U.S. Supreme Court
Banks v. Manchester
128 U.S. 244
1888
MR. JUSTICE BLATCHFORD delivered the
opinion of the court.
The Revised Statutes of Ohio, in §§ 426
to 435, (title 4, chapter 1, pp. 273, 274, edition of 1879,) provide for the
appointment of a reporter by the Supreme Court of that State, to report and
prepare for publication its decisions, and for the printing of copies of the
reports by the public printer, and for their distribution to public officers,
as soon as a form of sixteen pages of printed matter is printed, and also for
the binding and distribution of a full volume.
Section 436 provides as follows:
"The reporter shall secure a copyright, for the use of the State, for each
volume of the reports so published; and he shall receive such compensation for
his services, not exceeding eighteen hundred dollars per year, during the time
the Supreme Court Commission is in session; and at all other times not
exceeding one thousand dollars yearly, payable out of the state treasury, in
such installments as the Supreme Court by order entered on its journal,
directs."
Section 437, as amended by the act of
January 17th, 1881, 78 Laws of Ohio, 14, provides for the mode of doing such
printing and binding, under a contract to be made by the Secretary of State
with a responsible person or firm, when and as often as he shall be authorized
to do so by a resolution of the General Assembly. That section says: "Such
contract shall not be for a longer period than two years; and such contractor
shall have the sole and exclusive right to publish such reports, so far as the
State can confer the same during such period of two years, and shall be
furnished with the manuscript to be printed, as provided in this chapter."
It also provides not only for the printing and binding, and the furnishing to
the State and the selling to the public, of copies of the volumes of the reports,
but for the furnishing to the Secretary of State of a prescribed number of
advance sheets of the reports, in forms of sixteen pages of printed matter.
On the 17th of April, 1882, the General
Assembly of the State of Ohio passed the following joint resolution, 79 Laws of
Ohio, 249:
"Joint resolution providing for the
publication of the Ohio State Reports and the advance sheets of the same.
"Be it resolved by the General
Assembly of the State of Ohio, That the Secretary of State be and he is hereby
authorized to contract with some responsible person or firm to furnish
material, print, bind and supply the State with three hundred and fifty copies
of the thirty-eighth and any other subsequent volume or volumes of the Ohio
state reports that may be ready for publication within two years from the 23d
day of June, 1882, said contract to be made with the lowest responsible bidder,
as provided in § 2, article 15, of the constitution, after first giving public
notice to bidders for four weeks in some weekly newspaper published in
Columbus, Ohio, and of general circulation in the State. Said contract to be
made in accordance with the provisions and subject to the limitations and
instructions of § 437 of the Revised Statutes, as to cost and otherwise and
shall include the advance sheets provided for in said section. The volume to
be, in quality of paper and binding, equal to Volume 1 Ohio State Reports, as
provided by law."
On the 16th of June, 1882, in pursuance
of that resolution, the Secretary of State of the State of Ohio entered into a
contract, on behalf of that State, and in which it was named as the party of
the second part, with H.W. Derby & Co., of Columbus, Ohio, the material
parts of which were as follows: H.W. Derby & Co. agreed to furnish the
material for, and to print and bind, on paper and in character and quality of
binding equal to Volume 1 Ohio State Reports, in the manner in all respects and
with the expedition as provided by law, a sufficient number of copies of Volume
38, and of the next succeeding volume or volumes, if any, of the Ohio State
Reports, that might be ready for publication within two years from and after
June 23d, 1882; to supply the State with a specified number of copies of each
volume, when bound, at a specified price per volume; to supply the public with
like copies at a specified, limited price; and to set up the matter furnished
them in forms of sixteen pages, and furnish to the Secretary of State printed
copies of such forms. The State agreed that Derby & Co. "shall have
the sole and exclusive right to publish the reports aforesaid, so far as the
said State of Ohio can confer the same, for and during the said period of two
years, commencing with said 23d day of June, 1882, and that they shall,
moreover, be furnished with all the manuscript thereof to be printed, as
provided by law." Derby & Co. assigned all their right and interest in
the contract to Banks & Brothers, of New York city.
