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the production itself would also protect the title. found, either in England or in the United States, in But it is only as a part of a copyrighted work and which under the copyright statutes courts have preas the title to that particular work that any title tected the title alone separate from the book or can receive protection under the copyright law; a other production which it is used to designate. An mere title alone is not copyrightable. It has been exclusive right to a title cannot be secured by enterintimated that possibly there could "be copyright ing it in the copyright office in advance of publiin a title, as for instance in a whole page of title or cation.11 Titles will be protected, however, against something of that kind requiring invention,' use or imitation under circumstances constituting though not in a single word.' But no case can be unfair competition."2

[b] Title of book-In order that nated.” Wilson v. Hecht, 44 App. The copyright contemplated by the the title of a work may be protected (D. C.) 33, 36.

Act must be not in a single word. by a copyright secured in the work “The copyright of a book does not but in some words in the shape of itself, there must be some originality prevent others from taking the same a volume, or part of a volume. which in such title. No exclusive right to title for another book, though the is communicated to the public, by the use of common English words copyright has not expired." Atlas which the public are benefited, and can ordinarily be obtained by appro- Mfg. Co. v. Street, 204 Fed. 398, 403, in return for which a certain propriating theri as the title of a copy- 122 CCA 568, 47 LRANS 1002.

tection is given to the author of righted work. Thus where the owner [a] The title is an appendage to

the work"). ef a copyright in a play called the work, and where the latter is not

10.

Corbett v. Purdy, 80 Fed. 901. "Charity" brought suit to restrain protected by a copyright the former "The right secured by the copythe defendant from presenting a dif- is not. Jollie v. Jaques, 13 F. Cas. right act is the property in the litferent play under the same name, No. 7,437, 1 Blatchf. 618.

crary composition, and not in the the injunction was refused. Isaacs [b] Name of novel used for play. name or title given to it. In no case, v. Daly, 39 N. Y. Super. 511; Dicks v. -(1) "The owner of the copyright so far as this court is advised. has Yates. 18 Ch. D. 76, 88 (where Sir of a' novel is not entitled to protec- protection been afforded by injuncGeorge Jessel, M. R., in discussing tion against the use of that name in

tion under the copyright laws to the whether there could be copyright in connection with a dramatic composi

title alone, separate from the book the words "Splendid Misery” used as tion which does not present any

or dramatic composition which it is the title of a novel, said: "I am of scenes, plot, or dialogue imitated or

used to designate. Osgood V. Allen. opinion that there cannot. The words adapted from the novel; it being the

18 F. Cas. No. 10,603, Holmes 185." 'Splendid Misery' are common Eng- name in connection with the novel,

Corbett v. Purdy, supra. lish words. I should say that the and not the name alone, which the

The decision in Weldon v. Dicks. combination of them a hack- copyright protects. Harper v. Ra

10 Ch. D. 247, was considered by the nous, 67 Fed. 904." Atlas Mfg. Co.

court of appeal in Dicks neyed and common combination, and

Yates, it is proved that it was used as the v. Street, 204 Fed. 398, 403, 122 CCA

18 Ch. D. 76. where it was remarked actual title of a novel so far back as 568, 47 LRANS 1002. (2) In the Har

that the vice-chancellor did not dis1801. It does not appear to me that per case it was held that the ownertinguish "passing-off," which is a

violation of or the copyright of the novel Trilby

a there was any invention in the com

common-law right, bination of 'Splendid Misery,' any was not entitled to protection against from an infringement of a statutory

copyright. than there would be in the the use of that name as the title of words 'Miserable Sinner,' or anything a dramatic production produced with

"I think that the authorities, par

ticularly the American cases, out his consent, Judge Laconibe sayof that kind").

pre

ponderate that the copyright of a Originality in general see supra 88 | ing: “It is the name in connection 91-97. with the novel, not the name alone; from taking the same title for an

book does not prevent other persons 6. Outcault v. Lamar, 135 App. which the copyright law protects.”

other book, even in the case of an Div, 110, 119 NYS 930; Weldon v. Harper v. Ranous, 67 Fed. 904, 905.

In

entirely unexpired copyright. Dicks, 10 Ch. D. 247 (where Malins, [c] Name of cartoons used for

certain V. C., held that the title of a book play-Where an author of

this case, the copyright of the novel

having expired. and it being open to is part of the book and as much the cartoons entitled "Buster Brown" ausubject of copyright as the book it- thorized an assignee to print, pub

anyone to write a play based on

the novel, I think it still more doubtself); Mack v. Petter, L. R. 14 Eq. lish, and copyright them, the

ful whether the complainants, by 431. signee's copyright did not give to it

writing and copyrighting a play, to [a] The holder of a copyright is the exclusive right to the use of the

which they have given the same title entitled to protection in the copytitle. Outcault v. Lamar, 135 App. the novel, can

prevent the deright name as well as in the literary Div. 110, 119 NYS 930.

fendants from giving the name of production where there is in- [d] The name of a corporation, the novel to an entirely different fringement in whole or in part of the such as International College of Lan

play which has been

constructed production which is the subject of guages, is not the subject of a copy- from the novel." Glaser v. St. Elmo the copyright, but the name alone is right. Rep. Atty.-Gen. N. Y. (1906) Co., 175 Fed. 276, 278. not protected by the copyright. Out

403, 404 (where it is said: “Under 11. Centennial Catalogue Co. v. cault v. Lamar, 135 App. Div. 110, 119 the United States laws relating to Porter, 5 F. Cas. No. 2,546. See also NYS 930 ("Buster Brown" cartoons). copyright, this corporation would

supra § 106. 7. U. S.-Atlas Mfg. Co. v. Street,

have an undoubted right to publish (a) Rule applied Where a per: 204 Fed. 398, 122 CCA 568, 47 LRANS certain literature descriptive of its

who had dramatized Collins 1002; Glaser v. St. Elmo Co., 175 Fed.

methods of doing business or essen- novel entitled "The New Magdalen" 276; Corbett V. Purdy, 80 F d. 901;

tial in the method of its imparting entered his version for copyright by Harper v. Ranous, 67 Fed. 904; Mer

instruction which would be the sub- sending in the title “The New Mag. riam V. Famous Shoe, etc., Co., 47

ject of copyright, but the name of dalen, it was held that this did not Fed. 411; Black V. Ehrich, 44 Fed.

the institution would not be the sub-| give him a right to the exclusive use 793; Donnelley v. Ivers, 18' Fed. 592, ject of copyright").

of that title, but that another per20 Blatchf. 381; Benn v. Leclercq, 3

[e] The

rule applies to son might use it as the title for an F. Cas. No. 1,308; Jollie v. Jaques, 13 patents.-Mr. Justice Brewer ex- | independent dramatization

of the

novel. F. Cas. No. 7,437, 1 Blatchf. 618; Ospressiy said in the Castoria case that

Benn v. Leclercq, 3 F. Cas. good v. Allen, 18 F. Cas. No. 10,603, the patent gave no right to any par. No. 1,308.

