property in the manuscript. Of this the assignee, unless the assignment be of a qualified interest, becomes the absolute owner. He succeeds to all the rights which were vested in the author. He acquires the right not only to publish and to secure the statutory copyright, but also to withhold from publication, or to publish without securing, the copyright; and thus, if he wishes, to abandon his property to the public.1 In short, he becomes vested with all the rights of property which the common law recognizes in an unpublished composition, and which are more extensive than the right to secure statutory copyright. A person, then, who is an assignee at common law of the author's rights is recognized by the statute as an assignee entitled to secure copyright. Whether a person who has derived a title at common law is or is not an assignee, and whether such title is or is not valid, is to be determined by the common law, and not by the statute. Now, at common law, neither a written nor a formal assignment is necessary to make a person an assignee. The owner of an unpublished work may sell it,2 exchange it, or give it away; or it may be transferred by operation of law. The ownership of the property may be lawfully acquired in any of these ways; and there is no reason why a person who thus derives title from the author may not be an assignee in a broad and proper meaning of the word. The essential qualities of an assignee are found in an owner who has derived a lawful title from the author, and such owner is properly within the meaning of assignee as used in the statute. Indeed, this comprehensive meaning is expressly given to the word by the existing English statute, which declares that "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 other 1 See language of Blatchford, J., Paige v. Banks, 7 Blatchf. 156, quoted post 329, note 2. 2 Parton v. Prang, 3 Cliff. 537. 8 Lawrence v. Dana, 2 Am. L. T. R. N. s. 402. 4 Little v. Gould, 2 Blatchf. 165, 362; Folsom v. Marsh, 2 Story, 100. See ante, p. 104. wise." 991 This language is clearly broad enough to make the meaning of "assign" as comprehensive as that of owner, and to enable any person who is the lawful owner of an unpublished work to secure statutory copyright therein.2 Congress has expressly given the same broad scope to the statute now in force, by enacting that the author or the proprietor of a book may obtain copyright.3 Moreover, if it was necessary under the act of 1831 that a person who was not the author should show a title derived from the author, that requirement cannot be regarded as now existing. There is no reason why a person who is the owner of an unpublished manuscript or work of art which has been found, or otherwise brought to light, may not obtain a copyright therein, although the name of the author be unknown. Assuming the principles above explained to be correct, statutory copyright, either in England or in the United States, may be secured in the first instance not only by the author, but also by the owner of an unpublished work who has derived his title from the author; and it is immaterial in what way, provided it be lawful by the common law, the owner has acquired the property in such unpublished work. In the United States, this doctrine in its full scope has neither been expressly affirmed nor denied by the courts; but it is supported by the leading decisions in Little v. Gould, and Lawrence v. Dana, both of which were rendered before all doubt concern 1 5 & 6 Vict. c. 45, s. 2. 2 Cocks v. Purday, 5 C. B. 860. In Jefferys v. Boosey, Mr. Justice Erle expressed the opinion that the bookseller who had obtained ancient manuscripts "brought to light from unburied cities" would be entitled to secure copyright therein. 4 H. L. C. 880. In Maclean v. Moody, Lord Deas said: "A person may find a manuscript in his ancestor's repositories, or get a gift of it, and publish it, and he may be entitled to copyright, although he cannot tell who was the author, nor whether the author is living or dead. ... That the first publisher may have copyright in the work, although he cannot point out the author, appears to me to be implied in section 16 of the 3 U. S. Rev. St. s. 4952. 5 2 Am. L. T. R. N. s. 402. ing the law on this point was removed by the use of the word proprietor in the existing statute.1 The English courts have conceded that copyright will vest ab initio in an assignee; but they have held that statutory copyright can be assigned only by a writing, and have drawn no distinction between transfers made before and those made after publication.2 According to this doctrine, only an assignee who has derived his title by a written assignment would be entitled to secure copyright. The fallacy of this theory has already been shown to be the false assumption, that the statute recognizes no other assignee than one to whom the statutory copyright has been transferred, and that this right can be assigned before it has any existence. The important fact has been overlooked, that, when an author disposes of an unpublished work, he does not convey any statutory copyright therein, because there is no statutory copyright to convey. The only rights which then exist, and which alone can be transferred, are common-law rights. When a person has acquired these rights from the author by any method recognized by the common law, whether by parol agreement or otherwise, he is the lawful owner of the unpublished work, and an assign within the meaning of the statute entitled to secure the copyright conferred by the statute. I have endeavored elsewhere to show more fully that the theory here criticised is contrary to sound principles and to the definition of assignee given by the statute of Victoria, and that in but one case 3 yet reported it has been applied to the construction of that statute.4 The doctrine that copyright will vest, in the first instance, in the owner of a manuscript, is limited by the consideration that the author must be a person entitled to copyright. Thus, when the work of a foreigner is excluded from protection, neither the author nor his assignee can acquire valid copyright for it. A manuscript on a copyright may be owned by the government or a corporation as well as by an individual, and the 1 See post, p. 319, where it is maintained that the statute of the United States does not require an assignment to be in writing when the transfer is made before publication. 