works connected with the fine arts may be entered 89. were uct, and it is such prints that are required by the act of 1874 to be registered in the Patent Office." 28 Op. Atty.-Gen. (Fowler) 116-120. Bleistein v. Donaldson Lith. Co., 188 U. S. 239, 23 SCt 298, 47 L. ed. 460 [rev 104 Fed. 993, 44 CCA 296]; De Jonge v. Breuker, etc., Co., 182 Fed. 150 [aff 191 Fed. 35, 111 CCA 567 (aff 235 U. S. 33, 35 SCt 6, 59 L. ed. 113)]. See also supra § 119. [a] Rule applied.-"In Rosenbach v. Dreyfuss, 2 Fed. 217, the articles in question were 'prints of balloons and hanging baskets, with printing on them for embroidery, and cutting lines showing how the paper may be cut and joined to make the different parts fit together, and not intended as a mere pictorial representation of something'; and it was held that they were not copyrightable. The act of 1874 was considered, and the articles were decided not to be 'pictorial illustrations of works connected with the fine arts,' but 'prints or labels designed to be used for other articles of manufacture.' This being so, they did not belong to the fine arts, and could not be copyrighted, although they might be patented under section 4929 of the Revised Statutes. macher v. Wogram, 35 Fed. 210, it In Schuappeared that the plaintiffs manufacturers of prints or labels, selling them for the purpose of being affixed to cigar boxes and other articles. They copyrighted a picture representing a young woman holding a bouquet of flowers, entitled 'NoseFrom this they struck prints, which they sold to dealers in off cigars, substituting the words 'Opera Bouquet' (a name descriptive of a brand of cigars) in place of the word 'Nosegay.' An action was brought to restrain infringement of these prints. Judge Wallace denied some of a motion for a preliminary injunction, saying: "The facts show an attempted evasion by the plaintiffs of the provisions of section 3 of the act of Congress of June 18, 1874, amend the law relating to patents, "to trade-marks, and copyrights." That section declares in substance that no prints or labels designed to be used for any article of manufacture can be copyrighted, but authorizes them to be registered and protected trade-marks in proper cases. experiment of the plaintiffs can sucIf the ceed, this statute is whenever the prints or labels contain inoperative a pictorial illustration; and it could be wholly nullified by the device of printing pictures on labels. The case of Schumacher v. Schwencke, 25 Fed. 466, 23 Blatchf. 373, is distinguishable from the present, because in that case the court found that the picture copyrighted was not made to be used for labels.'" Breuker, etc., Co., 182 Fed. 150, 152. De Jonge v. 153 [aff 191 Fed. 35, 111 CCA 567 (aff 235 U. S. 33, 35 SCt 6. 59 L. ed. 113)]. gay.' as 90. Bleistein v. Donaldson Lith. Co., 188 U. S. 239, 23 SCt 298, 47 L. ed. 460 [rev 104 Fed. 993, 44 CCA 2961; Stecher Lith. Co. v. Dunston Lith. Co., 233 Fed. 601; Schumacher v. Wogram, 35 Fed. 210. 91. Stecher Lith. Co. v. Dunston Lith. Co., 233 Fed. 601; De Jonge v. Breuker, etc., Co.. 182 Fed. 150 [aff 191 Fed. 35, 111 CCA 567 (aff 235 U. S. 33, 35 SCt 6, 59 L. ed. 113)]; Schu [§ 141 with the reproductions.92 In such cases he has an election to protect the work either by a copyright or a design patent;93 but he cannot do both. word "designed" in the statute refers to the quality The of the painting, not to the state of mind or the intention of the author or owner. 95 simply designate or describe the articles to which Mere labels which they are attached, and which have no value separated from the articles, have never been within the macher v. Schwencke, 25 Fed. 466, 23 case 999 92. De Jonge v. Breuker, etc., Co., 182 Fed. 150 [aff 191 Fed. 35, 111 CCA 567 (aff 235 U. S. 33, 35 SCt 6, 59 L. ed. 113)]. think, entitled to copyright, whatever the applicant may intend to do with the reproductions. can adequately protect them under Whether he the copyright law, and still use them If, however, the painting is obviously as he may wish, is his affair. His common sense will be likely to inform him correctly upon this subject. arts, copyright may be properly rea mere design, lacking in such artisamong the productions of the fine tic quality as entitles it to be ranked fused. And it is not difficult to conceive of a third situation in which the Librarian may well be in doubt event it is probable that he may what his decision should be. In that find it most desirable not to interfere with the applicant's choice, leaving him to take the consequences of applicants understand clearly that his election. As it seems to me, if they cannot apply for protection of one kind and hope to receive protection of the other, they will probably be very careful to ask for precisely ker, etc., Co., 182 Fed. 150, 152, 154 what they want." De Jonge v. Breu[aff 191 Fed. 35, 111 CCA 567 (aff 235 U. S. 33, 35 SCt 6, 59 L. ed. 113)]. 