So copyright is given to any person "who shall make or cause to be made," a work of sculpture.1 The 25 & 26 Vict. c. 68, s. 1, provides that, when any painting, drawing, or the negative of any photograph, "shall be made or executed for or on behalf of any other person than the author, the copyright shall not be acquired by such person, nor shall it be kept by the author, except by an agreement in writing, signed by him who relinquishes the copyright. The effect of this provision must be that, when no such agreement is made, the copyright is not secured to any person. Employer may Secure Copyright in United States. In this country, the doctrine that a person may secure copyright for a work which he has employed another to write, though opposed by two decisions,2 is supported by the weight of judicial authority. In Little v. Gould, it appeared that a reporter had been employed and paid a salary by the State of New York to prepare reports of decisions under a law that the copyright therein should be the property of the State. The copyright was entered in the name of the Secretary of State, "in trust for the State of New York;" and its validity was sustained, although no formal assignment had been made by the author. The State became the owner of the manuscript by virtue of having employed and paid the reporter, and, as such owner, was entitled to secure the statutory copyright.5 And so in Lawrence v. Dana, where it appeared that the com 1 54 Geo. III. c. 56, s. 1. Pierpont v. Fowle, 2 Woodb. & M. 23, 46. Atwill v. Ferrett, 2 Blatchf. 39. Binns v. Woodruff, 4 Wash. C. C. 48, was decided under a special statute. See ante, p. 254, note 2. Little v. Gould, 2 Blatchf. 165, 362; Heine v. Appleton, 4 Blatchf. 125; Lawrence v. Dana, 2 Am. L. T. R. N. 8. 402. See also Keene v. Wheatley, 9 Am. Law Reg. 33; Commonwealth v. Desilver, 3 Phila. (Pa.) 31; Siebert's Case, 7 Op. Atty.-Gen. 656. 4 Supra. 5 "I am of opinion," said Nelson, J., "that the interest of the reporter in this third volume of his Reports, as an author, passed to the Secretary of State, in trust for the benefit of the State, and that it was competent for that officer to take out the copyright in pursuance of the provisions of the act of Congress of 1831, securing to the State the exclusive right of proprietorship in the work. The reporter must be deemed to have accepted the terms and conditions of the acts of the legislature of April 11, 1848, and April 9, 1850, the effect of which was to vest the interest in the State, he receiving a compensation for his labors by way of annual salary." 2 Blatch. 365. Mr. Justice Conkling thought that the relations between the reporter and the State might be regarded as creating an assignment by operation of law." Ibid. 183. plainant had gratuitously prepared notes for two editions of Wheaton's Elements of International Law, with the understanding that the property therein, as far as those two editions were concerned, should belong to Mrs. Wheaton, the court held that such property vested in her, as the work was done and delivered, without the necessity of a formal assignment, and that she was a proper person to take out the statutory copyright. Here the complainant, though receiving nothing for his services, was in the position of an author employed, and Mrs. Wheaton in that of an employer. By virtue of such relation, she became the owner of the property in the manuscript notes to the extent of the gift, and was entitled to secure the statutory copyright for the protection of such property.1 1 2 Am. L. T. R. N. s. 402. Mr. to show that a written assignment from Justice Clifford said: "Although the the complainant to Mrs. Wheaton was services were gratuitous, the contribu- necessary have any proper applications of the complainant became the tion to the question under consideraproperty of the proprietor of the book, tion, because the complainant never as the work was done, just as effectu- acquired any right to demand a copyally as they would if the complainant right in his contributions to those two had been paid daily an agreed price editions, but the contributions as they for his labor. He gave the contribu- were made and composed, or put in tions to the proprietor for those two form, became vested in the proprietor." editions of the work, and the title to the same vested in the proprietor, as the work was done, to the extent of the gift, and subject to the trust in favor of the donor, as necessarily implied by the terms of the arrangement. Delivery was made as the work was done, and the proprietor of the book needed no other muniment of title than what was acquired when the agreement was executed. Vested as the title and property of the contributions were in Mrs. Wheaton, she would not acquire any thing by an assignment from the contributor, as he had neither the immediate title to the contributions nor any inchoate right of copyright in those editions. He could not assign any thing, because he owned nothing in præsenti, as the title to his contributions, and the inchoate right of copyright for those editions, had become vested in Mrs. Wheaton as proprietor of the book. Guided by these views, the court is of the opinion that none of the authorities cited by the respondents "... Literary property, even when secured by copyright, differs in many aspects from property in personal chattels, and the tenure of the property is governed by somewhat different rules; but the difference in the nature and tenure of the property is much greater before copyright is taken out, and while the right to that protection for the same remains entirely inchoate. Title to the notes or improvements prepared for a new edition of a book previously copyrighted may, in certain cases, be acquired by the proprietor of a book from an employé, by virtue of the contract of employment, without any written assignment; and, when so acquired, the tenure of the property depends upon the terms of the contract, but it cannot be held to be a mere license where, as in this case, the contract was that the proprietor of the book should take the exclusive right to the contributions for two successive editions, together with the right to copyright the same for the protection The decisions which have been cited on this subject were rendered before the statute now in force was passed. As has been seen, this act expressly empowers the "proprietor" of a work to secure copyright; and there can be no reasonable doubt that an employer may become such proprietor by virtue of the contract of employment. No Copyright in Work of Foreign Author Employed. - No person can secure copyright for what he has employed a foreigner to write, unless the latter be a resident within the meaning of the law. For the statute expressly declares that the production of an alien author shall not be entitled to protection. Employer not Entitled to Copyright by Mere Fact of Employment. The mere fact of employment does not make the employer the absolute owner of the literary property created by the person employed. Where there is no agreement or implied understanding that what is produced shall belong to the employer, it is clear that the latter acquires no title to the copyright. For the property is in the author, unless he has consented to part with it.2 In