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for the common benefit of all concerned, he may do right, and a fortiori this is true under the later so and the copyright will be valid, as under such a statutes in which the “proprietor” of a work is contract such person is a proprietor of the legal expressly mentioned as a person who may obtain a title, holding it in trust for the protection of his copyright therein. But the right of the employer own and all other interests. In support of the to the copyright which may be had in the product copyright such authority will readily be implied, in of his employee is dependent on the contract of

61 the absence of anything to the contrary.

A cor

employment. Where there is an express agreement, poration or an unincorporated joint stock asso- its terms will of course govern. Where there is ciation63 may be a proprietor.

no express agreement, the intention of the parties [ 152] 3. Employer or Employee. Under the must be determined from the attendant circumearly statute giving copyright to the author or his ştances, which may be such as to imply that the "assigns," it was held that a person who employs copyright shall be in the employer,67 and such is another to prepare a work may, by virtue of the the legal implication where nothing further appears contract of employment, and without any express than that the work was produced by one employed assignment, become the owner of the literary prop- and paid to produce it. The court ought generally erty therein and be entitled to the statutory copy- to draw the inference that, if an author is employed the publishing company took to copy- LRA 134 (aft 107 Fed. 708)]; Brady | design in order to be the proprietor), right its magazine, especially in Reliance Motion Picture Corp., See also supra § 29. view of the form of the copyright 232. Fed. 259; Fitch v.: Young. 230 (a) Gratuitous services.-It apnotice, would have been sufficient to Fed. 743 (aff 239 Fed. 1021 mem, 152 peared that Lawrence, the plaintiff, protect the dramatic rights.

CCA 664 mem); Brady v. Reliance had given his services gratuitously to In view of this decision by the Motion Picture 'Corp., 229 Fed. 137, Mrs. Wheaton, the proprietor of Supreme Court, we think that had | 143 CCA 413; Dam v. Kirk la Shelle Wheaton's Elements of International Dain retained the dramatic rights to Co., 175 Fed. 902, 99 CCA 392. 41 Law, in preparing notes and other his story the entry of the magazine LRANS 1002, 20 AnnCas 1173 (aff 166 matters to be published in a new and the notice of copyright would Fed. 589); Harper v. Donohue, 144 edition of the work. It was held have been insufficient to protect Fed. 491 (aff 146 Fed. 1023 mem, 76 that Mrs. Wheaton was the proper them"). But see Ford v. Charles E. CCA 678 mem); White-Smith Music person to take out the statutory Blaney Amusement Co., 148 Fed. 642 Pub. Co. v. Apollo Co., 139 Fed. 427 copyright for the new edition of the (holding that the right to dramatize (aff 147 Fed. 226, 77 CCA 368 (aff work. Lawrence v. Dana, 14 F. Cas. a story may be reserved by the 209 U. S. 1, 28 śct 319, 52 L. ed. No. 8,136, 4 Cliff. 1. author while the right to publish and 655, 14 AnnCas 628)); Mifflin

65. American Tobacco Co. copyright it is sold and assigned to Dutton, 112 Fed. 1004, 50 CCA 661, Werckmeister, 207 U. S. 284, 28 sct another who is entitled to copyright 61 LRA 134 (aft 107 Fed. 708, and 72, 52 L. ed. 208, 12 AnnCas 595; Nait as proprietor). See also Harper aff 190 U. S. 260, 23 SCt 769, 47 L. ed. tional Cloak, etc., Co. v. Kaufman, v. Donohue, 144 Fed. 491 (aff 146 1040).

189 Fed. 215; Dielman v. White, 102 Fed. 1023 mem, 76 CCA 678 mem] (a). Validation by adoption.—The Fed. 892; Colliery Engineer Co. v. (where the copyright was supported, proprietor of a manuscript transla- United Correspondence Schools Co., but only because the contract pro- tion of a play licensed a theater 94 Fed. 152; Mutual Adv. Co. v. Refo, vided that the publisher should pro- manager to use the translation for 76 Fed. 961; Black v. Henry G. Allen cure a copyright for the benefit of a specific purpose. The licensee con- Co., 56 Fed. 764; Carte v. Evans, 27 both itself and the author); Out- ferred on a publisher of the play the Fed. 861; Schumacher v. Schwencke. cault v. Lamar, 135 App. Div. 110, authority to copyright it, which he 25 Fed. 466, 23 Blatchf. 373; Heine 119 NYS 930 (dictum that the as- did, but the copyright was invalid. V. Appleton. 11 F. Cas. No. 6,324. 4 signment of the right to copyright In a suit by the publisher against Blatchf. 125; Com. Desilver, 3 certain cartoons, reserving dramatiza- one infringing his alleged copyright, Phila. (Pa.) 31. tion rights, confers the right to the proprietor of the manuscript can

66. Mallory V. Mackaye, 86 Fed. copyright on such assignee). (2) "I not, by adoption, constitute plaintiff 122 (mod on other grounds 92 Fed. think that play right and copyright a trustee for himself, on an agree

749, 34 CCA 653). are quite distinct under the statute, inent to share the recovery with him [a] Special agreement.-An artist in spite of the fact that printed pub- and thus to validate such copyright. who accompanied a government exlication will forfeit both, and that Koppel v. Downing, 11 App. (D. C.) pedition to Japan in the capacity of one statutory copyright will protect 93. Compare Maurel v. Smith, 220 master's mate, and with the underboth. If so, Clyde Fitch was jus- | Fed. 195 (where a copyright by two standing that all sketches and drawtified in reserving his common-law of three joint authors was validatedings he should make should belong play right from the original assign- | by adoption by the third).

to the government, has no right to ment to the MacMillan Company, and Copyright by trustee see infra a copyright on his sketches, drawthey could by the necessary formal- $ 156.

ings, and engravings. They have beities on the printed play, create a 61. Mifflin v. Dutton, 190 U. S. come the property of the governstautory play right, which they held 265, 23 SCt 771, 47 L. ed. 1043 (aff ment. Heine v. Appleton, 11 F. Cas. in trust for him, and a statutory 112 Fed. 1004, 50 CCA 661, 61 LRA No. 6,324, 4 Blatchf. 125; Com. copyright which they held benefi- 134] (holding that, where the author Desilver, 3 Phila. (Pa.) 31. cially. This is the effect of Judge of a contribution to a magazine en