The bill of complaint in the present
case was filed by David Banks and A. Bleeker Banks, composing the firm of Banks
& Brothers, against G.L. Manchester, in the Circuit Court of the United
States for the Southern District of Ohio. It sets forth the matters above
stated, and avers that Banks & Brothers have proceeded to carry out all the
terms and conditions of the contract, and that they and the State of Ohio are
complying with its conditions; that the Supreme Court of Ohio has decreed that
Volumes 41 and 42 of the Ohio State Reports shall be published under and are
included in the terms of the contract, and that no other persons have any right
to publish the decisions which are to be contained in said Volumes 41 and 42,
except as authorized by Banks & Brothers; that the contract was made in
pursuance of §§ 436 and 437 of the Revised Statutes of Ohio; that the
plaintiffs, on October 1st, 1884, entered into an arrangement with "The
Capital Printing and Publishing Company," of Columbus, Ohio, by which that
company was authorized to publish the decisions of the Supreme Court of Ohio,
and of the Supreme Court Commission of Ohio, which were to be contained in, and
to constitute what would be, the 41st and 42d Ohio State Reports, the same to
be published in "The Ohio Law Journal," a publication owned by said
company; that, under such arrangement, that company, on the 14th of October,
1884, issued its No. 9 of Volume 6 of "The Ohio Law Journal," and at
the same time issued, as a supplement to that number, a certain book or
publication containing, among other cases, one entitled "The Scioto Valley
Railway Company v. McCoy," decided by the Supreme Court of Ohio, and which
would appear as a part of Volume 42 of Ohio State Reports, and one entitled
"Bierce et al. v. Bierce et al.," decided by the Supreme Court
Commission of Ohio, and which would appear as a part of Volume 41 of Ohio State
Reports; and that, before said book was issued, and on the 13th of October,
1884, E.L. DeWitt, "reporter for the Supreme Court of Ohio and of the
Supreme Court Commission of Ohio, in pursuance of the duties of his office and
for the benefit of the State of Ohio," entered in the office of the
Librarian of Congress, at Washington, a printed copy of the title of said work,
containing the said decisions, and did, within ten days thereafter, deposit in
the said office, at Washington, two complete copies of said book.
A copy of the said number of "The
Ohio Law Journal," with the book as a supplement, containing 16 printed
pages, is attached to the bill. It shows the title of the book, or supplement,
as entered in the office of the Librarian of Congress, and as afterwards
issued, namely, "Cases argued and determined in the Supreme Court and
Supreme Court Commission of Ohio;" and, below the title and table of
contents, and on the first page of the book, which is page 17, is printed the
following: "Entered according to the Act of Congress in the year eighteen
hundred and eighty-four, by E.L. DeWitt, for the State of Ohio, in the Office
of the Librarian of Congress, at Washington. [All rights reserved.]"
The bill avers that that title was
printed on each copy of the book issued by the Capital Printing and Publishing
Company, as was also the above notice of copyright; that the defendant, on
November 5th, 1884, issued numbers 22 and 23 of Volume 1 of a book entitled
"The American Law Journal," in one of which numbers he printed and
published the said case of "Bierce et al. v. Bierce et al.," and in
the other of which he printed and published the said case of "The Scioto
Valley Railway Company v. McCoy;" that, prior to the said publication by
the defendant, neither of said cases had been published except in the book so
issued, on the 14th of October, by the Capital Printing and Publishing Company;
and that those cases were copied by the defendant from the book so copyrighted
by DeWitt for the State of Ohio. Copies of such publications of the defendant
are annexed to the bill. It further avers that the defendant has declared to
the plaintiffs in writing his intention to disregard their rights, and to
continue the publication in "The American Law Journal" of the
decisions of the Supreme Court and Supreme Court Commission of Ohio.
The prayer of the bill is for an
injunction perpetually restraining the defendant from printing and publishing
the decisions which will appear in Volumes 41 and 42, Ohio State Reports, and
for an injunction to that effect pendente lite.