94. De Jonge v. Breuker, etc., Co., 182 Fed. 150 [aff 191 Fed. 35, 111 CCA 567 (aff 235 U. S. 33, 35 SCt 6, 59 L. ed. 113)]. 95. De Jonge v. Breuker, etc., Co., 182 Fed. 150 [aff 191 Fed. 35, 111 CCA 567 (aff 235 U. S. 33, 35 SCt 6, 59 L. ed. 113)]. 93. De Jonge v. Breuker, etc., Co., 182 Fed. 150 [aff 191 Fed. 35, 111 CCA 567 (aff 235 U. S. 33, 35 SCt 6, 59 L. ed. 113)]. principal defense is that the paint[a] "Designed" construed.—“The ing was not the subject of copyright at all, but should have been patented under section 4929 of the Revised Statutes (U. S. Comp. St. 3398), as a design for an article of 1901, p. manufacture. In my opinion the testimony does not sustain this defense. Whatever force the argument may possess, where a painting is obviously else, it is not persuasive where the a mere design and can be nothing painting may with equal propriety belong either to the fine or useful arts. It clearly appears that to the the painting now in question is artistic in thought and execution, and it [a] Election between was therefore entitled to protection and patent.-"Since it was qualified desired. copyright by a copyright, if a copyright was for admission into the two statutory classes, I see no reason why it might intended to reproduce the painting as It appears just as clearly that neither the artist nor his patron not be placed in either. But it could cedure, the term of protection, and not enter both. The method of prosuch a work of art is ordinarily reproduced, but intended to multiply it the penalties for infringement, are as a design for a fancy paper to so different that the author or owner cover boxes and other articles for both classes must decide to which of the painting that is eligible for region of intellectual effort the work the holiday season. Nevertheless, when the painting left the artist's hand, it was of such a character as is to be assigned, and he must abide made it eligible either for copyright by the decision. Ordinarily, course, there is no difficulty. or for patenting, at the option of of the author or many paintings are suitable for use Not to me, Act June 18, 1874, c. 301, 18 As it seems as designs, and only a few designs 3411), did not forbid it to be copyStat. 78 (U. S. Comp. St. 1901, p. possess the qualities demanded by righted. the fine arts. But it is easily conceivable that here and there a paintA reproduction would certainly not be a 'label,' and, while no ing may be eligible for either class, doubt it might be a 'print,' and might and the water color in question is, with propriety be regarded as 'deI think, an excellent example. Such signed to be used for [an] article of a work may be used in both the fine manufacture,' it could with equal protection and the useful arts; but it can have illustration or work connected with propriety be described as a ‘pictorial driven in only one classes. of these The author the fine arts'-quite as accurately as owner is painting is obviously artistic, it is, I 47 L. ed. 460-and therefore it could his election, and the circus posters that were stand by his choice. must classified in Bleistein v. Donaldson thus If a For later cases, developments and changes in the law see cumulative Annotations, same title, page and note number. Lith. Co., 188 U. S. 239, 23 SCt 298, owner. or to ། protection of the copyright law.96 Chromos as distinguished from prints and labels may be entered under the copyright law, and need not be registered in the patent office," even when adapted and intended for use as labels on articles of commerce.98 [142] 28. Trade-Marks. Trade-marks are not copyrightable, and it is beyond the constitutional power of congress to make them so.1 But under its not be definitely assigned for the present purpose either to the fine or to the useful arts, until the author or the owner decided under which statute he would protect his property. It is, I think, difficult to see how a painting that may be either copyrighted or patented can be said to be designed' for one rather than for the other form of protection until the author or owner makes his final choice. Up to that time he may do what he pleases with his property. If he chooses to copyright it as a work of art, he may do so; if he prefers to patent it as a design, he is free to do this also; and the mere fact that he originally intended to take one of these courses rather than the other does not prevent him from changing his purpose at the last moment. His state of mind upon this matter has nothing to do with the quality of the painting; and it is this quality, and not the intention of the author or owner, that determines what protection may be given to the artist's work." De Jonge v. Breuker, etc., Co., 182 Fed. 150, 151 [aff 191 Fed. 35, 111 CCA 567 (aff 235 U. S. 33, 35 SCt 6, 59 L. ed. 113)]. 