67. Paige v. Banks, 13 Wall. (U. Holt's decision as to the right to ters it for copyright immediately S.) 608, 20 L. ed. 709. dramatize, a similar right, in Ford after its publication in the magazine, 68. Bleistein v. Donaldson Lith. V. Charles E. Blaney Co., 148 Fed. there can be no presumption that Co., 188 U. S. 239, 23 SCt 298, 47 L. 642. Judge Noyes in Dam v. Kirk la there was an intention to authorize ed. 460; National Cloak, etc.. Co. v. Shelle, 175 Fed. 902, 99 CCA 392, 41 the publishers of the magazine to Kaufman, 189 215; Dielman v. LRANS 1002, 20 AnnCas 1173, in obtain a copyright in their

White, 102 Fed. 892; Colliery Engiciting Ford v. Charles E. Blaney Co., names); Brady v. Reliance Motion

Co. United Correspondence supra, speaks of this as 'probably' | Picture Corp.,_232 Fed. 259; White- Schools Co., 94 Fea. 152; Carte v. the law, and Judge Hazel had Smith Music Pub. Co. v. Apollo Co., Evans, 27 Fed. 861; Coñl. v. Desilver, held in the court below. 166 Fed. 139 Fed. 427 [aff 147 Fed. 226, 77 3 Phila. (Pa.) 31; Lawrence v. Aflalo, 589.

If, on the other hand, CCA 368 (aff 209 U. S. 1, 28 sct 319, (1904) A. c. 17, 1 BRC 314 (appr the play right and copyright be 52 L. ed. 655, 14 AnnCas 628)].

Sweet v. Benning, 16 C. B. 459, 81 deemed to be indivisible, in such 62. National Cloak, etc., Co.

ECL 459, 139 Reprint 838); Lamb v. sense that one may not be assigned Kaufman, 189 Fed. 215: Edward Evans, [1893) 1 Ch. 218. without the other, while it is true Thompson Co. American Law (a) Work executed commisthat the MacMillan Company would Book Co., 119 Fed. 217; Mutual Adv. sion.-In general, when an artist is become only a licensee under the Co. v. Refo, 76 Fed. 961; Schumacher commissioned to execute a work of assignment to Clyde Fitch, yet there V. Schwencke, 25 Fed. 466, 23 Blatchf. art not in existence at the time when would be a fatal defect in the copy373.

the commission is given, the burden right itself. For in that case the

Bleistein v. Donaldson Lith. of proving that he retains a copyMacMillan Company could hardly be Co., 188 U. S. 239, 23 SCt 298, 47 L. right in the work of art executed, regarded as the 'proprietor' of the ed. 460.

sold, and delivered under the comindivisible common-law literary prop

64. Little v. Gould, 15 F. Cas. No. mission rests heavily on the artist; erty out of which alone the stat- 8,394, 2 Blatchf. 165. But see At- when a patron gives a commission to utory play right and copyright could will v. Ferrett, 2 F. Cas. No. 640, 2 an artist, a strong implication arises be created.

It can hardly be pos- Blatchf. 39; De Witt v. Brooks, 7 F. that the work of art commissioned sible to treat this as an indivisible Cas. No. 3,851 (both holding that the is to belong unreservedly and withright for the purpose of one kind employer was not entitled to copy- out limitation to the patron, and that of assignment and as divisible for right because

not

the "author"); the patron has a right to make and another." Fitch v. Young, 230 Fed. Binns v. Woodruff, 3 F. Cas. No permit to any extent reproductions 743, 744, 745 [aff 239 Fed. 1021 mem, 1.424, 4 Wash. C. C. 48 (decided under of the work of art sold to him. Diel152 CCA 664 mem).

the peculiar provisions of the act of man v. White, 102 Fed. 892 (holding 60. Mifflin v. R. H. White Co., 190 April 29, 1802, in regard to prints that plaintiff, an artist who executed U. S. 260, 23 sct 769. 47 L. ed. 1040 and engravings, and holding that the certain panels for the government to (afr 112 Fed. 1004, 50 CCA 661, 61 l employer must be the author of the be placed in the congressional li

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by the proprietor of an encyclopedia or similar to produce, subject to the conditions imposed by work to contribute articles to that work, and is the statute.73 Many of the decisions under these to be paid therefor, it is the intention of the parties statutes have been made obsolete by the changes that the copyright shall belong to the employer. 69 in the law, but some of them still have value and are But the mere fact of employment does not neces- of general application, particularly on the questions sarily make the employer the absolute owner of his of the contract and intent of the parties under employee's productions; if there is nothing in the particular circumstances. By express provision, terms and conditions of the employment and the copyright in portraits and engravings executed purattendant circumstances implying that the copyright suant to order for a valuable consideration belongs shall belong to the employer it may be secured by to the person who gave the order.74 Where tře the author.

work is an article or contribution to a newspaper, Work not within scope of employment. An em- magazine, or other similar periodical, in the absence ployer cannot be considered as the proprietor of of any agreement to the contrary the author may rewhat is produced by an author independently of the strain publication otherwise than in a newspaper, duties for which the latter is employed and paid." magazine, or periodical." Prior statutes, in such

In England, under the Copyright Act of 1911, the cases, likewise prohibited "separate publication" employer is entitled to the copyright only where the by the employer and gave that right to the author work was made in the course of employment under after the expiration of twenty-eight years for foura contract of service or apprenticeship. Under teen years.78 former statutes not so narrowly limited, the em- Under the Canadian Copyright Act the employer ployer of an author was entitled to the copyright for whom a work is made for hire is entitled to of works which such author was employed and paid the copyright in the absence of any reservation of it

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72

case

brary, could not enjoin a publication (a) Play produced by person em- to restrain the publication of the of photographs of the panels which ployed as stage manager and actor- work, otherwise than as part of a were taken with the consent of the Where it appeared that Boucicault, newspaper, magazine or similar neri. proper government officials, although an actor and dramatic author, while odical (ibid., S. 5 (1) (b)." Hals. he had duly entered the panels for in the employment of Stewart as a bury L. Eng. Suppl. [1917) p 362. copyright).

performer and stage manager, ver- 73. St. 5 & 6 Vict. c 45 $ 18; Law. (b) An engraver in the employ of bally agreed with the latter to write rence Aflalo, (1904) A. C. 17, 1 BRC the government can have no copy- a play, and that it should be per- 314 [appr Sweet v. Benning. 16 C. B. right in a chart prepared for the formed at Stewart's theater so long 459, 81 ECL 459, 139 Reprint 838) government. Copyright, 7 Op. Atty.- as it should continue to draw good (no implied assignment until payGen. 656. audiences, it was held that Bouci- ment in

of contribution to Photographer or customer see infra cault, and not Stewart, was the periodical); Ward, Lock & Co., Ltd. § 153.

proper person to take out the copy- v. Long, (1906) 2 Ch. 550; Stacke69.

