affairs, as discussed and reputed among others. The Right is commonly termed the Right to Reputation.

The Right protects against any loss of a profitable relation caused by (false) assertions concerning the plaintiff, so that a third person ceases to bestow the profit.

In strictness, the loss exists even when the assertion causing it was true, and thus may be defined without regard to the falsity of the assertion. But since its truth is universally conceded to be a defence or excuse (post, Book

III), the falsity is usually but erroneously included in the definition of the

loss.

§ 57. The subject of the false assertion may be any fact concerning the plaintiff, whether in his character, skill, or other personal traits, or in those of his family or his business, or otherwise.1

So far as there is any difficulty as to the subject of the assertion, it arises only under the principle of natural consequences (post, § 176), or of truth as a defence (post, Book III).

SUB-TOPIC A. EXISTENCE OF THE RELATION, AND ITS LOSS, NOT PRESUMED § 58. Damage Certain and Specific. | plaintiff would have received such On the principle of § 54, ante, there profit,2

must be

and (2) an actual loss of the profit, (1) a reasonable certainty that the either in specific instances or in general

results.3

SUB-TOPIC B. EXISTENCE OF THE RELATION, AND ITS LOSS, PRESUMED § 59. General Principle; Words amount of his loss is still open to disActionable per Se. On the principle pute, and the defendant may show of § 55, ante, the existence of a profit- that by reason of the plaintiff's lack able relation, and its actual loss, are of good repute he had nothing to lose presumed, so that the plaintiff need in his societary relations." not show that he would have received and actually has lost any profit, whenever the subject of the assertion is such that in common experience he must have suffered some loss of such profitable relations as every person usually enjoys.

(1) In such cases, his cause of action arises merely upon the defendant's utterance of such words to any third person, without alleging or proving any specific loss of actual benefit. Such utterances are termed words actionable per se.

(2) Such utterance serves only to create a cause of action; the actuall

(3) The classes of words thus actionable depend upon (1) the likelihood of their wide and permanent diffusion, and (2) the likelihood of the kind of their asserted fact to influence other persons unfavorably against the plaintiff. Such assertions are therefore classed (1) as Oral or Written, and (2) according to their subject.

(4) Such an utterance cannot destroy a profitable relation if not so made as to become known to any third person; hence, it must appear to have been communicated; this is termed Publication.

(1) Oral Defamation (Slander) Classes of Utterances. Words tionable per se, when orally

actered, are of the following three kinds ut-only:

1 Chamberlain v. Boyd, No. 138; Hartley v. Herring, No. 140.

2 Sell v. Facy, No. 137; Chamberlain v. Boyd, No. 138; Hutchins v. Hutchins,

§ 60. Words imputing

Disease.incompetence in his occupation or Words imputing to the plaintiff a means of livelihood are actionable loathsome and contagious disease are per se.3 actionable per se.1

§ 61. Words imputing Crime. Words imputing to the plaintiff the commission of a crime are actionable per se.2

More detailed but variant qualifications are made by most Courts, e. g. that the crime must be a felony, or must be one punishable by imprisonment, or must be one presentable on indictment, or must be one involving moral turpitude.

§ 62. Words imputing Incompetence. Words imputing to the plaintiff an

The foregoing three classes are not adequate in scope to protect the Interest. Their limitations are inherited from an epoch when vituperation was more common and less represanction was accorded to actions for hended, and when therefore less defamation. Many jurists have in modern times proposed their enlargement, and statutes have corrected a few specific injustices. The most practical proposal is to add to them a fourth class identical with that recognized for written defamation.*

(2) Written (or Graphic) Defamation (Libel) $63. Classes of Utterances. (1) The foregoing three kinds of words are actionable per se, when the words are written, printed, or otherwise graphically uttered.

Words tending to bring the plaintiff into the hatred, contempt, or ridicule of a considerable part of the community.s

(2) A fourth and additional kind of words is here also actionable per se, namely,

(3) A graphic utterance may be in any form of assertion; in particular, it may make the imputation negatively, by omitting to name the plaintiff."

(3) Publication

§ 65. General Principle. An utter- the plaintiff's pleading, the allegaance cannot become a means of caus- tion of this understanding, when the ing loss of the presumed societary tenor requires special explanation, benefits to the plaintiff if it remained is termed innuendo (present participle, private and uncommunicated to any "signifying"). other person than the plaintiff and the defendant. Hence, such communication (publication) is essential to make the utterance actionable.

The following corollaries are deducible:

§ 66. Third Person Hearing or Reading. At least one third person must have heard or read the utterance.

