The court did not express an opinion as to whether the copyright entered by the author for the term of fourteen years was ment is to the effect that Gould & Banks are to have, as against Mr. Paige, the exclusive right to publish and sell the volumes of reports no longer, at most, than during the term known to the law, under the act of 1790, at the date of agreement, as the term for which a copyright could be obtained; that is, twenty-eight years, or not beyond the 5th of January, 1858. But the provision in respect to copyright was inserted in the agreement for the sole purpose, manifestly, of making it clear that Gould & Banks were to be understood to be such assignees of Mr. Paige, as the author of the books, as could, under the act of 1790, secure to themselves a copyright. There is no provision in the agreement for the taking out of a copyright by Mr. Paige, and for the transfer thereof to Gould & Banks. The provision in the agreement in respect to copyright cannot be held to cause the agreement to confer any less rights on Gould & Banks, if such provision be availed of by them, than if they do not avail themselves of it. If they had not chosen to take out any copyright, as proprietors, of any volume of the reports, they would have had, as against Mr. Paige, the perpetual right to print, publish, and sell the reports. If they had not chosen to avail themselves of the provision of the agreement in regard to copyright, in respect to the first volume, the construction of the agreement would have been in no manner dependent upon the existence or contents of such provision. Nor can it be dependent thereon when, against others than Mr. Paige, Gould & Banks have availed themselves of the privilege of copyrighting such volume." 7 Blatchf. 155. as In delivering the opinion of the Supreme Court, Mr. Justice Davis said: "Independent of any statutory provision, the right of an author in and to his unpublished manuscripts is full and complete. It is his property, and, like any other property, is subject to his disposal. He may assign a qualified interest in it, or make an absolute conveyance of the whole interest. The question to be solved is, Do the terms of this agreement show the intent to part with the whole interest in the publication of this book, or with a partial and limited interest? . . . It is insisted by the appellants that a just interpretation confines the agreement to a mere assignment of the interest in such copyright, as is provided for in the act of 31st May, 1790; that this was the law in force when the contract was entered into; that the fourteen years therein provided for, with the right to a prolongation of fourteen years more, is all that the publishers at most are entitled to; and that they are excluded necessarily from the benefit of the provisions conferred by the act of the 3d February, 1831, granting to authors an additional extension of fourteen years. In our view this is too narrow a construction. The fair and just interpretation of the terms of the agreement indicate unmistakably that the author of the manuscript, in agreeing to deliver it for publication at a stipulated compensation, intended to vest in the publishers a full right of property thereto. The manuscript is delivered under the terms of the agreement for publication.' No length of time is assigned to the exercise of this right, nor is the right to publish limited to any number of copies. The consideration is a fixed sum of one thousand dollars. Whether one or one hundred thousand copies were published, the author was entitled to receive, and the publishers bound to pay, this precise amount. "As between the parties to the agreement the absolute interest was conveyed by the stipulation of Paige, that he would furnish the manuscript for publication. Paige could no longer do any act after such delivery for publication inconsistent with the absolute ownership of the publishers. But it valid as against others than the defendants. But there can be little doubt that it was void, and such is the effect of the decision. Nor was it necessary to inquire into the validity of the copyright, which had been taken out in the name of the defendants for the same term. But it has been shown elsewhere that an assignee is not entitled to secure copyright for this additional term.1 Absolute Assignment of Copyright held to Carry Future Playright. In an English case, it appeared that a dramatist had assigned his copyright in a farce to be the "absolute property' of the assignee, who published it and became the owner of the statutory copyright. There was then no statutory right of representation; but afterward the 3 & 4 Will. IV. c. 15, was passed, giving to the author or his assignee the sole liberty of performing a dramatic composition. It was held that the author's entire interest had passed to the assignee by the assignment, and that the latter, therefore, was entitled to the exclusive right of representation conferred by the statute above mentioned.2 Effect of Assignment after Publication on Renewal. - After was proper, for the protection of the publishers, that they should be in position to assert the remedies given by the law against intruders; and it is to this end it is added in the agreement, 'and the said Gould & Banks shall have the copyright of said reports to them, their heirs and assigns for ever.' It is not covenanted that the publishers should take out the copyright, nor is there any express agreement for an assignment to them by Paige, if he should take it out. Undoubtedly, the provision that the publishers should hare the copyright' would authorize them to apply for it; and, if Paige had taken it out in his own name, it would have inured to their benefit. But, as between Paige and the publishers, the rights of the latter could not be estimated differently, whether they had or had not availed themselves of the provisions of the act." 13 Wall. 614. See also Cowen v. Banks, 24 How. Pr. 72, where the court expressed the opinion that the written agreement, "if there were nothing else in the case," would be rightly construed as limiting the interest assigned to the copyright for the first term of fourteen years given by the act of 1790. But the author having testified in a previous action that in making the agreement his intention was to convey his "whole interest in the copyright of the work," this testimony was admitted as evidence in the present case; and the court held that the assignees had acquired the author's contingent interest in the second term of fourteen years given by the act of 1790, and that they were entitled to become the absolute owners of this term, under section 16 of the act of 1831. It was ordered that the contract be reformed so as to conform to the intention of the parties. 1 See ante, p. 261. 