Afialo v. Lawrence, [1904) A. right. Roberts v. Myers, 20 F. Cas. mann v. Paton, (1906) 1 Ch. 774; C. 17 (rev (1903) 1 Ch. 318 (aff (1902] No. 11,906.

Petty v. Taylor, (18971 1 Ch. 465; 1 Ch. 264)) (express agreement un- 72. Byrne v. Statist Co., (1914) 1 Lamb v. Evans, 11893) i Ch. 218; necessary); Lamb v. Evans, (1893) K. B. 622. See also supra § 144. Marzials y. Gibbons, L. R. 9 Ch. 518; 1 Ch. 218; Sweet v. Bennings, 16 C. [a] Editorial employee of news- Trade Auxiliary Co. v. MiddlesborB. 459, 81 ECL 459, 139 Reprint 838. paper.-Plaintiff who was perma- cugh, etc., Tradesmen's Protection

[a] The English Copyright Act of nently employed on the editorial staff Assoc., 40 Ch. D. 425; Walter V. 1911 has perhaps changed this rule of a newspaper, was specially em- Howe, 17 Ch. D. 708; Grace v. Newby providing that the author shall be ployed and paid by the proprietors of man, L. R. 19 Eq. 623, 7 ERC 86; the owner of the copyright except the paper to translate and summarize Shepherd v. Conquest, 17 C. B. 427, only where the work was produced a speech reported in a foreign lan- 84 ECL 427, 139 Reprint 1140; Sweet under a contract of service. See guage, for the purpose of publication v. Benning, 16 C. B. 459, 81 ECL 459, Copinger Copyright (5th ed) p 207. as an advertisement in their paper 139_Reprint 838; Hatton v. Kean, 7 And see supra § 144; infra this sec- for a foreign state, and this work C. B. N. S. 268, 97 ECL 268, 141 Retion.

was done entirely in his own time print 819; Cary v. Longman, 1 East 70. Callaghan v. Myers, 128 U. S. and independently of his ordinary 358, 102 Reprint 138, 7 ERC 78; 617, 9 SCt 177, 32 L. ed. 547; Atwill duties. The summarized translation Smith v. Johnson, 4 Giffard 632, 66 v. Ferrett, 2 F. Cas. No. 640, 2 was published in the paper as an Reprint 859: Cox v. Cox, 11 Hare 118, Blatchf. 39; Boucicault v. Fox, 3 F. advertisement with the words "Trans- 45 EngCh 118, 68 Reprint 1211; MayCas. No. 1,691, 5 Blatchf. 87; Roh-lated from the Portuguese language hew v. Maxwell, i Johns. & H. 312, erts v. Myers, 20 F. Cas. No. 11,906, by F. D. Byrne" printed at the end. 70 Reprint 766; Browne v. Cooke, 11 Brunn. Coll. Cas. 698; Levy V. Rut- Such translation was an "original Jur. 77; Sweet v. Shaw, 3 Jur. 217; ley, L. R. 6 C. P. 523; Jefferys V. literary work," within § 1 of the Delfe v. Delamotte. 3 Kay & J. 581, Baldwin. Ambl. 164. 27 'Reprint 109; Copyright Act of 1911, of which 69 Reprint 1241; Collingridge v. EmShepherd v. Conquest, 17 C. B. 427. plaintiff was the author, and plaintiff mott, 57 L. T. Rep. N. S. 864; Wallen84 ECL 427, 139 Reprint 1140; Sweet was the Owner of the copyright stein v. Herbert, 16 L. T. Rep. N. S. v. Benning, 16 C. B. 459, 81 ECL 459, therein within $ 5. Byrne v. Statist 453; Strahan v. Graham. 16 L. T. 139 Reprint 838; Hereford v. Griffin, Co., [1914) 1 K. B. 622.

Rep. N. S. 87 [aff 17 L. T. Rep. N. S. 16 Sim. 190, 39 EngCh 190, 60 Re- [b] Lord Halsbury's summary - 457); Hereford v. Griffin, 16 Sim. 190, print 846.

"The author of a work is in general 39 EngCh 190. 60 Reprint 846; Rich[a] Nocessity of contract.-"The the first owner of the copyright ardson v. Gilbert, 1 Sim. N. S. 336, title to literary property is in the therein, but (i.) where, in the case 40 EngCh 336, 61 Reprint 130; Barauthor whose intellect has given of an engraving, photograph, or por: field v. Nicholson, ? Sim. & st. 1. 1 birth to the thoughts and wrought trait, the plate. or other original EngCh 1, 57 Reprint 245; Nicol v. then into the composition, unless was ordered by some other person, Stockdale, 3 Swanst. 687, 36 Reprint he has transferred that title, by con- and was made for valuable considera- 1023; Chantrey v. Dey, 28 T. L. tract, to another." Boucicault v. Fox, tion in pursuance of that order, then, R. 499; Nisbet v. Golf Agency. 23 3 F. Cas. No. 1,691, 5 Blatchf. 87, 95. in the absence of any agreement to

T. L. R. 370; Geissendorfer v. Men(b) A court reporter, although a the contrary, the person by whom delssohn, 13 T. L. R. 91; Trade Auxilsworn public officer receiving a fixed such plate or other original was or- iary v. Jackson, 4 T. L. R. 130; salary for his labors, is not, in the dered is the first owner of the copy- Wyatt v. Barnard. 3 Ves. & B. 77, 35 absence of statute, deprived of any right (Copyright Act, 1911 [1 & 2 Reprint 408; Black v. Imperial Book privilege of taking out a copyright Geo. 5, c. 461), s. 5 (1) (a); (ii.) Co., 5 Ont. L. 184. (app dism 8 Ont. which he would otherwise have. where the author was in the employ

