The right of an author in the United States to multiply copies
of his works after publication is the creation of a new right by
federal statute under constitutional authority, and not a
continuation of a common law right. Wheaton v.
8 Pet. 590.
While a general liability or right created by statute without a
remedy may be enforced by an appropriate common law action, when a
special remedy is coupled therewith, that remedy is exclusive.
20 Wall. 520.
Although remedies given by a statute to protect property in
copyright may be inadequate for the purpose intended, the courts
cannot enlarge the remedy. Congress alone has power so to do by
amending the statute.
Congress having, by §§ 4965-4970, Rev.Stat., provided a remedy
for those whose copyrighs in maps are infringed, a civil action at
common law for money damages cannot be maintained against the
140 F. 305 reversed.
The facts are stated in the opinion.
Page 210 U. S. 360
MR. JUSTICE DAY delivered the opinion of the Court.
This case is here upon writ of error to the Circuit Court of the
United States for the District of Massachusetts upon a question of
its jurisdiction to entertain a suit to recover damages for an
alleged infringement of the copyright of a map.
The Revised Statutes of the United States, § 711, par. 5, give
jurisdiction to the courts of the United States in cases arising
under the patent right or copyright laws of the United States,
exclusive of the courts of the several states. The case is one
therefore which involves the jurisdiction of a federal court as
The defendants in error, plaintiffs below, partners under the
style of George H. Walker & Company, are the owners of a
certain copyrighted map, known as the "map of the electric railways
of the State of Massachusetts accompanying the report of the
railroad commissioners." They allege that they had complied with
all of the requirements of the copyright statutes of the United
States, and that the defendant, Globe Newspaper Company, well
knowing the premises, without the plaintiff's consent, printed and
sold a large number of the copies of the copyrighted map. And the
plaintiffs sought to recover damages in an action at law thus begun
for the alleged infringement of the copyright.
The newspaper company demurred upon several grounds, among
"1. That the statutes relating to copyrights provide no remedy
by a civil action on behalf of the owner of the copyright of a
"2. That the declaration confuses two separate and distinct
causes of action, neither of which is authorized by the statutes
relating to the copyright of maps."
"3. That the declaration contains no allegation that any copy or
copies of the alleged infringing map complained of was or were
found in the possession of the defendant."
"4. That the declaration contains no allegation that the
Page 210 U. S. 361
alleged infringing map complained of, or any copy thereof, was
published with the knowledge or consent of the defendant, or any of
its officers, or with any intent to evade the statutes for the
protection of the copyright for a map."
Upon hearing the demurrer, the circuit court, at its February
term, 1904, sustained the same on the ground that the copyright law
gave no such action, and judgment was entered for the newspaper
company. 130 F. 594. Walker & Company took the case to the
court of appeals, where the judgment of the circuit court was
reversed. 140 F. 305. That court holding that the declaration
contained a good cause of action for money damages against the
newspaper company, the cause was remanded and a new trial had in
the circuit court which resulted in a verdict and judgment in the
sum of $250 in favor of the Walker Company against the Globe
Newspaper Company. At the trial, the newspaper company moved that
the action be dismissed and a verdict be directed for it on the
ground that the court had no jurisdiction of the action. At the
close of the plaintiff's evidence in chief, the motion was renewed,
the court overruled the motion and the defendant excepted. A like
motion and order was made at the close of all the evidence. The
court made a certificate that the denial of the motions aforesaid
was based in each case solely upon the ground that the cause set
forth in the declaration was one, in the opinion of the court,
which arose under the copyright laws of the United States, whereof
the circuit court of the United States had jurisdiction, and, in
any event, its action was controlled by the opinion of the circuit
court of appeals in 140 F. 305. Thereupon the case came here upon
the question of jurisdiction.
A preliminary objection is made that this Court cannot entertain
jurisdiction of this writ of error, because the case is not one
which may properly come here under § 5 of the Court of Appeals Act
of 1891, and it is contended that, as the case went to the circuit
court of appeals, and that court determined it, if the present
plaintiff in error wished to save the question of
Page 210 U. S. 362
jurisdiction, it should have been duly certified to this Court
from the court of appeals. But we are of the opinion that this
objection is untenable. The case was taken to the circuit court of
appeals by Walker & Company. The judgment of the circuit court
was in favor of the newspaper company. It had no occasion to take
the case to the court of appeals. When the court of appeals
reversed the decision of the circuit court and remanded the case
for trial because of its holding that the declaration contained a
cause of action in favor of Walker & Company, the circuit court
was bound by, and, of course, followed, the decision of the circuit
court of appeals.
