely end. All the copies had been circulated as soon as printed and none were "found in the defendant's possession."

You will notice the manner in which the Courts deal and are forced

to deal with absurd legislation. The statute says found in his possession." What constitutes a finding? The things that the word "found" does not mean would fill a book. It does not mean found by a jury to have been in the defendant's possession. In an action against a department store, it does not mean a finding in the hands of a floorwalker or superintendent, because the statute was penal. In an action, against an agent, the finding in his hands was not sufficient to hold him because his possession in the meaning of the law is that of his principal. Finding did not mean merely seeing them. A seizure by the United States marshal in a suit to enforce the penalty was not a sufficient finding, because the finding must precede the date of the writ in order to create a cause of action. The cases in which the penalty was enforced were few, but the amounts involved in many cases were most alarming. Whether anybody would ever have found out how to find copies in a defendant's possession is unnecessary to speculate now, because the new statute, while preserving many of the forfeitures, has provided that the copyright proprietor shall either recover his damages and the profits of the infringer,

or in lieu of actual damages and profits, such damages as to the Court shall appear to be just, and in assessing such damages the Court may in its discretion allow the amounts as hereinafter stated, but in the case of a newspaper reproduction of a copyrighted photograph, such damages shall not exceed the sum of two hundred dollars nor be less than the sum of fifty dollars, and such damages shall in no other case exceed the sum of five thousand dollars nor be less than the sum of two hundred and fifty dollars, and shall not be recovered as a penalty."

With this limitation as to the total amount which can be recovered, the statute provides the amounts which the Court in its discretion may allow. In dealing with books, for instance, the old provision of one dollar for every infringing copy is retained, with the words added, “one dollar for every infringing copy made or sold or found in the possession of the infringer or his agents or employees." Although this new provision has not been dealt with by the Courts to any extent, it would seem to be just and enforceable. In England the difficulty of enforcing penalties was so great that the amounts were made very small and are found to be easily enforceable.

REPORT OF LECTURES

One is sometimes asked with regard to lectures and letters, and the law respecting them has been of much interest. What right has a man who has paid his good money to hear a lecture or course of lectures? This depends on the circumstances under which the lecture or address was delivered. The question is, whether the audience was intended to make any use they pleased of it, or whether the circumstances raise a presumption that they may only use it for a limited purpose. Speaking

generally, the law does not protect addresses and speeches unless there is something in the circumstances under which they are delivered to create a limitation of the use which the audience may make of them. If addresses are open to the general public without limitation, there is no protection, but where the address is delivered to a limited class of the public, selected and admitted for the sole or special purpose of receiving individual instruction, the address may not be reproduced. The whole matter was summed up by Lord Halsbury as follows:

"It is intelligible that when a person speaks a speech to which all the world is invited, either expressly or impliedly, to listen, or preaches a sermon in a church the doors of which are thrown open to all mankind, the mode and manner of publication negative, as it appears to me, any limitation."

If, however, a student attends a course of law lectures or medical lectures where the fair implication is that they are delivered for instruction, the use which may be made of them is limited to the purpose for which they were given. It is wholly a question of the implied contract, as has recently been said:

"When the audience is a limited one admitted by tickets, the understanding between the lecturer and the audience is that, whether the lecture has been committed to writing beforehand or not, the audience are quite at liberty to take the fullest notes they like for their own personal purposes, but they are not at liberty having taken those notes to use them afterwards for the purpose of publishing the lecture for profit."

Printing of

LETTERS

With reference to letters, the situation is, of course, quite different. There the paper on which the letter is written is freely transmitted and becomes the property of the person receiving it. He may copy it; he may use it in Court, if it becomes necessary as an evidence of fact; he may use it in newspapers, if it becomes necessary in any way to his own defense against some charge or implication, or where for any reason it becomes of public importance. He may sell the document as a souvenir or for the sake of the author's autograph and handwriting, but there his rights stop. He cannot publish the letter as literature.

The question recently arose with regard to some of Mary Baker Eddy's letters, which were advertised for sale by a Boston auctioneer. There it was held that the executor of an author might enjoin the publication of letters or the multiplication of copies, in a catalog or otherwise; might compel the holder to allow the executor to make copies of them, but that he was not entitled to a decree restraining the sale of letters as manuscript. An author or his representative has the sole right to determine whether that which he has written shall or shall not be given to the public.

