right to use, or to license others to use, the common work," but must account to the other for his share." In the absence of special contract, joint authors share equally in the joint production, regardless of the extent of their respective contributions to it.73 [28] 4. Aliens. Since an author's property in his unpublished works stands on precisely the same basis as property of any other description, the protection afforded by the common law to intellectual productions is accorded to alien friend and citizen alike. So the rights of resident assignees of nonresident alien authors frequently have been sustained by the courts of this country." 75 In England the common-law right in unpublished works has been abrogated and statutory copyright has been 74 court said: "The law is scanty upon this point, so far as I have found. In Hatton v. Kean, 7 C. B. N. S. 268, 97 ECL 268, 141 Reprint 819, the plaintiff, having composed some music for presentation of two of Shakespeare's plays under agreement with the defendant, tried later to collect penalties for infringement. The case did not turn upon any license given by the plaintiff, but upon whether his music had not gone into the fabric of the presentation in such sense that he lost independent ownership. This the court held. The case was much stronger for the separability of the part from the whole than the case at bar, because the music was merely incidental to the plays, which were themselves, of course, not musical. The Queen's Bench followed the Common Pleas in Wallerstein v. Herbert, 16 L. T. Rep. N. S. 453, on almost the same case. though Lord Cockburn referred to the fact that the defendant was the plaintiff's licensee. These cases must be taken as declaring, even if it was not essential to the decision, that one who contributes in such a joint production does not retain any several ownership in his contribution, but that it merges into the whole"). 71. Klein v. Beach, 232 Fed. 240 [aff 239 Fed. 108, 151 CCA 2821; Holt v. Silver, 169 Mass. 435, 48 NE 837; Herbert v. Fields, 152 NYS 487. [a] Rule applied.-(1) One joint owner of a copyright cannot restrain the reproduction of the work, without proving that such reproduction was not licensed by one of the coowners. Herbert V. Fields, 152 NYS 487. (2) One of several coöwners of a drama may license production by means of moving pictures. Herbert v. Fields, supra. (3) A license given by one joint owner of a copyrighted musical play to reproduce the scenes in moving pictures is not a physical destruction of the property amounting to a conversion, which the joint owner can restrain. Herbert v. Fields, supra. 72. Klein v. Beach, 232 Fed. 240, 247 [aff 239 Fed. 108, 151 CCA 282]. But see Carter v. Bailey, 64 Me. 458, 18 AmR 273 (holding that one of several owners in common of a copyright need not account to his coöwners). And see infra § 261. "Here both Beach and Klein became the owners of Klein's drama, and each could then do with it what he pleased, with the duty of accounting over. Beach could license Klein's dramatic version for the screen, and Klein could do the same thing; and, of course, they each could license others to produce the Klein play on the stage. But in all these instances one would be obliged to account to the other." Klein v. Beach, supra. 73. Maurel v. Smith, 220 Fed. 195, 200. "When several collaborators knowingly engage in the production of a piece which is to be presented originally as a whole only, they adopt that common design, mentioned in Levy v. Rutley, L. R. 6 C. P. 523, and 76 substituted therefor." Accordingly, a nonresident alien can receive no protection in any part of the British Empire to which the Copyright Act extends, unless the benefits of the act have been extended to his country by Order in Council under the international provisions of the act.77 The act has been so extended to citizens of the United States, and accordingly their unpublished works are now protected in England.78 [29] 5. Employer and Employee. The property in intellectual productions produced by one employed for that purpose belongs to the employer and not to the employee,79 even in the absence of an express or formal assignment or contract to that effect. But the employer will acquire title to only such works of his employee as are contemplated by unless they undertake expressly to apportion their contributions, they must share alike." Maurel v. Smith, supra. 74. Ferris v. Frohman, 223 U. S. 424, 32 SCt 263, 56 L. ed. 492; Crowe v. Aiken, 6 F. Cas. No. 3,441, 2 Biss. 208; Keene v. Wheatley, 14 F. Cas. No. 7.644; Palmer v. De Witt, 47 N. Y. 532, 539, 7 AmR 480; Fleron v. Lackaye, 14 NYS 292; Shook v. Daly, 49 HowPr (N. Y.) 366; Jefferys v. Boosey, 4 H. L. Cas. 815, 10 Reprint 681. "The courts of the State are open to an alien friend pursuing his property, and seeking to recover it from a wrong-doer; and there is nothing in any positive law, or in the policy of the government, which would close the door against the same alien friend seeking protection for the fruits of his mental labor, by restraining_its publication against his wishes. The protection afforded by the common-law to literary labor is very slight at the best, but such as it is, it is accorded to alien friend and citizen alike, and both are regarded with equal favor." Palmer v. De Witt, supra. are con [a] An author and his assignees, whether citizens or aliens, so far as unpublished manuscripts cerned, are equally protected by the law, and these rights cannot be impaired or infringed, either directly or indirectly, and if necessary will be protected by an injunction. Shook v. Daly, 49 HowPr (N. Y.) 366. [b] An English author of an unpublished drama is entitled to protection against its unauthorized use in this country as well as in England. Ferris v. Frohman, 223 U. S. 424, 32 SCt 263, 56 L. ed. 492. Property rights of aliens in general see Aliens § 34. 