12. ticular name, but simply conferred Holmes 185.

Merriam V. Syndicate Pub. D. C.-Wilson v. Hecht, 44 App. 33

the exclusive right to make and sell Co., 207 Fed. 515, 125 CCA 177 (app [quot Black v. Ehrich, 44 Fed. 793).

the patented article to which the dism 237 U. S. 618, 35 SCt 708, 59 L. N. Y.-Outcault v. Lamar, 135 App.

was applied. Centaur Co. y. ed. 1148]; G. & C. Merriam Co. v. Div. 110, 119 NYS

Saalfield, 190 Fed. 927, 111 CCA 517,
Heinsfurter, 84 Fed. 955, 956, 28 CCA
Isaacs
930:

581. Daly, 39 N. Y. Super. 511; Dickey V.

See also Trade-Marks, Trade- 198 Fed. 369, 117 CCA 245, 238 Fed.

Names, and Unfair Competition [38 1, 151 CCA 77; Glaser v. St. Elmo Co., Mutual Film Corp., 160 NYS 609. Cyc 827).

175 Fed. 276; G. & C. Merriam Co. Eng.-Kelly v. Hutton, I. R. 3 Ch. 8. Dicks v. Yates, 18 Ch. D. 76, v. Ogilvie, 170 Fed. 167, 95 CCA 423; 703; Maxwell v. Hogs, L. R. 2 Ch. 89.

G. & C. Merriam Co. v. Ogilvie. 149 307; Schove v. Schmincke, 33 Ch. D. "The name or title of a book is Fed. 858 [mod on other grounds 159 546; Dicks v. Yates, 18 Ch. D. 76;

not the subject-matter of copyright, fed. 638, 88 CCA 596, 16 LRANS Kelly V. Byles, 13 Ch. D. 682 (aff 48 unless, in form and language. it 549, 14 AnnCas 796 (certiorari den L. J. Ch. 682]; Weldon v. Dicks, 10 constitutes a literary composition of 209 U. S. 551, 28 SCt 761, 52 L. ed. Ch. D. 247; Crotch v. Arnold, 54 Sol. the author.8 Hålsbury L. Eng. 922)]; Merriam v. Straus, 136 Fed. J. 49. p 143.

477; Social Register Co. v. Murphy, Ont.--McIndoo v. Musson Book Co., 9. Maxwell v. Hogg, L. R. 2 Ch. 128 Fed. 116; Harper v. Holman, 84 35 Ont. L. 42, 9 OntWN 239 (dist 307, 318 (where Lord Cairns said: Fed. 224; Merriam Texas SiftRose v. McLean Pub. Co., 27 Ont. 325 "I apprehend, indeed, that if it were ings Pub. Co., 49 Fed. 944; Merriam (app allowed 24 Ont. A. 240)].

necessary

to decide the point, it V. Famous Shoe, etc., Co., 47 Fed. "It is well settled that the owner must be held that there cannot be 411; Merriam v. Holloway Pub. Co., of the thing copyrighted acquires what is termed copyright in a sin- 43 Fed. 450; Outcault v. Lamar, 135 through the copyright no property gle word, although the word should App. Div. 110. 119 NYS 930; Dickey in the name by which it is desig- 'be used as a fitting title for a book. v. Mutual Film Corp., 160 NYS 609;

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VI. WHO ENTITLED TO COPYRIGHT [144] A. Statutory Provisions-1. General ernment publications, the copyright of which belongs Statement." In the United States for many years to the crown, subject to any agreement with the authe statutory designation of the persons entitled thor, and mechanical reproductions, the copyright of to obtain copyright upon copyrightable works was: which belongs to the owner of the original plate “The author, inventor, designer, or proprietor ... from which the contrivance was derived.17 Where the and the executors, administrators, or assigns of any work is an article or other contribution to a newssuch person.

In the act of 1909, the persons en- paper, magazine, or similar periodical, in the absence titled to copyright are designated as the author of any agreement to the contrary, the right is reor proprietor .. or his executors, administrators, served to the author to restrain the publication of or assigns." 15 Not every author or proprietor is the work otherwise than as a part of a newspaper, entitled to copyright; there are certain limitations magazine, or similar periodical.18 and restrictions dependent on citizenship and resi- [$ 145] 2. Limitation to Persons Named. The dence.1

statutory designations are exclusive; an ostensible In England the statute provides that the author copyright by one not within the statutory descripshall be the first owner of the copyright, except tion is wholly void.19 Thus one who, without exwhere the work is executed on commission, or made press or implied authority from the author, goes in the course of employment under a contract of through the forms of copyrighting another's comservice or apprenticeship, in which cases the copy- position obtains no copyright.20 A mere licensee, right belongs to the employer, and except also gov- being neither the author nor the proprietor, may Kelly V. Hutton, L. R. 3 Ch. 703; thought to infringe the title the United States at the time of Maxwell v. Hogg. L. R. 2 Ch. 307; "The Birthday Scripture Text Book.' the first publication of his work, Licensed Victuallers' Newspaper Co. Mack v. Petter, L. R. 14 Eq. 431. (3) v. Bingham, 38 Ch. D. 139; Borth- The title "Why and Because" has (c) A citizen or subject of any wick v. Evening Post, 37 Ch. D. 449; been held not to be infringed by the country which grants either by Kelly v. Byles, 13 Ch. D. 682; Dicks title “The Reason Why." Jarrold v. treaty, convention, agreement,

Yates, 18 Ch. D. 76: Weldon Houlston, 3 Kay & J. 708, 69 Reprint or law, to citizens of the United Dicks, 10 Ch. D. 247 (expl Dicks v. 1294.