PLAYRIGHT

I have left the subject of plays and playright to the end. Strangely enough, until recently most plays were left in this country to the protection of the Common Law, and for this reason. The production of a

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play on the stage is not held to be a publication, and therefore full use of a play may be made without forfeiting perpetual ownership of it. As a rule, the great money value of a play is in presenting it and not in selling copies. Accordingly, plays used to be retained as manuscripts. The statute now provides that they may be entered for copyright in a simple way without being printed, and secure statutory remedies. The number of plays registered has increased very largely, — 3,223 last year, more than double that of ten years ago.

An anomaly at one time existed in this state, which was due to what was called the "memorizing theory." In the case of Laura Keene v. Moses Kimball of the Boston Museum of delightful memory, it was held concerning the play, "Our American Cousin," that, when a play had not been copyrighted but had been presented on the stage for money, it was no violation of any right of property to reproduce it, unless it was shown to have been produced in violation of some contract or trust. In this case it was suggested that an auditor might carry away from a play or opera so much as he could remember and repeat or sing it for the amusement of his friends or for money.

The defendants also raised the question whether the Puritan founders of the Commonwealth ever brought to this country as a part of their Common Law any property in plays, but Judge Hoar in rendering the decision said that

"if our ancestors prohibited all scenic exhibitions, it was because they regarded them as immoral and pernicious. If we do not so regard them, the reason ceasing, the rule ceases with it."

The case was decided on demurrer and not on the merits. It was the subject of violent discussion in the Courts and text-books. Among other things, it was insisted that it was never intended to justify the appropriation of the play by memorizing it. It was, however, understood to justify that course.

Some actors have marvelously trained memories. Byron, the boy tragedian, whose real name was Page, had such a memory. He and a friend, hearing the play of "A Celebrated Case" three times at the Union Square Theater, were able to reproduce it. Judge Gray, later chief justice, had no doubt of their statement and refused to enjoin their company from producing it. No other state followed Massachusetts, and our Federal Court did not. Later, the question came before the Court again, as to the play of "The World," then being produced at the Alhambra in South Boston (Thomkins v. Halleck).

Mr. Thomkins, of the Boston Theater, was the plaintiff. The play was originally produced in England and then at Wallack's Theater in New York. Byron and another actor named Mora attended the theater three or more times, and were able to reproduce it. Seth Thomas was counsel on one side and Dan Fitz on the other. Judge Devens wrote an elaborate and instructive opinion, reviewing many things in our law and literature, and reversed Keene v. Kimball.

So I have sought to follow, however inadequately, the law of literary property. It is gratifying to note that in the progress of time the work of the poet, artist, and author has been better and better secured to him. His labors now often reach a rich reward. It is no doubt true, as Froude says:

"Literature happens to be the only occupation in which wages are not given in proportion to the goodness of the work done."

Undoubtedly the "best seller" is not always or often the best book. But at all events an author need not work for posterity alone, or for everybody's children but his own. It is no longer true, as Scott bitterly said:

"Literature is a great staff but a poor crutch."

But what a return it makes beside the money return! Thackeray well says:

"I never knew a man of letters to be ashamed of his profession."

He might well have added, as our Prescott did add:

"The triumphs of the warrior are bounded by the narrow theater of his own time, but those of a Scott or a Shakespeare will be renewed with greater and greater luster in ages yet unborn, when the victorious chieftain shall be forgotten or shall live only in the song of the minstrel and the page of the chronicle."

MINUTES OF THE ANNUAL MEETING OF THE BOSTON CITY CLUB, HELD AT THE CLUBHOUSE, NOVEMBER 20, 1916

At 8 P.M. a quorum was present and the meeting was called to order by President Storrow.

The call for the meeting had been sent through the mail to all members of the Club; accordingly, it was voted to dispense with the reading of the call for the meeting.

The records of the last regular meeting of the Club were published in the December, 1915, issue of the BULLETIN; accordingly it was voted to dispense with reading the minutes of the last regular meeting.

The annual report of the Board of Governors was presented by the Secretary and the chairmen of the various standing committees.

REPORT OF THE MEETINGS OF THE BOARD OF GOVERNORS The Board of Governors perfected its organization for the year at its first regular meeting, November 23, 1915. The standing committees were appointed at a special meeting held very soon after this, and their membership was announced in the December, 1915, number of the BULLETIN. All the regular monthly meetings were duly held, with the exception that it was voted to dispense with a regular meeting for the month of August. Special meetings were held as required by the exigencies of the Club.