L. 9 (dism app 35 Can. S. C. 488)). Callaghan v. Myers, 128 U. S. 617, 9 ment of some other person under a

Photographer or customer see infra SCt 177. 32 L. ed. 547.

contract of service or apprenticeship $ 153. [c] An agreement to write a play and the work was made in the course 74. Copyright Act, 1911 (1 & 2 for another, and to act in it, with a of his employment by that person,

Geo. V c 46 $ 5 (1)). share in the profits as compensation, the person by whom the author was 75. Copyright Act, 1911 (1 & 2 does not create a legal or equitable employed is, in the absence of any Geo. V c 46 5 (1) (b)). title in the latter which will prevent agreement to the contrary, the first 76. Copyright Act, 1842 (5 & 6 the author from taking out a copy- owner of the copyright; but where Vict. c 45 g 18); Trade Auxiliary Co. right. Boucicault v. Fox, 3 F. Cas. the work is an article or other con- v. Middlesborough, etc., Tradesmen's No. 1,691, 5 Blatchf. 87. tribution to a newspaper, magazine, Protection Assoc.,

40 Ch. D. 425: 71. Roberts v. Myers, 20 F. Cas. or similar periodical, there is in the Smith v. Johnson, 4 Giffard 632, 66 No. 11,906, Brunn, Coll. Cas. 698. See absence of any agreement to the con- Reprint 859; Mayhew v. Maxwell, 1 also supra § 29.

trary, reserved to the author a right' Johns. & H.' 312, 70 Reprint 766.

therein.78

7

80.

to the employee."

that, in the absence of any agreement to the con[153] 4. Photographer or Customer. In the trary, the person by whom the plate or other origiUnited States the right to obtain a copyright in nal was ordered, and for whom it was made for a photographs follows the common-law property right valuable consideration, pursuant to such order, shall The photographer is entitled to the copy- be the first owner of the copyright. 83

This was right as author and proprietor, where the photo- substantially the rule under the former statute.84 graph is taken at his own instance, without any con- Where no consideration is given, the copyright betract of employment." But where the photographer longs to the photographers notwithstanding a subis employed to produce the picture, the customer sequent purchase of copies. is entitled to the copyright as being the proprietor [$ 154] D. Assigns.87 The common-law property of it.8o Celebrities, requested by photographers to in any intellectual production may be assigned by give sittings without any charge being made for the the author, inventor, or designer, before the statutaking of the photographs, do not acquire the copy- tory copyright which may be had therein is obright in the photographsøl notwithstanding they tained,88 in which case the copyright may, pursuant subsequently purchase copies.82

to the express terms of the statutes, be taken out English statutes. In the case of an engraving, by the assignee.90 Under the English statutes also photograph, or portrait, the act of 1911 provides an assignee is entitled to copyright. An author

77. Life Pub. Co. v. Rose Pub. Co., the photographer from exhibiting the result is qualified because the stat12 Ont. L. 386, 8 OntWR 28. photograph in public. Stedall ute gives to assigns, together with OntWR 337; Frowde v. Parrish, 27 Houghton, 18 T. L. R. 126.

the right of publishing, vending, etc., Ont. 526 [app Anglo-Canadian Music 85. Boucas v. Cooke, (1903) 2 K. the right of 'completing, executing Publishers Assoc. v. Winnifrith, 15 B. 227; Stackemann v. Paton, [1906] and finishing the subject-matter of Ont. 1641.

1 Ch. 774; Melville v. Mirror of Life copyright." American Tobacco Co. [a] "Actual payment is not re- Co., [1895) 2 Ch._531; Ellis v. Mar- V. Werckmeister, 207 U. S. 284, 297, quired to be proved under our act: shall, 64 L. J. Q. B. 757.

28 SCt 72, 52 L. ed. 208, 12 AnnCas Richardson v. Gilbert, 1 Sim. N. S. [a] Statutory changes.- "The dif- 595 [quot Bong v. Alfred s. Camp336." Frowde v. Parrish, 27 Ont. 526, ferences between the Act of 1911 and bell Art Co., 214 U. S, 236, 245, 29 528.

the Act of 1862 are (1) that under SCt 628, 53 L. ed. 979, 16 AnnCas 78. See supra $ 30.

the Act of 1911 writing is not re- 1126). 79. Press Pub. Co. v. Falk, 59 Fed. quired if the artist desires to retain 90. Bong v. Alfred S. Campbell 324.

his copyright, the proviso only says Art Co., 214 U. S. 236, 29 SCt 628, 53 Press Pub. Co. v. Falk, 59 Fed. 'in the absence of any agreement to L. ed. 979, 16 AnnCas 1126; American 324; Pollard v. Photographic Co., 40 the contrary'; (2) that the 1862 Act Tobacco Co. v. Werckmeister, 207 U. Ch. D. 345.

refers to a work 'made' for another, S. 284, 28 SCt 72, 52 L. ed. 208, 12 [a] Rule applied.--A photographer and the Act of 1911 speaks of a platé AnnCas 595 [aff 146 Fed. 375, 76 CCA employed by the parents to photo- or original 'ordered' by some other 647]; Mifflin v. Dutton, 190 U. S. 265, graph the nude body of a deformed person; (3) that the 1862 Act uses 23 Sct 771, 47 L. ed. 1043 (aff 112 child who copyrighted and published the expression 'a good or a valuable Fed. 1004, 50 CCA 661, 61 LRA 134); the photograph without the custo- consideration,' whereas the Act of Callaghan v. Myers, 128 U. S. 617, 9 mer's consent is liable in damages 1911 only has the words 'valuable SCt 177, 32 L. ed. 547; Paige v. to them. Douglas v. Stokes, 149 Ky. consideration.'" Copinger Copyright Banks, 13 Wall. (U. S.) 608, 20 L. ed. 506, 149 SW 849, AnnCas1914B 374, (5th ed) pp 113, 114.

709 [aff 18 F. Cas. No. 10,671, 7 42 LRANS 386.

[b] Good consideration.-A pho- Blatchf. 152]; Werckmeister v. Pierce, 81.