States the benefit of copyright Yates, supra); Metzler v. Wood, 8 [c) Descriptive title of comedy; on substantially the same basis Ch. D. 606; Mack v. Petter, L. R. calculated to deceive.-The plaintiffs

as to its own citizens. The ex14 Eq. 431; Clement v. Maddick, 1 were proprietors of a comedy known

istence of reciprocal copyright Giffard 98, 65 Reprint 841; Chappell as “The Wrong Mr. Wright," which

conditions is determined by v. Davidson, 2 Kay & J. 123, 69 Re- has been played with success in presidential proclamation. print 719; Chappell v. Sheard, 2 Kay England and America. Defendant (2) The proprietor of a work.

The & J. 117. 69 Reprint 717 (name of advertised for production in the word 'proprietor is here used to song); Walter v. Emmott, 54 L. J. provinces a comedy as "the enor

indicate a person who derives his Ch.1059; Bradbury v. Beeton, 39 mous English and American success, title to the work from the author. L. J. Ch. 57; Spottiswoode v. Clarke, 'The Wrong Mrs. Wright.' No play

If the author of the work should 2 Phil. 154. 22 EngCh 154, 41 Reprint other than plaintiff's had in fact

be a person who could not him900. See Trade-Marks, Trade-Names, been played with success in Eng

self claim the benefit of the copyand Unfair Competition (38 Cyc 831]. land or in America under that name right act, the proprietor cannot (a) "Literary property can be under

any colorable imitation

claim it. invaded in three modes, and, as I thereof, but defendant's play had (3) The executors, administrators, believe, in three inodes only. First, been performed with success in those or assigns of the above-mentioned where a publisher in this country countries under other names. The author or proprietor." Rules and publishes an unauthorized edition of title was in each case to some ex

Regulations for Registration

of a work in which copyright exists, or tent descriptive of the respective Claims to Copyright (Copyright Office where a man introduces and sells plays, and there was no similarity Bul. No. 15) rule 2. a foreign reprint of such a work, the two plays apart from the 16. See infra $ $ 157-162. that is open piracy. The second mode titles. It was held on the evidence Citizenship: Who are citizens see is where a man pretending to be the that as a matter of fact the name Aliens $ 3; Citizens 11 C. J. p 772. author of a book illegitimately ap- of defendant's play was calculated 17. Copyright Act, 1911 (1 & 2 propriates the fruit of a previous to deceive, and that the defendant Geo. V & 46 $85 (1), 19 (1)). author's literary labour, and that is must be restrained by injunction in

18. St. 1 & 2 Geo. V c 46 § 5 (1). literary larceny. Those are the two the usual way. Broadhurst v. Nich- 19. Banks V. Manchester, 128 U. modes of invasion against which olls, 3 N. S. Wales 147, 20 NSWWN S. 244, 9 Sct 36, 32 L. ed. 425_faff the Copyright Acts have protected 70.

23 Fed. 1431; Press Pub. Co. v. Falk, an author. There is another mode 13. Persons entitled to renewal 59 Fed. 324; Atwill v. Ferrett, 2 F. which to my mind is wholly irre- or extension see infra § 239.

Cas. No. 640, 2 Blatchf. 39; Binns v. spective of any copyright legislation, Citizenship and residence see in- Woodruff, 3 F. Cas. No. 1,424, 4 and that is where a man sells a work fra $ 157 et seq.

Wash. C. c. 48; Chase v. Sanborn, 5 under the name or title of another 14. Rev. St. § 4952; Act March F. Cas. No. 2,628, 4 Cliff. 306; Koppel man or another man's work, that is 3, 1891 (26 St. at L. 1107 c 565 $ 1). v. Downing, 11 App. (D. C.) 93; Levy not an invasion of copyright, it is (a) Provisions of the successive v. Rutley, L. R. 6 C. P. 523; Jefferys Common Law fraud, and can be re- acts—The first copyright act of the 1. Baldwin, Ambl. 164, 27 Reprint dressed by ordinary Common Law United States, that of 1790, in pro- 109; Shepherd v. Conquest, 17 C. B. remedies, wholly irrespective of any viding for copyright in any map,

427, 84 ECL 427, 139 Reprint 1140; of the conditions or restrictions im- chart. or book gave the right to the Langlois v. Vincent, 18 LCJur 160. posed by the Copyright Acts. Sup- | "author and authors

his or

20.

Ferris v. Frohman, 223 U. S. posing a man were to publish a book their executors, administrators 424, 32 SCt 263, 56 L. ed. 492; Amercalling it “Soyer's Cookery Book,' assigns." 1 St. at L. 124 C 15 $ 1.

ican Tobacco Co. v. Werckmeister, which it is not; or 'Colenso's Arith- The act of 1802 (2 St. at L. 171) 207 U. S. 284, 28 SCt 72, 52 L. ed. metic," which it is not; or, as in a and the act of 1831 (4 St. at L. 208, 12 Annas 595; Dielman V. case we had here, Metzler v. Wood, 436) are substantially the same ex

White, 102 Fed. 892; Koppel v. & Ch. V. 606, represent it as being cept that they are made to include Downing, 11 App. (D. C) 93; Stern 'Hemy's Modern Tutor for the Piano- any person who shall invent or de- v. Carl Laemmle Music Co., 74 Misc. forte, which it is not, that is a sign any print or engraving. The 262, 133 NYS 1082 [aff 155 App. Div. Common Law fraud. That, as I act of 1870 (16 St. at L. 198), which 895 mem, 139 NYS 1146 mem). said before, has nothing whatever to includes paintings, drawings, chro- "If title was in plaintiffs, then it do with the Copyright Acts, and is mos. Statues, statuary, and models was not in defendant. If it was not not subiect to any of the conditions or designs intended to be perfected

in defendant when he applied for a of the Copyright Acts as to regis- as works of fine arts, in the list of copyright, then the Federal court tration or otherwise." Dicks V. copyrightable productions,

has no jurisdiction of the case, beYates, 18 Ch. D. 76, 90 (per James, the "author." "inventor," and "de- cause defendant obtained nothing by L. J.). signer" among the persons who may

his application for a copyright." [b] Applications of rule-(1) have copyright protection.

