64 66 right, and a fortiori this is true under the later statutes in which the "proprietor" of a work is expressly mentioned as a person who may obtain a copyright therein.65 But the right of the employer to the copyright which may be had in the product of his employee is dependent on the contract of employment. Where there is an express agreement, its terms will of course govern." Where there is no express agreement, the intention of the parties must be determined from the attendant circumstances, which may be such as to imply that the copyright shall be in the employer, and such is the legal implication where nothing further appears than that the work was produced by one employed and paid to produce it.68 The court ought generally to draw the inference that, if an author is employed See also supra § 29. the publishing company took to copy- | LRA 134 (aff 107 Fed. 708)]; Brady | design in order to be the proprietor). right its magazine, especially in view of the form of the copyright notice, would have been sufficient to protect the dramatic rights. 41 v. Reliance Motion Picture Corp., [a] Validation by adoption.-The Copyright by trustee see infra § 156. In view of this decision by the 60. Mifflin v. R. H. White Co., 190 U. S. 260, 23 SCt 769. 47 L. ed. 1040 [aff 112 Fed. 1004, 50 CCA 661, 61 61. Mifflin v. Dutton, 190 U. S. 265, 23 SCt 771, 47 L. ed. 1043 [aff 112 Fed. 1004, 50 CCA 661, 61 LRA 134] (holding that, where the author of a contribution to a magazine enters it for copyright immediately after its publication in the magazine, there can be no presumption that there was an intention to authorize the publishers of the magazine to obtain a copyright in their own names); Brady v. Reliance Motion Picture Corp., 232 Fed. 259; WhiteSmith Music Pub. Co. v. Apollo Co., 139 Fed. 427 [aff 147 Fed. 226, 77 CCA 368 (aff 209 U. S. 1, 28 SCt 319, 52 L. ed. 655, 14 AnnCas 628)]. 62. National Cloak, etc., Co. V. Kaufman, 189 Fed. 215; Edward Thompson Co. V. American Law Book Co., 119 Fed. 217; Mutual Adv. Co. v. Refo, 76 Fed. 961; Schumacher v. Schwencke, 25 Fed. 466, 23 Blatchf. 373. 63. Bleistein v. Donaldson Lith. Co., 188 U. S. 239, 23 SCt 298, 47 L. ed. 460. 64. Little v. Gould, 15 F. Cas. No. 8,394, 2 Blatchf. 165. But see Atwill v. Ferrett, 2 F. Cas. No. 640, 2 Blatchf. 39; De Witt v. Brooks, 7 F. Cas. No. 3,851 (both holding that the employer was not entitled to copyright because not the "author"); Woodruff, 3 F. Cas. No. 1,424, 4 Wash. C. C. 48 (decided under the peculiar provisions of the act of April 29, 1802. in regard to prints and engravings, and holding that the employer must be the author of the Binns v. [a] Gratuitous services.-It appeared that Lawrence, the plaintiff, had given his services gratuitously to Mrs. Wheaton, the proprietor of Wheaton's Elements of International Law, in preparing notes and other matters to be published in a new edition of the work. It was held that Mrs. Wheaton was the proper person to take out the statutory copyright for the new edition of the work. Lawrence v. Dana, 14 F. Cas. No. 8,136, 4 Cliff. 1. 65. American Tobacco Co. V. Werckmeister, 207 U. S. 284, 28 SCt 72, 52 L. ed. 208, 12 AnnCas 595; National Cloak, etc., Co. v. Kaufman, 189 Fed. 215; Dielman v. White, 102 Fed. 892; Colliery Engineer Co. V. United Correspondence Schools Co., 94 Fed. 152; Mutual Adv. Co. v. Refo, 76 Fed. 961; Black v. Henry G. Allen Co., 56 Fed. 764; Carte v. Evans, 27 Fed. 861; Schumacher v. Schwencke, 25 Fed. 466, 23 Blatchf. 373; Heine v. Appleton, 11 F. Cas. No. 6,324, 4 Blatchf. 125; Com. V. Desilver, 3 Phila. (Pa.) 31. 66. Mallory v. Mackaye, 86 Fed. 122 [mod on other grounds 92 Fed. 749, 34 CCA 653]. [a] Special agreement.-An artist who accompanied a government expedition to Japan in the capacity of master's mate, and with the understanding that all sketches and drawings he should make should belong to the government, has no right to a copyright on his sketches, drawings, and engravings. They have become the property of the government. Heine v. Appleton, 11 F. Cas. No. 6,324, 4 Blatchf. 125; Com. v. Desilver, 3 Phila. (Pa.) 31. 67. Paige v. Banks, 13 Wall. (U. S.) 608, 20 L. ed. 709. 68. Bleistein v. Donaldson Lith. Co., 188 U. S. 239, 23 SCt 298, 47 L. ed. 460; National Cloak, etc., Co. v. Kaufman, 189 Fed. 215; Dielman v. White, 102 Fed. 892; Colliery Engineer Co. V. United Correspondence Schools Co., 94 Fea. 158; Carte v. Evans, 27 Fed. 861; Co. v. Desilver, 3 Phila. (Pa.) 31; Lawrence v. Aflalo, [1904] A. C. 17, 1 BRC 314 [appr Sweet v. Benning, 16 C. B. 459, 81 ECL 459, 139 Reprint 838]; Lamb v. Evans, [1893] 1 Ch. 218. [a] Work executed on commission. In general, when an artist is commissioned to execute a work of art not in existence at the time when the commission is given, the burden of proving that he retains a copyright in the work of art executed, sold, and delivered under the commission rests heavily on the artist; when a patron gives a commission to an artist, a strong implication arises that the work of art