75. Thomas V. Lennon, 14 Fed. 849; Crowe v. Aiken, 6 F. Cas. No. 3.441, 2 Biss. 208; Keene v. Wheatley, 14 F. Cas. No. 7,644; Tompkins v. Halleck, 133 Mass. 32, 43 AmR 480; Palmer v. De Witt, 47 N. Y. 532, 7 AmR 480; French v. Maguire, 55 HowPr (N. Y.) 471; Shook v. Daly, 49 HowPr (N. Y.) 366. See infra § 453 et seq. "The right of an author in any unpublished literary or artistic work belongs only to British subjects or residents within the British dominions, except where the provisions of a treaty or convention extend such right to foreigners resident abroad." 8 Halsbury L. Eng. p 138. 78. See Order in Council of Febr. 3. 1915 (the terms and effect of which are stated infra § 454). 79. U. S.-Callaghan v. Myers, 128 U. S. 617, 9 SCt 177. 32 L. ed. 547; Dielman v. White, 102 Fed. 892: Colliery Engineer Co. v. United Correspondence Schools Co., 94 Fed. 152: Mallory V. Mackaye, 86 Fed. 122 [mod on other grounds 92 Fed. 749, 34 CCA 6531; Mutual Adv. Co. v. Refo, 76 Fed. 961; Carte v. Evans, 27 Fed. 861; Schumacher V. Schwencke, 25 Fed. 466, 23 Blatchf. 373; De Witt v. Brooks, 7 F. Cas. No. 3.851; Heine v. Appleton, 11 F. Cas. No. 6,324, 4 Blatchf. 125; Lawrence v. Dana, 14 F. Cas. No. 8.136. 4 Cliff. 1; Little v. Gould, 15 F. Cas. No. 8.394, 2 Blatchf. 165; Pierpont v. Fowle, 19 F. Cas. No. 11,152, 2 Woodb. &M. 23; Siebert's Case, 7 Op. Atty.Gen. 656. N. Y.-Jones V. American Law Book Co., 125 App. Div. 519, 109 NYS 706; Edward Thompson Co. v. Clark, 109 NYS 700. Pa. Com. v. Desilver, 3 Phila. 31. Eng. Grace v. Newman, L. R. 19 Eq. 623, 7 ERC 86; Shepherd v. Conquest, 17 C. B. 427, 84 ECL 427, 139 Reprint 1140; Sweet v. Benning. 16 C. B. 459, 81 ECL 459, 139 Reprint 838; Hatton v. Kean, C. B. N. S 268, 97 ECL 268, 141 Reprint 819 (drama); Cox v. Cox, 11 Hare 118, 45 EngCh 118, 68 Reprint 1211; Brown v. Cooke, 11 Jur. 77; Barfield v. Nicholson, 2 Sim. & St. 1. 1 EngCh 1, 57 Reprint 245; Stannard v. Harrison, 24 L. T. Rep. N. S. 570; Hazlitt v. Templeman, 13 L. T. Rep. N. S. 593. [a] A writer for legal encyclopedias, paid by the page under a contract of service, materials and facilities being furnished by the employer, was not an independent contractor, and the title to his product, whether accepted or rejected for publication, belonged to the employer. Edward Thompson Co. v. Clark, 109 NYS 700. [b] Where a draftsman, while in the service of the commonwealth, collected materials from which he published a map, the results of his labor thereon belonged to the commonwealth. Com. V. Desilver, 3 Phila. (Pa.) 31. See also Heine v. Appleton, 11 F. Cas. No. 6,324, 4 Blatchf. 125 (where, however, there was an express agreement that the work done should belong to the government). 80. Dielman v. White, 102 Fed. 892; Lawrence v. Aflalo, [1904] A. C. 17, 1 BRC 314 [appr Sweet v. Benning, 16 C. B. 459, 81 ECL 458, 139 Reprint 838]; Lamb v. Evans, [1893] 1 Ch. 218. [a] Rule applied.-Where defendant had performed labor under the direction of plaintiff on the preparation of an astronomical work showing the star positions, which work had been conceived by the latter who had for thirty years collected material for that purpose, it was held that in the absence of a definite contract plaintiff was entitled to all the manuscript which was prepared under his supervision and in accordance with his directions. and to the material furnished by him. Peters v. Borst, 24 AbbNCas 1, 9 NYS 789 [rev on other grounds 142 N. Y. 62, 36 NE 814]. [b] Additions to a play made by an actor while in the employ of the owner, in adapting the play to the performance by him. belong to the owner. Keene v. Wheatley, 14 F. Cas. No. 7.644. the contract of employment.81 The mere fact that they were produced by one while in the general employment of another does not deprive the author of his property therein nor confer it on his employer.s [30] 6. Photographs. Where a photographer takes a portrait for a sitter, under employment by the latter, it is the implied agreement that the property in the portrait is in the sitter, and neither the photographer nor a stranger has the right to publish or make copies without permission from the sitter.83 Where, however, the photograph is taken at the instance of the photographer and for his benefit, the sitter loses control of the disposition of the pictures. 84 81. Root v. Borst, 142 N. Y. 62, 36 NE 814. [a] Illustration.-Where a professor at a college, while in the discharge of his duties as such professor, produced a literary work in the production of which he was largely aided by the facilities afforded him by the college, the property in the production was not in the college but in the author. Peters v. Borst, 24 AbbNCas 1, 9 NYS 789 [rev on other grounds 142 N. Y. 62, 36 NE 814]. Right of employer to statutory copyright see infra §§ 149, 152, 153. 82. Boucicault v. Fox, 3 F. Cas. No. 1,691, 5 Blatchf. 87, 95; Root v. Borst, 142 N. Y. 62. 36 NE 814; O'Neill v. General Film Co., 171 App. Div. 854, 157 NYS 1028 [mod 152 NYS 599]. "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." Boucicault v. Fox, supra. A dramatization made by an [a] actor while employed at a theater where the play was produced conferred no title on the managers or proprietors of the theater. Boucicault v. Fox, 3 F. Cas. No. 1,691, 5 Blatchf. 87; O'Neill v. General Film Co., 171 App. Div. 854, 157 NYS 1028; Shepherd v. Conquest, 17 C. B. 427, 84 ECL 427, 139 Reprint 1140. 83. Moore v. Rugg, 44 Minn. 28, 46 NW 141, 20 AmSR 539, 9 LRA 58; Pollard v. Photographic Co., 40 Ch. D. 345; McCosh v. Crow, 5 F. (Ct. Sess.) 670; Stedall v. Houghton, 18 T. L. R. 126; Bolton v. London Exhibitions, Ltd., 14 T. L. R. 550. [a] Reason for rule.