of copyright; e. g., in a case of bankruptcy. There it has been held that the transference is good. So also in intestacy, where a party takes up the rights of his ancestor, what carries the property of the deceased also effectually carries the copyright belonging to him. The legal effects of marriage have the same effect. In the event of her marriage, all right would be carried from Miss Cook to her husband. Therefore it would be difficult to hold that all right of transfer was to be denied under the statute. In short, there are a great many cases in which, it being essential that the party to whom the right is to be transferred should be vested in such right, and properly secured, still that such right is carried by common law without any formalities. The statute of Victoria does away with all that; because it says, in its interpretation clause, 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 otherwise. And in its operative clause, section 13, it goes on to deal with the question of succession of a legal assignment." He then expressed the opinion, that "a party holding a good assignment at common law would have been supported in any question raised under the recent statute " of Victoria.1

The Lord President, M'Neill, thought that, under the definition of assigns in the statute of Victoria, "any thing that would instruct a sale or gift, or any right in that way whatever, would make the party in whose favor such gift was made proprietor.

"2

In Hazlitt v. Templeman, where it appeared that the copyright in a work, of which the plaintiff was author, had been registered under the statute of Victoria, with the verbal consent of the plaintiff, in the name of the defendant as owner, it was held that such registration was prima facie evidence of the defendant's title, which was not rebutted by the absence of proof of a written assignment. But the facts in this case and

1 18 Sc. Sess. Cas. 2d ser. 911.

2 Ibid. 917.

8 18 L. T. N. s. 593.

the questions involved were such that the decision throws little light on the question of assignment.

Leyland v. Stewart, then, is the only case yet reported in which it has been held that an assignment under 5 & 6 Vict. c. 45, must be in writing; and this was a suit in chancery in which the Master of the Rolls, overlooking or disregarding the significant definition of assignee contained in it, applied to that statute the same construction which had been given to the earlier ones. Opposed to this decision is the authority of the Common Pleas in Cocks v. Purday,2 the judgment of the Lord Ordinary in Jeffreys v. Kyle, and the dicta of a majority of the Court of Session in the same case.3

From this review of the question, it will be seen that the law governing the form of assignment under the statute now in force cannot be regarded as judicially settled. But the weight of authority, taking those cases in which alone this statute has been considered, and which alone can be regarded as binding authorities on the question of its meaning, is in favor of the doctrine that the copyright in a book may now be assigned by parol.

I have tried to show that the accepted construction of the earlier statutes is wrong; that its soundness has been questioned by many able jurists; and that, whether sound or unsound, the authorities by which it is supported cannot be regarded as settling the judicial construction of the statute now in force. I have thus treated the subject, in the belief that, when the question shall again be brought before a high judicial tribunal, the law will be carefully and thoroughly examined with special reference to the statute of Victoria, and determined, not by precedent, but by sound principles.

ENGRAVINGS, PAINTINGS, PHOTOGRAPHS, &C.

Engravings and Prints. The statutes relating to prints and engravings do not prescribe the mode of assigning the copyright; and the law in such case has not been judicially determined. Parliament has prohibited the publication of such productions without the written consent of the owner, signed in the presence of two witnesses. If the mode of transfer is

1 4 Ch. D. 419.

2 5 C. B. 860.

3 18 Sc. Sess. Cas. 2d ser. 906.

governed by this provision, as in the case of books, it will follow that an assignment must be in writing, and signed by two witnesses. But section 2 of 8 Geo. II. c. 13, has an important bearing on this question. It provides "that it shall and may be lawful for any person or persons who shall hereafter purchase any plate or plates for printing from the original proprietors thereof, to print and reprint from the said plates without incurring any of the penalties in this act mentioned." This seems to be a bar to applying to the license clause in the case of engravings the same reasoning that has been applied to the license clause in the case of books. The true construction of the provision above quoted would appear to be, that any person may acquire the copyright in an engraving by buying the plate; and there is nothing in the statute and no principle which requires that such sale of the plate or transfer of the copyright shall be accompanied by a writing.

Maps. As maps are within the provisions of the statute relating to books,2 the mode of transferring the copyright must be the same as in the case of books.