commissioned is to belong unreservedly and without limitation to the patron, and that the patron has a right to make and permit to any extent reproductions of the work of art sold to him. Dielman v. White, 102 Fed. 892 (holding that plaintiff, an artist who executed certain panels for the government to be placed in the congressional li by the proprietor of an encyclopedia or similar work to contribute articles to that work, and is to be paid therefor, it is the intention of the parties that the copyright shall belong to the employer.69 But the mere fact of employment does not necessarily make the employer the absolute owner of his employee's productions; if there is nothing in the terms and conditions of the employment and the attendant circumstances implying that the copyright shall belong to the employer it may be secured by the author.70 Work not within scope of employment. An employer cannot be considered as the proprietor of what is produced by an author independently of the duties for which the latter is employed and paid."1 In England, under the Copyright Act of 1911, the employer is entitled to the copyright only where the work was made in the course of employment under a contract of service or apprenticeship.' 72 Under former statutes not so narrowly limited, the employer of an author was entitled to the copyright of works which such author was employed and paid brary, could not enjoin a publication of photographs of the panels which were taken with the consent of the proper government officials, although he had duly entered the panels for copyright). [b] An engraver in the employ of the government can have no copyright in a chart prepared for the government. Copyright, 7 Op. Atty.Gen. 656. Photographer or customer see infra § 153. 69. Aflalo v. Lawrence, [1904] A. C. 17 [rev [1903] 1 Ch. 318 (aff [1902] 1 Ch. 264)] (express agreement unnecessary); Lamb v. Evans, [1893] 1 Ch. 218; Sweet v. Bennings, 16 C. B. 459, 81 ECL 459, 139 Reprint 838. [a] The English Copyright Act of 1911 has perhaps changed this rule by providing that the author shall be the owner of the copyright except only where the work was produced under a contract of service. See Copinger Copyright (5th ed) p 207. And see supra § 144; infra this section. 74 to produce, subject to the conditions imposed by the statute.73 Many of the decisions under these statutes have been made obsolete by the changes in the law, but some of them still have value and are of general application, particularly on the questions of the contract and intent of the parties under particular circumstances. By express provision, copyright in portraits and engravings executed pursuant to order for a valuable consideration belongs to the person who gave the order." Where the work is an article or contribution to a newspaper, magazine, or other similar periodical, in the absence of any agreement to the contrary the author may restrain publication otherwise than in a newspaper, magazine, or periodical." Prior statutes, in such cases, likewise prohibited "separate publication" by the employer and gave that right to the author after the expiration of twenty-eight years for fourteen years. 75 Under the Canadian Copyright Act the employer for whom a work is made for hire is entitled to the copyright in the absence of any reservation of it [a] Play produced by person employed as stage manager and actor. Where it appeared that Boucicault, an actor and dramatic author, while in the employment of Stewart as a performer and stage manager, verbally agreed with the latter to write a play, and that it should be performed at Stewart's theater so long as it should continue to draw good audiences, it was held that Boucicault, and not Stewart, was the proper person to take out the copyright. Roberts v. Myers, 20 F. Cas. No. 11,906. 72. Byrne v. Statist Co., [1914] 1 K. B. 622. See also supra 144. [a] Editorial employee of newspaper.-Plaintiff who was permanently employed on the editorial staff of a newspaper was specially employed and paid by the proprietors of the paper to translate and summarize a speech reported in a foreign language, for the purpose of publication as an advertisement in their paper for a foreign state, and this work was done entirely in his own time 70. Callaghan v. Myers, 128 U. S. and independently of his ordinary 617, 9 SCt 177, 32 L. ed. 547; Atwill duties. The summarized translation V. Ferrett, 2 F. Cas. No. 640, 2 was published in the paper as Blatchf. 39; Boucicault v. Fox, 3 F. advertisement with the words "TransCas. No. 1,691, 5 Blatchf. 87; Rob-lated from the Portuguese language erts v. Myers, 20 F. Cas. No. 11,906, Brunn. Coll. Cas. 698; Levy v. Rutley, L. R. 6 C. P. 523; Jefferys v. Baldwin, Ambl. 164, 27 Reprint 109; Shepherd v. Conquest, 17 C. B. 427, 84 ECL 427, 139 Reprint 1140; Sweet v. Benning, 16 C. B. 459, 81 ECL 459, 139 Reprint 838; Hereford v. Griffin, 16 Sim. 190, 39 EngCh 190, 60 Reprint 846. [a] Necessity of contract.