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MEMORIAL

TO THE

CONGRESS OF THE CONFEDERATE STATES.

                                                            Mobile, December 14, 1863.

      WM. J. HARDEE, of Georgia, the author, and S. H. GOETZEL, of,
Alabama, the publisher, of a work entitled "Hardee's Rifle and
Infantry tactics," which has been revised and improved by the author
at the commencement of the present war; humbly memorialize the
Congress of the Confederate States of America, to grant a special
copy-right therefor, and assign as reasons the following:
      In 1855, the work was completed for publication by your memo-
rialist, Hardee, and the contract for printing, lithographing and pub-
lishing was made with Lippincott, Grambo & Co., of Philadelphia,
the Congress of the United States making an appropriation to assist
in its publication, on condition that the publishers should furnish the
Government of the United States eighteen thousand copies, at one
dollar per copy. This condition was assented to and complied with.
The author's contract with the publishers was that they should pay
him -------- cents per copy for each copy sold over and above the
Government purchase, which was afterwards increased to --------
cents per copy.
      This contract was complied with up to the formation of this Govern-
ment, and the said Hardee regularly received under it, his share of
the proceeds of sales by the publishers.
      The publishers neglected to take out a copy-right for the work, as-
signing as reasons, therefor, that the work was a very expensive one
to publish, principally on account of the numerous lithographic plates
it contained; that the sales would necessarily be small and limited,
and that no one would undertake to re-publish it from any profits that
could be realized from it. In time of peace, as then existed, these
reasons were patent and satisfactory; and, until the war, no one at-
tempted to re-publish it.
      During the war the work has been published in the United States
in immense quantities, and the publishers there have realized large
sums from the sale of it, in which the author, as a matter of course,

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has no lot or share. He has to look to his own Government and
people for compensation for his mental labor, and protection from an
infringement of it. His remittances under his contract with the
Philadelphia publishers, ceased with the formation of the Confederate
Government, and he has no idea they will ever again acknowledge the
contract which existed before the war, even if the Government of the
United States has overlooked the author's interest in the contract with
them (the publishers) in their efforts to confiscate property of Con-
federate citizens.
      At the beginning of the war the author revised his original work,
as published in Philadelphia; made many material alterations and im-
provements therein, though leaving it substantially the same and then
made a contract with S. H. Goetzel, of Mobile, for the publication of
the work for the use of the army and people of the Confederate States,
by which contract, the said Goetzel was to take out a copy-right for
the same, in his own name incur all the expense of publication, and
pay to the said Hardee twenty cents per copy, for each copy sold.
      The copy-right of said work was duly entered and secured by said
Goetzel in the form and manner required by existing laws on that
subject, in the clerk's office of the district court of the Confederate
States, for the district of Alabama, and since then nine editions of
the same has been published; and the said Goetzel, at all times, kept
on hand a sufficient number of copies to meet all reasonable needs and
demands, of the army and people of the Confederate States. Although
there had been no copy-right secured in the United State, as we had
formed a separate Government, and as the people of the United States
had become a foreign people, and their Government a foreign Govern-
ment, your memorialists considered that a copy-right, entered and
secured under the Confederate Government, was a valid right, and
would be protected by the Confederate courts, especially as the
author had lost, all his rights for compensation, under his contract
with a citizen of the United States.
      Notwithstanding the copy-right of your memorialist, various persons
in the Confederate States have published private editions of said
work, and have been selling them in various parts of the country to
the detriment of the rights and interests of the author and publisher
thereof.
      The republications have generally been of the old Lippincott edi-
tion, and not containing the alterations, changes and improvements
made by the genuine, or copy-right edition, which are important and
material, and which has created some confusion in army instruction
because of different versions of the same work being in use.
      Your memorialist caused a bill to be filed in the district court of
Alabama against Francis Titcomb, a bookseller in Mobile, who kept
on sale a private edition of said work, published in Richmond, the
name being a copy of the original Lippincott edition, for an infringe-
ment of the copy-right of your memorialist, on which a provisional
injunction issued.
      The same proceedings were taken against one Randolph, of Rich-
mond, and several booksellers in Memphis before the fall of that place.