-"The object for which the defendant was employed and was paid was to make and furnish the plaintiff with a certain number of photographs of herself. To do this a negative was taken upon glass, and from this negative the photographs ordered were printed. An almost unlimited number might also be printed from the negative, but the contract between plaintiff and defendant included, by implication, an agreement that the negative for which plaintiff sat should only be used for the printing of such portraits as she might order or authorize." Moore v. Rugg. 44 Minn. 28, 29. 46 NW 141, 20 AmSR 539, 9 LRA 58. Who entitled to copyright see infra 153. 84. Press Pub. Ce v. Falk, 59 Fed. 324; Nottage v. Jackson, 11 Q. B. D. 627. 85. Wright v. Eisle. 86 App. Div. 356, 83 NYS 887; Gendell v. Orr, 13 Phila. (Pa.) 191 (holding that an architect has a common-law right of property in his design of a novel and artistic porch before its publication by application to a building which he has erected). 86. Walsh v. St Louis Exposition, etc., Assoc., 101 Mo. 534, 14 SW 722; [31] 7. Architectural Plans and Drawings. The artistic and literary property in plans and architectural drawings and specifications is in the architect and until publication he has the exclusive right to license construction from them.85 But plans and specifications prepared under a contract for an agreed compensation, together with the right to use them, belong physically to the client.86 [32] 8. Letters.87 The writer of a letter has a right of property in the letter, superior to that 88 which of the person to whom the letter is sent,88 entitles the writer to a remedy against any unauthorized publication either by the person to whom As in the case of it was sent or by a stranger.89 Wright v. Eisle, 86 App. Div. 356, 83 NYS 887. But see Lunsford v. Dietrich, 86 Ala. 250, 5 S 461, 11 AmSR 37 (holding that plaintiff, an architect, when prosecuted at the instance of defendant, for larceny from the latter of plans for a building, could for malicious action show, in prosecution, that the property of the drawings was in him by a universal custom, and that the builder was entitled to them only during the time of construction). Y. an 87. See also supra § 18. 379, V. Lith. Co., 142 Fed. 827; U. S. v. Tanner, 28 F. Cas. No. 16,430. 6 McLean 11 Woolsey Judd, N. 128; V. 11 49; HowPr Super. R. 2 L. Hopkinson Burghley, Ch. 447; Loog v. Bean, 26 Ch. D. 306; In re Wheatcroft, 6 Ch. D. 97; Thompson v. Stanhope, Ambl. 737, 27 Reprint 476; Pope v. Curl, 2 Atk. 342, 26 Reprint 608; Howard v. Gunn, 32 Beav. 462, 55 Reprint 181; Gee v. Pritchard, 2 Swanst. 402, 36 Reprint 670; Perceval v. Phipps, 2 Ves. & B. 19, 35 Reprint 225; Laidlaw v. Lear, 30 Ont. 26. its [a] Reason for rule.-Parting with possession of the paper on which a letter is written, and the communication of contents to the reno surrender or ceiver, constitute dedication of the author's property, any more than the giving of a copy would be a surrender in the case of any other literary production. Bartlette v. Crittenden, 2 F. Cas. No. 1,082, 4 McLean 300. [b] Exception to rule. "From this general statement are to be excepted special instances, such as letters by an agent to or for his principal and others where the conditions indicate that the property in form the or expression is in another than the writer. The absolute right of the author to prevent publication by the receiver may also be subject to limitations arising from the nature of the letter or the circumstances under which it is written or received. Some of these are pointed out in Folsom v. Marsh, 9 F. Cas. No. 4.901, 2 Story 100. But these exceptions are narrow and rare, and do not affect materially the general rule." Baker v. Libbie, 210 Mass. 599, 605, 97 NE 109, 37 LRANS 944, AnnCas1912D 551. 89. U. S.-Werckmeister v. American Lith. Co., 142 Fed. 827; Folsom V. Marsh, 9 F. Cas. No. 4,901, 2 Story 100; U. S. v. Tanner, 20 F. Cas. No. 16.430, 6 McLean 128. Ky.-Grigsby V. Breckinridge, Bush 480, 92 AmD 509. 2 La.-Denis v. Leclerc, 1 Mart. 297, 5 AmD 712. Mass.-Baker v. Libbie, 210 Mass. 599. 97 NE 109, 37 LRANS 944, Ann Cas1912D 551. N. Y.-Eyre v. Higbee, 35 Barb. 502. 22 How Pr 198; Woolsey V. Judd. 11 N. Y. Super. 379. 11 How Pr 49: Hoyt v. Mackenzie, 3 Barb. Ch. 320. 49 AmD 178. Pa. Dock v. Dock, 180 Pa. 14, 36 A 411, 57 AmSR 617. Vt.-Barrett v. Fish, 72 Vt. 18, 47 A 174, 82 AmSR 914, 51 LRA 754. Eng. Andrew v. Raeburn, L. R. 9 Ch. 522; Hopkinson v. Burghley, L. R. 2 Ch. 447: Philip V. Pennell, [1907] 2 Ch. 577; Thompson v. Stan737. 27 Reprint 476 hope, Ambl. (Lord Chesterfield's letters to his son); Thompson v. Stanhope, Ambl. 80, 27 Reprint 476; Pope v. Curl, 2 Atk. 342, 26 Reprint 608; Granard v. Dunkin, 1 Ball. & B. 207; Howard v. Gunn, 32 Beav. 462, 55 Reprint 181; Palin v. Gathercole, 1 Coll. 565, 28 63 Reprint 545; LaEngCh 565, bouchere v. Hess. 77 L. T. Rep. N. S. 559; Gee v. Pritchard, 2 Swanst. 402, 36 Reprint 670; Perceval v. Phipps, 2 Ves. & B. 19, 35 Reprint 225. Ont.-Laidlaw v. Lear, 30 Ont. 26. "Even the publication of private letters by the person to whom they may were addressed, be enjoined. This is done upon the ground that the writer has a right of property in his letters, and that they can only be used by the receiver for the purpose for which they were written." Baker v. Libbie, 210 Mass. 599, 603, 97 NE 109, 37 LRANS 944, AnnCas 1912D 551 [quot Bartlett v. Crittenden, 2 F. Cas. No. 1,076, 5 McLean 32, 42]. [a] Reasons for rule.-(1) "Lord Cairns said, respecting correspondence in Hopkinson v. Burghley, L. R. "The writer 2 Ch. 447, at page 448: is supposed to intend that the reuse it for any lawful ceiver may purpose, and it has been held that publication is not such a lawful purpose.'" Baker v. Libbie, 210 Mass. 599, 602, 97 NE 109, 37 LRANS 944, AnnCas1912D 551. (2) "A court of equity will grant an injunction to prevent the publication of a letter by a correspondent against the will That is a recognition of the writer. of property in the writer, although he has parted with the manuscript; since he wrote to enable his correspondent to know his sentiments, not Baker to give them to the world." v. Libbie, 210 Mass. 599, 602, 97 NE 109, 37 LRANS 944, AnnCas1912D 551 [quot Lord Campbell in Boosey v. Jefferys, 6 Exch. 580, 583, 155 Reprint 675]. [b] Absolute right to suppress.