-"The title to literary property is in the author whose intellect has given birth to the thoughts and wrought them into the composition, unless he has transferred that title, by contract, to another." Boucicault v. Fox. 3 F. Cas. No. 1,691, 5 Blatchf. 87, 95. [b] A court reporter, although a sworn public officer receiving a fixed salary for his labors, is not, in the absence of statute, deprived of any privilege of taking out a copyright which he would otherwise have. Callaghan v. Myers, 128 U. S. 617, 9 SCt 177. 32 L. ed. 547. [c] An agreement to write a play for another, and to act in it, with a share in the profits as compensation, does not create a legal or equitable title in the latter which will prevent the author from taking out a copyright. Boucicault v. Fox, 3 F. Cas. No. 1,691, 5 Blatchf. 87. an by F. D. Byrne" printed at the end. Such translation was an "original literary work," within § 1 of the Copyright Act of 1911, of which plaintiff was the author, and plaintiff was the owner of the copyright therein within § 5. Byrne v. Statist Co., [1914] 1 K. B. 622. [b] Lord Halsbury's summary."The author of a work is in general the first owner of the copyright therein, but (i.) where, in the case of an engraving, photograph, or portrait, the plate. . . or other original was ordered by some other person, and was made for valuable consideration in pursuance of that order, then, in the absence of any agreement to the contrary, the person by whom such plate or other original was ordered is the first owner of the copyright (Copyright Act, 1911 [1 & 2 Geo. 5, c. 46]), s. 5 (1) (a); (ii.) where the author was in the employment of some other person under a contract of service or apprenticeship and the work was made in the course of his employment by that person, the person by whom the author was employed is, in the absence of any agreement to the contrary, the first owner of the copyright; but where the work is an article or other contribution to a newspaper, magazine, or similar periodical, there is. in the absence of any agreement to the contrary, reserved to the author a right to restrain the publication of the work, otherwise than as part of a newspaper, magazine or similar neriodical (ibid., s. 5 (1) (b)." Halsbury L. Eng. Suppl. [1917] p 362. 73. St. 5 & 6 Vict. c 45 § 18; Lawrence Aflalo, [1904] A. C. 17, 1 BRC 314 [appr Sweet v. Benning, 16 C. B. 459, 81 ECL 459, 139 Reprint 838] (no implied assignment until payment in case of contribution to periodical); Ward, Lock & Co., Ltd. v. Long, [1906] 2 Ch. 550; Stackemann v. Paton, [1906] 1 Ch. 774; Petty v. Taylor, [1897] 1 Ch. 465; Lamb v. Evans, [1893] 1 Ch. 218; Marzials v. Gibbons, L. R. 9 Ch. 518; Trade Auxiliary Co. v. Middlesborcugh, etc., Tradesmen's Protection Assoc., 40 Ch. D. 425; Walter v. Howe, 17 Ch. D. 708; Grace v. Newman, L. R. 19 Eq. 623, 7 ERC 86; Shepherd v. Conquest, 17 C. B. 427, 84 ECL 427, 139 Reprint 1140; Sweet v. Benning, 16 C. B. 459, 81 ECL 459, 139 Reprint 838; Hatton v. Kean, 7 C. B. N. S. 268, 97 ECL 268, 141 Reprint 819; Cary v. Longman, 1 East 358, 102 Reprint 138, 7 ERC 78; Smith v. Johnson, 4 Giffard 632, 66 Reprint 859; Cox v. Cox, 11 Hare 118, 45 EngCh 118, 68 Reprint 1211; Mayhew v. Maxwell, 1 Johns. & H. 312, 70 Reprint 766; Browne v. Cooke, 11 Jur. 77; Sweet v. Shaw, 3 Jur. 217; Delfe v. Delamotte, 3 Kay & J. 581, 69 Reprint 1241; Collingridge v. Emmott, 57 L. T. Rep. N. S. 864; Wallenstein v. Herbert, 16 L. T. Rep. N. S. 453; Strahan v. Graham, 16 L. T. Rep. N. S. 87 [aff 17 L. T. Rep. N. S. 457]; Hereford v. Griffin, 16 Sim. 190, 39 EngCh 190. 60 Reprint 846; Richardson v. Gilbert, 1 Sim. N. S. 336, 40 EngCh 336, 61 Reprint 130; Barfield v. Nicholson, 2 Sim. & St. 1, 1 EngCh 1, 57 Reprint 245; Nicol v. Stockdale, 3 Swanst. 687, 36 Reprint 1023; Chantrey V. Dey, 28 T. R. 499; Nisbet v. Golf Agency, 23 T. L. R. 370; Geissendorfer v. Mendelssohn, 13 T. L. R. 91; Trade Auxiliary v. Jackson, 4 T. L. R. 130; Wyatt v. Barnard, 3 Ves. & B. 77, 35 Reprint 408; Black v. Imperial Book Co., 5 Ont. L. 184 [app dism 8 Ont. L. 9 (dism app 35 Can. S. C. 488)]. Photographer or customer see infra $ 153. L. (1 & 2 74. Copyright Act, 1911 Geo. V c 46 § 5 (1)). 75. Copyright Act, 1911 (1 & 2 Geo. V c 46 § 5 (1) (b)). 76. Copyright Act, 1842 (5 & 6 Vict. c 45 § 18); Trade Auxiliary Co. v. Middlesborough, etc., Tradesmen's Protection Assoc., 40 Ch. D. 425: Smith v. Johnson, 4 Giffard 632, 66 Reprint 859; Mayhew v. Maxwell, 1 Johns. & H. 312, 70 Reprint 766. to the employee." 78 79 [153] 4. Photographer or Customer. In the United States the right to obtain a copyright in photographs follows the common-law property right therein." The photographer is entitled to the copyright as author and proprietor, where the photograph is taken at his own instance, without any contract of employment. But where the photographer is employed to produce the picture, the customer is entitled to the copyright as being the proprietor of it.80 Celebrities, requested by photographers to give sittings without any charge being made for the taking of the photographs, do not acquire the copyright in the photographs notwithstanding they subsequently purchase copies. 