(j) Curtis onCopyright,p.271. "There can be no doubt that the definition of an abridgment given in the anonymous case

* of reasoning does not go so far. The test would stall au be, as in regard to compilation, Has the alleged infringer only made, by a manipulation of the materials of the other, with nothing of his own, a shorter copy of the book? for then it would be an infringement, however dexterous the work; or, Has the later author only made use of thoughts or facts which the earlier author gave to the public, in such wise as to produce, by his own original efforts, a new book of his own? (k) in Lofft, is correct, in a critical sense. That the understanding must be employed in the act of 'carrying a larger work into a smaller compass, and rendering it less expensive, and more convenient both to the time and use of the reader;' and that when this is done, the person who does it exhibits, according to Lord Hardwicke, his own 'invention, learning, and judgment,' is obvious. But whether this can be done with any work really original, and actually under the protection of copyright, - whether the property of the original author can be taken, and the taking justified, by any amount of learning, judgment, or invention, shown in the act by him who thus appropriates the property of another, - is the great question which seems to be assumed, and not satisfactorily solved, by those authorities. There are many modes in which the wrongful taker of another's property may exhibit vast talent and ingenuity, and even genius, both in the act of taking and in the use which he makes of it; so that he may really be said to have incorporated with it both his own labor and his own intellectual energy. But the question of original title is still apt inconveniently to recur in such cases. In like manner, invention, learning, and judgment, are often shown in the appropriation of the literary labors of others; but the courts have not hesitated, on this account, to ascertain what part of a book, laboring under suspicion, was taken from the complainant; and, if the title of the latter is made out, to grant redress, even to the destruction of all that the piratical author can call his own. In the case of a colorable curtailment of the original work, there may be the exercise of a mental operation, as well as in a professed abridgment; and if the original author is injured by the latter, as well as by the former, it seems to be a very unsatisfactory answer, in either case, to say that his book has been made, by a mental operation, to wear the appearance of a new work. In both cases, the true inquiry is, Has anything been taken which belongs to another? In either case, the form under which the original matter re-appears should be treated as a disguise; and the extent of the transformation shows only the extent to which the disguise has been carried, as long as anything remains which the original author can show to be justly and exclusively his own."

(k) In Newbury's case, Lofft's R. 775, Lord Chancellor Apsley, after consulting Mr. Justice Blackstone, said that "they were agreed that an abridgment, where the understanding is employed in retrenching unnecessary and uninteresting circumstances, which rather deaden the narrative, is not an act of plagiarism upon the original work, nor against any property of the author in it, but an allowable and meritorious work." In the previous case of Gyles v. Wilcox, % Atk. 141, it was held, that merely leaving out certain passages of the original work and translating a few Latin and French quotations, did not constitute a fair abridgment. And in the subsequent case of Butterworth v. Robinson, 5 Ves. 709, it was held, that a selection of cases from the Term Reports, copied verbatim, but arranged under heads and titles instead of chronologically, was not a fair abridgment. In Folsom v. Marsh, 2 Story, 100, Story, J., said: "It is clear that a mere selection or different arrangement of parts of the original work, so as to bring the original work into a smaller compass, will not be held to be a bona fide abridgment. There must be a real substantial condensation of the materials, and intellectual labor and judgment bestowed thereon, and not merely the facile use of the scissors, or extracts of the essential parts constituting the chief value of the work." And in Story v. Holcombe, 4 McLean, 906, it it said: "It must be in good faith an abridgment, and not a treatise interlarded with citations. To copy certain passages from a book, omitting others, is in no just sense an abridgment of it. It makes the work shorter, but it does not abridge it. The judgment is not exercised in condensing the views of the author. His language is copied, not condensed; and the views of the writer, in this mode, can be but parin making his application, he could not expect the prompt relief of an immediate injunction, although whatever rights he proved on a final hearing would be protected. (o)

Third. The court would consider where would be the preponderance of the mischief caused, on the one hand by an ax * injunction, or on the other by a refusal. This must depend upon the character of the book, and of the sale, and upon other similar circumstances. While the merits of the case are in doubt, as they must be in the mind of the court until a final hearing, the court would be unwilling to do a great harm to one party, to prevent a small mischief to another. Hence, if the book complained of was such that its sale could be only temporary, and would, however great now, last but a brief period, an injunction until a hearing would be fatal, and as injurious, in fact, as a perpetual injunction. In such case, the court would not grant such an injunction, unless on a clear case of merit on the one side and wrong on the other. (p)

Fourth. The plaintiff should, in his bill, state his title, whether derivative or original; and describe the infringement, not very specifically, (q) but so as to show to the court what it was. If the allegations are sustained by affidavit, or are confessed, the temporary injunction might issue. Formerly, equity would not thus interfere until the plaintiff had proved his title by a trial at law. (r) Now, this is not required as a matter of course. It is believed, however, that if, on the plaintiff's own showing, there was a real doubt as to his title, or as to his having suffered any certain wrong, an injunction would be refused. (s) But if he had what has been called "a clear color of title,"- legal or equitable, (t) - and makes out a prima facie case, a temporary injunc(o) Saunders v. Smith, 3 My. & Cr. 711; Rundell v. Murray, 1 Jac. 311; Platt v. Button, 19 Ves. 447; Baily v. Taylor,