— "The right of the author to publish or suppress publication of his correspondence is absolute in the absence of special considerations, and is independent of any desire or intent at the time of writing." Baker v. Libbie, 210 Mass. 599, 605, 97 NE 109, 37 LRANS 944, AnnCas1912D 551. [c] Copy within rule.-The possessor of a letter, or copy of a letter, without the consent of the writer or receiver, can in no case justify its publication without the writer's consent. Woolsey v. Judd, 11 N. Y. Super. 379, 11 HowPr 49. [d] Letters obtained from a dismissed stenographer of a law firm, in breach of trust and confidence, may not be published. Laidlaw v. Lear, 30 Ont. 26. [e] "The oldest case in England is a very interesting one. by reason of its literary flavour. That was a motion made by the celebrated poet, Alexander Pope, against Curl, the bookseller. Pope had obtained injunction ex parte, as in this case, an art works, the common-law literary property may be in the sender, while the title to the physical substance of the letter may be in the recipient.91 The recipient has the property right in the paper on which the letter is written; he may keep it or destroy it, and he can recover possession of it when lost, even from the writer;92 but he has no right to publish it without the consent of the writer.93 It has been said that the recipient of a letter may publish it against the will of the writer where it is necessary to protect his rights or to defend his character against the writer;94 but this doctrine has been severely criticized and it is doubtful if it would and Curl, having put in his answer, moved to dissolve it. These letters were of course only valuable as literary matter, but it will be seen by cases which I shall hereafter cite that the same principle is applicable to private business letters. In that case the Lord Chancellor said; there is only a special property in the receiver, possibly the property of the paper may belong to him, but this does not give a license to any person whatsoever to publish them to the world, for, at most, the receiver has only a joint property with the writer.' The case is reported in 2 Atkyns (1741) 341." Laidlaw V. Lear, 30 Önt. 26, 28. 90. See supra § 17. 91. Baker V. Libbie, 210 Mass. 599, 602, 97 NE 109, 37 LRANS 944, AnnCas1912D 551; Philip v. Pennell, [1907] 2 Ch. 577; Granard v. Dunkin, 1 Ball & B. 207; Labouchere v. Hess, 77 L. T. Rep. N. S. 559. "The property in the letters remains in the person to whom they are sent. The right to retain them remains in the person to whom the letters are sent; but the sender of the letters has still that kind of interest, if not property, in the letters that he has a right to restrain any use being made of the communication which he has made in the letters so sent by him." Baker v. Libbie, supra [quot Lytton v. Devey, 54 L. J. Ch. 293, 295]. 92. U. S.-Werckmeister v. American Lith. Co., 142 Fed. 827. Ky.-Grigsby V. Breckinridge, Bush 480, 92 AmD 509. 2 Mass.-Baker v. Libbie, 210 Mass. 599. 97 NE 109, 37 LRANS 944, Ann Cas1912D 551. N. Y.-New York v. Lent, 51 Barb. 19. Pa.-Dock v. Dock, 180 Pa. 14, 36 A 411, 57 AmSR 617. W. Va.-Tefft v. Marsh, 1 W. Va. 38. V. Eng.-Hopkinson v. Burghley, L. R. 2 Ch. 447; Pollard v. Photographic Co., 40 Ch. D. 345; Thompson Stanhope. Ambl. 737, 27 Reprint 476; Pope v. Curl, 2 Atk. 342, 26 Reprint 608; Howard v. Gunn, 32 Beav. 462, 55 Reprint 181; Oliver v. Oliver, 11 C. B. N. S. 139, 103 ECL 139, 142 Reprint 748; Queensberry v. Shebbeare, 2 Eden 329, 28 Reprint 924; Lytton v. Devey, 54 L. J. Ch. 293; Labouchere v. Hess, 77 L. T. Rep. N. S. 559; Thurston v. Charles, 21 T. L. R. 659. Ont.-Laidlaw v. Lear, 30 Ont. 26. "The author parts with the physical and material elements which are conveyed by and in the envelope. These are given to the receiver. The paper upon which the letter is written belongs to the receiver." Baker v. Libbie, 210 Mass. 599, 606, 97 NE 109. 37 LRANS 944, AnnCas1912D 551. [a] Rule applied. "The letters written by the son to appellant are the latter's property, and she has a right not only to have them produced but delivered up to her as the true owner. In the letters written by her to her son she has a special property to prevent their publication or communication to other persons, or use for any illegal purpose by the party wrongfully in possession of them. The special right in these letters is 96 97 now be followed.95 Private letters may be published as evidence in a court of justice regardless of the consent of the writer or owner." A newspaper is entitled to publish letters sent to it impliedly for publication, for the circumstances show consent, but the writer may revoke such consent before publication. It has been held that the receiver of private letters has not such an interest in them that he can sell them without the writer's consent,99 especially where the letters are of a confidential nature;1 but confidence does not run with the letter.2 In the absence of special circumstances, however, the 98 one that can only be adequately pro- | Pennell, [1907] 2 Ch. 577; Palin v. tected in equity." Dock v. Dock, 180 Pa. 14, 22, 36 A 411, 57 AmSR 617. [b] Rights not joint.