82 English statutes. In the case of an engraving, photograph, or portrait, the act of 1911 provides 77. Life Pub. Co. v. Rose Pub. Co., 12 Ont. L. 386, 8 OntWR 28. OntWR 337; Frowde v. Parrish, 27 Ont. 526 [app Anglo-Canadian Music Publishers Assoc. v. Winnifrith, 15 Ont. 1641. [a] "Actual payment is not required to be proved under our act: Richardson v. Gilbert, 1 Sim. N. S. 336." Frowde v. Parrish, 27 Ont. 526, 528. 78. 79. 324. 80. See supra § 30. Press Pub. Co. v. Falk, 59 Fed. Press Pub. Co. v. Falk, 59 Fed. 324; Pollard v. Photographic Co., 40 Ch. D. 345. [a] Rule applied.—A photographer employed by the parents to photograph the nude body of a deformed child who copyrighted and published the photograph without the customer's consent is liable in damages to them. Douglas v. Stokes, 149 Ky. 506, 149 SW 849, AnnCas1914B 374, 42 LRANS 386. 81. Press Pub. Co. v. Falk, 59 Fed. 324. [a] Photographer as proprietor of photograph. Where a photographer photographed an actress in her stage character, with the understanding that she should have all the copies which she desired free of charge to do with as she pleased, it was held that the photographer was the author and proprietor of the photograph and was entitled to secure the statutory copyright therein. Pub. Co. v. Falk, 59 Fed. 324. Press 82. See Melville v. Mirror of Life Co., [1895] 2 Ch. 531; Ellis v. Marshall, 64 L. J. Q. B. 757 (both cases decided under the English statute). Like rule under English statute see infra note 86. 83. See supra § 144. 84. Fine Arts Copyright Act, 1862 (25 & 26 Vict. c 68 § 1); Boucas v. Cooke, [1903] 2 K. B. 227; Stackemann v. Paton, [1906] 1 Ch. 774; Melville v. Mirror of Life Co., [1895] 2 Ch. 531; McCosh v. Crow, 5 F. (Ct. Sess.) 670; Ellis v. Marshall, 64 L. J. Q. B. 757 (mere permission to take a photograph is not a valuable consideration within the statute). [a] Copyright in negative. Where a photograph is in the ordinary way taken by a photographer for a sitter at the request of the sitter, and on a promise by him, express or implied, to pay for it, the negative of the photograph is, within the true meaning of the proviso to § 1 of the Fine Arts Copyright Act of 1862, "made or executed for or on behalf of any other person for a good or a valuable consideration," and the copyright belongs to the sitter, notwithstanding the photographer retains the property in the negative. Boucas V. Cooke, [1903] 2 K. B. 227. [b] Photograph of wife and children. Where the true inference from the facts was that the wife acted as the agent of her husband in having herself and children photographed, the husband was entitled to prevent the photographer from exhibiting the photograph in public. Stedall V. Houghton, 18 T. L. R. 126. 85. Boucas v. Cooke, [1903] 2 K. B. 227; Stackemann v. Paton, [1906] 1 Ch. 774; Melville v. Mirror of Life Co.. [1895] 2 Ch. 531; Ellis v. Marshall, 64 L. J. Q. B. 757. [a] Statutory changes.-"The differences between the Act of 1911 and the Act of 1862 are (1) that under the Act of 1911 writing is not required if the artist desires to retain his copyright, the proviso only says in the absence of any agreement to the contrary'; (2) that the 1862 Act refers to a work 'made' for another, and the Act of 1911 speaks of a plate or original 'ordered' by some other person; (3) that the 1862 Act uses the expression 'a good or a valuable consideration,' whereas the Act of 1911 only has the words 'valuable consideration." Copinger Copyright (5th ed) pp 113, 114. [b] Good consideration.—A photographer took certain photographs of a private school, it being understood that he did so speculatively and at his own risk, and that the school proprietor was to be at liberty afterward to buy, or not to buy, copies entirely at his own pleasure. The school proprietor, on this understanding, admitted the photographer into the interior of his private house, indicated to him what seemed the best points of view, placed the cricket eleven, and assembled the whole school into a group. It was held that under these circumstances there was such "good" consideration moving from the school proprietor to the photographer for the taking of the photographs as was sufficient to transfer the copyright in the photographs from their "author," the photographer, to the school proprietor, under the terms of the proviso in § 1 of the Fine Arts Copyright Act of 1862. Stackemann v. Paton, [1906] 1 Ch. 774. 86. Boucas v. Cooke, [1903] 2 K. B. 227. 87. Assigns defined see Assigns 5 C. J. p 1310; Assignments § 4. 88. See supra § 33 et seq. 89. Act March 4, 1909 (35 U. S. St. at L. 1075 c 320 § 8); U. S. Rev. St. § 4952. [a] "Assigns" construed.