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is on the other, is a mystery as unfathomable as the distinction is fanciful.

British Subject Resident Abroad Entitled to Copyright. - It appears to be conceded, although the question has not been judicially determined, that a British subject, while resident abroad, may acquire copyright by first publishing in his own country. "It seems not to be denied," said Lord St. Leonards, "that an English author may reside abroad, and yet may have his rights as an English author, upon publication here. Why? Because he owes a natural allegiance, which he cannot shake off." 1

Law Summarized. The law concerning the nativity and residence of the author may now be given succinctly. English copyright will not vest in the work of an alien who is not within the British dominions at the time of publication. A foreign author may acquire copyright in England on three conditions: 1, Publication must be in the United Kingdom; 2, there must have been no previous publication; 3, the author must be at the time of publication within the British dominions.2 A native author must comply with the first two of these requisites; but it is immaterial whether he is within or without the British dominions at the time of publication. Sculpture, models, and casts are governed by a special statute; and so are prints and engravings. these statutes, like those relating to literary compositions, make no distinction between native and foreign authors.5 The act

Works of Art.

8

1 Jefferys v. Boosey, 4 H. L. C. 985. "If Mr. Gibbon," said Lord Chief Justice Campbell, "after writing the later volumes of his Decline and Fall, at Lausanne, had continued to reside there, can it be doubted that, while domiciled there, he might have caused them to be published in London, acquiring the same rights as an author as if he had returned to this country; or that he might have sold the copyright to another residing in Lausanne, who might have published as the purchaser in London, or assigned the right to a London bookseller?" Boosey v. Jefferys, 6 Exch. Rep. 596. And Lord Chancellor Cranworth intimated that

But

if Gibbon had "established himself at Lausanne, without any animus revertendi," he would not have lost his rights as a British subject. Jefferys v. Boosey, 4 H. L. C. 822.

2 For the extent of the United Kingdom and of the British dominions, see post, p. 298.

8 54 Geo. III. c. 56.

48 Geo. II. c. 13; 7 Geo. III. c. 38; 17 Geo. III. c. 57.

5 In Page v. Townsend, decided in 1832, Shadwell, V. C., held, concerning prints and engravings, that "the object of the legislature was to protect those works which were designed, engraved, etched or worked in Great Brit

relating to paintings, drawings, and photographs, grants copyright to an "author, being a British subject or resident within the dominions of the crown." 1 This seems to exclude a foreign author who resides abroad, but not one who may be resiIdent within the British dominions.

RIGHTS OF FOREIGNERS IN THE UNITED STATES.

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No Copyright in Work of Foreign Author. - In this country, the question whether a foreigner is entitled to copyright is free from much of the doubt and difficulty which have surrounded it in England. From the first statute, enacted in 1790, to that passed in 1870, Congress has granted copyright to such author only as may be "a citizen of the United States or resident therein," and has expressly declared that no protection shall be extended to the works of a foreigner. The statutes in force before 1870 completely excluded foreign authors from all privileges. There is no reason for believing that Congress, in passing the act now in force, deliberately intended to make any change in the law in this respect. But this statute cannot be construed to prevent a resident owner from securing valid. copyright for certain works of art produced by foreign authors.

Statutory Prohibition not Extended to certain Works of Art. Section 4952 of the Revised Statutes provides that "any citizen of the United States or resident therein, who shall be the author, inventor, designer, or proprietor of any book, map, chart, dramatic or musical composition, engraving, cut, print, or photograph or negative thereof, or of a painting, drawing, chromo, statue, statuary, and of models or designs intended to be perfected as works of the fine arts, and the executors, administrators, or assigns of any such person," shall be entitled to secure copyright therein. There is nothing in this section to prevent a citizen or a resident of the United States from acquiring copyright in a work

ain, and not those which were designed, engraved, etched or worked abroad and only published in Great Britain." 5 Sim. 404. In this case the prints had been struck off abroad, and only published in England. The decision

is not an authority against the doctrine that the foreigner might have acquired copyright if his productions had been printed and published in England.

125 & 26 Vict. c. 68, s. 1.

which he has bought from a foreign author; for a "proprietor is empowered to secure copyright, and in such case no condition or requirement is prescribed as to the nativity or residence of the author. The part of the statute which excludes from protection the works of foreign authors is section 4971; which declares that "nothing in this chapter shall be construed to prohibit the printing, publishing, importation, or sale of any book, map, chart, dramatic or musical composition, print, cut, engraving, or photograph, written, composed, or made by any person not a citizen of the United States nor resident therein." It is clear that no protection can be secured for any work here named which is the production of a person who is not a citizen or a resident of the United States. But there is no mention in this section of paintings, drawings, chromos, statues, statuary, models, or designs; and there is nothing in the statute to prevent a resident owner of any such production from securing a valid copyright therein, though it be the work of a foreigner.