-The rights of author and recipient are not joint; each has a separate property. Grigsby v. Breckinridge, 2 Bush (Ky.) 480, 92 AmD 509. [c] Possession as evidence of title (1) Letters are personal property, and possession of them is prima facie evidence of title and ownership. Tefft v. Marsh, 1 W. Va. 38. (2) A letter written by General Washington the authorities of the city of New York in response to a municipal address remains the property of the city, in the absence of evidence showing how it came into the possession of a third person whose executor sold it at public auction, the city claiming title thereto as against the purchaser. New York v. Lent, 51 Barb. (N. Y.) 19. (3) A party lawfully in possession of letters which for forty years have been held and controlled by the widow of the person to whom they were written, and claiming as the descendant of such widow, is entitled to hold them as against all persons except the legal representatives of such widow. Eyre v. Higbee, 35 Barb. (N. Y.) 502, 22 How Pr 198. 93. See cases supra note 89. [a] Consent. Where the writer declined to receive his letters, telling the receiver to keep them, the latter was thereby given no right to publish them. Thompson v. Stanhope, Ambl. 737, 27 Reprint 476. [b] Permission to write blography. "We are here confronted by the right established by law of the writer of a letter during his lifetime, and of his legal personal representatives after his death, to prevent the publication of letters written by him, as against which the implication of authority must be exceeding cogent to be of any avail at all. It is certainly not to be found in permission to write a biography which may be complete without single extract from a single letter." Philip v. Pennell, [1907] 2 Ch. 577, 584. a Gathercole, 1 Coll. 565, 28 EngCh 565, 63 Reprint 545; Laidlaw v. Lear, 30 Ont. 26. ac "One of the exceptions to this rule is that for the purposes of public justice publicly administered, cording to the established institutions of the country,' private letters in the hands of a party other than the writer, must always be produced unless such letters would tend to criminate. the person required by law to produce them. Gee v. Pritchard, 2 Swanst. 402. 36 Reprint 670; Hopkinson v. Lord Burghley, L. R. 2 Ch. 447; 2 Story, Eq. Jur. (6th Ed.) $ 948. In Hopkinson v. Burghley, supra, the writer of private and confidential letters, relevant to the issue, refused his sanction to their production in court, by the person to whom they were written and sent, but the court held that they must be produced 'for the furtherance of the ends of justice,' although the writer was not a party to the suit." Barrett v. Fish, supra. 97. Hogg v. Kirby, 8 Ves. Jr. 215, 32 Reprint 336; Sweetman v. Bentley. [1871] W. N. 162. 98. Davis v. Miller, 17 Dec. Ct. Sess. (2d ser) 1166; Laidlaw V. Lear, 30 Ont. 26, 28. "The editor of a newspaper, to whom letters are sent for insertion in the paper may not publish them, if, before publication, the writer wishes to withdraw them." Laidlaw v. Lear, supra. 99. Rice v. Williams, 32 Fed. 437; Philip v. Pennell, [1907] 2 Ch. 577. [a] Rule applied-A contract to sell letters written to another person who advertised remedies for diseases, the purchaser intending to send an advertisement to the writers, is contrary to good morals, and void. Rice v. Williams, 32 Fed. 437. 1. Philip v. Pennell, [1907] 2 Ch. 577 (per Kekewich, J.). [a] Breach of confidence.-"There is another class of cases entirely different from those concerned with the right of the writer of letters, or his legal personal representative, to prohibit the publication of those letters, not on the strength of the proprietary right, but because of a confidential relation between the writer and the person attempting to use the letters, which confidential relation, it is obvious, may and generally would make unlawful, not merely the pubmunication of their contents to third persons." Philip v. Pennell, [1907] 2 Ch. 577, 586. 94. Folsom v. Marsh, 9 F. Cas. No. 4,901, 2 Story 100: Woolsey v. Judd, 11 N. Y. Super. 379, 11 HowPr 49; Widdemer v. Hubbard, 19 Phila. (Pa.) 263; Labouchere v. Hess, 77 L. T. Rep. N. S. 559; Gee v. Pritchard, 2 Swanst. 402, 36 Reprint 670; Perceval v. Phipps, 2 Ves. & B. 19, 35 Re-lication of the letters, but any comprint 225. 2. Philip v. Pennell, [1907] 2 Ch. 577. 587. "Even assuming that some of those letters were in the hands of persons who could not communicate them without breach of confidence, which would give the plaintiff a cause of action against them, yet I fail to un 95. Palin V. Gathercole, 1 Coll. 565, 28 EngCh 565, 63 Reprint 545; Drone Copyright p 138. See Gee v. Pritchard, 2 Swanst. 402, 36 Reprint 670 (where letters written by plaintiff to defendant had been returned by him with a declaration that he did not consider himself entitled to retain them, and the publication of copies taken before the return, without the knowledge of plain-derstand how that alone would give tiff, was restrained by injunction, although represented by defendant as necessary for the vindication of his character). 96. Woolsey v. Judd. 11 N. Y. Super. 379, 11 HowPr 49; Barrett v. Fish, 72 Vt. 18. 21, 47 A 174, 82 Am SR 914, 51 LRA 754; Hopkinson v. Burghley. L. R. 2 Ch. 447: Philip v. the plaintiff a right to prohibit Mr. and Mrs. Pennell from using the letters, or their contents, if handed over or communicated to them. It cannot be said that the confidence runs with the letters. I must not be understood as extending this opinion to letters obtained by fraud or otherwise improperly, and any case of that 4 better view is that an original manuscript letter may be sold. Unless the circumstances show an express or implied reservation, the recipient has the general property in the letter, considered as a physical object, with a right to dispose of it in any way that does not amount to a publication, and this right is not dependent on the intention, desires, or consent of the writer.5 Thus the recipient or possessor of letters may disclose their contents; there is no legal obligation to keep them secret, unless they are written in confidence." The possessor of letters may make use of the information contained therein for the purpose of writing a biography, without or 6 kind would have to be considered separately, and in view of the particular circumstances.' Philip V. Pennell, supra. 