-"It seems clear that the word 'assigns' in this section is not used as descriptive of the character of the estate which the author, inventor, designer or proprietor' may acquire under the statute, for the 'assigns' of any such person, as well as the persons themselves, may, 'upon complying with the provisions of this chapter,' have the sole liberty of printing, publishing and vending the same. This would seem to demonstrate the intention of Congress to vest in 'assigns.' before copyright, the same privilege of subsequently acquiring complete statutory copyright as the original author, inventor, designer or proprietor has. Nor do we think this 89 result is qualified because the statute gives to assigns, together with the right of publishing, vending, etc., the right of 'completing, executing and finishing' the subject-matter of copyright." American Tobacco Co. v. Werckmeister, 207 U. S. 284, 297, 28 SCt 72, 52 L. ed. 208, 12 AnnCas 595 [quot Bong v. Alfred S. Campbell Art Co., 214 U. S. 236, 245, 29 SCt 628, 53 L. ed. 979, 16 AnnCas 1126]. 90. Bong v. Alfred S. Campbell Art Co.. 214 U. S. 236, 29 SCt 628, 53 L. ed. 979, 16 AnnCas 1126; American Tobacco Co. v. Werckmeister, 207 U. S. 284, 28 SCt 72, 52 L. ed. 208, 12 AnnCas 595 [aff 146 Fed. 375, 76 CCA 647]; Mifflin v. Dutton, 190 U. S. 265, 23 SCt 771, 47 L. ed. 1043 [aff 112 Fed. 1004, 50 CCA 661, 61 LRA 134]; Callaghan v. Myers, 128 U. S. 617, 9 SCt 177, 32 L. ed. 547; Paige v. Banks, 13 Wall. (U. S.) 608, 20 L. ed. 709 [aff 18 F. Cas. No. 10,671, 7 Blatchf. 152]; Werckmeister v. Pierce, etc., Mfg. Co., 63 Fed. 445 (rev on other grounds 72 Fed. 54, 18 CCA 431]; Black v. Henry G. Allen Co., 42 Fed. 618, 9 LRA 433; Cowen V. Banks, 6 F. Cas. No. 3,295, 24 HowPr (N. Y.) 72; Folsom v. Marsh, 9 F. Cas. No. 4,901, 2 Story 100; Lawrence v. Dana, 15 F. Cas. No. 8.136, 4 Cliff. 1: Little v. Gould, 15 F. Cas. Nos. 8,394, 8,395, 2 Blatchf. 165, 362; Parton v. Prang, 18 F. Cas. No. 10,784, 3 Cliff. 537; Pulte v. Derby, 20 F. Cas. No. 11,465, 5 McLean 328. [a] Rule applied.-An instrument providing that the proprietor of an unpublished picture thereby transferred the "copyright" in said picture to a named person is sufficient to transfer the right to apply for and obtain a copyright thereon by the assignee. American Tobacco Čo. v. Werckmeister, 207 U. S. 284, 28 SCt 72, 52 L. ed. 208, 12 AnnCas 595. 91. Cumberland v. Planche, 1 A. & E. 580, 28 ECL 276, 110 Reprint 1329 (dramatic copyright); Cocks V. Purday, 5 C. B. 860, 57 ECL 860, 136 Reprint 1118; Jefferys v. Boosey, 4 H. L. Cas. 815, 10 Reprint 681; Sweet v. Shaw, 3 Jur. 217; D'Almaine v. Boosey, 4 L. J. Exch. 21; Colburn v. Duncombe, 9 Sim. 151, 16 EngCh 151, 59 Reprint 316; Thompson v. Symonds, 5 T. R. 41, 101 Reprint 23; Life Pub. Co. v. Rose Pub. Co., 12 Ont. L. 386, 8 OntWR 28, 7 OntWR 337 (construing the English statute). [a] Assignment before publication.-"The statute of Anne clearly contemplates a first publication by the assignee as sufficient to give him the monopoly-and, in point of fact, I believe that nothing is more common than that the booksellers should take an assignment of the copyright, and publish themselves as proprietors, so as to vest the monopoly in them during the term. The words of the statute, that the author or his assignee shall have the sole liberty, etc.. from the day of the first publication, seem to me to show that the assignee may himself publish, so as may assign the right or privilege of taking a copyright independently of the transfer of the copyrightable thing itself,92 as in the case of paintings or other works of art, where the original work may be sold to one person and the copyright to another or reserved to the artist.93 It is the intangible intellectual property right, not the physical embodiment of it, which must be assigned to confer a right to obtain copyright by the assignee.94 Of course, where the author himself, for any reason, has no right to obtain a copyright, he cannot confer such right on his assignee. 95 [155] E. Executors and Administrators.96 The common-law right which an author has in his intellectual productions is personal property which on his death vests in his executors and administrators.” Under the statute, the executor or administrator of the author or proprietor of copyrightable matter is to acquire the copyright, and I see no reason why an alien friend should not have this right." Jefferys v. Boosey, 4 H. L. Cas. 815, 853, 10 Reprint 681 (per Crompton, J.). 92. Bong v. Alfred S. Campbell Art Co.. 214 U. S. 236, 29 SCt 628, 53 L. ed. 979, 16 AnnCas 1126; American Tobacco Co. v. Werckmeister, 207 U. S. 284, 28 SCt 72, 52 L. ed. 208, 12 AnnCas 595 [aff 146 Fed. 375, 76 CCA 647]; Werckmeister v. American Lith. Co., 142 Fed. 827; Werckmeister v. Pierce, etc., Mfg. Co., 63 Fed. 445 [rev on other grounds 72 Fed. 54, 18 CCA 431]; Macmillan v. Dent, [1907] 1 Ch. 107, 3 BRC 647. 97 98 expressly authorized to obtain a copyright therefor. [§ 156] F. Trustees. While no express provision is made therefor in the statute, there seems to be little doubt but that a person who is not the author or beneficial proprietor of a work may take out the copyright in his own name and hold it in trust for the rightful owner, provided he acts with the authority, express or implied, of the actual owner;2 and a court of equity may compel an assignment to other person, by assignment, any title sufficient to authorize a copyright to it or him as the assignee of the author or proprietor. Banks v. Manchester, 128 U. S. 244, 9 SCt 36, 32 L. ed. 425. Nonresident alien authors see infra § 160. 