96. Higgins v. Keuffel, 140 U. S. 428, 431, 11 SCt 731, 35 L. ed. 470 [aff 30 Fed. 627]; Stecher Lith. Co. v. Dunston Lith. Co., 233 Fed. 601; De Jonge v. Breuker, etc., Co., 182 Fed. 150 [aff 191 Fed. 35, 111 CCA 567 (aff 235 U. S. 33, 35 SCt 6, 59 L. ed. 113)]; Royal Sales Co. v. Gaynor, 164 Fed. 207 (monogram and campaign badge); Schumacher v. Wogram, 35 Fed. 210; Coffeen v. Brunton, 5 F. Cas. No. 2,946, 4 McLean 516; Marsh v. Warren, 16 F. Cas. No. 9,121, 14 Blatchf. 263; Scoville v. Toland, 21 F. Cas. No. 12,553; Margetson v. Wright, 2 De G. & Sm. 420, 64 Reprint 188; Griffin v. Kingston, etc., R. Co., 17 Ont. 660, 665. "To be entitled to a copyright the article must have by itself some value as a composition, at least to the extent of serving some purpose other than as a mere advertisement or designation of the subject to which it is attached." Higgins v. Keuffel, supra. [a] Reason for rule.-"A label on a box of fruit giving its name as 'grapes,' even with the addition of adjectives characterizing their quality as 'black,' or 'white,' or 'sweet,' or indicating the place of their growth, as Malaga or California, does not come within the object of the clause. The use of such labels upon those articles has no connection with the progress of science and the useful arts. So a label designating ink in a bottle as 'black,' 'blue,' or 'red,' or 'indelible,' or 'insoluble,' or as possessing any other quality, has nothing to do with such progress. It cannot, therefore, be held by any reasonable argument that the protection of mere labels is within the purpose of the clause in question." Higgins v. Keuffel, 140 U. S. 428, 431, 11 SCt 731, 35 L. ed. 470 [aff 30 Fed. 627]. 97. Stecher Lith. Co. v. Dunston Lith. Co., 233 Fed. 601. [a] Chromos not within act of 1874 "The copyrights in question were obtained in the year 1908 under the act of 1905, which amended section 4952, and subsequently provided that the proprietor of any engraving, cut, print, or photograph, or negative thereof, or of a painting, drawing, or chromo, intended to be perfected as works of the fine arts, should have the sole liberty of vend- | articles and for plays, more than 98. [a] Rule applied.-"The plaintiff's 99. U. S. v. Steffens, 100 U. S. 82, 25 L. ed. 550. [b] Common phrase with special meaning.-"The plaintiff, in the year 1911, wrote an original comedy, entitled 'Where There's a Will There's a Way.' The plot dealt with the question of a testament, and the word 'will' in the title was used in the sense of testament. In November, 1912, the defendant presented at the Criterion Theatre a play, entitled "Where There's a Will The word 'will' in the defendant's play had the same double meaning as in the plaintiff's. Warrington, J.. said the suggestion of the plaintiff was that her title, the familiar proverb, had in reference to the plot of the play a peculiar meaning-namely, that the word 'will' did not mean an act of volition, but a testamentary disposition. She claimed that hers was an original title, and said that in the defendant's title, having regard to the plot, the word 'will' had the same meaning as in hers. She did not complain of the play itself. All that she said was that the title was a material part of the play, that there was originality in the title, and that she was entitled to restrain infringement. There was no satisfactory decision in favour of the contention that there was copyright in the title of a book by itself, but there was plenty of authority for saying, that if there was copyright, the title must be such as to be of an original and peculiar nature. In the case of Dick v. Yates, 18 Ch. D. 76, it was pointed out that there could be no copyright in such common words as 'splendid misery.' The words of the title of the plaintiff's copy-play were a familiar proverb, and words which were at some time or other in everybody's mouth. Could the plaintiff appropriate such words to herself by giving them the peculiar meaning which she said they bore in this play? In his opinion, if there could be copyright in the title of a play, there could not be in this case, where the title consisted of a hackneyed proverb." Broad v. Meyer, 57 Sol. J. 145. "Trade-marks can not be 1. U. S. v. Steffens, 100 U. S. 82, 2. See Trade-Marks, Trade-Names, and Unfair Competition [38 Cyc 854 et seq]. 