3. Baker v. Libbie, 210 Mass. 599. 97 NE 109, 37 LRANS 944, AnnCas 1912D 551. [a] Reason and limits of rule."Although the particular form of the expression of the thought remains the property of the writer, the substance and material on which this thought has been expressed have passed to the recipient of the letter. The paper has received the impression of the pen, and the two in combination have been given away. The thing which has value as an autograph is not the intactable thought, but the material substance upon which a particular human hand has been placed, and has traced the intelligible symbols. Perhaps the autographic value of letters may fluctuate in accordance with their length or the nature of their subject matter. But whatever such value may be, in its essence it does not attach to the intellectual but material part of the letter. This exact question has never been presented for adjudication, so far as we are aware. There are some expressions in opinions, which dissociated from their connection may be laid hold of to support the plaintiff's contention. See Eyre v. Higbee, 22 HowPr (N. Y.) 198; Dock v. Dock, 180 Pa. 14, 22, 36 A 411, 57 AmSR 617; Palin v. Gathercole, 1 Coll. 565, 28 EngCh 565, 63 Reprint 545. It may well be that title to such as appears to exist in the recipient may not go to the extent of being assets in the hands of a decedent, a bankrupt or an insolvent. Sibley v. Nason, 196 Mass. 125, 81 NE 887. 124 AmSR 520, 12 LRANS 1173. 12 AnnCas 938; Eyre v. Higbee, 22 How Pr (N. Y.) 198. But on principle it seems to flow from the nature of the right transferred by the author to the receiver and of that retained by the writer in ordinary correspondence, that the extent of the latter's proprietary power is to make or to restrain a publication, but not to prevent a transfer. The rule applicable to the facts of this case, as we conceive it to be, is that in the absence of some special limitation imposed either by the subject matter of the letter or the circumstances under which it is sent, the right in the receiver of an ordinary letter is one of unqualified title in the material on which it is written. He can deal with it as absolute owner subject only to the proprietary right retained by the author for himself and his representatives to the publication or non-publication of ideas in its particular verbal expression. In this opinion publication has been used in the sense of making public through printing or multiplication of copies." Baker v. Libbie, 210 Mass. 599, 606, 97 NE 109, 37 LRANS 944, AnnCas 1912D 551. 9 against the consent of the writer, provided such biography does not contain copies of the letters or paraphrases or extracts therefrom. The nature of the letter, and the circumstances under which it was written, may control the use which the recipient may make of it.10 The writer of a letter has the right to copy it11 and to secure copies,12 although there is no duty of preservation resting on the recipient.13 The property in business letters written by an employee to or for his employer belongs to the latter,11 and letters by a public officer belong to his government.15 The recipient's property in letters passes to his personal representative,16 but they are not assets in quiry is whether indifferent letters 2 4. Grigsby V. Breckinridge, Bush (Ky.) 480, 92 AmD 509; Baker v. Libbie, 210 Mass. 599, 97 NE 109, 37 LRANS 944, AnnCas1912D 551; Philip v. Pennell, [1907] 2 Ch. 577, 590; Labouchere v. Hess, 77 L. T. Rep. N. S. 559. "There is no authority against any use of letters except publication, and that so far as authority goes it is in favour of any use with that exception. There is no warrant for extending the proprietary right to prohibit publication, and so far as there is no rule of law of general application, or created by special circumstances, to prevent that result, it scems to me that possession of a letter ought to be treated as conferring all the rights usually incident to 6. Philip v. Pennell, [1907] 2 Ch. [a] The injunction should run 7. Philip v. Pennell, [1907] 2 Ch. 577. See Widdemer v. Hubbard, 44 LegInt (Pa.) 252 (holding that, where the writer of a letter authorizes others than the person to whom it is addressed to read it, there is a publication by the writer which will prevent him from restraining its subsequent publication on the ground that it is a private communication). 8. Philip v. Pennell, [1907] 2 Ch. 577. 9. Philip v. Pennell, [1907] 2 Ch. 577. 10. Baker v. Libbie, 210 Mass. 599, 97 NE 109, 37 LRANS 944, Ann Cas1912D 551. 11. Baker V. Libbie, 210 Mass. 599, 97 NE 109, 37 LRANS 944, Ann Cas1912D 551. 12. Baker v. Libbie, 210 Mass. 599, 97 NE 109, 37 LRANS 944. Ann Cas1912D 551; Simmons v. Hoffman, 6 Pa. Dist. 218. [a] Reason for rule.-"Although independent of the manuscript, this right involves a right to copy or secure copies. Otherwise the author's right of publication might be lost." Baker v. Libbie, 210 Mass. 599, 606, 97 NE 109, 37 LRANS 944, AnnCas 1912D 551. a [b] Right of inspection.-In proper case the court may direct that original letters written by plaintiff to defendant and received by him, of which plaintiff neglected to keep copies, be submitted to plaintiff for inspection and the taking of copies, it being established to the satisfaction of the court that an inspection of such letters is necessary to enable plaintiff to prepare his statement. Simmons v. Hoffman, 6 Pa. Dist. 218. 2 13. Grigsby V. Breckinridge. Bush (Ky.) 480, 92 AmD 509; Baker 37 LRANS 944, AnnCas1912D 551. v. Libbie. 210 Mass. 599. 97 NE 109, [a] Reason for rule.