Moreover, the presumed harmful effect being due entirely to the presumed action of third persons upon learning of the utterance, the tenor of the utterance, to be actionable, must be construed by the third person's understanding of its tenor. In it.8

1 Crittal v. Horner, No. 144.

§ 67. Foreign or Technical Language. An utterance in a foreign language or in technical phrase must have been heard or read by a person having the necessary ability to understand

2 Lacy v. Reynolds, No. 145; Robins v. Franks, No. 146; No. 147; Pett-Morgan v. Kennedy, No. 148.

Loyd v. Pearse, No. 149; Clifford v. Cochrane, No. 150;

Co. v. Press Pub. Co., No. 151.

Mr. Veeder, in No. 152.

Cooper v. Smith,

Ohio & Miss. R.

Thorley v. Kerry, No. 153; Lathrop v. Sundberg, No. 154; Quinn v. Review Pub. Co., No. 155; Peck v. Tribune Co., No. 156; Merrill v. Post Pub. Co., No. 157.

Davis v. New England R. Pub. Co., No. 158.

7 Hick's Case, No. 160.

8 Price v. Jenkins, No. 159; Pelzer v. Benish, No. 161 (too strict a ruling).

§ 68. Utterer's Personal Meaning. | circumstances known to the third perThe tenor of the utterance is to be sons. In such cases, these circumtested by the meaning as naturally stances must be alleged and proved by understood by others, and not by a the plaintiff.2 peculiar meaning personal to the defendant or to some other person.1

§ 69. Special Circumstances Contributing or Removing an Actionable Meaning. An actionable meaning, not naturally inherent in the words, may be contributed solely by reason of special

An actionable meaning, naturally inherent in the words, may be removed by reason of special circumstances known to the hearers. In such cases, the circumstances, if not apparent from the declaration, must be alleged and proved by the defendant.3

Topic 2. Diversion of the Relation by Imitation of Name or Mark
SUB-TOPIC A. UNFAIR TRADE (AT COMMON LAW)

§ 70. General Principle. A person by him to identify goods as made by has an Interest in the formation and him.5 maintenance of such profitable societary relations as rest upon a desire to obtain services rendered or goods sold by him in distinction from other persons.

The Right therefore protects against any loss of a profitable relation caused by imitation of the name or mark used by the plaintiff to identify the goods sold or services rendered by him, so that a third person is thereby deceived into accepting the defendant's goods or services as and instead of the plaintiff's.4

§ 71. Form of Imitation. The form of the imitation is immaterial; it may be an imitation of the plaintiff's name, or of any other mark or symbol used

SUB-TOPIC B. REGISTERED §74. General Principle. On the principle of § 55, ante, the plaintiff's interest is further protected by a prophylactic right (ante, § 7), so as to relieve him partly from the difficulties of establishing the existence of specific customers for his identifying mark (as required under § 72, ante) and the loss of specific customers by the defendant's imitation (as required under § 73, ante).

§ 72. Existence of Patronage. On the principle of § 54, par. (1), ante (Certainty), it must appear that the plaintiff's name or mark, as imitated by the defendant,

(a) was in prior use by the plaintiff to identify goods or services of his, and (b) was understood by customers as so identifying them."

1 Daines v. Hartley, No. 162; Barr v. Birkner, No. 163.

2 Simons v. Burnham, No. 164.

3 Lee v. Crump, No. 165; Rocky Mountain N. P. Co. v. Smyth, No. 166.

4 Southern v. How, No. 167.

Day v. Binning, No. 168; Weinstock v. Marks, No. 169.

Sartor v. Schaden, No. 186.

7 Weinstock v. Marks, No. 169; Mossler v. Jacobs, No. 170; Supreme Lodge K. P. v. Improved Order K. P., No. 171; Flagg Mfg. Co. v. Holway, No. 172. 8 Statutes, Nos. 173-175.

titled to registration and consequent protection as a registered mark, unless it is suitable for such exclusive use, as follows:

(1) It must not be a mere mode of making or packing, but a mark or name.1

(2) It must not be a geographical or other general term equally applicable to numerous persons.2

§ 76. Infringement. The right protests against the use of a duly registered name or mark,

(1) though no mistake by customers and actual loss of patronage thereby to the plaintiff be shown: 5 and

(2) though no intent to deceive by the defendant be shown.

§ 77. Sundries. (1) The registration-right is further protected by penal For the use of one's own name as a proceedings; though not the common defence, see post, Book III. law right.

(3) The mark must be used by him on a vendible article actually put in the market; but the article need not be sold by the plaintiff, if made by him.3

(4) The mark must be one not theretofore used by another person and identified with other goods or services.1

(2) The registration-right does not supersede the common-law right, but

is additional to it.8

(3) The registration-right or the common-law right when infringed may fail of redress in a particular court through its lack of jurisdiction.'