Stern v. Carl Laemmle Music Co., Where a dramatic composition has 15. Act March 4, 1909 (35 U. S. supra. been copyrighted, another will be en- St. at L. 1075 C 320 S 8).

(a) The proprietor of an unpubjoined from using the

same title, although the body of the composi- "The persons entitled by the act to [a] Copyright office summary - lished dramă may enjoin a piratical

version thereof, although the latter tion is wholly different from that of copyright protection for their works has been entered

for copyright. the copyrighted play: Shook Wood, 10 Phila. (Pa.)

Ferris v. Frohman, 223 U. S. 424, 32 373 ("The (1) The author of the work, if he is: $Ct 263. 56 L. ed. 492. Two Orphans" enjoined on of unfair competition):

ground (a) A citizen of the United States, [b] Official reporters cannot ob

(2) "The Children's Birthday Text Book" was

tain a copyright in headnotes writ(b) An alien author domiciled in Iten by the judges delivering the

in

or

names

are:

or

work, 31

36

38

30

a

new

not take out a copyright himself, nor, by virtue

or a translator32 and even the reporter of of his license, authorize anyone else to do so.22 a public speech,33 is an author entitled to copyright [ 0 146] B. Author, Inventor, or Designer-1.

as such.

Where an author has parted with his In General. The author of a work is primarily the literary or intellectual property right in his properson entitled to copyright it.23 Except where con- duction, he is no longer entitled to copyright it, trolled by statutory provisions declaring who shall that right being then vested in the proprietor be deemed the “author” of particular works,24 to by assignment or otherwise. 35 An author who is constitute a person an author, inventor, or designer, not also the proprietor obtains no copyright by within the meaning of the copyright laws, he must taking the statutory steps for obtaining one. by his own intellectual labor and skill produce a [6 147] 2. Joint Authors. Copyright may vest work new and original in itself.25 Complete origi- in two or more persons as joint authors of a pronality is not necessary to authorship.20 Labor be- duction, where it is the result of a preconcerted stowed on the production of another is enough to joint design. So too there may be owners in comconstitute a claim to copyright, if involving origi- mon of copyright. nality.27 The adapter of a dramatic work,28 or the [ 148] 3. Photographs.39 The author of a arranger of a musical composition,29 or the maker photograph is the one who controls the operation of an abridgment of a larger work, or the editor of taking the photograph and not the one who perand annotator of a revised edition of a previous forms the manual operations under his direction. 40 opinion. Chase v. Sanborn, 5 F. Cas. 2 Q. B. 340); Boosey v. Fairlie, 7 ute. Springfield v. Thame, 89 L. T. No. 2,628, 4 Cliff. 306.

Ch. D. 301; Springfield v. Thame, 89 Rep. N. S. 242. (C) Appropriation of sketch from L. T. Rep. N. S. 242 (subeditor); 31. Lawrence v. Dana, 15 F. Cas. foreign pablication One who appro- Stannard v. Harrison, 24 L. T. Rep. No. 8,136, 4 Cliff. 1. priates a sketch from a foreign pub- N. S. 570.

32. Byrne V. Statist Co., (1914) lication, and records the description (a). Patents and copyrights dis- 1 K. B. 622. See also supra § 127. and complies with the other formal tinguished.-"In order to shew that "A translator of a literary work requisites of the act for obtaining the position and rights of an author has for many years been held to be copyright, obtains no exclusive right within the copyright acts, are not the author of his translation, and to it, because he is not the author, to be measured by those of an in- the House of Lords, in Walter v. designer, or proprietor of the sketch. ventor within the patent laws, it is Lane, [1900] A. C. 539, went so far Johnson v. Donaldson, 3 Fed. 22, 18 only necessary to bear in mind, that, as to hold that a shorthand writer Blatchf. 287.

whilst on the one hand a person who who reported a speech verbatim was Originality and authorship neces- imports from abroad the invention of the author of his report." Byrne v. sary see supra $$ 91-97.

another previously unknown here, Statist Co., (1914] 1 K. B. 622, 627. 21. Koppel v. Downing, 11 App. without any further originality or 33. Walter v. Lane, [1900] A. C. (D. C.) 93. See also infra § 151. merit in himself, is an inventor en- 539 [rev [1899] 2 Ch. 749].

(a) But in another connection, titled to a patent, on the other a 34. Dielman V. White,102 Fed. the act of 1909 speaks of a copy- person who merely reprints for the 892. right obtained by "a licensee of the first time in this country a valuable 35, See infra $$ 150-153. individual author." See Act March foreign work, without bestowing

36. Dielman v. White, 102 Fed. 4, 1909 (35 U. S. St. at L. 1075 c 320 upon it any intellectual labour of his 892. $ 23).

own, as, by translation, which to 37. Maurel V. Smith, 220 Fed. 22. Koppel V. Downing, 11 App. some extent must impress

195; Marzials v. Gibbons, L. R. 9 Ch. (D. C.) 93.

character, cannot thereby acquire 518; Levy y. Rutley, L. R. 6 C. P. [a] Rule applied.-Where the pro- the title of an author within the 523. See also supra § 27. prietor of a manuscript translation statutes relating to copyright." (a) Constructive trust in copy. of a play licenses a theater manager Shepherd v. Conquest, 17 C. B. 427, right-Where two of three joint to use the translation for a specific 444, 84 ECL 427, 139 Reprint 1140. authors of a comic opera took out purpose, the licensee cannot confer

Originality and authorship, what copyrights thereon, they became a printer and publisher of the constitutes see supra 88 91-97.

constructive trustees for the third play the power to copyright it, and 26. Nisbet v. Golf Agency, 23 T. author, and were accountable to her a copyright so attempted to be taken L. R. (compiler). See also su- for her interest in the literary, propout is invalid. Koppel v. Downing, pra $$ 91-97.

erty destroyed by the publication 11 App. (D. C.) 93.