-"A duty of preservation would impose an unreasonable burden in the most instances. It is obvious that no such obligation rests upon the receiver, and he may destroy or keep at pleasure." Baker v. Libbie, 210 Mass. 599, 606, 97 NE 109, 37 LRANS 944, AnnCas1912D 551. 14. Baker V. Libbie, 210 Mass. 599, 97 NE 109, 37 LRANS 944, Ann Cas1912D 551; Howard v. Gunn, 32 Beav. 462, 55 Reprint 181. [a] Where the solicitor of a company wrote a letter to one of the stockholders relating to a guaranty not to part with his shares for a limited time, it was held that such letter was the property of the company, and that the writer had no such property in it as would authorize him to have the publication of it restrained, although he swore that he wrote it in his private capacity. Howard v. Gunn, 32 Beav. 462, 55 Reprint 181. 15. Folsom v. Marsh, 9 F. Cas. No. 4,901, 2 Story 100. [a] "But this is an exception in favor of the government, and stands upon principles allied to, or nearly similar to, the rights of private individuals, to whom letters are ad and publish them, upon fit and justifiable occasions. But assuming the right of the government to publish such official letters and papers, under its own sanction, and for public purposes, I am not prepared to admit, that any private persons have a right to publish the same letters and papers, without the sanction of the government, for their own private profit and advantage." Folsom v. Marsh, 9 F. Cas. No. 4,901, 2 Story 100, 113. [a] Implied license and restric-dressed by their agents, to use them, tions.-"Commonly there must be inferred a right of reading or showing to a more or less limited circle of friends and relatives. But in other instances the very nature of the correspondence may be such as to set the seal of secrecy upon its contents. See Kenrick v. Danube Collieries, etc., Co., Ltd., 39 Wkly. Rep. 473. Letters of extreme affection and other fiduciary communications may come within this class. There may also be a confidential relation exist[b] "The conventional autographing between the parties, out of letters by famous persons signify on which would arise an implied prohi their face a license to transfer. bition against any use of the letters, Equitable rights may exist in the and a breach of such trust might be author against one who by fraud, restrained in equity." Baker v. Libtheft or other illegality obtains pos- bie, 210 Mass. 599, 606, 97 NE 109, session of letters. The precise in- 37 LRANS 944. AnnCas1912D 551, 16. Eyre v. Higbee, 35 Barb. (N. Y.) 502, 22 HowPr 198. See Granard v. Dunkin, 1 Ball & B. 207 (where the executors of the recipient of letters secured an injunction against persons who had gotten possession of them from publishing them). his hands.17 The personal representative of the writer may prevent publication.18 19 21 [33] D. Assignments, Transfers, Licenses, and Contracts-1. In General. The common-law right of an author in his intellectual productions is, like any other personal-property right, assignable, and he may sell and transfer his entire property to another; or he may assign and transfer a limited interest therein, less than the whole property right.20 The various rights included in the entire ownership may be split up and assigned to different persons.2 A manuscript or a work of art, considered as a physical object, may be sold and transferred to one person while the common-law right of publication and multiplication of copies, or the right to obtain a copyright, may be retained or transferred to another.2 Sales may be absolute or conditional, and they may be with or without qualifications, limitations, and restrictions.2 Observance of the con 22 23 17. Eyre v. Higbee, 35 Barb. (N. | right Y.) 502, 22 How Ir 198. Assets of decedent's estate generally see Executors and Administrators [18 Cyc 1711. 18. Philip v. Pennell, [1907] 2 Ch. 577; Thompson v. Stanhope, Ambl. 737, 27 Reprint 476; Lytton v. Devey, 54 L. J. Ch. 293. [a] The children of the poet Burns prevented the publication of his manuscript letters. Cadell v. Stewart [cit 1 Bell Comm. p 116 note]. 19. Callaghan v. Myers, 128 U. S. 617, 9 SCt 177, 32 L. ed. 547; Harms v. Stern, 229 Fed. 42, 49, 145 CCA 2 [cit Cycl; American Law Book Co. v. Chamberlayne, 165 Fed. 313, 91 CCA 281; Harper v. Donohue, 144 Fed. 491 [aff 146 Fed. 1023 mem. 76 CCA 678 mem]; Mackaye v. Mallory, 12 Fed. 328; Parton v. Prang, 18 F. Cas. No. 10,784, 3 Cliff. 537; Keene v. Kimball, 16 Gray (Mass.) 545, 77 AmD 426; Palmer v. De Witt, 47 N. Y. 532. 7 AmR 480; Hackett v. Walter. 80 Misc. 340, 142 NYS 209; Stern v. Carl Laemmle Music Co., 74 Misc. 262, 133 NYS 1082 [aff 155 App. Div. 895 mem, 139 NYS 1146 mem]; Widmer v. Greene, 56 How Pr (N. Y.) 91; Oertel v. Wood, 40 How Pr (N. Y.) 10; Vernon Abstract Co. v. Waggoner Title Co., 49 Tex. Civ. A. 144, 107 SW 919. "An author has at common law a property in his unpublished works, which he may assign, and in the enjoyment of which equity will protect his assignee as well as himself." Keene v. Kimball, 16 Gray (Mass.) 545, 549, 77 AmD 426 (per Hoar, J.). [a] Both the painter and the purchaser from him has, at common law, a right to prevent any person from copying his picture. Turner v. Robinson, 10 Ir. Ch. 121 [aff 10 Ir. Ch. 510]. Assignment of right to obtain copyright see infra 88 150-154. 20. Paige v. Banks, 13 Wall. (U. S.) 608, 614, 20 L. ed. 709; Harper v. Donohue, 144 Fed. 491 [aff 146 Fed. 1023 mem, 76 CCA 678 mem]. "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." Paige v. Banks, supra. 21. Ford V. Charles E. Blaney Amusement Co., 148 Fed. 642; Lucas v. Cooke, 13 Ch. D. 872. [a] Works of art.-The artist may assign the right of reproduction by engraving to one person and of reproduction by other means to another. Lucas v. Cooke, 13 Ch. D. 872. [b] Copyright and dramatic rights.