The defendant answered the bill. The
answer denies that the Supreme Court of Ohio has decreed that Volumes 41 and 42
of the Ohio State Reports shall be published under and are included in the
terms of the contract with Derby & Co., and that no other persons have the
right to publish the decisions which are to be contained in said Volumes 41 and
42, except as authorized by the plaintiffs. It also denies that the attempt on the
part of Mr. DeWitt, the reporter, to obtain a copyright on the book and printed
matter described in the bill, and published by the Capital Printing and
Publishing Company, was in pursuance of his duties as reporter; and denies that
the attempted copyright by the reporter was for the benefit of the State of
Ohio; and denies that the contract referred to was made in pursuance of § 436
of the Revised Statutes, but avers that it was made under § 437 and the joint
resolution referred to. It also avers that the opinions and decisions of the
Supreme Court and Supreme Court Commission of Ohio, referred to in the bill as
having been published by the defendant in "The American Law Journal,"
were exclusively the work of the judges composing those courts; that the
reporter performed no work in preparing the said opinions and decisions; that
it is the universal custom and practice of those courts that the judge to whom
the duty is assigned of preparing the opinion, prepares not only the opinion
but also the statement of the case and the syllabus, the latter being subject
to revision by the judges concurring in the opinion; that the reporter takes no
part, and performs no labor, in preparing the syllabus, the statement of the
case and the opinion; that the duty of the reporter consists in preparing
abstracts of arguments of counsel, tables of cases, indexes, reading proof and
arranging the cases in their proper order in the volumes of reports; and that
the reporter is paid a stated annual salary out of the treasury of the State,
fixed by law, and has no pecuniary interest in the publication of the reports.
The plaintiffs filed a formal demurrer
to the answer; but, no such pleading being authorized by the rules in equity,
the case was heard upon bill and answer, and a decree was entered dismissing
the bill, from which decree the plaintiffs have appealed.
The decision of the Circuit Court is
reported in 23 Fed. Rep. 143. That court held (1) that no duty was imposed upon
the reporter by the statutes of Ohio before mentioned, to secure a copyright,
for the use of the State, for any volume of reports published by virtue of a
contract made by the Secretary of State under § 437; (2) that there was nothing
in the statute which authorized the reporter, or any other person to acquire a
copyright in the opinions or decisions of the judges; (3) that the copyright of
a volume would not interfere with the free publication of everything which was
the work of the judges, including the syllabus and the statement of the case,
as well as the opinion, but would protect only the work of the reporter,
namely, the indexes, the tables of cases, and the statements of points made and
authorities cited by counsel.
Rule 60 in equity authorizes the
plaintiff, instead of filing a replication to an answer, to set the cause down
for hearing upon bill and answer. In such case allegations of new matter in the
answer are to be taken as true. 2 Daniell, Ch. Pr. (4th Am. ed.) 982, note 1;
Brinckerhoff v. Brown, 7 Johns. Ch. 217, 223; Perkins v. Nichols, 11 Allen,
542, 544; Leeds v. Marine Ins. Co., 2 Wheat. 380, 384. In the present case, it
is to be taken as true, as alleged in the answer, that what the defendant published
in "The American Law Journal" was exclusively the work of the judges,
comprising not only the opinion or decision of the court or the commission, but
also the statement of the case and the syllabus or head note. The copies of the
publications made by the defendant, which are appended to the bill, show that
the two cases referred to, published by him, consist in each case of only the
syllabus or head note, the statement of the case, the names of the counsel for
the respective parties, and the opinion or decision of the court.
The copy of the supplement to No. 9 of
Volume 6 of "The Ohio Law Journal" appended to the bill, shows that
what Mr. DeWitt undertook to obtain a copyright for, for the State of Ohio, in
respect of the two cases referred to, was a report of each, consisting of the
head note or syllabus, the statement of the case, the names of the counsel for
the respective parties and the decision or opinion of the court, all in
identical language, in each case, with what was so afterwards printed and
published by the defendant in "The American Law Journal," except that
in the case of "The Scioto Valley Railway Company v. McCoy," the
words, "(To appear in 42 Ohio St.,)" and in the case of "Bierce
et al v. Bierce et al," the words, "(To appear in 41 Ohio St.,)"
printed in the publication in "The Ohio Law Journal," do not appear
in the defendant's publication. It is, therefore, clear, that, in respect of
the publication complained of, the reporter was not the author of any part of
the matter for which he undertook to take a copyright, for the State of Ohio.