27. Schuberth v. Shaw, 21 F. Cas. and copyright. Maurel v. Smith, 220 23. Broder V. Zeno Mauvais No. 12,482; Walter V. Lane, [1900] Fed. 195. Music Co., 88 Fed. 74; Byrne v. Stat- A. C. 539, 2 BRC 312; Tree v. Bow- [b] Subsequent consent to unanist Co., (1914) 1 K. B. 622. See also kett. 74 L. T. Rep. N. S. 77; Nisbet thorized copyright. Where two of supra s 144.

v. Golf_Agency, 23 T. L. R.' 370. the joint authors of a comic opera (a) Biographer not appointed by [aBiographical notes made from had it published and copyrighted, subject of work-The fact that the replies to inquiries-Plaintiffs sent even though the third author did not person who writes a biography and out questions to a number of golf consent thereto, and although the has it copyrighted was not desig- players, and from the answers com- absence of her consent avoided pubnated by the subject of the biog-piled biographical notes in a golf lication, she might accept the wrong. raphy as his special biographer can- annual. Plaintiffs were the "au- ful publication and insist on her pronot of course have any effect on the thors' of the biographical notes. prietary rights, as though she had validity of the copyright. Gilmore Nisbet v. Golf Agency, 23 T. L. R. consented at the outset. Maurel v. V. Anderson, 38 Fed. 846. 370.

Smith, 220 Fed. 195, 24. Act March 4, 1909 (35 U. S. 28. Tree v. Bowkett, 74 L. T. Rep. [c] who are joint authors.-One St. at L. 1075 C 320 $ 62); Copy- N. S. 77.

who conceives the idea of a drawright Act, 1911 (1 & 2 Geo. V c 46 [a] Adapter of play an author.-ing and employs an artist to cxe$8.5, 19. 21). See also infra § 149. The adapter of a play, who intro- cute it under his direction may be

[a] In the English act of 1911 no duces into his version material al- deemed a joint author with the ar. definition of the term "author" is terations, is an "author of a dra- tist. Kenrick y. Lawrence, 25 Q. B. given other than that contained in matic piece," within the English D. 99. See also supra § 27. $ 5 (1), which provides that, sub- Dramatic Copyright Act (3 & 4 Wm. 38. Carter V. Bailey, 64 Me. 458, ject as therein mentioned, the au- IV c 15). Tree v. Bowkett, 74 L. T. 463, 18 AMR 273; Stevens v. Wildy, thor of a work is the first owner of Rep. N. S. 77.

19 L. J. Ch. 190; Powell v. Head, 12 the copyright therein, and 8 21.

29.

Wood v. Boosey, L. R. 3 Q. B. Ch, D. 686 (joint owners of copyright which provides that the

of 223, 18 ERC 578. See also supra take as tenants in common and not the original negative of photo-$ 111.

as joint tenants). graph is deemed to be the author of

[a] Piano score opera-The "If there be more than one author the work, and § 19 (1), which de- arranger, not the original composer, or assignee, all of either class, as fines the author of mechanical is the author of a piano score of an

the

may be, may have the work.

opera. Wood v. Boosey, L. R. 3 Q. copyright." Carter v. Bailey, supra. 25, Burrow-Giles Lith. Co. v. Sar- B. 223. 18 ERC 578 [aff L. R. 2 39. Photographs: Common-law ony, 111 U. S. 53. 66, 4 SCt 279, 28 Q. B. 340).

property in see supra § 17. StatuL. ed. 349 [quot Nottage v. Jackson, 30. Springfield v. Thame, 89 L. iory copyright in see supra § 118. 11 Q. B. D. 6271; Blume v. Spear, 30 T. Rep. N. S. 242. See also supra

40. Burrow-Giles Lith. Co. v. SarFed. 629; De Witt v. Brooks, 7 F. $ 96.

ony. 111 U. S. 53. 4 Sct 279. 28 L. Cas. No. 3,851; Atwill y. Ferrett, 2 [a] А newspaper paragrapher ed. 349 [aff 17 Fed. 591); Melville v. F. Cas. No. 640, 2 Blatchf. 39; Reed who condenses and rewrites a news Mirror of Life Co., [1895] 2 Ch. 531; V. Carusi, 20 F. Cas. No. 11,642, article is the author of the pub- Nottage v. Jackson, '11 Q. B. D. 627. Taney 72; Kenrick V. Lawrence, 25 lished paragraph, and not the con- [a] Authorship as applied to phoQ. B. D. 99; Nottage V. Jackson, 11 tributor of the original story, who tographs.-"The third

finding of Q. B. D. 627; Wood v. Boosey, L. R. is therefore not entitled to the copy- fact says, in regard to the photo3 Q. B. 223,' 18 ERC 578 [aft L. R. right under the former English stat. I graph in question, that it is a 'useful,

on

owner
a

of

a

case

48

But one who hires another to take a negative is it within the meaning of those terms as used in the not the author of it. 41

statute. The act of 1909, however, expressly pro[ý 149] 4. Works Made for Hire. A work may be vides that the word "author" shall include an emso far the product of the mind of its designer that ployer in the case of works made for hire. 46 he will be considered the author of it, although he [150] C. Proprietors-1. In General. Alhas had no part in its actual or manual execution;42 though the use of the word “proprietor" in the but a mere suggestion of the subject, without a copyright laws is as old as the legislation on the share in the design or execution, is insufficient to subject,47 the act of 1870 for the first time used the warrant a claim of authorship. 43

While one person

word in connection with the words "author, inby employing another to produce a work may be- ventor, and designer,' as one of the persons who come the proprietor” of the production," he is may obtain a copyright. It has continued to be not the "author," "inventor," or "designer" of so used ever since.49 As between the author and new, harmonious, characteristic, and from the original judgment against 1-(1) The person who suggests to graceful picture, and that plaintiff them was accordingly dismissed. another the general ideas on which made the same

entirely from These views of the nature of author- a sketch is to be framed is not the his own original mental concep- ship and of originality, intellectual author of the sketch within the tion to which he gave visible form creation, and right to protection con- meaning of the act. Tate v. Fullby posing the said Oscar Wilde in firm what we have already said." brook, (1908) 1 K. B. 821, 2 BRC 93, front of the camera, selecting and Burrow-Giles Lith. Co. v. Sarony,

