made after statutory copyright has vested, which is to be observed in determining whether the mode of assignment is governed by the statute, has been fully considered in the examination of the English statutes, which, in this respect, are like our own. It is enough here to add, that the act of Congress now in force expressly provides for granting copyright in the first instance to the owner of a manuscript; 2 and hence copyright will vest ab initio in the owner, whether he is or is not the author. When, therefore, a person has become possessed of the author's property in an unpublished work, he is the proper one, as owner, to secure the statutory copyright. As his title was acquired before publication, its validity is determined by the common law under which it was derived, and not by the statute.3 Must Assignment of Copyright in Published Book be in Writing? We come now to the inquiry, whether the statute prescribes the mode of assigning the copyright in a published work. The solution of this question depends on the meaning to be given to sections 4955 and 4964 above referred to. The latter makes no reference, direct or indirect, to the subject of assignment; but the theory has gained currency in England, from whose statutes this clause has been copied, and, as we have seen, has been twice recognized in this country, that the provision under consideration, though intended to apply simply to licenses to publish, must be construed to prescribe the mode of assigning the copyright. I have already endeavored to show that this construction is unwarranted and indefensible.4 is not supported by any authority binding on a court of the United States, it is to be hoped that, when the question is presented for judicial determination, the subject will be thoroughly examined, and the decision grounded on sound principles. The only express provision in the Revised Statutes relating to assignments is section 4955, which declares that "copyrights 1 Ante, pp. 306-308. 2 U. S. Rev. St. s. 4952. 8 In Little v. Gould, 2 Blatchf. 165, 362, the author's rights in manuscript reports were held to have passed to the Secretary of State, although there was no writing. It was "regarded as an assignment by operation of law." Conkling, J., Ibid. 183. To the same effect is Lawrence v. Dana, 2 Am. L. T. R. N. s. 402. 4 Ante, p. 304 et seq. shall be assignable in law by any instrument of writing," and provides for the recording of such assignments. This language plainly shows that an assignment need not be attested. Any writing, clearly expressing the intention of the parties to that effect, will be sufficient to pass the ownership of copyright. It has also been decided that an assignment, though not recorded, will be valid as between the parties, and as to all other persons not claiming under the assignor.1 Does section 4955 require that an assignment of copyright to be valid under the statute must be in writing? If Congress intended to make such a law, it failed to use the proper language for that purpose. The words, "copyrights shall be assignable in law by any instrument of writing," are declaratory, and not mandatory. Their true meaning, as determined by established principles of construction, is, that copyright is transferable, and that a simple writing, without attestation, seal, or other formality, shall be sufficient as a valid assignment. The act does not expressly declare, and its language strictly interpreted does not imply, that a writing shall be necessary, and that an assignment not in writing shall be void. But it is reasonable to suppose that, in enacting this provision, Congress intended to regulate the mode of transferring copyright, and to make a writing essential to a valid assignment. And the courts may construe the statute in accordance with this intent, rather than follow the strict meaning of the language used. The question, therefore, as to the form of assignment remains for judicial determination. But whatever the law may be declared to be in the case of assignments made after publication, the statute cannot rightly be held to apply to transfers of literary property made before publication. In such case, the form of assignment is governed by the common law, which, as has been shown, recognizes the validity of parol transfers.2 Transmission by Bequest and in Case of Intestacy. - By section 4952, copyright is secured to the executors or administrators of the owner. It may, therefore, be transmitted by 1 Webb v. Powers, 2 Woodb. & M. 497, 510. This case was decided under the act of 1834, whose governing clause was the same in effect as that con- bequest; and there seems to be no good reason why, in case of intestacy, it will not pass to heirs without the necessity of a writing.1 In Case of Bankruptcy. The question whether copyright will pass from a bankrupt to his assignee without a writing does not appear to have been directly adjudicated. In Mawman v. Tegg, where it appeared that the author, who was one of the original owners and publishers of a work, had gone into bankruptcy, and his copyright had passed to assignees, from whom it was bought by the plaintiffs, Lord Eldon said: "Whatever question there may be in some cases, whether an interest in copyright does or does not pass without writing, it would, I apprehend, be difficult to maintain that there must be an instrument in writing between the bankrupt and his assignees.' 2 It has been held that statutory copyright must be in existence before it can be assigned in law. But an agreement may be made to assign at a future time; in which case an equitable title may vest in the assignee.5 So the owner's common-law rights may be assigned before publication; in which case the statutory copyright may be secured by the assignee. 1 In Latour v. Bland, Abbott, J., said, that under the statute of Anne, which was silent concerning the transmission of copyright by bequest and in case of intestacy, "if the author died without assigning his copyright, the interest would go to his heirs." 2 Stark. 385. Lawrence v. Dana, 2 Am. L. T. R. N. s. 402, was a case in which copyright had been transmitted to heirs; but whether by bequest or otherwise does not appear from the report. 2 2 Russ. 392. In re Curry, the Irish Commissioner in Bankruptcy expressed the opinion that copyright would pass to the bankrupt's assignee without a writing. 12 Ir. Eq. 391, 392. See also the views of Lord Ivory, ante, pp. 314, 315, and Stevens v. Benning, 1 Kay & J. 168, on ap. 6 De G., M. & G. 223. 