Although the Constitution of the United
States, in § 8 of article 1, provides that the Congress shall have power
"to promote the progress of science and useful arts, by securing for
limited times to authors and inventors the exclusive right to their respective
writings and discoveries," yet the means for securing such right to
authors are to be prescribed by Congress. It has prescribed such a method, and
that method is to be followed. No authority exists for obtaining a copyright,
beyond the extent to which Congress has authorized it. A copyright cannot be
sustained as a right existing at common law; but, as it exists in the United
States, it depends wholly on the legislation of Congress. Wheaton v. Peters, 8
Pet. 591, 662, 663.
Section 4952 of the Revised Statutes of
the United States provides, that "any citizen of the United States or
resident therein, who shall be the author, inventor, designer, or proprietor of
any book, ... and the executors, administrators or assigns of any such person
shall, upon complying with the provisions of this chapter," (chapter 3 of
title 60,) "have the sole liberty of printing, reprinting, publishing,
completing, copying, executing, finishing, and vending the same." This
right is granted for the term of twenty-eight years from the time of recording
the title of the book in the manner directed in the statute; and § 4954
provides, that "the author, inventor, or designer, if he be still living
and a citizen of the United States or resident therein, or his widow or
children, if he be dead, shall have the same exclusive right continued for the
further term of fourteen years," upon recording the title of the work a
second time, and complying with all other regulations in regard to original
copyrights, within six months before the expiration of the first term.
We are of opinion that these provisions
of the statute do not cover the case of the State of Ohio in reference to what
Mr. DeWitt undertook to obtain a copyright for, for the benefit of that State,
in the present instance. Mr. DeWitt, although he may have been a citizen of the
United States or a resident therein, was not the author, inventor, designer, or
proprietor of the syllabus, the statement of the case, or the decision or
opinion of the court. The State, therefore, could not become the assignee of
Mr. DeWitt, as such author, inventor, designer, or proprietor. The State cannot
properly be called a citizen of the United States or a resident therein, nor
could it ever be in a condition to fall within the description in § 4952, or §
4954.
The copyright claimed to have been taken
out by Mr. DeWitt in the present case, being a copyright "for the
State," is to be regarded as if it had been a copyright taken out in the
name of the State. Whether the State could take out a copyright for itself, or
could enjoy the benefit of one taken out by an individual for it, as the
assignee of a citizen of the United States or a resident therein, who should be
the author of a book, is a question not involved in the present case, and we
refrain from considering it and from considering any other question than the
one above indicated. In no proper sense can the judge who, in his judicial
capacity, prepares the opinion or decision, the statement of the case and the
syllabus or head note, be regarded as their author or their proprietor, in the
sense of § 4952, so as to be able to confer any title by assignment on the
State, sufficient to authorize it to take a copyright for such matter, under
that section, as the assignee of the author or proprietor.
Judges, as is well understood, receive
from the public treasury a stated annual salary, fixed by law, and can
themselves have no pecuniary interest or proprietorship, as against the public
at large, in the fruits of their judicial labors. This extends to whatever work
they perform in their capacity as judges, and as well to the statements of
cases and head notes prepared by them as such, as to the opinions and decisions
themselves. The question is one of public policy, and there has always been a
judicial consensus, from the time of the decision in the case of Wheaton v.
Peters, 8 Pet. 591, that no copyright could under the statutes passed by
Congress, be secured in the products of the labor done by judicial officers in
the discharge of their judicial duties. The whole work done by the judges
constitutes the authentic exposition and interpretation of the law, which,
binding every citizen, is free for publication to all, whether it is a declaration
of unwritten law, or an interpretation of a constitution or a statute. Nash v.
Lathrop, 142 Mass. 29, 35. In Wheaton v. Peters, at p. 668, it was said by this
court, that it was "unanimously of opinion that no reporter has or can
have any copyright in the written opinions delivered by this court; and that
the judges thereof cannot confer on any reporter any such right." What a
court, or a judge thereof, cannot confer on a reporter as the basis of a
copyright in him, they cannot confer on any other person or on the State.
The decree of the Circuit Court is affirmed.