2 Cumberland v. Planché, 1 Ad. & El. 580. For the statutory provisions now in force in England concerning the transfer of playright, see Chap. XV. For a book has been published, and within twenty-eight years from the time of publication, the only copyright in existence, and hence the only one which can be assigned, is that secured for twenty-eight years. The copyright for the second term of fourteen years cannot be assigned before it has been secured, and it cannot be secured until the first term has ended. I have already endeavored to show that the author may bind himself by an agreement to assign it when it shall have been secured, and that such agreement may be made binding on his personal representatives; also, that he may make such assignment of his rights in a published work as will bar him and his family from claiming for themselves the copyright for the future term of fourteen years.1 What effect an assignment which has been made after publication will have on the future rights reserved for the author by the statute will depend, as in the case of a transfer made before publication, on the nature of the agreement. the author may part with every right and interest which he has in the work, or he may transfer the existing statutory copyright alone. And the question in each case is, whether the language of the agreement is comprehensive enough to embrace all rights in the work, or whether it properly applies only to the existing statutory copyright. An assignment of the copyright" would naturally have the latter restricted meaning, unless there is something else to show that a greater interest was intended by the parties to be passed. Thus, where the author had assigned "the copyright" of one book, and, with reference to another, had agreed that "the copyright shall be considered the joint and equal property" of himself and the assignee, the Circuit Court of the United States held that the assignment did not extend beyond the first term of fourteen years which, at the time the agreement was made, had been secured under the act of 1790 then in force; and that no interest was passed in the second term of fourteen years given by that statute, nor in the term of fourteen years created for the benefit of the author by the act of 1831, which was in force when the cause of action arose.2 66 See ante, p. 326; also, Paige v. Banks, 7 Blatchf. 152, on ap. 13 Wall. 608. 2 Pierpont v. Fowle, 2 Woodb. & M. 41-45. "In respect to both copyrights, also," said Mr. Justice Wood Assignee cannot make Renewal. - Section 4954 of the Revised Statutes, which provides for a renewed term of copyright, makes no mention of an assignee. The view has been elsewhere expressed that the copyright for this term will not vest ab initio in an assignee, but only in the author, his widow or children.1 Hence, when an author has assigned his entire interest in a work, and has thereby or otherwise barred himself and his family from securing the copyright for the second term, the assignee is powerless to make the renewal for his own benefit. Author may Assign Renewed Term. - But when the copyright has been acquired by the person entitled to secure it, can it be transferred to an assignee? This question has not been judicially determined.2 The object of the legislature manifestly was to create an additional right for the express benefit of the author and his family. This object would not be promoted, but rather defeated, by denying to him and them the power to transfer the right after it has been secured. The value of property is increased by the capacity of the owner to alienate it. Moreover, the provision of the statute, that "copyrights shall be assignable," 3 doubtless applies to those granted for fourteen years not less than to those for twenty-eight years. The sound construction, then, would seem to be that the copy bury, "the complainant conveyed co nomine, not a term of twenty-eight years, nor one as long as he should be entitled, nor all his interest of every kind in the book or its manuscript; but simply, as to the first, the copyright of said book,' and, as to the last, 'the copyright' of it shall be considered the joint and equal property of said P. and F.' The only copyright then existing or taken out for either was for fourteen years only. One contract was dated July 21, 1823, and one July 12, 1827. That copyright which had been then taken out was the subject-matter of the contracts. No words are used looking beyond that; no consideration was paid or talked of beyond that. There was no mutuality beyond that; for the payment of the last was made in another copyright, in another book, where the author might not secure the first term, or, if he did, might not be willing to renew the copyright. The renewal of the copyright in either of these was then uncertain, and not, to appearance, contemplated by either side. When the assignment was made, it doubtless referred to what was in existence, and not to any future contingency, nor to what was personal for the author, if spared to old age, nor for what any compensation was specially either asked or made." Ibid. 42. See Cowen v. Banks, 24 How. Pr. 72. 1 See ante, p. 261. In Paige v. Banks, as has been shown, ante, p. 328, it appeared that the copyright for the additional term of fourteen years had been renewed by the assignees. But the court was not called upon to inquire into its validity. 3 U. S. Rev. St. s. 4955. right for the renewed term of fourteen years is capable of being assigned after it has been secured. LIMITED ASSIGNMENT. The question has been raised whether copyright can be divided, and any part of it assigned. The English statute provides for the registration by the owner of a copyright "or of any portion of such copyright," and enacts that such registered owner, by entry in the registry, may assign "his interest, or any portion of his interest" in the copyright. The American statute is silent on this point. One or More of Several Rights in a Work may be Assigned. It is clear that, without destroying the unity of the copyright, a qualified interest, or certain rights embraced in it, may be assigned. Thus, the owner may make to one or more persons an absolute conveyance of any part of his interest in the whole. In this case, the copyright becomes the undivided property of joint owners. The exclusive right of publication and sale vests, not in one independently of the others, but in all. So, also, statutory copyright embraces several rights which, though created and conferred by the same statute, may be regarded as independent and distinct rights, capable of being separately owned and used by different persons. Thus, the statute gives to the owner of a dramatic composition the exclusive right to print it, and the sole liberty of performing it. Either of these rights may be absolutely assigned independently of the other; 2 and in England this fact is recognized by the statute. Whether one or both of these rights pass by the assignment will depend on the intention of the parties, as expressed in their agreement.3 Again, in the United States, an author, in securing copyright in a literary composition, may reserve to himself the exclusive right to translate or dramatize it; and, as has been elsewhere maintained, he has the exclusive right, without special reservation, to abridge it. The owner may, " 1 5 & 6 Vict. c. 45, s. 13. Referring to this provision, Mr. Justice Maule said, that the author or owner may assign the copyright to less than the full term." Davidson v. Bohn, 6 C. B. 2 Roberts v. Myers, 13 Monthly Law Reporter, 396. 8 See Chap. XV., Transfer of Playright. 4 See Chap. IX. |