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author there is nothing to which a statutory right can attach. But once it is given visible expression, it then becomes a "work" in which the author is vested with the common-law right of exclusive control. He may keep it under a bushel or bring it into the open, but if he wishes to exploit it profitably he can only do so, as a rule, by taking advantage of the Copyright Act.

And what the author may do himself, he may assign to another person, including the right to secure copyright in the work, and the latter then becomes the "proprietor." So this term is here equivalent to "assign” in the same clause, and implies that the right was originally derived from the author. Quinn-Brown Pub. Corp. v. Chilton Co., Inc., 30 USPQ 373 (1936); Harms v. Stern, 229 F. 42 (CCA 2, 1915). Of course it does not include a mere agent or licensee. Public Ledger v. New York Times, 275 F. 562 (1921), and Public Ledger v. Post, 294 F. 430 (CCA 8, 1923). There must be clear intent, express or necessarily implied by the circumstances, to transfer the copyright privilege, but when exercised it may be held in trust by one person for the benefit of another. The former is said to hold the legal title and the latter the equitable title. Bisel v. Ladner, 1 F.2d 346 (CCA 3); Cohan v. Richmond et al., 19 F.Supp. 771 (1937).

The outright sale and delivery of his manuscript by the author, and acceptance by him of a sum of money “in full payment thereof” without reservations, must be regarded as carrying all the rights incidental to ownership, including the right on the part of the purchaser to secure the copyright as proprietor. Dam v. Kirke La Shelle Co., 175 F. 902 (CCA 2, 1910).

Joint authors are deemed (in the absence of contract to the contrary) tenants in common, each owning an undivided interest in the copyright, which inures to the estate of a deceased coauthor. Carter v. Baily, 64 Me. 458 (1876). Where one of the authors takes out copyright in his own name he becomes a constructive trustee for the other to the extent of the latter's interest. Maurel v. Smith, 220 F. 195 (1915); aff'd. 271 F. 211 (CCA 2, 1921).

But turning to section 62 (last clause) of the Act, it will be observed that by virtue of a contract of employment for hire, the employer is to be deemed the "author" within the intent and purpose of the Act. This doubtless is based upon the consideration that the employer was the proximate cause of the work coming into existence, and therefore is to be deemed as contributing to the progress of science and the useful arts and subrogated to all the rights of the real author. So the term "author" includes a corporation acting as employer for hire in the production of a motion picture. Vitaphone Co. v. Hutchinson, 42 USPQ 431 (1939).

Sometimes it happens that a celebrity lends his name to a series of articles, not by himself, but by a so-called "ghost writer." In a recent British decision it was held that if the actual form of expression was the "ghost’s” he, and not the celebrity, is the sole author and entitled to the copyright. Donoghue v. Allied Newspapers, Ltd., L.R. 1938, 1 Ch. 106. No case on this point has arisen in our own courts, as far as is known, but under section 62, if the "ghost" was employed by the celebrity to write the articles "for hire,” the latter would presumably be entitled to the copyright privilege in the absence of agreement to the contrary.

It is not necessary that there be an express contract of employment in writing; it may be inferred from the circumstances. If you employ a photographer, for example, to take your picture and pay him for his job, you become an "author" in the statutory sense and may if you choose secure copyright. But if the photographer takes the picture at his own solicitation and expense, he is entitled to secure copyright for it, in the absence of agreement to the contrary. Lumiere v. Robertson, 280 F. 550 (CCA 2, 1922); Altman v. New Haven Union, 254 F. 113 (1918). So, also, when an artist accepts a commission to paint a picture for pay, the presumption is that he sells also the right to control reproduction in copies for publication, unless the copyright is reserved to the artist by the terms, express or implied, of the contract. Yardley v. Houghton Mifflin Co., Inc., 44 USPQ 1 (CCA 2, 1939).

Where the author has not assigned his rights, and dies before the work is published, the copyright should ordinarily be secured and registered in the name of his executor or (in the absence of a will) the administrator of his estate, as authorized by section 8. If the author should die following publication with notice of copyright in his own name, the registration should of course be applied for in the name of his personal representative, the executor or administrator as the case may be, and not in the name of the deceased author. Where the author specifically bequeathes a manuscript or a copyright to a named beneficiary, the title thereto passes to the legatee immediately upon the death of the author, subject only to possible contribution toward payment of the author's debts. Treadwell v. Putnam, 65 F.2d 604 (1933).

