catalog or on separate sheets) may be subject to copyright registration as such, it seems that of itself this does not secure the right to make and sell the article illustrated. This subject will be considered in more detail in connection with the rights secured. Tools, Implements, Devices and Similar Articles of Functional Utility

These as a rule come within the province of the general patent law, if they possess the necessary element of invention or novelty. There may be present incidentally certain features involving authorship, such as pictorial or printed matter not essential to their operation, but that of course does not change the essential nature of such articles. Where the added matter is deemed of sufficient value in itself to invoke the protection of the copyright law, care should be taken to print the copyright notice in immediate proximity thereto, since it would be the only "copyrightable component part of the work copyrighted" (section 3). The Copyright Office has recently established a general rule for the guidance of the public with respect to such material (see Appendix, Regulations of Copyright Office).

Chapter V

Who May Secure Statutory Copyright

Section 9 of the Copyright Act provides: "That any person entitled thereto by this Act may secure copyright for his work by publication thereof with the notice of copyright required by this Act." Here Congress puts it up to the author or proprietor himself to "secure" the copyright; the word "may" implies that the privilege is not compulsory but permissive, yet is to be translated into "must" if copyright is wanted. There is no provision for examination as to priority or originality, as in the case of patents, and probably for that reason the Act elsewhere provides that the protection shall extend to "all the copyrightable component parts of the work copyrighted" (section 3), the inference being that there may be matter in the work to which the protection of the Act does not extend, this being but recognition of well-established law before the present statute. Eggers v. Sun Sales Corp., 263 F. 373 (CCA 2, 1920); Gerlach-Barklow Co. v. Morris, 23 F.2d 159 (1927).

Citizens of the United States

The word "person" is used in this section in the legal sense to include not only individuals but any legal entity capable of holding and defending property rights. The persons "entitled thereto" are mentioned in the preceding section 8: "That the author or proprietor of any work made the subject of copyright by this Act" (meaning "all the writings of an author" referred to in section 4), "or his executors, administrators, or assigns, shall have copyright for such work under the conditions and for the terms specified in this Act." Congress really grants the right under the constitutional obligation to "secure" to authors exclusive rights.

But first there must be created some visible thing in the nature of a "writing." So long as the ideas exist only in the mind of the

author there is nothing to which a statutory right can attach. But once it is given visible expression, it then becomes a "work" in which the author is vested with the common-law right of exclusive control. He may keep it under a bushel or bring it into the open, but if he wishes to exploit it profitably he can only do so, as a rule, by taking advantage of the Copyright Act.

And what the author may do himself, he may assign to another person, including the right to secure copyright in the work, and the latter then becomes the "proprietor." So this term is here equivalent to "assign" in the same clause, and implies that the right was originally derived from the author. Quinn-Brown Pub. Corp. v. Chilton Co., Inc., 30 USPQ 373 (1936); Harms v. Stern, 229 F. 42 (CCA 2, 1915). Of course it does not include a mere agent or licensee. Public Ledger v. New York Times, 275 F. 562 (1921), and Public Ledger v. Post, 294 F. 430 (CCA 8, 1923). There must be clear intent, express or necessarily implied by the circumstances, to transfer the copyright privilege, but when exercised it may be held in trust by one person for the benefit of another. The former is said to hold the legal title and the latter the equitable title. Bisel v. Ladner, 1 F.2d 346 (CCA 3); Cohan v. Richmond et al., 19 F.Supp. 771 (1937).

The outright sale and delivery of his manuscript by the author, and acceptance by him of a sum of money "in full payment thereof" without reservations, must be regarded as carrying all the rights incidental to ownership, including the right on the part of the purchaser to secure the copyright as proprietor. Dam v. Kirke La Shelle Co., 175 F. 902 (CCA 2, 1910).

Joint authors are deemed (in the absence of contract to the contrary) tenants in common, each owning an undivided interest in the copyright, which inures to the estate of a deceased coauthor. Carter v. Baily, 64 Me. 458 (1876). Where one of the authors takes out copyright in his own name he becomes a constructive trustee for the other to the extent of the latter's interest. Maurel v. Smith, 220 F. 195 (1915); aff'd. 271 F. 211 (CCA 2, 1921).

