Only a "general" publication extinguishes the exclusive ownership right; a "limited" publication does not ( Smith v. Paul, supra, 174 Cal.App.2d 744; Read v. Turner, supra, 239 Cal.App.2d 504; Carpenter Foundation v. Oakes, 26 Cal.App.3d 784 [ 103 Cal.Rptr. 368]). The United States Supreme Court has defined a "general publication" as ". . . `such a dissemination of the work of art itself among the public, as to justify the belief that it took place with the intention of rendering such work common property'" ( American Tobacco Co. v. Werckmeister, supra, 207 U.S. at pp. 299-300 [ 52 L.Ed. 208, 217-218]; accord: Smith v. Paul, supra; Read v. Turner, supra; Carpenter Foundation v. Oakes, supra; Shanahan v. Macco Constr. Co., 224 Cal.App.2d 327 [ 36 Cal.Rptr. 584]; White v. Kimmell (S.D.Cal.) 94 F. Supp. 502 [87 U.S.Pat.Q. 407], reversed on other grounds 193 F.2d 744 [92 U.S.Pat.Q. 400], cert. den., 343 U.S. 957 [ 96 L.Ed. 1357, 72 S.Ct. 1052]). Conversely, a "limited" publication is "one which communicates a knowledge of its contents under conditions expressly or impliedly precluding its dedication to the public" ( Werckmeister v. American Lithographic Co., 134 F. 321, 324; accord: Smith v. Paul, supra; Read v. Turner, supra; Carpenter Foundation v. Oakes, supra).

21 (1953); Ziegelheim v. Flohr, 119 F. Supp. 324, 329 (EDNY 1954) (court denied attorney's fee "since it appears to have . . . been a fairly common practice for publishers of [prayer books] to copy rather freely from each other, and since much of plaintiff's book was in the public domain, and defendant honestly, but mistakenly, believed that plaintiff was illegally attempting to copyright and monopolize the printing of ancient prayers"); Edward B. Marks Music Corp. v. Borst Music Pub. Co., 110 F. Supp. 913 (NJ 1953) (court noted only that it would not award attorney's fee because such award is discretionary); Stein v. Rosenthal, 103 F. Supp. 227, 232 (SD Cal. 1952) (awarding attorneys fees of $3,500 as an amount "reasonably necessary to redress the infringement of plaintiffs' copyright"); Northern Music Corp. v. King Record Distributing Co., 105 F. Supp. 393, 401 (SDNY 1952) (noting that prevailing plaintiff entitled to receive a reasonable attorney's fee to be assessed by the court); White v. Kimmell, 94 F. Supp. 502, 511 (SD Cal. 1950) (copyright holder, who was a successful defendant in a declaratory judgment action, was awarded costs but denied attorney's fee award without elaboration); M. Witmark Sons v. Pastime Amusement Co., 298 F. 470, 482-483 (EDSC 1924) (court awarded a moderate attorney's fee after noting that full allowance "would bear too heavily upon the defendant, in view of the character of the infringement and the circumstances surrounding it; but, if no fee should be allowed at all in such cases, it would probably result in many cases in a practical denial of the rights of copyright owners"). The study also cited to Jewell-LaSalle Realty Co. v. Buck, 283 U.S. 202 (1931), a case that did not involve attorney's fees, but instead addressed the damages provision of § 25 of the 1909 Act, 35 Stat. 1081.

In American Tobacco Co. v. Werckmeister, 207 U.S. 284, 28 S.Ct. 72, 52 L.Ed. 208, the Supreme Court stated that as a prerequisite of (general) publication "there must be such a dissemination of the work of art itself among the public as to justify the belief that it took place with the intention of rendering such work common property." 207 U.S. at pages 299-300, 28 S.Ct. at page 77. See also Keene v. Wheatley, 14 Fed. Cas. 180, 191, No. 7644, and Werckmeister v. American Lithographic Co., 2 Cir., 134 F. 321, 68 L.R.A. 591, and the other cases cited in White v. Kimmell, 94 F. Supp. 502, at pages 504-506, the opinion in which on the appeal, supra, [193 F.2d 746.] was stated to comprise a "concededly accurate survey of the judicial precedents relating to limited publication."