The newspaper company, in various forms, objected to the
jurisdiction of the court as a court of the United States, because
there was no such action under the copyright law as was asserted in
the declaration filed against it. Its objection to the jurisdiction
was overruled. It saved the question in various ways and brought it
here upon an adequate certificate, raising solely the question of
jurisdiction. We think we have jurisdiction of the case.
Certain propositions arising under the copyright laws are
settled by the decisions of this Court beyond the necessity of
further discussion. In this country, the right of an author to
multiply copies of books, maps, etc., after publication is the
creation of the federal statutes. These statutes did not provide
for the continuation of the common law right, but, under
constitutional authority, created a new right. This was directly
held in the case in this Court of Wheaton v.
8 Pet. 591. That case has frequently been
followed since, and is directly approved of in subsequent cases in
this Court. Bobbs-Merrill Co. v. Straus,
page 210 U. S. 339
the previous cases from this Court therein cited.
The question in this case, therefore, is whether, in the absence
of a statute to that effect, there is a common law right of action,
because of the right of property created by the statute, to recover
money damages against infringers of a copyright. That there is no
express statutory provision giving such right
Page 210 U. S. 363
of action is conceded. The circuit court (130 F. 594) was of the
opinion that the question was determined adversely to plaintiffs
below by the well known case of Wheaton v. Peters, supra.
In that case, the court held that there could be no relief at
common law in an action brought for the infringement of the
copyright of Wheaton's reports because of the publication, since
the passage of the copyright act, of condensed reports of cases
decided in the Supreme Court of the United States. It was held that
there was no common law of the United States, and that, for common
law rights, this Court looked to the state in which the controversy
originated, and the court held that there was no common law right
in Pennsylvania to a perpetual copyright. And further held that
Congress, by the Copyright Act of 1790, instead of sanctioning an
existing right, created a new one, and said (p. 662) that "if the
right of the complainants can be sustained, it must be sustained
under the acts of Congress." The judgment of the court below was
reversed, and the cause remanded to the circuit court with
directions to direct an issue of fact to be examined and tried by a
jury as to whether Wheaton, the author, or other person as
proprietor, had complied with the requirements of the Copyright Act
of the United States of May 31, 1790.
While we agree that the case did not necessarily decide the
point made in the present case, yet the reasoning and the decree of
the court decidedly favor the conclusion that Congress not only
created a new right in the copyright statute, but that the remedies
therein given are the only ones open to those seeking the benefit
of the statutory right thereby created.
The circuit court of appeals, conceding the effect of the
decision in Wheaton v. Peters, supra,
as to the origin of
property in copyright, says:
"The property right being established, the common law remedies
attach, whether the right arises out of the common law or under a
statute, unless there is something in the statute to the
And in support of this doctrine, reliance is had on Beckford
Page 210 U. S. 364
7 T.R. 620. That was an action on the case to
recover damages for the publication of the plaintiff's book,
"Thoughts upon Hunting." Neither the original nor any subsequent
editions were entered in Stationers' Hall, as required by the
statute. The defendant published the same work under title,
"Thoughts upon Hare and Fox Hunting," with plaintiff's name upon
the title page.
Lord Kenyon, C.J., in the opinion delivered by him, held that
the statute, 8 Anne, c. 9, vested in authors for the periods named
in the act the sole right and liberty of printing, etc., and the
statute, having vested the right in the author, the common law gave
the remedy by action on the case. "Of this," says Lord Kenyon, p.
"there could have been no doubt made if the statute had stopped
there. But it has been argued that, as the statute, in the same
clause that creates the right, has prescribed a particular remedy,
that and no other can be resorted to. And, if such appeared to have
been the intention of the legislature, I should have subscribed to
it, however inadequate it might be thought;"
and, concluding his opinion, says:
"On the fair construction of this act, therefore, I think it
vests the right of property in the authors of literary works for
the times therein limited, and that consequently the common law
remedy attaches if no other be specifically given by the act, and I
cannot consider the action given to a common informer for the
penalties which might be preoccupied by another as a remedy to the
party grieved within the meaning of the act."
The gist of this decision is that the statute gave the right of
exclusive publication of copies, and gave the proprietor of the
copyright no remedy; hence, the common law supplied one.
As we shall have occasion to see, the American copyright act
does give special remedies to the owner of a copyright of maps.
Inadequate it may be to fully protect the property in the
copyright, yet such as Congress has seen fit to give, and which it,
not the courts, have power to enlarge by amendment of the
Page 210 U. S. 365
And we think an inspection of the copyright statute indicates
that the purpose of Congress was not only to create the rights
granted in the statute, but also to create the specific remedies by
which alone such rights may be enforced. The general rule
applicable in such cases was stated in Pollard v.