But turning to section 62 (last clause) of the Act, it will be observed that by virtue of a contract of employment for hire, the employer is to be deemed the "author" within the intent and purpose of the Act. This doubtless is based upon the consideration that the employer was the proximate cause of the work

coming into existence, and therefore is to be deemed as contributing to the progress of science and the useful arts and subrogated to all the rights of the real author. So the term "author" includes a corporation acting as employer for hire in the production of a motion picture. Vitaphone Co. v. Hutchinson, 42 USPQ 431 (1939).

Sometimes it happens that a celebrity lends his name to a series of articles, not by himself, but by a so-called "ghost writer." In a recent British decision it was held that if the actual form of expression was the "ghost's" he, and not the celebrity, is the sole author and entitled to the copyright. Donoghue v. Allied Newspapers, Ltd., L.R. 1938, 1 Ch. 106. No case on this point has arisen in our own courts, as far as is known, but under section 62, if the "ghost" was employed by the celebrity to write the articles "for hire," the latter would presumably be entitled to the copyright privilege in the absence of agreement to the contrary.

It is not necessary that there be an express contract of employment in writing; it may be inferred from the circumstances. If you employ a photographer, for example, to take your picture and pay him for his job, you become an "author" in the statutory sense and may if you choose secure copyright. But if the photographer takes the picture at his own solicitation and expense, he is entitled to secure copyright for it, in the absence of agreement to the contrary. Lumiere v. Robertson, 280 F. 550 (CCA 2, 1922); Altman v. New Haven Union, 254 F. 113 (1918). So, also, when an artist accepts a commission to paint a picture for pay, the presumption is that he sells also the right to control reproduction in copies for publication, unless the copyright is reserved to the artist by the terms, express or implied, of the contract. Yardley v. Houghton Mifflin Co., Inc., 44 USPQ 1 (CCA 2, 1939).

Where the author has not assigned his rights, and dies before the work is published, the copyright should ordinarily be secured and registered in the name of his executor or (in the absence of a will) the administrator of his estate, as authorized by section. 8. If the author should die following publication with notice of copyright in his own name, the registration should of course be applied for in the name of his personal representative, the executor or administrator as the case may be, and not in the name of

the deceased author. Where the author specifically bequeathes a manuscript or a copyright to a named beneficiary, the title thereto passes to the legatee immediately upon the death of the author, subject only to possible contribution toward payment of the author's debts. Treadwell v. Putnam, 65 F.2d 604 (1933).

The right to publish and copyright private letters belongs (by virtue of authorship) to the writer or his legal representatives, and not to the recipient, though the latter is under no obligation to preserve them. Baker v. Libbie, 210 Mass. 599 (1912), 97 N.E. Rep. 109. Consequently, anyone who has a collection of private letters which he desires to publish would do well to consult beforehand the writer of the letters or his personal representatives. This rule is subject to certain limitations arising from the nature of the letter or the circumstances under which it is written or received, some of which are pointed out by Justice Story in the celebrated case of Folsom v. Marsh, Fed. Cas. No. 4901, (1845), involving Washington's correspondence. But these exceptions are narrow and rare and do not affect materially the general rule.

Citizens of a Foreign State or Nation

Section 8 of the Act goes on to provide that "the copyright secured [granted] by this Act shall extend to the work of an author or proprietor who is a citizen or subject of a foreign state or nation" only when he is either (a) domiciled in the United States at the time of first publication of his work, or (b) is a citizen or subject of what is commonly called a "proclaimed country", i.e., a country which has already established copyright relations with the United States, the existence of which must in each case be evidenced by a proclamation of the President of the United States.

To acquire domicile, there must be (1) residence with (2) intention to remain in the United States, which may be inferred from various circumstances, such as declarations, marriage to an American citizen, payment of taxes, establishment of a home, etc. Ricordi v. Columbia Graph. Co., 258 F. 72 (1919).

The status of the author is the determining factor, not that of the proprietor. If the foreign author is not himself entitled to secure copyright in the United States, he cannot confer any right to do so upon a "proprietor" even though the latter is a citizen of the United States. Bong v. Campbell Art Co., 214 U.S. 236