Press Pub. Co. v. Falk, 59 Fed. tographer took certain photographs etc., Mfg. Co., 63 Fed. 445 (rev on 324.

of a private school, it being under- other grounds 72 Fed. 54, 18 CCA [a] Photographer as proprietor of stood that he did so speculatively 431); Black v. Henry G. Allen Co., 42 photograph where a photographer and at his own risk, and that the Fed. 618, LRA 433; Cowen photographed an actress in her stage school proprietor was to be at liberty Banks, 6 F. Cas. No. 3,295, 24 How Pr character, with the understanding afterward to buy, or not to buy, cop- (N. Y.) 72; Folsom v. Marsh, 9 F. that she should have all the copies ies entirely at his own pleasure. The Cas. No. 4,901, 2 Story 100; Lawrence which she desired free of charge to school proprietor, this under- v. Dana, 15 F. Cas. No. 8.136, 4 Cliff. do with as she pleased, it was held standing, admitted the photographer 1; Little v. Gould, 15 F. Cas. Nos. that the photographer was the au- into the interior of his private house, 8,394, 8,395, 2 Blatchf. 165, 362; Parthor and proprietor of the photo- indicated to him what seemed the ton v. Prang, 18 F. Cas. No. 10,784, graph and was entitled to secure the best points of view, placed the 3 Cliff. 537; Pulte v. Derby, 20 F. statutory copyright therein. Press cricket eleven, and assembled the Cas. No. 11,465, 5 McLean 328. Pub. Co. v. Falk, 59 Fed. 324.

whole school into a group. It was [a) Rule applied. An instrument 82. See Melville v. Mirror of Life held that under these circumstances providing that the proprietor of an Co., (1895] 2 Ch. 531; Ellis v. Mar- there was such "good" consideration unpublished picture thereby transshall, 64 L. J. Q. B. 757 (both cases moving from the school proprietor to ferred the "copyright" in said picture decided under the English statute). the photographer for the taking of to a named person is sufficient to

Like rule under English statute see the photographs as was sufficient to transfer the right to apply for and infra note 86.

transfer the copyright in the photo- obtain a copyright thereon by the 83. See supra § 144.

graphs from their "author," the pho-assignee. American Tobacco Co. v. 84. Fine Arts Copyright Act, 1862 tographer, to the school proprietor, Werckmeister, 207 U. S. 284, 28 sct (25 & 26 Vict. c 68 1); Boucas v. under the terms of the proviso in 72, 52 L. ed. 208, 12 AnnCas 595. Cooke, (1903) 2 K. B. 227; Stacke- § 1 of the Fine Arts Copyright Act

91. Cumberland v. Planche, 1 A. mann v. Paton, (1906) 1 Ch. 774; Mel- of 1862. Stackemann v. Paton, [1906]

& E. 580, 28 ECL 276, 110 Reprint ville v. Mirror of Life Co., [1895) 2 1 Ch. 774.

1329 (dramatic copyright); Cocks v. Ch. 531; McCosh y, Crow, 5 F. (Ct. 86. Boucas v. Cooke, (1903] 2 K. Purday, 5 C. B. 860, 57 ECL 860, 136 Sess.) 670; Ellis v. Marshall, 64 L. B. 227.

Reprint 1118; Jefferys V. Boosey, 4 J. Q. B. 757 (mere permission to take 87. Assigns defined see Assigns

H. L. Cas. 815, 10 Reprint 681; Sweet a photograph is not a valuable con- 5 C. J. p 1310; Assignments § 4. v. Shaw, 3 Jur. 217; D'Almaine v. sideration within the statute).

88. See supra § 33 et seq.

Boosey, 4 L. J. Exch. 21; Colburn v. [a] Copyright in negative.—Where 89. Act March 4, 1909 (35 U. S. St. Duncombe, 9 Sim. 151, 16 EngCh 151, a photograph is in the ordinary way at L. 1075 C 320 § 8); U. S. Rev. St. 59 Reprint 316; Thompson v. Sytaken by a photographer for a sitter § 4952.

monds, 5 T. R. 41, 101 Reprint 23; at the request of the sitter, and on a [a] “Assigns” construed.--"It Life Pub. Co. v. Rose Pub. Co., 12 promise by him, express or implied, seems clear that the word 'assigns' Ont. L. 386, 8 Ont WR 28, 7 OntWR to pay for it, the negative of the in this section is not used as de- 337 (construing the English statute). photograph is, within the true mean- scriptive of the character of the es- [a] Assignment before publicaing of the proviso to 1 of the Fine tate which the `author, inventor, de- tion.—“The statute of Anne clearly Arts Copyright Act of 1862, "made signer or proprietor' may acquire un- contemplates a first publication by or executed for or on behalf of any der the statute, for the 'assigns' of the assignee as sufficient to give him other person for a good or a valuable any such person, as well as the per- the monopoly-and, in point of fact, consideration," and the copyright be- sons themselves, may, 'upon comply-|I believe that nothing is more comlongs to the sitter, notwithstanding ing with the provisions of this chap- mon than that the booksellers should the photographer retains the prop- ter,' have the sole liberty of printing, take an assignment of the copyright, erty in the negative. Boucas publishing and vending the same. and publish themselves as proprietors, Cooke, [1903] 2 K. B. 227.

This would seem to demonstrate the so as to vest the monopoly in them [b] Photograph of wife and chil- intention of Congress to vest in as- during the term. The words of the dren - Where the true inference from signs.' before copyright, the same statute that the author or his asthe facts was that the wife acted as privilege of subsequently acquiring signee shall have the sole liberty, the agent of her husband in having complete statutory copyright as the etc., from the day of the first pubherself and children photographed, original author, inventor, designer or lication, seem to me to show that the the husband was entitled to prevent ' proprietor has. Nor do we think this'assignee may himself publish, so as

9

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94

95

97

may assign the right or privilege of taking a copy- expressly authorized to obtain a copyright therefor. right independently of the transfer of the copy- In England, under the act of 1842, the copyright rightable thing itself,92 as in the case of paintings in a book published after the author's death was in or other works of art, where the original work may the proprietor of the author's manuscript from be sold to one person and the copyright to another which such book was first published, and his or reserved to the artist. It is the intangible

assigns.99

Under the act of 1911, ownership of intellectual property right, not the physical embodi- the author's manuscript of an unpublished work ment of it, which must be assigned to confer a under a testamentary disposition made by the auright to obtain copyright by the assignee. Of thor is prima facie proof of the copyright being course, where the author himself, for any reason, with the owner of the manuscript." has no right to obtain a copyright, he cannot confer [ 0 156] F. Trustees. While no express provision such right on his assignee.