Paintings, Drawings, and Photographs. In the case of these productions, the assignment of the copyright must be in writing, but need not be attested. Section 3 of 25 & 26 Vict. c. 68 declares that "all copyright under this act shall be deemed personal or moveable estate, and shall be assignable at law; and every assignment thereof, and every license to use or copy by any means or process the design or work which shall be the subject of such copyright, shall be made by some note or memorandum in writing, to be signed by the proprietor of the copyright, or by his agent appointed for that purpose in writing." 3

Registration of the assignment is made necessary to give the assignee the benefits of the act; but the statute does not provide for transferring the copyright by means of registration. The statute further provides that, when any person makes for another, or sells to another any painting, drawing, or the

negative of any photograph, the former shall not retain the copyright, except by an agreement in writing signed by the latter; and the latter shall not acquire the copyright, except by a like agreement signed by the former.1

MODE OF TRANSFER IN THE UNITED STATES.

It is to be regretted that, in copying from the statute of Anne the license clause, which in England has given rise to an unsatisfactory and questioned construction of the law governing the transmission of copyright, Congress has failed to prescribe in unmistakable language the requisites of a good assignment. Former Statutes. The act of 17902 and that of 1831 3 prohibited any person from publishing a copyrighted book without the owner's consent in writing, signed by two witnesses. Both were silent respecting the mode of transfer. The first and only legislation on this point before 1870 was the supplemental act of 1834, which declared "that all deeds. or instruments in writing for the transfer or assignment of copyrights, ... shall and may be recorded in the office where the original copyright is deposited and recorded." 4

What form of assignment was requisite or sufficient under these several acts is a question which has not received thorough judicial consideration. The Supreme Court of New York, in 1832, following the English decision in Power v. Walker, ruled that an assignment under the act of 1790 must be in writing, but that a verbal agreement to assign was valid. Besides this decision of a State court, there are dicta respecting the form of assignment by two justices of the Supreme Court of the United States. In Stevens v. Cady, Mr. Justice Nelson, applying the English theory to the license clause of the statute of 1831, remarked that an assignment "must be in writing, and signed in the presence of two witnesses;" but added that it was "unnecessary, however, to express an opinion upon this point." In Little v. Hall, Mr. Justice McLean said obiter that a formal transfer of a copyright by the supplementary act of

66

the 30th of June, 1834, is required to be proved and recorded as deeds for the conveyance of land; and such record operates as notice." But this question was not before the court. Mr. Curtis, more soundly interpreting the meaning of the act of 1834, says: "This statute seems to recognize the doctrine that transfers of copyright must be in writing; but it does not expressly declare that they shall be so." 2

Meaning of Statute in Force. There is, then, no reported decision which can be regarded as an express authority, binding on the federal courts, to the effect that, under the statute cited, an assignment of copyright was required to be in writing. It remains to consider the statute passed in 1870, and now in force. Its meaning respecting the question under consideration has not been judicially considered. Like the antecedent acts, it declares unlawful the publication of a copyrighted book "without the consent of the proprietor of the copyright first obtained in writing, signed in presence of two or more witnesses." 8 Unlike those statutes, it provides that copyrights shall be assignable in law, by any instrument of writing, and such assignment shall be recorded in the office of the Librarian of Congress within sixty days after its execution; in default of which it shall be void as against any subsequent purchaser or mortgagee for a valuable consideration, without notice."4

Mode of Transfer before Publication. Whatever effect these provisions may have respecting the requisites of an assignment of the copyright in a published book, the statute cannot, in my judgment, be rightly construed as governing a transfer made before publication, and hence before the statutory right attaches. In other words, if the statute can be considered as regulating the mode of transfer, it is only in the case of works in which the statutory copyright has vested that it can have this effect; and such copyright will not vest in an unpublished work.5 The important distinction between a transfer made before and one

1 18 How. 171.

an inchoate or equitable statutory

2 Law of Copyright (Boston, 1847), right may exist in a work between the p. 233.

U. S. Rev. St. s. 4964.

4 s. 4955.

It is not necessary here to consider the exceptional case in which

time of filing the title and the time of publication. The question must be treated with reference to the general rule, that only published works are protected by statutory copyright.