96. Succession to copyright on death of proprietor see infra 254. 97. See supra § 5. 98. Act March 4, 1909 (35 U. S. St. at L. 1075 c 320 § 8); U. S. Rev. St. $ 4952; Folsom v. Marsh, 9 F. Cas. No. 4,901, 2 Story 100. 99. Copyright Act, 1842 (5 & 6 Vict. c 45 § 3); Macmillan v. Dent, [1907] 1 Ch. 107, 118, 3 BRC 647 (where Vaughan Williams, L. J., said: "Whatever were the common law rights of authors before publication, the necessary effect of s. 3 of the Act of 1842 is to determine those "This statute means to give to the assigns of the original owner of the right to copyright an article the right to take out the copyright secured by the statute, independently of the ownership of the article itself." American Tobacco Co. v. Werck-rights and to transfer them to the meister, 207 U. S. 284, 299, 28 SCt 72, 52 L. ed. 208, 12 AnnCas 595 [quot Bong v. Alfred S. Campbell Art Co., 214 U. S. 236, 29 SCt 628, 53 L. ed. 979, 16 AnnCas 1126]. Common-law rights separated from physical object see supra §§ 5, 33. 93. See cases supra note 92. 94. Bong v. Alfred S. Campbell Art. Co., 214 U. S. 236, 29 SCt 628, 53 L. ed. 979, 16 AnnCas 1126 [aff 155 Fed. 116, 83 CCA 576]. See cases supra note 92. [a] "An assignee within the meaning of the statute is one who receives a transfer, not necessarily of the painting but of the right to multiply copies of it. And such right does not depend alone upon the statute, as contended by plaintiff, but is a right derived from the painter and secured by the statute to the assignee of the painter's right." Bong v. Alfred S. Campbell Art Co., 214 U. S. 236, 246, 29 SCt 628, 53 L. ed. 979, 16 AnnCas 1126 [aff 155 Fed. 116, 83 CCA 576]. [b] Statutory definition.-"The word 'assigns' shall be construed to mean and include every Person in whom the Interest of an Author in Copyright shall be vested, whether derived from such Author before or after the Publication of any Book, and whether acquired by Sale, Gift, Bequest, or by Operation of Law, or otherwise." St. 5 & 6 Vict. c 45 § 2. 95. Bong v. Alfred S. Campbell Art Co., 214 U. S. 236, 29 SCt 628, 53 L. ed. 979, 16 AnnCas 1126; Banks v. Manchester, 128 U. S. 244. 9 SCt 36, 32 L. ed. 425 [aff 23 Fed. 143]; Yuengling v. Schile, 12 Fed. 97, 20 Blatchf. 452; Koppel v. Downing, 11 App. (D. C.) 93. [a] Illustration.-The judge who, in his judicial capacity, prepares the headnotes, statement of the case, and opinion cannot be regarded as their author or proprietor within the provisions of Rev St. $$ 4952. 4954, so as to confer on the state or any proprietor of the author's manuscript"). "On the death of the author of any unpublished literary composition, the owner of the author's manuscript, or his assignee, has the right of withholding publication, or of acquiring copyright for the statutory period by publication." 8 Halsbury L. Eng. p 137. [a] Where more than one manuscript exists, the owner of the author's manuscript from which the work is first published is entitled to the copyright. Copyright Act, 1842 (5 & 6 Vict. c 45 § 3); Macmillan v. Dent, [1907] 1 Ch. 107, 3 BRC 647. [b] Letters published after death of author.-Under the English Copyright Act of 1842 the copyright of a letter published after the death of the author is vested in the person owning the actual letter and not in the representatives of the author. Macmillan v. Dent, [1906] 1 Ch. 101, 3 AnnCas 1113 [aff [1907] 1 Ch. 107, 3 BRC 6471. [c] Publication of private and confidential letters by the owner of the manuscript letters may be restrained on application of the personal representatives of the deceased writer. Macmillan v. Dent, [1907] 1 Ch. 107, 3 BRC 647; Thompson v. Stanhope, Ambl. 737, 27 Reprint 476; Lytton v. Devey, 54 L. J. Ch. 293. See also supra § 32. 1. St. 1 & 2 Geo. V c 46 § 17 (2). [a] "The ownership of an author's manuscript after his death, where such ownership has been acquired under a testamentary disposition made by the author, and the manuscript is of a work which has not been published, nor performed in public, nor delivered in public. is prima facie proof of the copyright being with the owner of the manuscript (Copyright Act, 1911 (1 & 2 Geo. 5. c. 46), s. 17 (2)). The change introduced in the law is that mere possession of the manuscript is no proof of the copyright being in the owner of the manuscript, and unless there has been a disposition by will, it is submitted that on the death of the author the copyright in such work vests in his personal representatives, and even a disposition by will is not to be taken as conclusive proof that the copyright in such work is in the person in whose favour such disposition is made. See, further, as to posthumous work, Copyright Act, 1911 (1 & 2 Geo. 5, c. 46), s. 17 (1), (2), and ibid., s. 3. proviso." Halsbury L. Eng. Suppl. (1917) p 360. [b] Letters.