3. Common-law rights in title see supra § 23. Infringement of title see infra 275. 4. Stringer v. Frohman, 152 NYS 935; Dicks v. Yates, 18 Ch. D. 76; Broemel v. Meyer, 29 T. L. R. 148. [a] Rule applied.-(1) The author of a copyrighted story published in magazine and book form cannot enjoin use of the title for a play not connected with the story, where it appears that the same title has been frequently used before for magazine 5. Benn v. Leclercq, 3 F. Cas. No. 1,308; Isaacs v. Daly, 39 N. Y. Super. 511; Dicks v. Yates, 18 Ch. D. 76. [a] Title of drama.-A person who deposits in the copyright office the title of a drama, which title is not original with himself, cannot secure such title to the exclusion of others who have applied such title to a dramatic composition founded on the same story before the date of such deposit. Benn v. Leclercq. 3 F. Cas. No. 1,308. the production itself would also protect the title. But it is only as a part of a copyrighted work and as the title to that particular work that any title can receive protection under the copyright law; a mere title alone is not copyrightable. It has been intimated that possibly there could "be copyright in a title, as for instance in a whole page of title or something of that kind requiring invention," although not in a single word." But no case can be [b] Title of book.-In order that the title of a work may be protected by a copyright secured in the work itself, there must be some originality in such title. No exclusive right to the use of common English words can ordinarily be obtained by approprinting them as the title of a copyrighted work. Thus where the owner of a copyright in a play called "Charity" brought suit to restrain the defendant from presenting a different play under the same name, the injunction was refused. Isaacs v. Daly, 39 N. Y. Super. 511; Dicks v. Yates, 18 Ch. D. 76, 88 (where Sir George Jessel, M. R., in discussing whether there could be copyright in the words "Splendid Misery" used as the title of a novel, said: "I am of opinion that there cannot. The words 'Splendid Misery' are common English words. I should say that the combination of them was a hackneyed and common combination, and it is proved that it was used as the actual title of a novel so far back as 1801. It does not appear to me that there was any invention in the combination of 'Splendid Misery,' any more than there would be in the words 'Miserable Sinner,' or anything of that kind”). Originality in general see supra 91-97. 6. Outcault v. Lamar, 135 App. Div. 110, 119 NYS 930; Weldon v. Dicks, 10 Ch. D. 247 (where Malins, V. C., held that the title of a book is part of the book and as much the subject of copyright as the book itself); Mack v. Petter, L. R. 14 Eq. 431. [a] The holder of a copyright is entitled to protection in the copyright name as well as in the literary production where there is an infringement in whole or in part of the production which is the subject of the copyright, but the name alone is not protected by the copyright. Outcault v. Lamar, 135 App. Div. 110, 119 NYS 930 ("Buster Brown" cartoons). 7. U. S.-Atlas Mfg. Co. v. Street, 204 Fed. 398, 122 CCA 568, 47 LRANS 1002; Glaser v. St. Elmo Co., 175 Fed. 276; Corbett v. Purdy, 80 Fed. 901; Harper v. Ranous, 67 Fed. 904; Merriam v. Famous Shoe, etc., Co., 47 Fed. 411; Black v. Ehrich, 44 Fed. 793; Donnelley v. Ivers, 18 Fed. 592, 20 Blatchf. 381; Benn v. Leclercq, 3 F. Cas. No. 1,308; Jollie v. Jaques, 13 F. Cas. No. 7,437, 1 Blatchf. 618; Osgood v. Allen, 18 F. Cas. No. 10,603, Holmes 185. found, either in England or in the United States, in which under the copyright statutes courts have pretected the title alone separate from the book or other production which it is used to designate.10 An exclusive right to a title cannot be secured by entering it in the copyright office in advance of publication." Titles will be protected, however, against use or imitation under circumstances constituting unfair competition.12 [b] Name of novel used for play. of the copyright of the novel Trilby the exclusive right to the use of the The name of a corporation, same rule name 8. Dicks v. Yates, 18 Ch. D. 76, 89. V. D. C.-Wilson v. Hecht, 44 App. 33 [quot Black v. Ehrich, 44 Fed. 793]. N. Y.-Outcault v. Lamar, 135 App. Div. 110. 119 NYS 930; Isaacs Daly, 39 N. Y. Super. 