There is no rea

Translations, Abridgments, Dramatizations. sonable doubt that valid copyright will vest in a translation, abridgment, or dramatization made by a citizen or resident from the work of a foreign author. The law recognizes such productions as proper subjects of copyright; and, as the copyright does not extend to the original, it matters not that this is the work of a foreign author. But, in such case, the law protects each author only in his own production. The original, being common property, may be used by any person, without infringing the copyright in a protected abridgment, translation, or dramatization.2

Joint Native and Foreign Authors. - In the case of a work of which a citizen and a foreigner are joint authors, there is nothing to prevent a valid copyright from vesting in that part of which the former is the author, provided this can be separated from that written by the foreign author. If the parts cannot be separated, it would seem that copyright will not vest in any of it.

Carey v. Collier, 56 Niles Reg. 262; Keene v. Wheatley, 9 Am. Law Reg. 33; Boucicault v. Wood, 2 Biss. 34.

2 Shook v. Rankin, 6 Biss. 477; Shook v. Rankin, 3 Cent. Law Jour. 210; Benn v. LeClercq, 18 Int. Rev. Rec. 94.

Meaning of Resident. the word resident, as used in the copyright statute, is that it refers to a person who is residing in the United States with the intention of making this country his place of permanent abode. A formal declaration of such intention is not necessary, nor is any definite period of time indicated as requisite to constitute such residence. Nor is it essential that such person shall be a householder. He may be a lodger or boarder. The question is determined by the state of mind, the intention, of the person at the time he has his abode here; and by his acts, as far as they show what that intention was. If while here he intends to stay and make this his home, he becomes during the continuance of that intention a resident within the meaning of the law, though afterward he may change his mind, and return to his native land. How long such intention shall continue, the courts have not said; but, if it exist bona fide at the time of recording the title, valid copyright vests, and will not be defeated by any subsequent acts or change of mind on the part of the claimant. On the other hand, if a foreign author comes to this country intending to stay temporarily, although he actually remains many years, he is a mere sojourner, and does not acquire a residence within the meaning of the act. To determine thus the intention in the mind of a person may be attended with difficulty, and even with fraud. It is a question of fact, on whose determination the law will depend.2

The judicial construction given to

In Boucicault v. Wood, it appeared that the plaintiff, who was a native of Great Britain, had been in the United States from 1853 to 1861, when he returned to the former country. During this period, he had copyrighted certain plays which he had written. The defence was that the plaintiff, being a foreigner, was not entitled to copyright in this country.

Boucicault v. Wood, 2 Biss 34.

2 In Carey v. Collier, 56 Niles Reg. 262, decided by the United States Circuit Court in 1839, it was held that Capt. Marryatt, who had filed a declaration of his intention to become a citizen of the United States, did not thereby become a resident, for the reason that the evidence showed that

he was still a subject of Great Britain in whose navy he was an officer, and

that he intended to return to that
country to reside. Mr. Justice Betts
said that "it was evident that a man
who was a mere transient visitant,
whose family, business intentions and
relations were all abroad, could not be
considered a resident; and the filing a
declaration of his intention to become
a citizen could not make him one."
3 Supra.

The jury was directed to find whether Boucicault, when he entered his copyright, intended to make this country his home. It was found that such intention then existed in his mind, and accordingly the copyright was held to be valid. The law on this point was expounded by Mr. Justice Drummond as follows: "No person is entitled to the benefit of these acts unless he be, at the time of filing the title, a citizen of the United States, or a resident therein. Residence ordinarily means domicile, or the continuance of a man in a place, having his home there. It is not necessary that he should be the occupant of his own house; he may be a boarder or a lodger in the house of another. The main question is the intention with which he is staying in a particular place. In order to constitute residence, it is necessary that a man should go to a place, and take up his abode there with the intention of remaining, making it his home. If he does that, then he is a resident of that place. This question of residence is not to be determined by the length of time that the person may remain in a particular place. For example, a man may go into a place and take up his abode there with the intention of remaining, and if so, he becomes a resident there, although he may afterwards change his mind, and within a short time remove. So if a person goes to a place with the intention of remaining for a limited time, although in point of fact he may remain for a year or more, still this does not constitute him a resident. So it is his intention accompanied with his acts, and not the lapse of time, which determines the question of residence. The plaintiff came to this country in 1853, and remained, pursuing his profession as an actor and author until 1861; and if at the time of filing the title he had his abode in this country with the intention of remaining permanently, he was a resident within the meaning of the law, even though he afterwards changed his mind and returned to England. If, however, he was a sojourner, a transient person, or at the time of this filing had the intention to return to England, he is not entitled to the protection of these laws." 1

Immaterial where Work is Produced or Citizen Author Resides.

-No conditions are prescribed as to where the work shall be

1 2 Biss. 38; s. c. 7 Am. Law Reg. N. s. 539, 545.

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