-The alteration introduced by the Copyright Act, 1911 (1 & 2 Geo. 5, c. 46), in the law relating to copyright in letters appears to be limited to the case of letters written by a deceased person. Formerly letters of a deceased person might be published by the owner of the author's manuscript (Macmillan v. Dent, [1907] 1 Ch. 107. 3 BRC 647) unless there were circumstances in which their publication could have been restrained by the personal representatives of the deceased author (Thompson v. Stanhope, Ambl. 737, 27 Reprint 476; Lytton v. Devey, 54 L. J. Ch. 293). See also Ashburton v. Pape, [1913] 2 Ch. 469. Letters that have not been published during the author's lifetime are not posthumous works, and the copyright in them belongs to the author's personal representatives; see Copyright Act, 1911 (1 & 2 Geo. 5, c. 46), s. 17 (1), (2), and the proviso to ibid., s. 3." Halsbury L. Eng. Suppl. (1917) p 360. 2. Harms v. Stern, 229 Fed. 42. 145 CCA 2; Press Pub. Co. v. Falk, 59 Fed. 324; Black v. Henry G. Allen Co., 42 Fed. 618, 9 LRA 433, 56 Fed. 764; Carte V. Evans, 27 Fed. 861; Mackaye v. Mallory, 12 Fed. 328; Lawrence v. Dana, 15 F. Cas. No. 8.136, 4 Cliff. 1; Little v. Gould, 15 F. Cas. No. 8.394, 2 Blatchf. 165; Pierpont v. Fowle, 19 F. Cas. No. 11,152, 2 Woodb. & M. 23; Pulte v. Derby, 20 F. Cas. No. 11,465. 5 McLean 328; Carter v. Bailey, 64 Me. 458. 18 AmR 273; Petty v. Taylor, [1897] 1 Ch. 465; London Printing, etc., Alliance, Ltd. v. Cox, [1891] 3 Ch. 291; Hazlitt v. Templeman. 13 L. T. Rep. N. S. 593; Sweet v. Cater, 11 Sim. 572, 34 EngCh 572, 59 Reprint 994 (equitable assignment). [a] The legal title to a copyright vests in the person in whose name it is taken out, but it may be held by him in trust for the true owner. Harms v. Stern, 229 Fed. 42. 145 CCA 2. [b] Title of assignee.-The party to whom an assignment is made. whether for the benefit of another or not, holds the legal interest in the work as assignee of the author, and comes, therefore, within the very words of the law entitling him to the copyright. Whether a third person [157] G. Citizenship and Residence as Affecting Right-1. Under United States Statutes-a. Citizens and Residents. Prior to the act of March 3, 1901, the benefit of the copyright laws of the United States was limited solely to citizens and residents of the United States. Nonresident aliens could not obtain copyright. But no distinction ever has been made between citizens and resident aliens.10 An alien domiciled in the United States is entitled to copyright equally with a citizen; no reciprocity or proclamation is necessary, or ever has been necessary. In order to constitute a person a resident of the United States, within the meaning of the term as used in the copyright laws, it is necessary that he shall take up his residence in this country with the intention of remaining and making it his home.12 Such residence, existing at the time the copyright is initiated by performance of the statutory requirements,13 is sufficient to support the copyright, notwithstanding a subsequent change of intention and actual removal from the United States.14 A state is neither a citizen nor a resident of the 11 has an equitable interest in the work, derived from the author or from the legal assignment, is a question between those parties, in respect to which the public interest or policy is not at all concerned. Lawrence v. Dana, 15 F. Cas. No. 8,136, 4 Cliff. 1. [c] Where a publisher takes a copyright in his own name, with the knowledge and acquiescence of the author, he is the lawful owner, subject to the condition of accounting to the author pursuant to the contract. Pulte v. Derby, 20 F. Cas. No. 11,465, 5 McLean 328. [d] Gratuitous services-Lawrence gave his services gratuitously to Wheaton, the proprietor of a book, in preparing new editions with notes and other additions of his own composition. Wheaton took out a copyright of said editions. By the terms of a contract between them, Wheaton was to make a formal agreement not to use Lawrence's notes in a subsequent edition without his consent, and gave Lawrence the right to make any use of his notes that he wished. It was held that Lawrence was the equitable owner of said notes, and that Wheaton was the legal owner, and the proper person to take out the copyright. Lawrence v. Dana, 15 F. Cas. No. 8,136, 4 Cliff. 1. [e] "A trustee in whom a copyright is vested may be registered as the owner, and may sue in that character; but it is impossible for one person to be the owner and another person to be on the register, and for those two persons successfully to sue. London Printing, etc., Alliance, Ltd. v. Cox, [18911 3 Ch. 291, 303. 3. Lawrence v. Dana, 14 F. Cas. No. 8,136, 4 Cliff. 1; Little v. Gould, 15 F. Cas No. 8,394, 2 Blatchf. 165; Pulte v. Derby, 20 F. Cas. No. 11,465, 5 McLean 328; Hazlitt v. Templeman, 13 L. T. Rep. N. S. 595. 