511; Dickey v. Mutual Film Corp., 160 NYS 609. nated." Wilson v. Hecht, 44 App. "The copyright of a book does not Eng-Kelly v. Hutton, L. R. 3 Ch. 703; Maxwell v. Hogg, L. R. 2 Ch. 307; Schove v. Schmincke, 33 Ch. D. 546; Dicks v. Yates, 18 Ch. D. 76; Kelly v. Byles, 13 Ch. D. 682 [aff 48 L. J. Ch. 682]; Weldon v. Dicks, 10 Ch. D. 247; Crotch v. Arnold, 54 Sol. J. 49. [a] The title is an appendage to the work, and where the latter is not protected by a copyright the former is not. Jollie v. Jaques, 13 F. Cas. No. 7,437, 1 Blatchf. 618. The copyright contemplated by the Act must be not in a single word. but in some words in the shape of a volume, or part of a volume. which is communicated to the public, by which the public are benefited, and in return for which a certain protection is given to the author of the work"). 11. Centennial Catalogue Co. v. Porter, 5 F. Cas. No. 2,546. See also supra § 106. [a] Rule applied. Where a person who had dramatized Collins' novel entitled "The New Magdalen" entered his version for copyright by sending in the title "The New Magdalen," it was held that this did not give him a right to the exclusive use of that title, but that another person might use it as the title for an independent dramatization of the novel. Benn v. Leclercq, 3 F. Cas. No. 1,308. 12. Merriam V. Syndicate Pub. Co.. 207 Fed. 515, 125 CCA 177 [app dism 237 U. S. 618, 35 SCt 708, 59 L. ed. 1148]; G. & C. Merriam Co. v. Saalfield, 190 Fed. 927, 111 CCA 517, 198 Fed. 369. 117 CCA 245, 238 Fed. 1, 151 CCA 77; Glaser v. St. Elmo Co., 175 Fed. 276; G. & C. Merriam Co. v. Ogilvie, 170 Fed. 167, 95 CCA 423; G. & C. Merriam Co. v. Ogilvie, 149 Fed. 858 [mod on other grounds 159 Fed. 638, 88 CCA 596, 16 LRANS 549, 14 AnnCas 796 (certiorari den 209 U. S. 551, 28 SCt 761, 52 L. ed. 922)]; Merriam v. Straus, 136 Fed. 477; Social Register Co. v. Murphy, 128 Fed. 116; Harper v. Holman, 84 Fed. 224; Merriam V. Texas Siftings Pub. Co., 49 Fed. 944; Merriam V. Famous Shoe, etc., Co., 47 Fed. 411; Merriam v. Holloway Pub. Co., 43 Fed. 450; Outcault v. Lamar, 135 App. Div. 110, 119 NYS 930; Dickey v. Mutual Film Corp., 160 NYS 609; Ont.-McIndoo v. Musson Book Co., 35 Ont. L. 42, 9 OntWN 239 [dist Rose v. McLean Pub. Co., 27 Ont. 325 (app allowed 24 Ont. A. 240)]. 9. Maxwell v. Hogg, L. R. 2 Ch. 307, 318 (where Lord Cairns said: "I apprehend, indeed, that if it were necessary to decide the point, it "It is well settled that the owner must be held that there cannot be of the thing copyrighted acquires what is termed copyright in a sinthrough the copyright no property gle word, although the word should in the name by which it is desig- be used as a fitting title for a book. "The name or title of a book is not the subject-matter of copyright, unless, in form and language. it constitutes a literary composition of the author." 8 Halsbury L. Eng. p 143. 10. Corbett v. Purdy, 80 Fed. 901. "The right secured by the copyright act is the property in the literary composition, and not in the name or title given to it. In no case. so far as this court is advised. has protection been afforded by injunction under the copyright laws to the title alone, separate from the book or dramatic composition which it is used to designate. Osgood v. Allen. 18 F. Cas. No. 10,603, Holmes 185." Corbett v. Purdy, supra. The decision in Weldon v. Dicks. 10 Ch. D. 247, was considered by the court of appeal in Dicks v. Yates, 18 Ch. D. 76, where it was remarked that the vice-chancellor did not distinguish "passing-off." which is a from an infringement of a statutory violation of a common-law right, copyright. In "I think that the authorities, particularly the American cases, preponderate that the copyright of a from taking the same title for anbook does not prevent other persons other book, even in the case of an entirely unexpired copyright. this case, the copyright of the novel having expired, and it being open to any one to write a play based on the novel, I think it still more doubtwriting and copyrighting a play, to ful whether the complainants, by which they have given the same title as the novel, can prevent the defendants from giving the name of the novel to an entirely different play which has been constructed from the novel." Glaser v. St. Elmo Co., 175 Fed. 276, 278. VI. WHO ENTITLED TO COPYRIGHT 66 [144] A. Statutory Provisions-1. General Statement.13 In the United States for many years the statutory designation of the persons entitled to obtain copyright upon copyrightable works was: The author, inventor, designer, or proprietor and the executors, administrators, or assigns of any such person. 