14 AnnCas 428. (2) "But I do not arranging the costume, draperies, 111 U. S. 53, 60, 4 SCt 279, 28 L. ed. see how a gentleman who is incaand other various accessories in said 349 (aft 17 Fed. 591 ).

pable of drawing even such a very photograph, arranging the subject

41. Melville v. Mirror of Life Co., simple picture as a rough sketch of So as to present graceful outlines, [1895) 2 Ch. 531, 535 (where Nottage the human hand, and who did not, arranging and disposing the light v. Jackson, 11 Q. B. D. 627, was dis- in fact, set pencil to paper in the and shade, suggesting and evoking tinguished on the ground that in that matter, can be called the author of the desired expression, and from case the principal who claimed the the drawing. He suggested the subsuch disposition, arrangement, or copyright was not present at the ject, and made such limited suggesrepresentation, made entirely by taking of the photograph. Kekewich, tions as to the treatment as the subplaintiff, he produced the picture in

J.. said: In that case, no doubt, ject admitted of; but it seems to me suit.' These findings,

ihat in an Act which gives copyright we

think, the principal was the gentleman who show this photograph to be an orig- sent some one to Kennington Oval to to drawings the author must mean a inal work of art, the product of take the photographs of the Austra- person who has at least some subplaintiff's intellectual invention, of

lian cricketers playing there, and stantial share in putting the touches which plaintiff is the author, and of the court did not see its way to say

on to paper. Such was very clearly

the view of every member of the a class of inventions for which the ing that a gentleman sitting in his Constitution intended that Congress

room in Regent Street could be the Court of Appeal in Nottage v. Jackshould secure to him the exclusive author of a photograph which was son, 11 Q. B. D. 627, and although right to use, publish and sell, as it being taken at Kennington Oval"); that case might perhaps have been

decided Wooderson v. Tuck. [1887] W. N. 209.

without has done by section 4952 of the Re

saying what is vised Statutes.

meant by the author of a drawing The question here

See also infra § 149.

42. presented is one of first impression

Hatton v. Kean, 7 C. B. N. S. or painting, and so, perhaps, in a 268, 97

very strict

ECL 268, 141 Reprint 819; under our Constitution, but an

sense, in

the observation structive case of the same class is Stannard v. Harrison, 24 L. T. Rep.

was extra-judicial, still it was very N. S. 570.

nearly necessary to the determinathat of Nottage v. Jackson, 11 Q. B.

tion of that case, and

"I am of opinion, that, under that D. 627, decided in that court on ap

should follow

it even if I differed from it. But peal, August, 1883.

statute [8 Anne c19), the person,

The first section of the act of 25 and 26 Victoria, chap. who forms the plan, and who em

as it entirely expresses my own view, 68, authorizes the author of a photobarks in the speculation of a work,

I can act upon my own view with and who employs various persons to

less hesitation." Kenrick graph, upon making registry of it un

v. Lawder the copyright act of 1882, to have compose different parts of it, adap

rence, 25 Q. B. D. 99, 106. ted to their own peculiar acquire

[b] The person who conceived a monopoly of its reproduction and

the idea of ments-that he, the person who so

engraving, where multiplication during the life of the author.

neither the design nor the general The plaintiffs in that case forms the plan and scheme of the

arrangement of the print was his indescribed themselves as the authors work, and pays different artists of of the photograph which was pirated, conditions, contribute to it, is the

vention, but who employed others to his own selection, who, upon certain

compose and execute the print, who in the registration of it.

designed and arranged the print and peared that they had arranged with author and proprietor of the work, if not within the literal expression,

the parts that composed it and exethe captain of the Australian crickat least within the equitable mean

cuted the same, is not entitled to a eters to take a photograph of the ling of the statute of Anne, which,

copyright. under the act of April 29, whole team in group; and they being a remedial law, is to be con

1802. Binns v. Woodruff, 3 F. Cas. sent one of the artists in their emstrued liberally." Per Sir John

No. 1,424, 4 Wash. C. C. 48. ploy from London to some country Leach in Barfield v. Nicholson, 2 L.

See infra $_152. town to do it. The question in the

45. J. Ch. 0. S. 90. 102 [quot Shepherd v.

Atwill v. Ferrett, 2 F. Cas. case was whether the plaintiffs, who

No. 640, 2 Blatchf, 39; De Witt v. owned the establishment in London, Conquest, 17 C. B. 427, 443, 84 ECŻ

Brooks. 7 F. Cas. No. 3,851; Pierpont where the photographs were

427, 139 Reprint 1140].
made
43. Binns v. Woodruff, 3 F. Cas.

V. Fowle, 19 F. Cas. No. 11,152, 2 from the negative and were sold,

Woodb. & M. 23; Kenrick v.
No. 1,424, 4 Wash. C. C. 48; Tate v.

Lawand who had the negative taken by Fullbrook, (1908] 1 K. B, 821, 2 BRC

rence, 25 Q. B. D. 99; Levy v. Rutley, one of their men, were the authors, 93. 14 AnnCas 428; Shepherd v. Con

L. R. 6 C. P. 523 (joint authorship): or the man who, for their benefit,

Jeffreys V. Baldwin, Ambl. 164, 27 quest, 17 C. B. 427, 84 ECL 427, 139 took the negative. It was held that Reprint 1140.

