the contract, and prevent the publication of any following edition.1 But the publisher is at liberty to continue publishing successive editions on the terms of the contract until the receipt of such notice; and the author is not entitled to restrain the publication or sale of any edition on which the publisher has incurred expense before receiving notice to end the agreement.2 The publisher is bound to observe the terms of the contract as to manner and style of publication, selling price of copies, &c. If the price at which the book is to be sold is not named in the agreement, it is left to the judgment of the publisher; 4 and, on the same principle, he would be the proper person to determine the style in which the book is to appear.5 But while the publisher, in the absence of a special agreement, may determine the style of publication and the selling price, it would seem that this liberty would not entitle him to publish in a style, and to sell at a price, which would be clearly and positively injurious to the literary reputation or pecuniary interests of the author, unless there are circumstances to show that the consent of the latter is to be presumed. A contract which is not, as well as one which is, terminable at will, may be ended by the neglect or refusal of the publisher to comply with its material conditions. When the manner and style of publication, the selling price of copies, or other material particulars, are specified in the contract, it is reasonable to conclude that the publisher's rights are dependent on 1 Reade v. Bentley, 3 Kay & J. 271, 4 Id. 656; Warne v. Routledge, Law Rep. 18 Eq. 497. 2 Reade v. Bentley, supra. As to the time when the agreement may be ended, and the meaning of "edition," see opinion of Vice-Chancellor Wood, ante, p. 355, note. Sweet v. Cater, 11 Sim. 572; Stevens v. Benning, 1 Kay & J. 168, on ap. 6 De G., M. & G. 223. And so, in Pulte v. Derby, the court remarked that the publishers had no power to publish the work except upon the terms of the contract." 5 McLean, 335. * Reade v. Bentley, 3 Kay & J. 271. See also Stevens v. Benning, supra. his observance of these provisions. He has no authority to publish except on such conditions; and the author would seem to have the power, if not to compel him to publish on the terms agreed on, at least to prevent him from publishing in disregard of them. The author would thus be free to license another to publish, but not in violation of whatever rights the first publisher may have acquired with respect to any copies that he may have already printed in compliance with the terms of the contract.1 The contract in controversy in Stevens v. Benning was held to be in the nature of a personal engagement, and the duties imposed by it not capable of vicarious performance. Hence, the rights acquired by the publisher were not transferable.2 The same opinion was incidentally expressed by the court in Reade v. Bentley, of the agreement which had been made by the parties to that suit. The consideration in these contracts was that the author should receive a share of the profits. And the opinion of the court on the point under consideration was evidently based on the ground, that the benefits to be received by the author were dependent to a material degree on the judgment, enterprise, reputation, and business facilities of the publisher, and that these were important considerations on which the author had relied in making the agreement. These reasons would also prevail where the author is to receive a royalty on the copies sold; but they would lose their force 1 In considering the equitable force of an agreement between the author and his publishers, Lord Justice Turner said: "It was, however, said that there was a personal equity against Mr. Forsyth operating in this mode; that Mr. Forsyth could not, as between him and Messrs. Saunders & Benning, have permitted a third edition of the work to be issued whilst copies of the second remained unsold under the agreement. How the case would have stood if Messrs. Saunders & Benning had remained in a position to perform their part of the agreement, I need not give any opinion; but, if there was a personal equity on one side, there must also be on the other. If Messrs. Saunders & Benning are not in a situation to perform their personal part of the contract, neither in my view of the case could they in equity enforce, as against Mr. Forsyth, any contract which he had entered into with them." Stevens v. Benning, 6 De G., M. & G. 231. 21 Kay & J. 168, on ap. 6 De G., M. & G. 223. As to what rights might pass to an assignee in bankruptcy, see ante, p. 348. "It is true," said Wood, V. C., "that, according to Stevens v. Benning, a license like the present would, I apprehend, be restricted to the defendant personally, and would not extend to his executors, or to any future partner or assignee." 4 Kay & J. 664. where a definite sum has been agreed on for the privilege of publication. In the latter case, the author would not sustain direct pecuniary loss in consequence of a change of publishers. His literary interests might be thereby affected; but it may be doubted whether this circumstance would operate to annul the contract.1 In ascertaining the respective rights of the parties under an agreement, it is necessary to determine whether an exclusive publication is agreed on, or whether there is reserved to the author the power to license others to publish contemporaneously. Of course this question does not arise when the contract is express on this point. But, not unfrequently, nothing is said concerning the intentions of the parties in this respect. There is no doubt, however, that the publisher may acquire the right of exclusive publication and sale for a definite period, or during the existence of the contract, without express words in the agreement to that effect.2 Indeed, in the absence of express words or controlling circumstances to the contrary, the natural presumption in some cases would seem to be that an exclusive publication was understood; since a copyrighted book is usually brought out by but one publisher at the time, 1 In Pulte v. Derby, it appeared right. They cannot transfer it. They that the defendants, who had acquired have no power to assign the copyright, the right of publication in considera- nor to publish the work, except upon tion of paying the author a royalty on the terms of the contract." 