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      The cause in Mobile was tried in the Confederate States district
court in July, 1863, on bill, answer and testimony, and after elaborate
argument by counsel, the judge of said court delivered an opinion
adverse to your memorialist's copy-right on the ground that the said
work was published in the United States in 1855, without a copy-
right, at a time the two countries were under one Government. The
complainants contended that was a foreign publication, and as it was
shown that they had promptly taken out a copy-right in their own
country, and under their own laws, the original publication ought not
to prejudice them in their present right, and especially, as the author
had provided with the original publishers reasonable compensation for
himself, and as the work had not been re-published in the United
States before the war and no probability existed of it ever being
re-published by any other person, such contract secured for the author
all the benefits of a copy-right.
      By reason of the war all the rights and benefits under that contract
have been lost, and your memorialist (Hardee) could not now, and
he does not, believe he ever will be permitted to enforce that contract
in the United States.
      As soon as he found himself in this condition in relation to his
work, he promptly set about securing his rights and interests in his
book in the Confederate States, by securing the copy-right in the
name of the publisher, and prosecuting, under the law, those who
infringed it. These and other arguments were urged at the bar in
support of the copy-right, but the learned judge thought that the
technical ground of former publication, which made the work publici
juris to the people of the Confederate States as well as the people of
the United States was against us, and he would have to condemn the
copy-right.
      Of course the other cases will have to be dissmissed.
      Your memorialist: therefore respectfully apply to your honorable
bodies for the passage of an act granting them a special copy-right in
said work, yours being the only forum they can now apply to for pro-
tection of their rights and interest as author and publisher of the
same.
      A copy of the opinion of the Hon. Wm. G. Jones is hereto attached,
and made a part of this memorial.

_______
IMPORTANT DECISION ON COPY-RIGHT.
      At the late term of the Confederate district court for Mobile, a
case involving "copy-right" was heard by Judge Jones. The plain-
tiff was S. H. Goetzel, and the defendant, F. Titcomb, both booksellers
of this city. The former grounded his action on a copy-right
obtained by him to "Hardee's Tactics," of which he was the pub-
iUher. The defendant had, in the course of his business, sold copies
of the same work published by J. W. Randolph, in Richmond. For
this alleged invasion of his copy-right, Mr. Goetzel filed his bill in

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the district court some months ago, and obtained an injunction
against Titcomb restraining him from selling Randolph's edition.
The case was heard upon bill and answer of the parties, and proofs of
witnesses, and was argued for the plaintiff by Messrs. Overall and R.
H. Smith, and by Mr. W. C. Easton for Titcomb. The decision of
the court is against the validity of the copy-right of Goetzel in the
work, and his proceeding was dismissed. The decree of Judge Jones,
copied below, sets forth the grounds of his decision fully:
                                                                  C. S. DISTRICT COURT AT MOBILE,
                                                                                    July, 1863.
S. H. GOETZEL, ET AL.,
            vs.                        In Chancery,
F. TITCOMB, ET AL.
      There is no doubt of dispute as to the material facts in this case,
and its decision depends entirely on a question of law. Whilst Gen.
Hardee was an officer in the army of the United States, and before
the dissolution of the Union, he prepared, under the direction of the
then Secretary of War of the United States, a system of infantry tac-
tics, since generally known as Hardee's Tactics. The work being ap-
proved of by the President, it was published in Philadelphia, in 1855,
by Lippincott, Grambo & Co. The Congress of the United States
made an appropriation of $20,000 for stereotyping the work and of
$18,000 for the purchase of 18,000 copies of it for the Government.
The publication was made with the knowledge and consent of General
(then Lieutenant Colonel,) Hardee, and was superintended by him.
No copyright of this publication was then claimed or taken out.
After the dissolution of the Union and the organisation of the Gov-
ernment of the Confederate States and the commencement of this
present war, there sprang up a great demand for this work. In 1861,
General Hardee made some slight alterations in the work, and under
an arrangement between him and S. H. Goetzel &. Co., an edition of
the work, with the alterations, was published by Goetzel & Co, in
1861, in Mobile. Goetzel & Co. duly entered the title of the work in
the clerk's office of the Confederate States district court at Mobile,
and took out a copy-right. In the same year (1861) J. W. Ran-
dolph published in Richmond, Va., an edition of Hardee's tactics from
and corresponding with the Philadelphia edition of 1855.
      The defendant, Titcomb, a bookseller in Mobile, sold here some copies
of Randolph's edition after Goetzel & Co. had taken out their copy-
right, and the bill in this case is filed to prevent Titcomb from sell-
ing such copies.
      I do not think it necessary to decide in this case several of the
questions which were raised and somewhat discussed at the bar. The
main question in the case is the right of Gen. Hardee or of Goetzel
& Co. to take out a copyright for this work in 1861. It is admitted that
the Philadelphia edition of 1855, and Randolph's edition of 1861, are
precisely alike, and substantially the same as Goetzel's edition of
1861, the only difference being some alterations made by the author
in 1861, and embraced in Goetzel's edition. They are all substan-
tially the same.

