West Publishing Company

“ Most persons are content with smaller profits, providing they can be released from risk. Under the system which now developed the publisher assumed the risk. In that way he became the patron of both author and printer.
The first of the modern type of publishers was Jacob Tonson, the elder, who began business in 1678. A consideration of the development of the publishing industry would take us too far afield and it will be touched upon only as it directly concerns the development of printing. ”

“ That definition expressly provides that a "compilation" is a work "arranged in such a way that the resulting work as a whole constitutes an original work of authorship." Id. (Emphasis added) . ↑ The Berring affidavit (A31–39) , for example, simply states that West "arranges American judicial decisions within its National Reporter System publications" (A34 para. 13) . There is no statement made in regard to how those cases are "arranged" or, more particularly, how the page numbers are placed in any of West's volumes. ”

“ The publisher, to protect himself against the author who practically rewrites his manuscript after it has been set up in type, usually provides in his contract that corrections in excess of a certain percentage of the cost of composition shall be charged to and paid for by the author. The printer makes a careful distinction between printer's corrections and author's corrections. Corrections marked in galley and page proofs of a book where the printer has not followed copy are printer's corrections. ”

“ But not only does the printing industry excel all other industries in human interest, it excels them in the relative progress it is making. The latest available figures, published in 1905 by the Government, show that the capital invested in the publishing business had doubled in the preceding half decade, despite the fact that publishing is almost unique among industries in the diffusion of its establishments, and in the tenacity with which it still clings to competition in an age of combination. ”

“ Henry’s complaints concerning futile and troublesome correspondence might, of course, be repeated in many a publishing office to-day, but the modern publisher is helped out of the difficulty to some extent by his stenographers and typewriters. It remains a marvel how it was possible, without any time-saving appliances, for the publishers of the fifteenth century to conduct a complicated business, to give personal labour to preparing for the press works calling for original scholarship and detailed labour, and to carry on, in autographic letters, literary and theological correspondence. ”

“ If a publisher has an edition of five, ten or one hundred thousand of a book to be delivered in piece, or single copies, an express company representative will see him at once—often see him before the book is from the press. ”

“ We need not attempt to estimate how immense is the periodical literature of the United States at present, embracing the newspapers, and the monthly and quarterly magazines and reviews. There is no department of art in our country in which greater progress [Pg 360] has been made during the last thirty years than in that of printing; and while the entire number of copies struck off, annually, must be many millions, much the larger proportion is produced for, if not by, the free West. ”

“ Within the last few years a new spirit has, to a certain extent, entered into American publishing, and there have cropped up magazines which, apparently, have for their aim the furnishing to their readers of the greatest amount of the cheapest material at the lowest possible price. Syndicate stories and photographic clichés struggle with bad printing, and possibly appeal to the multitude. ”

“ To the printer the librarian would say: since wishing is easy, let us imagine that what ought always to happen is happening regularly instead of rarely, namely, that the author produces a book worth printing and that the publisher leaves you free to put it into a worthy form. This is the opportunity that you have always been looking for. How are you going to meet it? Do you know all the elements that you deal with and can you handle them with a sure touch practically and esthetically? If so, you will not need any hints from the librarian, and he will order your book "sight unseen." ”

“ The primary business of a publisher is to discriminate, both as to intrinsic literary merit, and with regard to what will hit the public taste, a classical illustration of the difficulty in gauging the latter being the rejection of "John Inglesant" by the late James Payn, then "reader" for an eminent firm. ”

“ Their wonderful march to their eminent and leading position as publishers has given an excellent example to the country in refining and solidifying the common rules of business in their own field, and elevating and dignifying a branch of trade than which not one is clothed with nobler and purer associations. From this house, also, go forth a quarterly, two monthlies, and a weekly magazine, any one of which would add lustre to the repute of the publishers. None but sound and sweet literature comes from hence. ”

“ But what is said of the relation of publishers and dealers to the Book-Lovers' Library is true in a measure of all circulating and other public libraries. They do not increase, but they positively contract the number of sales that are made in the interest of authors, publishers and dealers. ”

“ The cheapened process of book publication on a large scale, and the investment of large sums of money in the publishing business, with its mechanics of sale management as well as printing, has made possible an enormous output of literature on all subjects and has widened the range of general information in possession of the public. The whole system of modern life would be impossible without the press. ”

“ It is safer, therefore, to obtain permission from author or publisher before borrowing from another work.
Shipping the Manuscript.—Manuscript should invariably be shipped flat, not folded or rolled.
Manuscript and drawings should be sent together and not in instalments. Except in rare instances, we do not undertake piecemeal manufacture of a book. In our experience such publication methods save little or no time and more often result in confusion and expense. ”

“ Excepting the temptations of their trade, doubtless a hundred publishers are as honest as a hundred authors, and surely they have a great deal more business sagacity.257 But as soon as authors turn publishers they fall into all the publisher's temptations without acquiring his business power; so that when you have chemically combined author and publisher you have an amalgam wholly and disastrously different from either of the original simples, namely, a publisher minus his common sense.
No, the publisher is not an artificial member of society. Like all other middle-men he meets a real want. ”

“ They are the "natural resources" which simplified the problems of our early years and made possible our rapid development and growth, until today, by the application of the same editorial standards and marketing methods, in broader fields, we are able to offer to the author of technical books a highly developed machinery of publication and distribution. ”