5 McLean, each copy sold, had, without the au- 335. The views of the court are here thor's consent, transferred to another clearly expressed to the effect, that the firm the stereotype plates, under an defendants could not assign the copyagreement to publish, and account to right, or transfer their title to it; and the defendants, on the terms of the the language might reasonably be agreement between the latter and the understood to mean that they were author. The question whether the not entitled to transfer the stereotype defendants had the power to make plates, and authorize another to pubsuch transfer of their rights under the lish, as they had done. But whether contract was not decided. Nor did the court was or was not of this opinthe court express any opinion on this ion cannot be affirmed with certainty. point, unless the following language had reference to it. After remarking that the legal title to the copyright was in the defendants, but only for the purposes of the contract, Mr. Justice McLean said: "The right covers their interest, and protects it, so long as they shall be engaged in the publication and sale of the work. Beyond this, they are not considered as having the 2 Sweet v. Cater, 11 Sim. 572; Stevens v. Benning,. 1 Kay & J. 168; Warne v. Routledge, Law Rep. 18 Eq. 497. In Reade v. Bentley, 3 Kay & J. 271, 4 Id. 656, though the question was not discussed, it was not denied that the publisher's rights under an indefinite agreement were exclusive during the existence of the agreement. who undertakes the publication, and expects to realize his profits, on the implied understanding that he is to be the sole publisher for the time agreed on, or as long as the agreement lasts.1 Unless an assignment of the copyright has been made, the legal title, the possession of which is necessary to sustain an action at law for piracy, remains in the author. But the publisher may acquire an equitable title sufficient for the assertion of his rights in a Court of Chancery. In the United States, when the copyright is entered in the name of the publisher, the legal title will vest in him for the purposes of the agreement. It is then held in trust for the owner.3 Rights of Parties after Agreement is Ended. - When a contract for an exclusive publication is terminable at will, or by noncompliance with its provisions, the question is raised as to what are the rights of the parties after the agreement has been ended. It is conceded that the publisher may sell all the copies printed under the agreement. But is this right exclusive, so that he may prevent the author, or any one claiming under him, from publishing until such copies shall have been sold? In Stevens v. Benning, Vice-Chancellor Wood, in considering a contract terminable by circumstances, expressed the opinion that the publisher would continue to have the exclusive right of selling the copies which had been printed before the termination of the agreement.5 Publisher's Right to Sell after Agreement is Ended held not to be Exclusive. - This issue was directly raised in the recent case of Warne v. Routledge. The plaintiffs had orally agreed with Mrs. Cook to publish, at their own expense, a book written by her, and entitled How to Dress on £15 a Year as a Lady, 1 In a recent case, the English Court of Chancery held that a contract between a manager of a theatre and an actor must be understood to be for the exclusive services of the latter during the period for which he had been engaged, though there was no express agreement that he should not act elsewhere. Montague v. Flockton, Law Rep. 16 Eq. 189. Sweet v. Cater, 11 Sim. 572; Reade v. Bentley, infra. 3 Lawrence v. Dana, 2 Am. L. T. R. N. s. 402; Pulte v. Derby, 5 McLean, 328, 335. 4 Reade v. Bentley, 3 Kay & J. 271, 4 Id. 656; Warne v. Routledge, Law Rep. 18 Eq. 497; Howitt v. Hall, 6 L. T. N. s. 348. 5 See ante, p. 347, note 2. by a Lady, to sell at a shilling a copy, and to pay her a penny for each copy sold. Nothing was said as to how many copies or how long the plaintiffs should publish, or whether they should be the sole publishers. When forty-four thousand copies had been printed, and forty-two thousand sold, the author notified the plaintiffs of the termination of the agreement, and immediately authorized the defendants to issue a new edition. The plaintiffs now sought to restrain such publication until the copies printed by them under the agreement should be sold. The Master of the Rolls, Sir George Jessel, held that the plaintiffs were entitled to be the exclusive publishers while the agreement lasted; but that after its termination, though they were at liberty to sell the copies previously printed, they had no power to prevent the author or any person claiming under her from publishing.1 1 Law Rep. 18 Eq. 497. "Looking at the nature of the book, and to the circumstance that it was a term of the agreement that the publishers should publish at their own risk and pay the royalty, I think the contract, so long as it existed, must be taken to be an exclusive contract; that is to say, that so long as Messrs. Warne & Co. were allowed to publish, so long no one else could publish, neither the lady herself, nor an assign from her. That being established, what is the next right it gives to either party? On the determination of the partnership adventure, or whatever you choose to call it, what right had Messrs. Warne & Co. in the book? There is authority upon the subject; but I do not think it wants authority. I think it is plain that no termination of the agreement could deprive them of the right of selling the copies which they have themselves printed under this arrangement. Whether the arrangement was at will or for a term, the publishers must retain the right of selling for their own benefit (subject to the royalty) the copies which they have printed at their own expense, in reliance upon that agreement. So far I go with the plaintiffs; but the plaintiffs then want me to import something else, not only that the publishers should have the right to sell any copies they might have printed before the disagreement, but that the owner of the copyright should not have the right to publish at all so long as any copies remain unsold. I cannot find that in the agreement, and it does not seem to be reasonable to import it; because it would come to this, that, if the publishers printed a very large number of copies, it would deprive the authoress of the copyright altogether. I cannot import such an unreasonable term into the agreement. "Then it is said, that, if you give the publisher no protection, the result may be that the author may publish another edition a day or two after the publishing of the first edition, and so destroy the value of the remaining copies of the first edition remaining unsold. That may be. And it is said that that is so unreasonable that you must infer some stipulation to prevent it. Why? No doubt, partnerships at will have their inconveniences as well as their conveniences. There is no reason why I should make persons take up a totally different position from that which they have agreed to take up, because it might be convenient to one of the parties after the termination of |