99 14 In the act of 1909, the persons entitled to copyright are designated as "the author or proprietor or his executors, administrators, or assigns."'15 Not every author or proprietor is entitled to copyright; there are certain limitations and restrictions dependent on citizenship and residence.16 .. In England the statute provides that the author shall be the first owner of the copyright, except where the work is executed on commission, or made in the course of employment under a contract of service or apprenticeship, in which cases the copyright belongs to the employer, and except also gov V. Kelly v. Hutton, L. R. 3 Ch. 703; Maxwell v. Hogg. L. R. 2 Ch. 307; Licensed Victuallers' Newspaper Co. v. Bingham, 38 Ch. D. 139; Borthwick v. Evening Post, 37 Ch. D. 449; Kelly v. Byles, 13 Ch. D. 682; Dicks V. Yates, 18 Ch. D. 76; Weldon Dicks, 10 Ch. D. 247 [expl Dicks v. Yates, supra]; Metzler v. Wood, 8 Ch. D. 606; Mack v. Petter, L. R. 14 Eq. 431; Clement v. Maddick, 1 Giffard 98, 65 Reprint 841; Chappell v. Davidson, 2 Kay & J. 123, 69 Reprint 719; Chappell v. Sheard, 2 Kay & J. 117. 69 Reprint 717 (name of song); Walter v. Emmott, 54 L. J. Ch. 1059; Bradbury v. Beeton, 39 L. J. Ch. 57: Spottiswoode v. Clarke, 2 Phil. 154. 22 EngCh 154, 41 Reprint 900. See Trade-Marks, Trade-Names, and Unfair Competition [38 Cyc 831]. [a] "Literary property can be invaded in three modes, and, as I believe, in three modes only. First, where a publisher in this country publishes an unauthorized edition of a work in which copyright exists, or where a man introduces and sells a foreign reprint of such a work, that is open piracy. The second mode is where a man pretending to be the author of a book illegitimately appropriates the fruit of a previous author's literary labour, and that is literary larceny. Those are the two modes of invasion against which the Copyright Acts have protected an author. There is another mode which to my mind is wholly irrespective of any copyright legislation, and that is where a man sells a work under the name or title of another man or another man's work, that is not an invasion of copyright, it is Common Law fraud, and can be redressed by ordinary Common Law remedies, wholly irrespective of any of the conditions or restrictions imposed by the Copyright Acts. Supposing a man were to publish a book calling it 'Soyer's Cookery Book,' which it is not; or 'Colenso's Arithmetic,' which it is not; or, as in a case we had here, Metzler v. Wood, 8 Ch. D. 606, represent it as being 'Hemy's Modern Tutor for the Pianoforte,' which it is not, that is a Common Law fraud. That. as I said before, has nothing whatever to do with the Copyright Acts, and is not subject to any of the conditions of the Copyright Acts as to registration or otherwise." Dicks v. Yates, 18 Ch. D. 76, 90 (per James, L. J.). [b] Applications of rule.—(1) Where a dramatic composition has been copyrighted, another will be enjoined from using the same title, although the body of the composition is wholly different from that of the copyrighted play. Shook V. Wood, 10 Phila. (Pa.) 373 ("The Two Orphans" enjoined on ground of unfair competition). (2) "The Children's Birthday Text Book" was ernment publications, the copyright of which belongs to the crown, subject to any agreement with the author, and mechanical reproductions, the copyright of which belongs to the owner of the original plate from which the contrivance was derived.17 Where the work is an article or other contribution to a newspaper, magazine, or similar periodical, in the absence of any agreement to the contrary, the right is reserved to the author to restrain the publication of the work otherwise than as a part of a newspaper, magazine, or similar periodical.18 [§ 145] 2. Limitation to Persons Named. The · statutory designations are exclusive; an ostensible copyright by one not within the statutory description is wholly void.19 Thus one who, without express or implied authority from the author, goes through the forms of copyrighting another's composition obtains no copyright.20 A mere licensee, being neither the author nor the proprietor, may thought to infringe on the title [c] Descriptive title of comedy; the two plays apart from the titles. It was held on the evidence that as a matter of fact the name of defendant's play was calculated to deceive, and that the defendant must be restrained by injunction in the usual way. Broadhurst v. Nicholls, 3 N. S. Wales 147, 20 NSWWN 70. claim it. imitation 13. Persons entitled to renewal or extension see infra § 239. Citizenship and residence see infra § 157 et seq. 14. Rev. St. § 4952; Act March the United States at the time of the first publication of his work, or are: (1) The