is made therefor in the statute, there seems to be [ 0 155] E. Executors and Administrators.96 The little doubt but that a person who is not the author common-law right which an author has in his intel- or beneficial proprietor of a work may take out the lectual productions is personal property which on copyright in his own name and hold it in trust for his death vests in his executors and administrators. the rightful owner, provided he acts with the Under the statute, the executor or administrator of authority, express or implied, of the actual owner;2 the author or proprietor of copyrightable matter is and a court of equity may compel an assignment to to acquire the copyright, and I see other person, by assignment, any proof of the copyright being in the no reason why an alien friend should title sufficient to authorize a copy- owner of the manuscript, and unless not

have this right." Jefferys V. right to it or him as the assignee of there has been a disposition by will, Boosey, 4 H. L. Cas. 815, 853, 10 Re- the author or proprietor. Banks v. it is submitted that on the death of print 681 (per Crompton, J.).

Manchester, 128 U. S. 244, 9 SCt 36, the author the copyright in such work 92. Bong v. Alfred S. Campbell | 32 L. ed. 425.

vests in his personal representatives, Art Co., 214 U. S. 236, 29 SCt 628. 53 Nonresident alien authors see infra and even a disposition by will is not L. ed. 979, 16 AnnCas 1126; American $ 160.

to be taken as conclusive proof that Tobacco Co. v. Werckmeister, 207 U. 96. Succession to copyright on the copyright in such work is in the S. 284, 28 SCt 72, 52 L. ed. 208, 12 death of proprietor see infra / 254. person in whose favour such disposiAnnCas 595 [aff 146 Fed. 375. 76 CCA 97. See supra § 5.

tion is made. See, further, as to 647]; Werckmeister v. American Lith. 98. Act March 4. 1909 (35 U, S. St. posthumous work, Copyright Act, Co., 142 Fed. 827; Werckmeister v. at L. 1075 C 320 § 8); U. S. Rev. St. 1911 (1 & 2 Geo. 5, c. 46), s. 17 (1). Pierce, etc., Mfg. Co., 63 Fed. 445 $ 4952; Folsom v. Marsh, 9 F. Cas. (2), and ibid., s. 3, proviso." Hals[rev on other grounds 72 Fed. 54, 18 No. 4,901, 2 Story 100.

bury L. Eng. Suppl. (1917) p 360. CCA 431); Macmillan v. Dent, [1907] 99. Copyright Act, 1842 (5 & 6 [b] Letters.--"The alteration in1 Ch. 107, 3 BRC 647.

Vict. c 453); Macmillan v. Dent, troduced by the Copyright Act, 1911 "This statute means to give to the [1907) 1 Ch. 107, 118, 3 BRC 647 (1 & 2 Geo. 5, c. 46), in the law reassigns of the original owner of the (where Vaughan Williams, L. J., lating to copyright in letters ap. right to copyright an article the right said: “Whatever were the common pears to be limited to the case of to take out the copyright secured by law rights of authors before publica- letters written by a deceased person. the statute, independently of the tion, the necessary effect of s, 3 of Formerly letters of a deceased perownership of the article itself." the Act of 1842 is to determine those son might be published by the owner American Tobacco Co. v. Werck-rights and to transfer them to the of the author's manuscript (Macmil. meister, 207 U. S. 284, 299. 28 ŞCt 72, proprietor of the author's

lan v. Dent, [1907] Ch. 107. 3 BRC 52 L. ed. 208, 12 AnnCas 595 [quot script").

647) unless there were circumstances Bong v. Alfred S. Campbell Art Co., "On the death of the author of any in which their publication could have 214 U. s. 236, 29 SCt 628, 53 L. ed. unpublished literary composition, the been restrained by the personal rep979, 16 AnnCas 1126).

owner of the author's manuscript, or resentatives of the deceased author Common-law rights separated from his assignee, has the right of with- (Thompson v. Stanhope, Ambl. 737, physical object see supra $8 5. 33. holding publication, or of acquiring 27 Reprint 476; Lytton v. Devey, 54 93. See cases supra note 92.

copyright for the statutory period by L. J. Ch. 293). See also Ashburton 94. Bong v. Alfred S. Campbell | publication." 8 Halsbury L. Eng. V. Pape, [1913] 2 Ch. 469. Letters Art. Co., 214 U. S. 236, 29 SC 628, p 137.

that have not been published during 53 L. ed. 979, 16 AnnCas 1126 [aff (a) Where more than one manu- the author's lifetime are not posthu155 Fed. 116, 83 CCA 576). See cases script exists, the owner of the au- mous works, and the copyright in supra note 92.

thor's manuscript from which the them belongs to the author's per: (a) “An assignee within the mean- work is first published is entitled to sonal representatives; see Copyright ing of the statute is one who re- the copyright. Copyright Act, 1842 Act, 1911 (1 & 2 Geo. 5, c. 46), s. 17 ceives a transfer, not necessarily of (5 & 6 Vict. c 45 3); Macmillan v. (1), (2). and the proviso to ibid., the painting but of the right to Dent, [1907) 1 Ch. 107, 3 BRC 647. s. 3." Halsbury L. Eng. Suppl. (1917) multiply copies of it, And such

[b]. Letters published after death right does not depend alone upon of author.-Under the English Copy- 2. Harms v. Stern, 229 Fed. 42, the statute, as contended by plaintiff, right Act of 1842 the copyright of a 145 CCA 2; Press Pub. Co. y. Falk, 59 but is a right derived from the

letter published after the death of Fed. 324; Black v. Henry G. Allen Co. painter and secured by the statute the author is vested in the person 42 Fed. 618, 9 LRA 433, 56 Fed. 764; to the assignee of the painter's owning the actual letter and not in Carte

V.

Evans, 27 Fed. 861; right." Bong v. Alfred s. Campbell the representatives of the author. Mackaye v. Mallory, 12 Fed. 328; Art Co., 214 U. S. 236, 246, 29 SCt Macmillan v. Dent, [1906) 1 Ch. 101, Lawrence v. Dana, 15 F. Cas. No. 628, 53 L. ed. 979, 16 AnnCas 1126 3 AnnCas 1113 (aff (19071 1 Ch. 107, 8.136, 4 Cliff. 1; Little v. Gould, 15 [aff 155 Fed. 116, 83 CCA 576). 3 BRC 6471.