In other words, the stated rationale of many copyright cases is that federal statutory copyright begins with the same acts of "publication" which will end the common law protection, and vice versa. See, e.g., White v. Kimmell, D.C., 94 F. Supp. 502, reversed 9 Cir., 193 F.2d 744; Supreme Records v. Decca Records, D.C., 90 F. Supp. 904; Lampert v. Hollis Music, Inc., Sup., 109 N.Y.S.2d 319; Loew's, Inc., v. Superior Court, 18 Cal.2d 419, 115 P.2d 983; Benelli v. Hopkins, 197 Misc. 877, 95 N.Y.S.2d 668; Brunner v. Stix, Baer Fuller Co., 352 Mo. 1225, 181 S.W.2d 643; National Comics Publications v. Fawcett Publications, 2 Cir., 1951, 191 F.2d 594. It is, however, perfectly clear that the word "publication" does not have the same legal meaning in all contexts. Its copyright definition, for example, differs from its meaning where applied in respect of torts (see Restatement, Torts, Section 577) or in respect of privacy.

The court found that the reproduction and distribution of the manuscript amounted to a limited and restricted publication only; that there was no general publication of it, and that the manuscript is not in the public domain. D.C., 94 F. Supp. 502. The sole issue here is whether these findings are justified by the evidence. We think they are not.

Therefore, if the Florida statute deals with prosecutions for violations of common law copyright, it in no way affects the federal copyright scheme, and may be permissible as an exercise of the state's police power. Press Publishing Co. v. Monroe, 73 F. 196 (1st Cir. 1896); White v. Kimmell, 94 F. Supp. 502 (S.D.Cal. 1950); Berry v. Hoffman, 189 A. 516, 125, Pa. Super. 261 (1937); Kortlander v. Bradford, 116 Misc. 664, 190 N.Y.S. 311 (1921). Defendants argue that the sound recordings fixed and published prior to February 15, 1972, and those which are fixed and published subsequent to February 15, 1972, but are not copyrighted pursuant to Title 17 as amended, have not lost their common law copyright.

The copyright law, as we understand it, is entirely distinct from what has been denominated "the common law copyright", which extended to the manuscript itself before its publication. Amdur, Copyright Law and Practice, 1936, Secs. 1-18; White v. Kimmell, 1950, D.C.Cal., 94 F. Supp. 502; Note, Common Law Copyright, 1950, 24 So. Cal. Law Rev., pp. 65-74. And see, Stephens v. Cady, 1852, 55 How. 528, 529, 531, 14 L.Ed. 528.

'" ( Yuba River Power Co. v. Nevada Irrigation District (1929) 207 Cal. 521, 523 [ 279 P. 128]. See White v. Kimmel (S.D.Cal. 1950) 94 F. Supp. 502, 504, revd. on other grounds 193 F.2d 744; Civ. Code, §§ 654, 655. Cf. Warren Brandeis, supra, 4 Harv.L.Rev. at pp. 193-195.

If the publication is a limited publication, the restrictions limiting the use of the subject matter to some definite purpose preserve the architect's common law protection. See Werckmeister v. American Lithographic Co., 134 F. 321, 324, 326 (2 Cir. 1904) (per Townsend, J.); White v. Kimmell, 94 F. Supp. 502 (S.D. Cal. 1950), (per Yankwich, J.), rev'd on other grounds 193 F.2d 744 (9th Cir. 1952), cert. den. 343 U.S. 957, 72 S.Ct. 1052, 96 L.Ed. 1357. The test is one of intention, i.e., did the act of the architect demonstrate an interest either to abandon his rights in the work or to dedicate it to the public?