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The serial publication of a book in a monthly magazine, prior to any steps taken toward securing a copyright, is such a publication of the same, within the meaning of the act of Congress of February 3, 1831, as to vitiate a copyright of the whole book, obtained subsequently, but prior to the publication of the book as an entirety.
Dr. Holmes, the testator, was the author of "The Autocrat of the Breakfast Table," which, during the years 1857 and 1858, was published by Phillips, Sampson & Company of Boston, in twelve successive numbers of the Atlantic Monthly, a periodical magazine published by them, and having a large circulation. Each of these twelve numbers was a bound volume of 128 pages, consisting of a part of "The Autocrat of the Breakfast Table," and of other literary compositions. These twelve parts were published under an agreement between Dr. Holmes and the firm of Phillips, Sampson & Company, whereby the author granted them the privilege of publishing the same, the firm stipulating that they should have no other right in or to said book. No copyright was secured, either by the author or by the firm or by any other person, in any of the twelve numbers so published in the Atlantic Monthly; but on November 2, 1858, after the publication of the last of the twelve numbers, Dr. Holmes deposited a printed copy of the title of the book in the clerk's office of the District Court of the District of Massachusetts, wherein the author resided, which copy the clerk recorded. The book was published by Phillips, Sampson & Company in a separate volume, and upon the same day a copy of the same was delivered to the clerk of the District Court. The usual notice, namely, "Entered according to act of Congress, 1858, by Oliver Wendell Holmes, in the Clerk's Office of the District Court of the District of Massachusetts," was printed in every copy of every edition of the work subsequently published, with a slight variation of the edition published in June, 1874. On July 12, 1886, Dr Holmes recorded the title a second time; sent a printed copy of the title to the Librarian of Congress, who recorded the same in a book kept for that purpose, and also caused a copy this record to be published in the Boston Weekly Advertiser; and in the several copies of every edition subsequently published was the following notice: "Copyright, 1886, by Oliver Wendell Holmes." Since November 1, 1894, defendant has sold and disposed of a limited number of copies of the book entitled "The Autocrat of the Breakfast Table," all of which were copied by the defendant from the twelve numbers of the Atlantic Monthly exactly as they were originally published, and upon each copy so sold or disposed of a notice appeared that the same was taken from the said twelve numbers of the Atlantic Monthly. The bill was dismissed by the Circuit Court. From this decree an appeal was taken to the Circuit Court of Appeals for the Second Circuit, by which the decree of the Circuit Court was affirmed.
Was the serial publication of a book in a monthly magazine, prior to any steps taken toward securing a copyright, such a publication of the same within the meaning of the act of February 3, 1831?
The court found that the testator's right to control publication was governed by the act of February 3, 1831, c. 16, 4. Stat. 436, and that the word "book," as used in the statute, was not to be understood in its technical sense of a bound volume, but, instead, by any species of publication which the author selected to embody his literary product. Here, the claimed infringement consisted of binding the twelve numbers together in a single volume. This was not a legitimate subject of copyright. As the patent law furnished by analogy, a mere aggregation of familiar elements, producing no new result, was not a patentable combination.