“ They will not only publish, but sell; their efficient book-shops, their efficient system of book-distribution will replace the present haphazard dealings of quite illiterate persons under whose shadows people in the provinces live. [48] If one of these publishing groups decides that a book, new or old, is of value to the public mind, I conceive the copyright will be secured and the book produced all over the world in every variety of form and price that seems necessary to its exhaustive sale. ”

“ One thing more: as these books are published in uniform style, if they are published more expensively than most books, they must have been so published in the beginning. Therefore the relative pay of the author should then have been less. But the first contract is made out according to the usual custom, at ten per cent. on the retail price. When the author was unknown and the sale uncertain, he received ten per cent. After he became known, and the risk, one would suppose, must have been diminished, he went down to six and two-thirds per cent. Great is the mystery of publishing! ”

“ The early separation of publishing from bookselling is touched upon, and the emergence of publishers as a separate class is outlined. The transitory phenomenon of the man of letters assisting the publisher in an advisory capacity as to the suitability of manuscripts submitted for publication is an interesting chapter in the expansion of the publishing business. Publishing being today largely a commercial affair, the literary reader has in the main been supplanted by the man of business with an aptitude for estimating how many copies of a given book can be sold. ”

“ The printer of a newspaper was generally also the publisher, editor and owner, and if his financial circumstances did not warrant the employment of paid helpers, he taught the members of his family the art of type-setting and printing. In this way many wives and daughters became skilled compositors and printers, and some even capable editors, and when their male bread-winner died they were able to continue his business. ”

“ How soon should the Pleasures of Melancholy throw this world of booksellers and printers into a bustle of business and delight! How soon should I hear my name repeated by printers’ devils throughout Pater Noster Row, and Angel Court, and Ave Maria Lane, until Amen corner should echo back the sound!
Arrived in town, I repaired at once to the most fashionable publisher. Every new author patronizes him of course. In fact, it had been determined in the village circle that he should be the fortunate man. ”

“ A sufficient introduction to a publisher is to send him the manuscript, accompanied by a note requesting his opinion as soon as convenient. If he approves it, and believes it will be profitable, there is no doubt of his being willing to print the work. And if he thinks he shall make nothing by it, it is equally certain that he will decline the offer. It is too much to expect that he will be so regardless of his own interest as to publish a book, the sale of which will not remunerate him for the cost of paper and printing. ”

“ One aspect of the publishing business which has become increasingly prominent during the last fifteen years cannot be overlooked, for it is certain to affect seriously the production of literature as to quality, and its distribution. Capital has discovered that literature is a product out of which money can be made, in the same way that it can be made in cotton, wheat, or iron. Never before in history has so much money been invested in publishing, with the single purpose of creating and supplying the market with manufactured goods. ”

“ It is not necessary to remind you that publishers may to-day furnish a duplicate set of plates to any concern on earth desiring to reproduce one of their books, and that the book may be reprinted by the purchaser without the bother and expense of resetting the type; but the printer of the early days was not so fortunate, for if a concern in New York wished to reprint and sell a book originally printed in Boston, he was obliged to reset it, taking as copy the Boston production. ”

“ Valuable works required for libraries must be printed with the least possible investment of capital, or not printed at all. If any one undertakes such publications, he must stint the editor, shave the papermaker, grind the printer, starve the stitchers, and make the binder slight his work. ”

“ Nevertheless, somewhere about the opening of our own day an iron-bound tradition became erected in the publishing business, at least in the United States, that books of essays would not sell; could not be made to sell even sufficiently to avoid a considerable loss on the investment of manufacture; in fact, were quite impossible as a publishing venture. No matter how much a publisher himself, or his manuscript reader, might enjoy a collection [Pg 17] of essays that chanced to turn up in his shop, his conviction as to its unmarketability as a book was not altered—not even stirred. ”

“ I hold that view even if it is assumed that the majority's assumption that West's pagination, as an "important part" of a West publication, is entitled to copyright may be valid. For I do not believe that anything in the sketchy record in this case can support a factual finding that MDC's intended star pagination of West's published court opinions would in any way infringe West's "arrangement of cases." ”

“ Such a business as book publishing, for example, has no unbreakable bonds to keep it in the region of high rent and congested streets. The days when the financial fortunes of books depended upon the colloquial support of influential people in a small Society are past; neither publishers nor authors as a class have any relation to Society at all, and actual access to newspaper offices is necessary only to the ranker forms of literary imposture. ”

“ What do I pay them ninety per cent. for, I should like to know, if not that? Publishing is their business. That they have done more than another publisher would, I deny. They have simply transacted their business in the way they deemed most profitable to themselves. I deny147 that they have done anything for me out of the usual course of trade.
“About the advertising, I am indeed not fully persuaded.... Possibly the books have had their day and would have fallen off any way. A fortnight or so ago, perhaps more, Mr. Smith applied to me to write for his paper. I named my price. ”

“ We do not believe that West is employed by any State, with a salary and duties fixed by statute, and with the details of its work controlled by statute or rule. But even if it is, the facts of this case, as found on the present record by the District Court, convince us that West has used sufficient talent and industry in compiling and arranging cases to entitle it to copyright protection under the 1976 Act as construed by the more recent cases. ”