Topic 3. Diversion of the Relation by Multiplication of Invented Intellectual Products

SUB-TOPIC A. COPYRIGHT (AT COMMON LAW)

§ 78. General Principle. A person | pressed in the form of words, reprohas an Interest in the formation and duced by printing or otherwise. maintenance of such profitable relations as can be gained for intellectual products whose idea is created by him and embodied in reproducible symbols.

The Right protects against any loss of a profitable relation caused by the reproduction or multiplication of the form of an intellectual product created by the plaintiff, so that a third person's acceptance of the defendant's reproduction of it thereby diminishes the patronage for the plaintiff's reproduction of it. § 79. Kinds of Writings. The right protects primarily any intellectual production; in particular, an idea ex

1 Davis v. Davis, No. 176.

The subject of the production, being identical at common law and by statute, is treated post, § 82.

For dramatic and other intellectual products, not in words only, see post, § 86.

§ 80. Author as Owner. The right protects the person who intellectually creates the product, without any further formality or sanction, immediately upon its creation.10

2 Columbia Mill Co. v. Alcorn, No. 177.

3 Schmalz v. Wooley, No. 178.

4 Sartor v. Smith, No. 187; Sartor v. Schaden, No. 186.

Church & D. Co. v. Russ, No. 179; Jurgensen v. Alexander, No. 182; Fairbank Co. v. Bell Co., No. 183.

6 Church & D. Co. v. Russ, No. 179; Mr. Hopkins, No. 180; Regis v. Jaynes, No. 181.

7 U. S. v. Braun, No. 184.

8 Edison v. Edison Jr. C. Co., No. 185; Sartor v. Smith, No. 187.

9 Illinois W. C. Co. v. Elgin N. W. Co., No. 188.

10 Millar v. Taylor, No. 190; Donaldsons v. Becket, No. 191.

right (by statute) being designed to supersede the common-law right after publication, and to be the only right thereafter available.

This principle is wholly unsound and unjust. It is out of harmony

with the analogies of the foregoing rights.

(2) Publication consists in so making known the product as to indicate an intent to abandon it to virtually unlimited use by all persons.1

SUB-TOPIC B. REGISTERED COPYRIGHT (BY STATUTE)

§ 82. General Principle. On the principle of § 55, ante, the plaintiff's interest is further protected by a prophylactic right (ante, § 7), so as to relieve him partly from the difficulties of establishing his authorship of the product and the loss of specific customers for it by the defendant's multiplication of it.

The elements of this right, provided by statute, are the following: (1) registration of his product before publication; (2) subsequent multiplication by the defendant.

This is unsound. See ante, § 81.

§ 84. Infringement. The right protects against the reproduction of a duly registered intellectual product, even though no actual loss of patronage thereby to the plaintiff be shown."

The reproduction which violates the right consists in using the author's product to such an extent as to produce by the aid of the author's own thought, labor, and skill therein contained, a product substantially equivalent, for the purpose of marketing, to some considerable part of the author's product.

§ 83. Registration. The registration, in pursuance to law, of the plaintiff's § 85. Sundries. (1) The registraintellectual product, dispenses there- tion-right is further protected by penal after with other proof of his author- provisions; though not the commonship of the product and of the exist-law right. ence of patronage for it.

But the product is not entitled to registration unless

(1) It was created originally by the person registering (or his assignor), as a production by the exercise of his own skill and labor, and not by his reproducing in the same or a different form the intellectual product of another person.2

7

registration-right

super

(2) The sedes the common-law right; and the acquisition of the former extinguishes the latter.8

This is unsound; see ante, § 81.

(3) Since the common-law right ends on publication, and the registeredright cannot be acquired after publication, an author may lose both rights, if he publishes in the erroneous belief that he has duly acquired the registered right."

(2) It must involve an exercise both of thought and of expression, and not be the result merely of the plaintiff's thought alone or of his expression This is one of the most harsh and alone.3

senseless

doctrines that has ever

(3) It must not have been pub- obtained lodgment in our law. lished prior to registration.

1 Bartlett v. Crittenden, No. 194; Monroe v. Press Pub. Co., No. 195.

2 Banker v. Caldwell, No. 199; Callaghan v. Myers, No. 200.

3 Chilton v. Progress P. & P. Co., No. 201; Walter v. Lane, No. 202; National

Tel. N. Co. v. Western U. Tel. Co., No. 208.

Bartlett v. Crittenden, No. 194; Monroe v. Press Pub. Co., No. 195; Jewel

ers' M. Agency v. Jewelers' W. P. Co., No. 206.

5 Statute, No. 198.

Story v. Holcombe, No. 203; Callaghan v. Myers, No. 205.

7 Statute, No. 198.

8 Jewelers' M. Agency v. Jewelers' W. P. Co., No. 206.

9 Jewelers' M. Agency v. Jewelers' W. P. Co., No. 206; Holmes v. Hurst, No. 207.