Reprint 109; Shepherd v. Conquest, the latter was the author, and the "We do not think it necessary in

17 C. B. 427, 84 ECL 427, 139 Reaction failed, because plaintiffs had described themselves as authors.

the present case to express any opin- print 1140.
ion whether, under any circum-

[a] A person who hires another Brett, M. R., said, in regard to who stances, the copyright in a literary

to write a book and gives him the was the author: "The nearest I can

work, or the right of representation, description and scope of the work is to, is that it is the person can become vested ab initio in an

not the author. The literary man who effectively is near he employer other than the person who

who writes the book and prepares it can be, the cause of the picture has actually composed or adapted a

for publication is the author, and the which is produced, that is, the per- literary work. It is enough to say,

copyright is intended to protect him son who has superintended the ar- in the present case, that no such ef

and not the person who employed rangement, who has actually formed

him. fect can be produced where the em

De Witt v. Brooks, 7 F. Cas. the picture by putting the persons ployer merely suggests

No. 3,851. the

subin position, and arranging the place ject, and has no share in the de

Photographs see supra § 148. where the people are to be—the man

46. sign or execution of the work, the

Act March 4, 1909 (35 U. S. who is the effective cause of that.' whole of which, so far as any char

St. at L. 1075 C 320 $ 62); Gaumont Lord Justice Cotton said:

'In my
acter of originality belongs to it,

Co. v. Hatch, 208 Fed. 378; National opinion, "author" involves originat- flows from the mind of the person

Cloak, etc., Co. v. Kauffman, 189 Fed. ing, making, producing, as the inven- employed. It appears to

215.

us an tive or master mind, the thing which

47. abuse of terms to say, that, in such

See 1 U. S. St. at L. 124 c 15 is to be protected. whether it be a a case, the employer is the author | $8 2, 3, 4, 6; 2 U. S. St. at L. 171 drawing, or a painting, or a photo of a work to which his mind has not C 36 $$ 1, 3; 4 U. S. St. at L. 436 graph;'

and Lord Justice Bowen contributed an idea: and it is upon C 16 $ 3; 11 U. S. St. at L, 139 C 169 said that photography is to be treat- the author in the first instance that § 1; 13 U. S. St, at L. 510 c 126 § 2; ed for the purposes of the act as an the right is conferred by the statute 8 Geo. II c 13 $ 1; 17 Geo. III c 57. art, and the author is the man who which creates it." Shepherd v. Con- 48. 16 U. S. St. at L. 198 C 230 $ 86. really represents, creates, or gives quest, 17 C. B. 427, 444, 84 ECL 427. 49. Act March 4, 1909 (35 U. S. effect to the idea. fancy, or imagi- | 139 Reprint 1140 (per Jervis, C. J.). | St. at L. 1075 C 320' § 8); U. S. Rev.

The appeal of plaintiffs [a] Suggestion of idea for sketch. st. 4952.

an

a

44.

come

as

as

nation.

[ocr errors]

or

We

V.

[a]

the proprietor, the sole right of copyright is in the author or proprietor has granted to another the proprietor. 50

only certain limited rights in his production, less [6 151] 2. Who is a Proprietor.51 The word than the whole ownership, such as the right to “proprietor," as used in the copyright law, in- make only serial or magazine publication, or to cludes the author, inventor, or designer and his dramatize or perform it, or to make other like assigns.52

The owner of the incorporeal common- limited uses of it,57 the other rights being reserved law right, as distinguished from the owner of the to the author or his assigns, such owner of the physical object, such as a manuscript or a paint- limited right is a mere licensee, not a proprietor, ing, is the proprietor entitled to copyright.5 But and cannot obtain a valid copyright for the aua mere licensee is not a proprietor, and hence is not thor's work.59 But if such person is authorized by entitled to copyright the licensed work.54 Where the author or proprietor to take out the copyright

50. Dielman v. White, 102 Fed. 20 AnnCas 1173 [aff 166 Fed. 589]; of no great difficulty. See infra 892.

Ford v. Charles E. Blaney Amuse- 180. (3) Another safe way is to 51. Law reports see infra § 163. ment Co., 148 Fed. 642; Fraser v. provide by express contract that the

52. Dam v. Kirk la Shelle Co., Yack, 116 Fed. 285, 53 CCA 563. magazine proprietor shall copyright 166 Fed. 589 [aff 175 Fed. 902, 99 “The claim seems to be that when the contribution in his own name as CCA 392, 41 LRANS 1002, 20 Ann a periodical contains articles trustee for all parties in interest. Cas 1173).

pictures made by persons who have Harper v. Donohue, 144 Fed. 491 (aff (a) The term "proprietor" (1). is not transferred their rights to the 146 Fed. 1023 mem, 76 CCA 678 not limited to the person who has publisher the copyright of

the mem]. See also cases infra note a copyrightable thing made for him periodical does not cover them. 60; and infra § 156. under such circumstances as to be- have no reason to question the cor- 56. Saake Lederer, 174 Fed. come the proprietor, as, for instance, rectness of the defendant's conten- 135, 98 CCA 571 (rev 166 Fed. 810); one who causes a digest to be com- tion. It is sufficient to say that Koppel v. Downing, 11 App. (D. C.) piled or a picture to be painted. the trial court ruled in accordance 93. American Tobacco

Co.

v. Werck- therewith and submitted the question [a] Rule applied.-A contract by meister, 207 U. S. 284, 28 SCt 72, | involved to the jury. The verdict which a foreign author of a dramatic 52 L. ed. 208, 12 AnnCas 595. (2) established that the artists sold their composition granted the stage rights "Construing these statutes together, rights in these pictures to the plain- in the United States to another, and it would seem that the word 'propri- tiff." Mail, etc., Co. V. Life Pub. agreed to copyright the play in this etor,' in the fourth section, must Co., supra.

country, did not convey the author's practically have the same meaning

Rule applied to magazine right of copyright, and an attempted as legal assigns' in the first section, serial.-(1) Dr. Oliver Wendell copyright by the grantee in his own and was designed to give to the legal Holmes lost the copyright of the name was invalid and will not supassignee of any author or authors Professor at the Breakfast Table' port an action by him for infringethe right to take out the copyright by licensing its serial publication in ment. Saake v. Lederer, 174 Fed. in his own name." Mifflin v. R. H. the Atlantic Monthly while retaining | 135, 98 CCA 571 (rev 166 Fed. 810, White Co., 190 U. S. 260, 262, 23 for himself the general ownership of and dist Belford v. Scribner, 144 U. SCt 769, 47 L. ed. 1040 (aff 112 Fed. it. Mifflin v. R. H. White Co., 190 S. 488, 12 SCt 734, 36 L. ed. 514). 1004, 50 CCA 661, 61 LRA 134 (aff U. S. 260, 263, 23 SCt 769, 47 L. ed. [b] A mere temporary licensee in 107 Fed. 708)].