author of the work, if he is: (b) An alien author domiciled in (c) A citizen or subject of any country which grants either by treaty, convention, agreement, or law, to citizens of the United States the benefit of copyright on substantially the same basis as to its own citizens. The existence of reciprocal copyright conditions is determined by presidential proclamation. (2) The proprietor of a work. The word 'proprietor' is here used to indicate a person who derives his title to the work from the author. If the author of the work should be a person who could not himself claim the benefit of the copyright act, the proprietor cannot (3) The executors, administrators, or assigns of the above-mentioned author or proprietor." Rules and Regulations for Registration of Claims to Copyright (Copyright Office Bul. No. 15) rule 2. 16. See infra §§ 157-162. Citizenship: Who are citizens see Aliens § 3; Citizens 11 C. J. p 772. 17. Copyright Act, 1911 (1 & 2 Geo. V c 46 §§ 5 (1), 19 (1)). 18. St. 1 & 2 Geo. V c 46 § 5 (1). 19. Banks v. Manchester, 128 U. S. 244, 9 SCt 36, 32 L. ed. 425 [aff 23 Fed. 1431; Press Pub. Co. v. Falk, 59 Fed. 324; Atwill v. Ferrett, 2 F. Cas. No. 640, 2 Blatchf. 39; Binns v. Woodruff, 3 F. Cas. No. 1.424, Wash. C. C. 48; Chase v. Sanborn, 5 F. Cas. No. 2,628, 4 Cliff. 306; Koppel v. Downing, 11 App. (D. C.) 93; Levy v. Rutley, L. R. 6 C. P. 523; Jefferys V. Baldwin, Ambl. 164, 27 Reprint 109; Shepherd v. Conquest, 17 C. B. 427, 84 ECL 427, 139 Reprint 1140; Langlois v. Vincent, 18 LCJur 160. V. 20. Ferris v. Frohman, 223 U. S. 424, 32 SCt 263, 56 L. ed. 432; American Tobacco Co. v. Werckmeister, 207 U. S. 284, 28 SCt 72, 52 L. ed. 208. 12 AnnCas 595; Dielman White, 102 Fed. 892; Koppel v. Downing, 11 App. (D. C.) 93; Stern v. Carl Laemmle Music Co., 74 Misc. 262, 133 NYS 1082 [aff 155 App. Div. 895 mem, 139 NYS 1146 mem]. "If title was in plaintiffs, then it was not in defendant. If it was not in defendant when he applied for a copyright, then the Federal court has no jurisdiction of the case, because defendant obtained nothing by his application for a copyright." Stern v. Carl Laemmle Music Co., supra. 15. Act March 4, 1909 (35 U. S. St. at L. 1075 c 320 § 8]. [a] The proprietor of an unpub[a] Copyright office summary.-lished drama may enjoin a piratical "The persons entitled by the act to version thereof, although the latter copyright protection for their works has been entered for copyright. Ferris v. Frohman, 223 U. S. 424, 32 SCt 263. 56 L. ed. 492. [b] Official reporters cannot obtain a copyright in headnotes written by the judges delivering the not take out a copyright himself," nor, by virtue 24 [146] B. Author, Inventor, or Designer-1. In General. The author of a work is primarily the person entitled to copyright it.23 Except where controlled by statutory provisions declaring who shall be deemed the "author" of particular works, to constitute a person an author, inventor, or designer, within the meaning of the copyright laws, he must by his own intellectual labor and skill produce a work new and original in itself.25 Complete originality is not necessary to authorship.26 Labor bestowed on the production of another is enough to constitute a claim to copyright, if involving originality. The adapter of a dramatic work,28 or the arranger of a musical composition, of an abridgment of a larger work,30 or the editor or the maker and annotator of a revised edition of a previous opinion. Chase v. Sanborn, 5 F. Cas. No. 2,628, 4 Cliff. 306. [c] Appropriation of sketch from foreign publication-One who appropriates a sketch from a foreign publication, and records the description and complies with the other formal requisites of the act for obtaining copyright, obtains no exclusive right to it, because he is not the author, designer, or proprietor of the sketch. Johnson v. Donaldson, 3 Fed. 22, 18 Blatchf. 287. 29 24. Act March 4, 1909 (35 U. S. St. at L. 1075 c 320 § 62); Copyright Act, 1911 (1 & 2 Geo. V c 46 §§ 5, 19. 21). See also infra § 149. [a] In the English act of 1911 no definition of the term "author" is given other than that contained in § 5 (1), which provides that, subject as therein mentioned, the author of a work is the first owner of the copyright therein, and § which provides that the owner of 21. the original negative of a graph is deemed to be the author of photothe work, and § 19 (1), which defines the author of a mechanical work. [§§ 145-148 work,31 34 36 [147] 2. Joint Authors. Copyright may vest in two or more persons as joint authors of a production, where it is the result of a preconcerted joint design.37 So too there may be owners in common of copyright.38 [§ 148] 3. Photographs.39 photograph is the one who controls the operation The author of a of taking the photograph and not the one who performs the manual operations under his direction.40 2 Q. B. 340]; Boosey v. Fairlie, 7 tinguished.