2 See post, pp. 302–304. 3 Leyland v. Stewart, 4 Ch. D. 419. 4 See post, pp. 304 et seq. rights of the government or corporation are governed by the same principles as those of an individual owner.1 RIGHTS OF EMPLOYER AND AUTHOR EMPLOYED. Assuming that the law is rightly expounded above, to the effect that copyright will vest ab initio in the owner of an unpublished production, it follows that any person may secure statutory copyright for a work which he has employed another to write. The produce of labor may become the property of him who has employed and paid the laborer. Literary labor is no exception to this universal rule. When an author is employed on condition that what he produces shall belong to the employer, the absolute property in such production vests in the employer by virtue of such employment and by operation of law. This mode of acquiring property in an unpublished work is as lawful as any other, and such owner is as clearly entitled as any other owner of an unpublished work to secure the privileges granted by the statute. Indeed, if the law were otherwise, there would be no copyright in many works already published, and it would be often impracticable to secure copyright for such works to be hereafter published. Thus, cyclopædias, gazetteers, directories, maps, charts, photographs, &c., are in many instances produced by persons employed on the condition that the results of their labor shall belong to their employers; and they are copyrighted and published as the property of such employers. 66 Cyclopædias and Periodicals in Great Britain. — In England, the owners of certain publications are expressly empowered to secure copyright in compositions which they have employed others to write. Section 18 of 5 & 6 Vict. c. 45, declares that when the proprietor of any encyclopædia, review, magazine, periodical work, or work published in a series of books or parts, or any book whatsoever," has employed and paid a person to prepare articles for any such publication on the terms that the copyright shall belong to the proprietor, the copyright shall vest in the proprietor, "who shall enjoy the same rights as if he Little v. Gould, 2 Blatchf. 165, 362; Marzials v. Gibbons, Law Rep. 9 Ch. 518. See ante, pp. 161–164. It were the actual author thereof, and shall have such term of copyright therein as is given to the authors of books by this act." is, however, provided that the author may, by" any contract, express or implied," reserve to himself the right to publish his production in separate form, and, in case of such reservation, he will be the owner of the copyright in the separate publication. The owner of any publication embraced within this section of the statute is thus expressly empowered to employ a person to write the whole or a part of it, and to acquire by virtue of the contract of employment either the absolute copyright in what is so written, or simply the right to use it in that special publication. Whether he acquires the one or the other of these rights will depend on the nature of the agreement, which need not be in writing nor in express words, but may be verbal and implied. The copyright remains in the author, unless he has consented to part with it; 2 but, in the absence of an express agreement, such consent may be implied from the attending circumstances. If the absolute copyright vests in the owner, 1 Bishop of Hereford v. Griffin, 16 Sim. 190; Sweet v. Benning, 16 C. B. 459; Strahan v. Graham, 16 L. T. N. S. 87, on ap. 17 Id. 457. 2 Bishop of Hereford v. Griffin, supra; Mayhew v. Maxwell, 1 Johns. & H. 312; Smith v. Johnson, 4 Giff. 632; Strahan v. Graham, supra; Delf v. Delamotte, 3 Jur. N. s. 933. 3 Sweet v. Benning, supra. The plaintiffs were publishers of The Jurist, and had employed various lawyers to prepare reports of cases for that periodical. Nothing was said as to the copyright. The Court of Common Pleas held that there must be presumed an implied agreement that the copyright was to be the property of the employers. 'It was urged," said Maule, J., "that these reports were not written on the terms that the copyright therein should belong to the proprietors' of The Jurist, because there were no express words in the contract under which they were written, conferring upon them the right to the copy. But, though no express words to that effect are stated in this special case, I think, that, where a man em ploys another to write an article, or to do any thing else for him, unless there is something in the surrounding circumstances, or in the course of dealing between the parties, to require a different construction, in the absence of a special agreement to the contrary, it is to be understood that the writing or other thing is produced upon the terms that the copyright therein shall belong to the employer-subject, of course, to the limitation pointed out in the 18th section of the act." 16 C. B. 484. In the Bishop of Hereford v. Griffin, where it appeared that the plaintiff, at the request of the publishers, had written an article on Thomas Aquinas for the Encyclopædia Metropolitana, and no special agreement had been made as to the copyright, Vice-Chancellor Shadwell held that the publishers had acquired merely the right to publish the article in the cyclopædia. He said: "Then the defendants say that they believe that the ordinary terms of contract were adopted between the plaintiff and the publishers of the encyclopædia, and that no special agreement was entered into with respect to the |