LITERARY PROPERTY. The general term which describes the interest of an author in his works, or of those who claim under him, whether before or after publi cation, or before or after a copyright has been secured. 9 Am. L. Reg. 44; Woolsey v. Judd, 4 Duer (N. Y.) 379; id., 11 How. Pr. (N. Y.) 49; 2 Bla. Com. 405; 4 Viner Abr. 278; Bacon Abr. Prorogation (F 5); 2 Kent 306; Nickl. Lit. Prop.; Shortt, Copyr.; Morgan, Law of Lit. A person has a prop erty in his literary productions, and by the common law, as long as they are kept within his possession, he has the same right of ex clusive enjoyment of them as of any other species of personal property; Rees v. Peltzer, 75 Ill. 475. See 4 H. L. C. 962; Kiernan v. Telegraph Co., 50 How. Pr. (N. Y.) 194. So of a painting ; Caliga v. Newspaper Co., 157 Fed. 186, 84 C. C. A. 634. He loses his rights it he offers such property to the public for sale without being copyrighted ; Bamforth v. Mach. Co., 158 Fed. 355.
At common law, the author of a literary composition, drama, music, art, etc., had an absolute right therein while unpublished ; the author might permit the use of his pro duction, and might give a copy thereof, with out parting with his property right ; an au thor does not lose his right to a play by a public representation; Frohman v. Ferris, 238 Ill. 430, 87 N. E. 327, 43 L. R. A. (N. S.) 639, 128 Am. St. Rep. 135, affirmed in 223 U. S. 424, 32 Sup. Ct. 263, 56 L. Ed. 492 (it appeared here that there had been a public performance of the play in England'and that such performance there was under the Eng lish law equivalent to a publication).
The publication of a book as that of an other, when in fact it is not such, is said to constitute such an injury as entitles such other person to an injunction, although the misrepresentation does not amount to the in fringement of a copyright; the case is not al tered by the fact that the representation is true in part, if the public are likely to be misled to the plaintiff's injury; 1 Spelling, Extr. Rel. 887.
An injunction was granted at the suit of Lord Byron to prevent the publication in his name or as his work of poems proved not to have been written by him ; 2 Meriv. 29 ;, and at the suit of Bret Harte to prevent the pub lication of a book in such manner as to lead the public to suppose he had written it when he had actually written but a small portion ; 1 Cent. L. J. 360.
Where a plaintiff refused to edit a new edition of a law book written by him, the copyright of which was owned by the de fendant, and the latter had the necessary alterations made for himself and the work (containing numerous errors) published without notice that it was not prepared by the original author, the jury were instructed to find for the plaintiff if they believed that the new edition would be understood by those who bought it to have been prepared by the plaintiff; 5 C. & P. 219.
An injunction was refused to prevent the publication under plaintiff's name of a mutilated edition of the autobiography of Lord Ierbert of Cherbury ; 67 L. T. N. S._ 263; Kekewich, J., said an action for dam ages might lie if the writer's reputation were injured.
An injunction was refused a physician who claimed a breach of contract on the part of the publisher of his book. But in this case the contract was to produce a "first class" book from manuscript to be furnished for a medical text book. The contract was held too indefinite to be specifically enforced; Cleveland v. Martin, 218 Ill. 73, 75 N. E. 772, 3 L. R. A. (N. S.) 629.
In every writing the author has a prop erty at common law, which descends to his representative, but is not liable to seizure by creditors so that they can publish it ; Bartlett v. Crittenden, 5 McLean 32, Fed. Cas. No. 1,076. And an unauthorized pub lication will be restrained in equity ; 4 Burr. 2320, 2408; 2 Bro. P. C. 138 ; Hoyt v. Mac kenzie, 3 Barb. Ch. (N. Y.) 320, 49 Am. Dec. 178; 2 Mer. 434; 1 Ball & B. 207 ; Folsom v. Marsh, 2 Sto. 100, Fed. Cas. No. 4,901. The passage of the copyright acts has not ab rogated the common-law rights of an author to his unpublished manuscript, and for wanton infringement of his rights, exemplary damages may be given ; Press Pub. Co. v. Monroe, 7.3 Fed. 196, 19 C. C. A. 429, 51 L. R. A. 353. Letters are embraced within this principle ; for, although the receiver has a qualified property in them, the right to ob ject to their publication remains, with the writer. It is held, however, that the receiver may publish them for the purposes of justice publicly administered, or to vindicate his character from an accusation publicly made ; 2 V. & B. 19; Folsom v. Marsh, 2 Stor. 100, Fed. Cas. No. 4,901; 2 Atk. 342 ; Grigsby v. Breckinridge, 2 Bush (Ky.) 480, 92 Am. Dec. 509; Denis v. Le Clerc, 1 Mart. 0. S. (La.) 297, 5 Am. Dec. 712; Woolsey v. Judd, 4 Duer (N. Y.) 379. The receiver may destroy or give away the letters, as soon as receiv ed; Grigsby v. Breckinridge, 2 Bush (Ky.) 480, 92 Am. Dee. 509. The latter proposition has been doubted ; see Drone, Copyr. 137.
The biographer of Whistler was allowed to use Whistler's letters in his possession as giving him information as to Whistler's hab its, character, opinions and doings, but not to publish any quotation fkom them or the substance of any letter ; E1907] 2 Ch. 577.
See COPYRIGHT ; MANUSCRIPT ; LETTER.