F Cas. No. 8.394, 2 Blatchf. 165; [b] Statutory deinition "The (c) Publication of private and Pierpont v. Fowle, 19 F. Cas. No. word 'assigns' shall be construed to confidential letters by the owner of 11,152. 2 Woodb. & M. 23; Pulte v. mean and include every Person in the manuscript letters may be re- Derby, 20 F. Cas. No. 11,405. 5 MCwhom the Interest of an Author in strained on application of the per- Lean 328; Carter V. Bailey, 64 Me. Copyright shall be vested, whether sonal representatives of the deceased 458. 18 AmR 273: Petty v. Taylor, derived from such Author before or writer. Macmillan v. Dent, [1907] 1 [1897) 1 Ch. 465; London Printing after the Publication of any Book, Ch. 107, 3 BRC 647; Thompson v. etc., Alliance. Ltd. v. Cox, (1891) 3 and whether acquired by Sale, Gift, Stanhope, Ambl. 737, 27 Reprint 476; Ch. 291; Hazlitt v. Templeman, 13 Bequest, or by Operation of Law, or Lytton V. Devey, 54 L. J. Ch. 293. L. T. Ren. N. S. 593; Sweet v. Cater, otherwise." St. 5 & 6 Vict. c 45 $ 2. See also supra $ 32.

11 Sim. 572, 34 EngCh 572, 59 Reprint 95. Bong v. Alfred S. Campbell 1. St. 1 & 2 Geo. V c 46 % 17 (2). 994 (equitable assignment). Art Co., 214 U. S. 236, 29 SCt 628. 53 [a] "The ownership of an author's [a] The legal title to a copyright L. ed. 979, 16 AnnCas 1126; Banks v. manuscript after his death, where vests in the person in whose name it Manchester, 128 U. S. 244, 9 SCt 36, such ownership has been acquired is taken out, but it may be held hy 32 L, ed. 425 [aff 23 Fed. 143]; Yueng- under testamentary disposition him in trust for the true owner. ling v. Schile, 12 Fed. 97, 20 Blatchf. made by the author, and the manu- Harms

V. Stern, 229 Fed. 42. 145 452: Koppel v. Downing, 11 App. (D. script is of a work which has not CCA 2. C.) 93.

been published, nor performed in [b] Title of assignee. The party (a) Tlustration. The judge who, public, nor delivered in public. is to whom

an assignment is made, in his judicial capacity, prepares primâ facie proof of the copyright whether for the benefit of another or the headnotes, statement of the case, being with the owner of the manu- not. holds the legal interest in the and opinion cannot be regarded as script (Copyright Act, 1911 (1 & 2 work as assignee of the author. and their author or proprietor within the Geo. 5. c. 46), s. 17 (2)). The change comes, therefore, within the very provisions of Rev St. $$ 4952. 4954, introduced in the law is that mere words of the law entitling him to the so as to confer on the state or any possession of the manuscript is nu copyright. Whether a third person

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the beneficial owner.: But he must be the legal United States, and therefore could not obtain a owner and trustee;' a mere agent or nominee of the copyright so long as that right was limited to citiproprietor may not enter a copyright in his own zens or residents.15 But since the removal of that name. The right to copyright in unpublished works restriction no reason appears why a state may not probably does not pass to a trustee in bankruptcy, be entitled to copyright as a “proprietor,”?. or even as this would involve a right to publish without the as an “author," under the provision that the word consent of the author.6

"author" shall include an employer in the case of [ 0 157] G. Citizenship and Residence as Affect- works made for hire. 16 ing Right?-1. Under United States Statutes-a. [0 158] b. Nonresident Aliens. This restriction Citizens and Residents. Prior to the act of March of copyright to citizens and residents of the United 3, 1901, the benefit of the copyright laws of the States was removed by the amendatory act of 1891 United States was limited solely to citizens and which in general terms, on compliance with the proresidents of the United States. Nonresident aliens visions of the statute, gave copyright to any author, could not obtain copyright. But no distinction ever inventor, designer, or proprietor of copyrightable has been made between citizens and resident aliens.10 subject matter, regardless of citizenship or resiAn alien domiciled in the United States is entitled dence,17 but subject to the following express conto copyright equally with a citizen; no reciprocity dition, namely: ( That this act shall only apply to or proclamation is necessary, or ever has been neces- a citizen or subject of a foreign state or nation when sary." In order to constitute a person a resident such foreign state or nation permits to citizens of of the United States, within the meaning of the the United States of America the benefit of copyterm as used in the copyright laws, it is necessary right on substantially the same basis as its own that he shall take up his residence in this country citizens; or when such foreign state or nation is a with the intention of remaining and making it his party to an international agreement which pro

Such residence, existing at the time the vides for reciprocity in the granting of copyright, copyright is initiated by performance of the statu- by the terms of which agreement the United States tory requirements,1% is sufficient to support the copy- of America may, at its pleasure, become a party to right, notwithstanding a subsequent change of in- such agreement. The existence of either of the tention and actual removal from the United States.1 conditions aforesaid shall be determined by the A state is neither a citizen nor a resident of the President of the United States by proclamation has an equitable interest in the work, 1 § 1. Citizen see Citizens & 1. Dom- tion of intention to become a citizen. derived from the author or from the icile see Domicile (14 Cyc 833). Res- It appeared that at the time when legal assignment, is a question be- ident see Resident (34 Cyc 1655). trouble with Canada seemed immitween those parties, in respect to International copyright see infra nent he had offered his services to which the public interest or policy is § 453.

the province. It was held that he not at all concerned. Lawrence v. 8. Rev. St. § 4952; Act July 8, was not a resident of the United Dana, 15 F. Cas. No. 8,136, 4 cliff. 1. 1870 (16 St. at L, 198 c 230 & 86); States within the meaning of the