1040 (aff 112 Fed. 1004, 50 CCA 661, the use of the manuscript of a play [b] Assignee of right to reproduce 61 LRA 134 (aff 107 Fed. 708)) does not come within the meaning & painting-Where an artist sold to (where the court said: “The entry of the term "proprietor so as to be one person a picture which he had of the Atlantic Monthly by Ticknor entitled to enter the play for copypainted, reserving all rights of re- & Fields was evidently not intended right. Koppel v. Downing, 11 App. production, and afterward assigned for the protection of the author of (D. C.) 93. the exclusive right of reproduction, each article therein appearing. but 57. Fitch y. Young, 230 Fed. 743 publication, and copyright to another for their own protection, and to pre- (aff 239 Fed. 1021 mem,

CCA person, it was held that the latter vent the republication of the Decem- 664 mem) (right to publish with person became the “proprietor" of ber number of the Atlantic Monthly. dramatic rights reserved to author): the painting within the meaning of While, without further explanation, “The peculiar form of assignment that term as used in the copyright it might, perhaps, be inferred that of rights of reproduction, conveying law, and that the statutory copy; the author of a book who places it part and reserving part, presents an right therein was properly secured in the hands of publishers for pub- interesting question which need not by him. Werckmeister v. Springer lication, might be presumed to in- be here discussed." Bong v. Alfred Lith. Co., 63 Fed. 808. To

tend to authorize them to obtain a S. Campbell Art Co., 155 Fed. 116. effect American Tobacco

Co. copyright in their own names, Bel- 83 CCA 576 [aff 214 U. S. 236, 29 Werckmeister, 207 U. S. 284, 28 SCt ford v. Scribner, 144 U. S. 488, 12 SCt 628, 53 L. ed. 979, 16 AnnCas 72. 52 L. ed. 208, 12 AnnCas 595. SCt 734, 36 L, ed. 514; Pulte v. Derby, 1126).

Employer or employee see infra 20 F. Cas. No. 11,465, 5 McLean 328, 58. License distinguished from as. § 152.

it is apparent that there was signment see infra § 24S. Photographer or customer see such intention in this case, inasmuch 59. Fitch v. Young, 230 Fed, 743 infra § 153.

as almost immediately after the pub- (aff 239 Fed. 1021 mem, 152 CCA 53. American Tobacco Co.

lication of the December number of 664 mem); Harper v. Donohue, 144 Werckmeister, 207 U. S. 284, 28 SCt the magazine, Dr. Holmes himself Fed. 491 (aff 146 Fed. 1023 mem. 76 72, 52 L. ed. 208, 12 AnnCas 595; entered the book under its correct CCA 678 mem). And see cases supra Bong v. Alfred S. Campbell Art Co., title for copyright. That right was notes 55-58. 155 Fed. 116, 83 CCA 576 (aff 214 never assigned until 1895, when it [a] Reservation of dramatic rights. U. S. 236, 29 SCt 628, 53 L. ed. 979, was turned over to the plaintiffs by (1) Where

author sells 16 AnnCas 1126). See also supra $8the executor of the author. Had the story to a magazine, but reserves the 5, 67, 146.

copyright been entered by Ticknor & right to dramatize it, it is doubtful 54. Mifflin v. R. H. White Co., 190 Fields, as agents of Dr. Holmes, it whether a copyright of the magazine U. S. 260, 23 SCt 769, 47 L. ed. 1040 is possible it might have been sus- containing the story will be sufsa ff 112 Fed. 1004, 50 CCA 661, 61 tained, but there is nothing to in- ficient to protect the dramatic rights. LRA 134 (aff 107 Fed. 708)]; White-dicate that Ticknor & Fields were Dam v. Kirk la Shelle Co., 175 Fed. Smith Music Pub. Co. v. Apollo Co., acting for any one else than them- 902, 905, 906, 99 CCA 392. 41 LRANS 139 Fed. 427 [aff 147 Fed. 226, 77 selves; and there is nothing to show 1002, 20 AnnCas 1173 (aff 166 Fed. CCA 368 (aff 209 U. S. 1, 28 SCt that Dr. Holmes ever assented to 589) (where the court said: "The 319, 52 L, ed. 655, 14 AnnCas 628)]; their copyrighting his work. It is next question is whether the pubFraser v. Yack, 116 Fed. 285, 53 CCA impossible to see how the copyright | lishing company as proprietor of the 563. See also American Tobacco Co. subsequently obtained by Dr. Holmes story duly complied with the statute v. Werckmeister, 207 U. S. 284, 28 can derive any additional support and obtained a valid copyright proSCt 72. 52 L. ed. 208. 12 AnnCas from the fact that Ticknor & Fields tecting

the

dramatic rights. 595 (where this point was raised and chose to copyright the final chapters question is raised but that the pubconsidered good, but the court found of the work in the Atlantic Monthly, lishing company took all the steps that the claimant was a proprietor since there is nothing to indicate required by the statute to enter for and not a mere licensee). And see that he even knew that any such copyright in its supra § 145.

proceeding was contemplated, much number of the Smart Set magazine Assignments and licenses gener- less that he authorized it"). See containing the story under the title ally see infra $$ 245-262.

also Mifflin v. Dutton, 190 U.'S. 265, of the magazine. It is claimed, how, 55. Mifflin v. R. H. White Co., 190 23 sct 771, 47 L. ed. 1043 (where, ever, that such steps accomplished U. S. 260, 23 SCt 769, 47 L. ed. 1040 under somewhat similar circum

more than to obtain such pro(aff 112 Fed. 1004, 50 CCA 661, 61 stances, the copyright was lost in tection the publishing company LRA 134 (aff 107 Fed. 708)]; Holmes "The Minister's Wooing" by Harriet needed as publishers of the maga; v. Hurst, 174 U. S. 82, 19 SCt 606, 43 Beecher Stowe). (2) The safe way zine. Assuming that Dam retained L. ed. 904; Mail, etc., Co. v. Life Pub. to secure the author's rights in such the dramatic rights to the story, Co., 192 Fed. 899. 900, 113 CCA 377;

is to have the copyright in there would be much force in this Dam v. Kirk la Shelle Co., 175 Fed. his contributions separately reg- contention. In such a case we doubt 902, 99 CCA 392, 41 LRANS 1002, 'istered in his own name-a matter very much whether the steps which

152

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