Boucicault v. Fox, it appeared that the plaintiff, while employed as an actor and stage-manager at the Winter Garden Theatre in New York, of which William Stuart was owner, had written the Octoroon under an agreement with Stuart that it should be performed as long as it would run at that theatre. It was afterward claimed that Stuart had become the owner of the play by virtue of such employment. of the property, as the inchoate right of copyright unquestionably passed to the proprietor of the book by the same arrangement. Such inchoate right is incapable of any other limitation than that prescribed by the copyright act, so that the proprietor of the book necessarily took out the copyright in the usual form. Beyond controversy, she took it out by the consent of the complainant; and it is equally clear, in the judgment of the court, that she took it out for the protection of her own property in the notes, and in trust for the complainant when her property in the notes should cease. Arrangements of the kind, it is believed, are frequently made between the proprietors of books and editors employed to prepare notes or other improvements to successive editions; and it is not perceived that there is any legal difficulty in upholding such a contract where, as in this case, it violates the rights of no one, and is entirely consistent with the public right." 2 Am. L. T. R. N. s. 414, 419. 1 U. S. Rev. St. s. 4952. 2 Bishop of Hereford v. Griffin, 16 Sim. 190; Shepherd v. Conquest, 17 C. B. 427; Levi v. Rutley, Law Rep. 6 C. P. 523; Roberts v. Myers, 13 Monthly Law Reporter, 396; Boucicault v. Fox, 5 Blatchf. 87. But the court properly held that he had acquired no property in the piece, for the reason that there was no agreement, and nothing in the circumstances of the case, to create an implied understanding to that effect.1 Copyright Vests in Employer only by Agreement. To vest the employer with the literary property and a right to secure the copyright, there must be an agreement that he, and not the person employed, is to be the owner of the work produced. But such agreement need not be express. It may be implied from the terms and conditions of the employment.2 A mutual understanding to that effect may be created by the relations of 15 Blatchf. 87. "Our next inquiry," said Mr. Justice Shipman, "is was the literary property in the composition, and the exclusive right to its representation, in the plaintiff? The questions, under this head, relate to the bearing, on the plaintiff's title, of the fact, that he wrote the drama while in the employ of Stuart and for hire, and also to the proof of his copyright. It is proper here to revert to the agreement under which this play was produced by the author. That agreement was, that he should write this play, and perhaps some other plays, and that he should contribute his and his wife's services at the Winter Garden Theatre as long as the plays would run there, and receive half the profits, as a compensation. This cannot be construed into a contract conferring upon Stuart, or any one else, the legal or equitable title to this drama. 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. In the present case, no such contract is proved. The most that could possibly be said, in regard to the right of Stuart, or his trustee, in the play, is, that the arrangement entitled them to have it performed at the Winter Garden as long as it would run. There is not the slightest foundation upon which they, or either of them, can rest a claim to the literary property in the manuscript. That property was in the plaintiff, sub ject, at most, to a license or privilege, in favor of Stuart and Fields, to have the piece performed at the Winter Garden. Whether the plaintiff was guilty of a breach of that part of his agreement which bound him to bestow his own and his wife's services, we need not inquire here. Such a breach, if proved, would not vest the proprietors of the theatre with the title to the Octoroon. "A man's intellectual productions are peculiarly his own, and although they may have been brought forth by the author while in the general employment of another, yet he will not be deemed to have parted with his right and transferred it to his employer, unless a valid agreement to that effect is adduced. Publishers, when they employ authors in particular literary enterprises, of course settle, in the terms of their contracts, the rights of each party and the ownership of the copyright. This was not the case of writing a book for publication and general circulation. The play was to be produced, so far as Stuart and Fields were concerned, for a special purpose, which was that the play should be brought out by the plaintiff at the Winter Garden, and be performed as long as it would run. The contract cannot, by the most liberal construction, be expanded beyond this. Under these circumstances, the plaintiff was entitled to the copyright which he obtained." Ibid. 95. 2 Sweet v. Benning, 16 C. B. 459. the parties, and the circumstances attending the agreement. But the employer cannot be considered as the owner of what is written by an author independently of the duties for which the latter is employed and paid. Thus, as in Boucicault v. Fox, a manager has no property in a play written by a person whom he has employed as an actor. So statutes, judicial decisions, public documents, official reports, and productions which are the direct results of official labors, may naturally become the property of the government which pays for such services. But the government can have no rightful claim to the literary property in a work produced by an officer independently of his official duties. A case might arise wherein a writer follows so closely the directions given by his employer that the creation of the work may be due to the mind of the latter, and he may properly be regarded as the author. But the employer cannot be considered the author when he "merely suggests the subject, and has no share in the design or execution of the work, the whole of which, so far as any character of originality belongs to it, flows from the mind of the person employed." 1 Cyclopædias and Periodicals in United States. - In the United States, there is no special statutory provision concerning the copyright in articles first published in cyclopædias, magazines, and other periodicals. The ownership of the property in these cases is governed by the same principles that apply in the case of books in general. An author may be employed to prepare an article for a publication of this kind on condition, either that the publisher is to be the absolute owner of the copyright, or that he is simply to have the right of using the article in the special work for which it was prepared. The respective rights of the parties will be determined by their agreement, which, if not express, may be implied from the terms and conditions of the employment and the attending circumstances. Where an author is expressly employed to write such articles, and, especially if he be regularly employed and paid a salary, these circumstances, in the absence of an express agreement, will go far toward supporting, and in some cases will be 1 Jervis, C. J., Shepherd v. Conquest, 17 C. B. 445. See also Levi v. Rutley, Law Rep. 6 C. P. 523. |