-The author may sell the right to copyright and retain the ditions and restrictions imposed may be enforced by injunction based on the reserved property right.24 Of course, if the use authorized or licensed amounts to a general publication, all common-law rights are thereby terminated, and the work falls into the public domain subject to unrestricted use by any member of the public.25 The common-law right passes to the personal representatives on the decease of the owner, and may be bequeathed by will.26 [§ 34] 2. Assignments and Licenses Distinguished. A transfer of the whole property right is an assignment.27 A transfer of only a particular right or privilege less than the whole property, or of the entire right for only a prescribed territory, is a license.28 25. See infra § 42. [35] 3. Necessity of Writing. There is no distinction between the mode of assigning this and any other personal property, and in the absence of statutory provision to the contrary, it may be transferred of dramatization. Ford V. Central News. [1897] 2 Ch. 48. See Charles E. Blaney Amusement Co., also supra § 21. 148 Fed. 642. But see infra § 137. 22. American Tobacco Co. V. Werckmeister. 207 U. S. 284, 28 SCt 72, 52 L. ed. 208, 12 AnnCas 595 [aff 146 Fed. 375, 76 CCA 647]; Stephens v. Cady, 14 How. (U. S.) 528. 14 L. ed. 528; Werckmeister v. American Lith. Co., 142 Fed. 827; Werckmeister v. Springer Lith. Co.. 63 Fed. 808; Oertel v. Wood. 40 HowPr (N. Y.) 10. See also infra § 38. 23. U. S.-Bobbs-Merrill Co. V. Straus. 147 Fed. 15. 77 CCA 607, 15 LRANS 766 [aff 139 Fed. 155, and aff 210 U. S. 339, 28 SCt 722, 52 L. ed. 1086]; Harper v. Donohue, 144 Fed. 491 [aff 146 Fed. 1023 mem, 76 CCA 678 mem]; Press Pub. Co. v. Monroe, 73 Fed. 196, 19 CCA 429, 51 LRA 353 [app dism 164 U. S. 105, 17 SCt 40, 41 L. ed. 3671; Parton v. Prang, 18 F. Cas. No. 10,784, 3 Cliff. 537. Mass.-Keene v. Kimball, 16 Gray 545, 77 AmD 426. N. J.-Aronson v. Baker, 43 N. J. Eq. 365, 12 A 177. 10. N. Y.-Oertel v. Wood, 40 HowPr Eng.-Prince Albert v. Strange, 1 Hall & T. 1. 47 Reprint 1302. 1 Macn. & G. 25, 47 EngCh 19, 41 Reprint 1171 (in which celebrated case the husband of Queen Victoria prevented not only the publication of etchings made by himself and the queen for private circulation, but also of a catalogue descriptive of them). [a] The author has the undisputed right to his manuscript; he may withhold it, or he may communicate it, and communicating, he may limit the number of persons to whom it is imparted and impose such restrictions as he pleases on their use of it. The fulfillment of the annexed conditions he may proceed to force and for their breach he may claim compensation. Jefferys v. Boosey, 4 H. L. Cas. 815, 10 Reprint 681. Limited or qualified publication see infra § 47. en 24. De Bekker V. Frederick A. Stokes Co., 168 App. Div. 452, 153 NYS 1066 [mod on other grounds 157 NYS 576 (aff 219 N. Y. 573 mem, 114 NE 1064 mem)]. See also infra $ 62. [a] Restricted communication of news items.-It is competent for a news agency to collect information from a public source and transmit it to subscribers to whom it is new on the terms that they shall not communicate it to third parties; and the court will interfere by injunction to restrain a subscriber from communicating such information to a third party in breach of his contract, and also to restrain a third party from inducing a subscriber to break his contract by supplying him with such information with a view of publication. Exchange Tel. Co. v. 26. Folsom v. Marsh, 9 F. Cas. No. 4,901, 2 Story 100 (where the owner of Washington's papers who obtained title from his legatee, was granted an injunction against an infringing edition); Palmer v. De Witt. 47 N. Y. 532, 7 AmR 480; Thompson v. Stanhope, Ambl. 737. 27 Reprint 476; Queensberry v. Shebbeare, 2 Eden 329, 28 Reprint 924 (where a copy of Lord Clarendon's history was adjudged to be the property of his descendants nearly one hundred years after his death); Webb v. Rose feit Millar v. Taylor, 4 Burr. 2303, 2330, 98 Reprint 201]. [a] A bequest of "all my books" includes manuscript notes. Willis v. Curtois, 1 Beav. 189, 17 EngCh 189, 48 Reprint 911. . 27. See Assignments § 1. a any [a] "An assignes includes person in whom the interest of the author before publication is vested, whether such interest is acquired by sale, gift, bequest, or by operation of law." 8 Halsbury L. Eng. p 137. 28. Power v. Walker, 3 M. & S. 7, 105 Reprint 514. See also infra $247. [a] Nature of partial assignment.-(1) It has been said, in a suit in equity, where the foreign proprietor of a drama had assigned to plaintiff the right to produce the play on the stage within the United States, that the transfer could not be regarded as otherwise than only a partial assignment, on which a suit could not be maintained at law in name. But it was plaintiff's own held that, in a proceeding in equity, a limited local or other partial asvaluable signment. if made for a consideration by whose person transfer of the whole interest would have passed proprietorship, is carried into effect whether it would have been otherwise or not at law. Keene v. Wheatley, 14 F. Cas. No. 7,644, 9 AmLR_33. (2) "It is said, in Jefferys v. Boosey, 4 H. L. Cas. 815, 978, 10 Reprint 681, that copyright was indivisible, and that the owner could not assign a part of the right, as to print in a particular place or country, or do anything less than assign the whole right given by the English law. But whether the instrument is called a transfer or a license is not material. The plaintiff has, for a valuable consideration, acquired the right to the first publication of this drama, as well as the right to represent the same upon the stage in the United States, and it is a right of pecuniary value. But the plaintiff, under his transfer, might restrain the author, as well as every other person, from publishing the work within the United States to his |