-"In order to shew that new 26. Nisbet v. Golf Agency, 23 T. Rep. N. S. 242. 31. Originality and authorship necessary see supra §§ 91-97. 21. Koppel v. Downing, 11 App. (D. C.) 93. See also infra § 151. [a] But in another connection, the act of 1909 speaks of a copyright obtained by "a licensee of the individual author." See Act March 4, 1909 (35 U. S. St. at L. 1075 c 320 § 23). 22. Koppel v. Downing, 11 App. (D. C.) 93. [a] Rule applied.-Where the proprietor of a manuscript translation of a play licenses a theater manager to use the translation for a specific purpose, the licensee cannot confer a printer and publisher of the play the power to copyright it, and a copyright so attempted to be taken out is invalid. Koppel v. Downing, 11 App. (D. C.) 93. on 27. were 23. Broder V. Zeno Music Co., 88 Fed. 74; Byrne v. StatMauvais ist Co., [1914] 1 K. B. 622. supra 144. See also [a] Biographer not appointed by subject of work-The fact that the replies to inquiries.-Plaintiffs sent [a] Biographical notes made from person who writes a biography and has it copyrighted was out questions to a number of golf nated by the subject of the biog-piled biographical notes in a golf not desig-players, and from the answers comraphy as his special biographer cannot of course have any effect on the annual. Plaintiffs validity of the copyright. thors" of the "auGilmore the biographical Nisbet v. Golf Agency, 23 T. L. R. notes. 370. 28. N. S. 77. Tree v. Bowkett, 74 L. T. Rep. [a] Adapter of play an author.-ing The adapter of a play, who introterations, is an duces into his version material almatic piece," "author of a drawithin the Dramatic Copyright Act (3 & 4 Wm. English Rep. N. S. 77. IV c 15). Tree v. Bowkett, 74 L. T. v. Anderson, 38 Fed. 846. 223, 18 ERC 578. No. 8,136, 4 Cliff. 1. 32. 1 K. B. 622. has for many years been held to be Byrne v. Statist Co., [1914] See also supra § 127. "A translator of a literary work the author of his translation, and the House of Lords, in Walter v. Lane, [1900] A. C. 539, went so far as to hold that a shorthand writer who reported a speech verbatim was Statist_Co., [1914] 1 K. B. 622, 627. the author of his report." Byrne v. 33. Walter v. Lane, [1900] A. C. 539 [rev [1899] 2 Ch. 749]. 34. Dielman v. White, 102 Fed. 892. 35. 36. 892. 111. [a] Piano score 30. Springfield v. 25. Burrow-Giles Lith. Co. v. Sar- For later cases, developments and changes in the law see cumulative Annotations, See infra §§ 150-153. 102 Fed. V. 37. Maurel Smith, 195; Marzials v. Gibbons, L. R. 9 Ch. 220 Fed. 523. 518; Levy v. Rutley, L. R. 6 C. P. right.-Where See also supra § 27. [a] Constructive trust in copycopyrights two of three authors of a comic opera took out joint thereon, author, and were accountable to her constructive trustees for the third they became for her interest in the literary propFed. 195. erty destroyed by the publication and copyright. Maurel v. Smith, 220 thorized copyright.-Where [b] Subsequent consent to unauthe joint authors of a comic opera two of had it published and copyrighted, lication, she might accept the wrongeven though the third author did not consent thereto, and although the absence of her consent avoided pubful publication and insist on her proprietary rights, as though she had consented at the outset. Maurel v. Smith, 220 Fed. 195. [c] and employs an artist Who are joint authors.-One who conceives the idea of a drawdeemed a joint author with the arcute it under his direction to cxemay be tist. Kenrick v. Lawrence, 25 Q. B. D. 99. See also supra § 27. 463, 18 AmR 273; Stevens v. Wildy, 38. Carter v. Bailey, 64 Me. 458, 19 L. J. Ch. 190; Powell v. Head, 12 Ch. D. 686 (joint owners of copyright take as tenants in common and not as joint tenants). "If there be more than one author or assignee, all of either class, as copyright." the case may be, may have the Carter v. Bailey, supra. 39. Photographs: Common-law property in see supra § 17. tory copyright in see supra § 118. Statu40. Burrow-Giles Lith. Co. v. Sarony, 111 U. S. 53, 4 SCt 279. 28 L. ed. 349 [aff 17 Fed. 591]; Melville v. Nottage v. Jackson, 11 Q B. D. 627. Mirror of Life Co., [1895] 2 Ch. 531; tographs.-"The graph in question, that it is a useful, [a] Authorship as applied to phofact says, in regard to the third finding of photo |
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