(c) Where a publisher takes & Act Febr. 3, 1831 (4 St. at L. 436 Copyright Act of 1831. Carey v. Col-
copyright in his own name, with the c 16 $ 1); Act April 29, 1802 (2 St, at lier, 5 F. Cas. No. 2,400.
knowledge and acquiescence of the L. 171 c 36 & 2); Act March 31, 1790 13. See infra § 167 et seq.
author, he is the lawful owner, sub- (1 St. at L. 124 c 15 & 1); Banks v. (a) Under the act of 1909 (1)
ject to the condition of accounting Manchester, 128 U. S. 244, 9 SCt 36, copyright is initiated by publication,
to the author pursuant to the con- 32 L. ed. 425.

with notice of copyright, in the case tract. Pulte v. Derby, 20 F. Cas. No. [a] Express exclusion of nonresi. of published works. Act March 4, 11,465, 5 McLean 328.

dent allens.-Since 1831, and until 1909 (35 St. at L. 1075 C 320 & 9). (a) Gratuitous services-Law- the act of 1891, the successive (2) In the case of unpublished works, rence gave his services gratuitously statutes have contained an express copyright is initiated by making the to Wheaton, the proprietor of a book, declaration that nothing therein con- specified deposits in the copyright in preparing new editions with notes tained should be construed to pro- office with claim of copyright. Act and other additions of his own com- hibit the printing, publication, im- March 4, 1909 (35 St. at L. 1075 C 320 position. Wheaton took out a copy-portation,

sale

work § 11). See infra § 171 et seq. right of said editions. By the terms composed made by any per

14. Boucicault v. Wood, 3 F. Cas. of a contract between them, Wheaton son not a citizen of the United States No. 1,693, 2 Biss. 34. was to make a formal agreement not nor resident therein. Act Febr. 3, 15. Banks v. Manchester, 128 U. S. to use Lawrence's notes in a subse- 1831 (4 St. at L. 436 c 16 § 8); Act 244, 9 Sct 36, 32 L. ed. 425 [aff 23 quent edition without his consent, July 8, 1870 (16 St. at L. 198 C 230 Fed. 143). and gave Lawrence the right to make § 103); Rev. St. 8 4971.

The State cannot properly be any use of his notes that he wished. 9. Bong v. Alfred S. Campbell Art called a citizen of the United States It was held that Lawrence was the Co., 214 U. S. 23 6, 29 Sct 628, 53 L. or a resident therein, nor could it equitable owner of said notes, and ed. 979, 16 AnnCas 1126 [aff 155 Fed. ever be in a condition to fall within that Wheaton was the legal owner, 116, 83 CCA 576); Harms V. Stern, the description in $ 4952, or $4954. and the proper person to take out the 229 Fed. 42, 49, 145 CCA 2; Bentley The copyright claimed to have been copyright. Lawrence v. Dana, 15 F. V. Tibbals, 223 Fed. 247, 138 CCĂ taken out by Mr. De Witt in the Cas. No. 8,136, 4 Cliff. 1.

489; West Pub. Co.

Edward present case, being a copyright 'for (e) "A trustee in whom a copy- Thompson Co., 176 Fed. 833, 100 CCA the State,' is to be regarded as if it right is vested may be registered as 303 [mod 169 Fed. 833); Fraser V. had been a copyright taken out in the owner, and may sue in that char- Yack, 116 Fed. 285, 53 CCA 563; the name of the State. Whether the acter; but it is impossible for one Yuengling v. Schile, 12 Fed. 97, 20 State could take out a copyright for person to be the owner and another Blatchf. 452; Benn v. Leclercq. 3. F. itself, or could enjoy the benefit of person to be on the register, and for Cas. No. 1,308; Boucicault v. Wood. 3 one taken out by an individual for it, those two

persons successfully to F. Cas. No. 1,693, 2 Biss. 34; Carey v. as the assignee of a citizen of the London Printing, etc.,

Alli- Collier, 5 F. Cas. No. 2,400; Keene v. United States or a resident therein, ance, Ltd. v. Cox, [1891] 3 Ch. 291, Wheatley, 14 F. Cas. No.7,644; Shel- who should be the author of a book,

don v. Houghton, 21 F. Cas. No. is a question not involved in the 3. Lawrence v. Dana, 14 F. Cas. 12,748. 5 Blatchf. 285; Shook v. Ran- present case, and we refrain from No. 8,136, 4 Cliff. 1; Little v. Gould, kin, 21 F. Cas. No. 12.804, 6 Biss. considering it and from considering 15 F. Cas No. 8.394, 2 Blatchf. 163; 477; Frohman v. Ferris. 238 Ill. 430, any other question than the Pulto v. Derby, 20 F. Cas. No. 11,465, 87 NE 327, 128 AMSR 135, 43 LRANS above indicated." Banks Man5 McLean 328; Hazlitt v. Temple- 639 [aff 223 U. S. 424, 32 SCt 263, 56 chester, 128 U. S. 244, 253, 9 SCt 36, man, 13 L. T. Rep. N. S. 595. L. ed. 492].

32 L. ed. 425 [aft 23 Fed. 143]. 4. Koppel v. Downing, 11 App. (D.

See statutory provisions supra 16. Act March 4, 1909 (35 St. at L. C.) 93 (holding that the real owner note 8.

1075 C 320 $$ 8, 62). of a manuscript which has been en- 11. Act March 4, 1909 (35 St. at L. 17. Act March 3, 1891 (26 St. at tered for copyright by another can- 1075 C 320 % 8).

L. 1106 c565 § 1); Bentley v. Tibnot, by a retroactive adoption and 12. Boucicault v. Wood, 3 F. Cas. bals, 223 Fed. 247, 138 CCA 489; West for the purpose of bringing suit for No. 1.693, 2 Biss. 34; Carey v. Collier, Pub. Co. v. Edward Thompson Co., infringement, constitute the person 5 F. Cas. No. 2.400.

176 Fed. 833, 835, 100 CCA 303 [mod making the entry a trustee).

(a) Naturalization declaration.169 Fed. 833): Hervieu v. J. S. Ogil5. Petty v. Taylor, [1897) 1 Ch. An officer of the British navy, travel- vie Pub. Co., 169 Fed. 978; Harper v.

ing through the United States, and Donohue, 144 Fed. 491 (aff 146 Fed. 6. See supra $ 7.

considering himself a British sub- 1023 mem, 76 CCA 678 mem); Froh7. Definitions of: Alien see Aliens | ject, during his stay filed a declara

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