20 Wall. 520:
"A general liability created by statute, without a remedy, may
be enforced by an appropriate common law action; but where the
provision for the liability is coupled with a provision for a
special remedy, that remedy, and that alone, must be employed."
Pollard v. Bailey
has been many times cited with
approval and followed in this Court. In Middleton Nat'l Bank v.
Toledo, Ann Arbor & Northern Michigan R. Co., 197 U.
, the principle was applied in an action brought
outside the State of Ohio to recover the stockholders' liability
given by the statutes of that state, and it was held that the
action could not be maintained; that the statutory method providing
for the enforcement of the right in the courts of the state must be
followed. MR. JUSTICE PECKHAM, speaking for the Court, said:
"The statute, under such circumstances, may be said to so far
provide for the liability and to create the remedy as to make it
necessary to follow its provisions and to conform to the procedure
provided for therein. See Pollard v. Bailey,
520, 87 U. S. 526
Nat'l Bank v. Francklyn, 120 U. S. 747
, 120 U. S.
-758; Evans v. Nellis, 187 U. S.
Looking to the copyright statutes, we find a comprehensive
system of rights and remedies provided. Section 4952 provides that
the author, inventor, designer, or proprietor of any book, map,
etc., upon complying with the provisions of this section, "shall .
. . have the sole liberty of printing, reprinting, publishing,
completing, copying, executing, finishing, and vending the same."
This is the section creating the right.
Section 4963 provides for a penalty of $100 for falsely
inserting or impressing a copyright notice where no copyright has
been obtained. The penalty in this section is recoverable,
Page 210 U. S. 366
for the person suing for the same and one-half to the use of the
United States, and the circuit courts of the United States, sitting
in equity, are authorized to enjoin the issuing, publishing, or
selling of articles marked or imported in violation of the
copyright laws of the United States.
By § 4964, it is provided, as to books, that those who print,
publish, dramatize, translate, or import the same without the
consent of the proprietor of the copyright signed in the presence
of two witnesses, or who, knowing the same to be so printed,
published, dramatized, and translated or imported, shall sell, or
expose to sale any copies of such article, shall forfeit every copy
thereof to the proprietor of the copyright, and shall also forfeit
and pay such damages as may be recovered in a civil action by the
proprietor of the copyright in any court of competent jurisdiction.
Here is a specific remedy given to recover damages for books
wrongfully printed or published, etc., in violation of the act.
While Congress conferred this action to protect copyright books,
for some reason it does not include the holders of copyrighted maps
within its provisions.
Section 4965 relates to the owners of copyrights on maps,
charts, etc., and provides for the forfeiture of plates and copies,
and for the recovery of money penalties in certain cases, one-half
of the penalty to go to the proprietor of the copyright, the other
half to the use of the United States.
Section 4966 gives remedies for damages against those wrongfully
performing or representing a dramatic or musical composition in
public, such damages to be assessed at such sum, not less than $100
for the first and $50 for every subsequent performance, as to the
court may seem just, and such offending persons are declared guilty
of a misdemeanor, and, upon conviction, liable to imprisonment not
exceeding one year; or an injunction may be granted upon hearing,
after notice to the defendant, by any circuit court of the United
Section 4967 gives an action for damages for printing or
publishing any manuscript without the consent of the author or
Page 210 U. S. 367
Section 4970 provides for injunctions in copyright cases in the
circuit and district courts of the United States, by bill in
equity, to prevent the violation of any right secured by the laws
respecting copyrights, according to the course and principles of
courts of equity, on such terms as the court may deem
We think these statutes, taken together, indicate the purpose of
Congress to provide a system of remedies to enforce the rights
which have been granted to those who shall avail themselves of the
statutes of the United States, and, in accordance therewith, become
the owners of the exclusive right, for a limited term, to publish
and multiply the copyrighted work.
To the owner of a copyright on a map is given, under § 4965,
forfeiture of plates and sheets, and one-half the penalty of $1 for
every sheet found in the defendant's possession; under § 4970, the
right to proceed by injunction. It thus appears that Congress has
prescribed the remedies it intends to give; this being true,
"however inadequate," as Lord Kenyon said in Beckford v. Hood,
"no others can be resorted to."
We therefore think the circuit court erred in holding that it
had jurisdiction of this action by virtue of the laws of the United
The judgment of the Circuit Court is reversed, and the cause
remanded to that court with directions to dismiss the action for
want of jurisdiction.