4. Koppel v. Downing, 11 App. (D. C.) 93 (holding that the real owner of a manuscript which has been entered for copyright by another cannot, by a retroactive adoption and for the purpose of bringing suit for infringement, constitute the person making the entry a trustee). 5. Petty v. Taylor, [1897] 1 Ch. 465. 6. 7. United States, and therefore could not obtain a copyright so long as that right was limited to citizens or residents.15 But since the removal of that restriction no reason appears why a state may not be entitled to copyright as a "proprietor,' or even as an "author," under the provision that the word "author" shall include an employer in the case of works made for hire.16 [158] b. Nonresident Aliens. This restriction of copyright to citizens and residents of the United States was removed by the amendatory act of 1891 which in general terms, on compliance with the provisions of the statute, gave copyright to any author, inventor, designer, or proprietor of copyrightable subject matter, regardless of citizenship or residence,17 but subject to the following express condition, namely: "That this act shall only apply to a citizen or subject of a foreign state or nation when such foreign state or nation permits to citizens of the United States of America the benefit of copyright on substantially the same basis as its own citizens; or when such foreign state or nation is a party to an international agreement which provides for reciprocity in the granting of copyright, by the terms of which agreement the United States of America may, at its pleasure, become a party to such agreement. The existence of either of the conditions aforesaid shall be determined by the President of the United States by proclamation § 1. Citizen see Citizens § 1. Dom- § 453. 8. Rev. St. 4952; Act July 8, 1870 (16 St. at L. 198 c 230 § 86); Act Febr. 3, 1831 (4 St. at L. 436 c 16 § 1); Act April 29, 1802 (2 St. at L. 171 c 36 § 2); Act March 31, 1790 (1 St. at L. 124 c 15 § 1); Banks V. Manchester, 128 U. S. 244, 9 SCt 36, 32 L. ed. 425. [a] Express exclusion of nonresident aliens.-Since 1831, and until the act of 1891, the successive statutes have contained an express declaration that nothing therein contained should be construed to prohibit the printing, publication, importation, or sale of any work composed or made by any person not a citizen of the United States nor resident therein. Act Febr. 3, 1831 (4 St. at L. 436 c 16 § 8); Act July 8, 1870 (16 St. at L. 198 c 230 § 103); Rev. St. § 4971. 9. Bong v. Alfred S. Campbell Art 489; West Pub. Co. V. Edward 10. See statutory provisions supra 11. Act March 4, 1909 (35 St. at L. 1075 c 320 § 8). 12. Boucicault v. Wood, 3 F. Cas. No. 1.693, 2 Biss. 34; Carey v. Collier, 5 F. Cas. No. 2.400. [a] Naturalization declaration An officer of the British navy, traveling through the United States, and considering himself a British subDefinitions of: Alien see Aliens ject, during his stay filed a declara See supra § 7. tion of intention to become a citizen. It appeared that at the time when trouble with Canada seemed imminent he had offered his services to the province. It was held that he was not a resident of the United States within the meaning of the Copyright Act of 1831. Carey v. Collier, 5 F. Cas. No. 2,400. 13. See infra § 167 et seq. [a] Under the act of 1909 (1) copyright is initiated by publication, with notice of copyright, in the case of published works. Act March 4, 1909 (35 St. at L. 1075 c 320 § 9). (2) In the case of unpublished works, copyright is initiated by making the specified deposits in the copyright office with claim of copyright. March 4, 1909 (35 St. at L. 1075 c 320 § 11). See infra § 171 et seq. Act 14. Boucicault v. Wood, 3 F. Cas. No. 1,693, 2 Biss. 34. 15. Banks v. Manchester, 128 U. S. 244, 9 SCt 36, 32 L. ed. 425 [aff 23 Fed. 143]. "The State cannot properly be called a citizen of the United States or a resident therein, nor could it ever be in a condition to fall within the description in § 4952, or § 4954. The copyright claimed to have been taken out by Mr. De Witt in the present case, being a copyright 'for the State,' is to be regarded as if it had been a copyright taken out in the name of the State. Whether the State could take out a copyright for itself, or could enjoy the benefit of one taken out by an individual for it, as the assignee of a citizen of the United States or a resident therein, who should be the author of a book, is a question not involved in the present case, and we refrain from considering it and from considering any other question than the one above indicated." Banks V. Manchester, 128 U. S. 244, 253, 9 SCt 36, 32 L. ed. 425 [aff 23 Fed. 143]. 16. Act March 4, 1909 (35 St. at L. 1075 c 320 §§ 8, 62). 17. Act March 3, 1891 (26 St. at L. 1106 c 565 § 1); Bentley v. Tibbals, 223 Fed. 247, 138 CCA 489; West Pub. Co. v. Edward Thompson Co., 176 Fed. 833, 835, 100 CCA 303 [mod 169 Fed. 833]; Hervieu v. J. S. Ogilvie Pub. Co., 169 Fed. 978; Harper v. Donohue, 144 Fed. 491 [aff 146 Fed. 1023 mem, 76 CCA 678 mem]; Frohman v. Ferris, 238 Ill. 430, 87 NE |