3 Colburn v. "It is true," said Vice Chancellor Shadwell, in Sweet v. Shaw, "not only with respect to an assignment, but also with respect to a lease, as Littleton points out, that there cannot be a release of a future right, and in consequence, there cannot be an assignment of any thing that does not now exist." 3 Jur. 219. In Little v. Gould, 2 Blatchf., the contract between the Secretary of State of New York and the plaintiffs had reference to matter not in existence, and it was declared to be an assignment of copyright. The equitable title clearly passed to the plaintiffs. The court seems not to have expressly considered the question of the legal title. 4 Gould v. Banks, 8 Wend. (N. Y.) 562; Leader v. Purday, 7 C. B. 4. 5 Sims v. Marryat, 17 Q. B. 281; Lawrence v. Dana, 2 Am. L. T. R. N. s. 402. 6 See ante, pp. 238-242. Form of Written Assignment. —No particular form of writing has been prescribed as essential to make a good assignment. There appears to be no reason why any writing may not be sufficient which clearly expresses that an assignment of the copyright is made for a good consideration. It has been held in two English cases that a receipt for the purchase-money is not a valid assignment of the copyright. But in one it appeared that the receipt had been destroyed, and the plaintiff denied that he had made an assignment to the defendant.1 And in the other the receipt had reference to the sale of the American copyright alone; 2 moreover, the decision was rendered before the doctrine of Davidson v. Bohn, that two witnesses are necessary to a valid assignment, had been overruled. In the Scotch case of Jeffreys v. Kyle, Lords Ivory 3 and Wensleydale expressed the opinion that a receipt is sufficient as an assignment. There seems to be no reason why the same writing may not serve as a receipt for the purchase-money and an assignment of the copyright. But, to operate as an assignment, it would doubtless be necessary that the writing should contain the agreement itself by which the copyright has been passed. When the agreement is expressed in one paper, and the payment of the money acknowledged in another, the former, and not the latter, is obviously the assignment. And not unfrequently the money for the copyright is paid, and a receipt given, on an agreement that the assignment shall be made at some future time. In this case, no transfer is effected when the receipt is passed; and a writing which shows that such was the agreement cannot operate as a legal assignment.6 In Cocks v. Purday, a sale made by letter was held, under the circumstances, to be a valid transfer.7 Latour v. Bland, 2 Stark. 382. 2 Lover v. Davidson, 1 C. B. N. s. 182. 3 "If there is not here," said Lord Ivory, "an express assignation, there is certainly an implied assignation, corroborated by the writing in this lady's book, in which she notes the disposal of her copyrights." 18 Sc. Sess. Cas. 2d ser. 911. 43 Macq. 617. 5 For the effect which a receipt may have on the agreement of the parties, see Howitt v. Hall, 6 L. T. s. 348; Strahan v. Graham, 16 L. T. N. s. 87, on ap. 17 Id. 457. N. 6 Colburn v. Duncombe, 9 Sim. 151; Sims v. Marryat, 17 Q. B. 281; Levi v. Rutley, Law Rep. 6 C. P. 523. 75 C. B. 860. See this case considered ante, p. 313. In Lacy v. Toole, which was an action against the defendant for representing a play written by the plaintiff, the defence was that the latter was not the owner of the playright in the piece. A letter was produced in which the plaintiff, in reply to a letter from a third person, had written to the latter, "I accept the offer you therein make me, and agree to the conditions you propose for cancelling my debt to you; viz., to let you have my drama of Doing for the Best, in discharge of £10 of the sum due." The court expressed the opinion that this letter was a valid assignment, but left it to the jury to find whether the agreement was to transfer the property in the play, or simply to license its use. The verdict was in favor of the defendant, and the letter was accordingly held to amount to an assignment.1 Sale of Stereotype Plates. As the copyright in a work is entirely distinct from the property in the stereotype plates from which it is printed, a sale on execution of such plates gives to the buyer no right to print and publish copies of the work.2 But when the owner of the copyright voluntarily sells 1 15 L. T. N. s. 512. 2 Stevens v. Cady, 14 How. 528; Stevens v. Gladding, 17 Id. 447; Carter v. Bailey, 64 Me. 458. "The sole question is," said Mr. Justice Curtis, whether the mere fact that the plaintiff owned the plate, attached to it the right to print and publish the map, so that this right passed with the plate by a sale on execution. And upon this question of the annexation of the copyright to the plate it is to be observed, first, that there is no necessary connection between them. They are distinct subjects of property, each capable of existing, and being owned and transferred, independent of the other. It was lawful for any one to make, own, and sell this copperplate. The manufacture of stereotype plates is an established business, and the ownership of the plates of a book under copyright may be, and doubtless in practice is, separated from the ownership of the copyright. If an execution against a stereotype founder were levied on such plates, which he had made for an author and not delivered, the title to those plates would be passed by the execution sale, and the purchaser might sell them, but clearly he could not print and publish the book for which they were made. The right to print and publish is therefore not necessarily annexed to the plate, nor parcel of it. "Neither is the plate the principal thing, and the right to print and publish an incident or accessory thereof. It might be more plausibly said that the plate is an incident or accessory of the right; because the sole object of the existence of the plate is as a means to exercise and enjoy the right to print and publish. Nor does the rule that he who grants a thing, grants impliedly what is essential to the beneficial use of that thing, apply to this case. press, and paper, and ink are essential to the beneficial use of a copperplate; but it would hardly be contended that the sale of a copperplate passed a press, and paper, and ink, as incidents of the plate, because necessary to its enjoyment. A "The sale of a copperplate passes the right to such lawful use thereof as the purchaser can make, by reason of the |