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      It is quite immaterial, I think, in this case, whether the Philadel-
phia edition of 1855 is to be regarded a Government work or the pri-
vate work of Gen. Hardee. Whether the one or the other, it was
undoubtedly published to the world with General Hardee's knowledge
and consent, and without his then claiming or taking out a copyright
for it. This was, in my opinion, a dedication of the work to the public.
It became then what the law books term publici juris, and any person
in the United States then embracing what is now the Confederate
States, had a right to publish and sell as many editions and copies of
it as he pleased. I do not think the secession of some of the States
and the formation of the Government of the Confederate States, di-
minished or affected the rights of the public or increased those of
Gen. Hardee in this repect. Our statute, which is the same as the old
United States statute, does not permit a copyright to be taken out for
a work that has been previously published. It can only he taken out
for works not previously published. It is insisted that a previous
publication in a foreign country does not preclude an author from
getting a copyright for the same work in his own country, if applied
for within a reasonable time. That is a question which seems never
to have been positively or definitely decided in the English or Ameri-
can courts: nor do I think it necessary to decide it in this case. The
publication of the Philadelphia edition of 1855 was made when this
country was a part of the United States. It was then a publication in
this country, and it was as much to the public in Virginia or Ala-
bama as the public of Pennsylvania. It is not like a publication in a
foreign country. It was no doubt a meritorious act in the gallant
general and enterprising publisher to prepare and publish this edition;
but I am fully satisfied they had no legal right to take out & copy-
right for it. The bill must, therefore, be dismissed at the cost of the
complainants.
                                                            WM. G. JONES, Judge.

                                                Memphis, Tenn., July 6, 1861.
S. H. Goetzel:
      In compliance with your letter, I also confirm our verbal understand-
ing to that effect, that you and your partner, under the style and firm
of S. H. Goetzel & Co., are and shall be hereafter, the only author-
ized publishers of my "Infantry and Rifle Tactics," provided you
pay me twenty cents, say twenty cents of each copy you sell, and to
render account three times a year, say at the end of August, Decem-
ber and April, punctually.
            (Signed,)                                                W. J. HARDEE.

_______

      WM. J. HARDEE, for sufficient considerations moving him thereto,
by these presents authorizes and empowers S. H. Goetzel, of Mobile,

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Alabama, to institute and conduct, in any of the courts of the Con-
federate States of America, in his name, such suits at law and in equi-
ty, and to do such other acts as may be necessary or proper to vindi-
cate and protect against infringement the copyright of S. H. Goetzel,
in the book of said Hardee, entitled "Rifle and Infantry Tactics,"
granted by the Confederate States of America. The said Goetzel,
agreeing to bear expenses and liabilities of such suits and acts, and
to exonerate and protect him against the same.
      Witness my hand, this 6th Day of July, A D., 1861, Memphis,
Tennessee.
            (Signed,)                                    W. J. HARDEE.
____

NOTICE.
      So many editions of my "INFANTRY AND RIFLE TACTICS"
having lately been published, I think it due to both the public and
publishers to state:
      That the COPYRIGHT EDITION of my INFANTRY and RIFLE
TACTICS, published by S. H. GOETZEL & CO., in Mobile is the
only COMPLETE, CORRECT and REVISED EDITION, and
THIS EDITION ONLY contains the improvements and changes which I have
recently made, adapting the manual to the use of the arms generally
in the Hands of the troops in the Confederate States,
                                                                  W. J. HARDEE,
                                                      Colonel Confederate States Army.
      FORT MORGAN, June l8, 1861.
      The above notice is printed in the front of each volume of the copy-
right edition.


Transcription by: Megan Wren