The right to publish and copyright private letters belongs (by virtue of authorship) to the writer or his legal representatives, and not to the recipient, though the latter is under no obligation to preserve them. Baker v. Libbie, 210 Mass. 599 (1912), 97 N.E. Rep. 109. Consequently, anyone who has a collection of private letters which he desires to publish would do well to consult beforehand the writer of the letters or his personal representatives, This rule is subject to certain limitations arising from the nature of the letter or the circumstances under which it is written or received, some of which are pointed out by Justice Story in the celebrated case of Folsom v. Marsh, Fed.Cas. No. 4901, (1845), involving Washington's correspondence. But these exceptions are narrow and rare and do not affect materially the general rule.

Citizens of a Foreign State or Nation

Section 8 of the Act goes on to provide that “the copyright secured [granted] by this Act shall extend to the work of an author or proprietor who is a citizen or subject of a foreign state or nation” only when he is either (a) domiciled in the United States at the time of first publication of his work, or (b) is a citizen or subject of what is commonly called a "proclaimed country”, i.e., a country which has already established copyright relations with the United States, the existence of which must in each case be evidenced by a proclamation of the President of the United States.

To acquire domicile, there must be (1) residence with (2) intention to remain in the United States, which may be inferred from various circumstances, such as declarations, marriage to an American citizen, payment of taxes, establishment of a home, etc. Ricordi v. Columbia Graph. Co., 258 F. 72 (1919).

The status of the author is the determining factor, not that of the proprietor. If the foreign author is not himself entitled to secure copyright in the United States, he cannot confer any right to do so upon a "proprietor" even though the latter is a citizen of the United States. Bong v. Campbell Art Co., 214 U.S. 236 (1909). He can, however, take and hold by assignment an existing copyright in any work by an author entitled to the copyright privilege. Carte v. Evans, 27 F. 861 (1886). It has been held that an author belonging to an unproclaimed country (e.g., a citizen of Russia), even if domiciled in the United States, would not be entitled to statutory copyright for an unpublished work; though he could rest upon the common law for his protection. Leibowitz v. Columbia Graph. Co., 298 F. 342 (1923). This latter ruling, while justified by the literal terms of the Act, is out of harmony with traditional policy from the beginning in extending the copyright privilege to any resident of the United States, irrespective of his actual citizenship.

“Stateless" Authors

But what if the foreign author is neither domiciled in the United States nor a citizen or subject of any foreign state or nation? Is the 'man without a country' to be denied the privilege of securing copyright protection here merely because, through no fault of his own, he cannot claim the rights attaching to citizenship in the country of his origin?

Fate willed that this question should first come up for adjudication in connection with Adolf Hitler's book, “Mein Kampf”, the American rights in which were assigned to Houghton Mifflin Co. The first volume of the original edition had been registered for copyright here in 1925 in the name of the German publisher, the application describing Hitler as a “Staatenloser Deutscher"; and the second volume was registered in 1927, when the application described him as a citizen of Austria.

On motion for preliminary injunction, in the case of Houghton Mifflin Co. v. Stackpole Sons, Inc., 41 USPQ 404 (1939), the defendant claimed that the copyright was invalid because of the conflicting statements of Hitler's citizenship in the two applications for registration; that in 1927 Hitler had given up his Austrian citizenship, according to the laws of Austria, and did not become a German citizen until 1931. In 1925 he was not a German citizen, according to his own claim, and hence could not come under the reciprocal copyright relations between the United States and Germany; and in 1927 he was not an Austrian and hence could not come under the copyright relations between Austria and the United States. The District Court felt that the case was not sufficiently clear as to facts and validity of copyright to warrant the issuance of a preliminary injunction. The Second Circuit Court of Appeals, however, reversed the order of the District Court and held that authors who are not citizens or subjects of any country come within the general grant of the copyright privilege to all authors in the opening sentence of section 8 of the Act and are not subject to the special treatment accorded in the proviso to citizens of a foreign state or nation; and as plaintiff made a prima facie showing of right it would be a denial of equity to allow defendants to sell their unauthorized translation of the book pending final outcome of the action (42 USPQ 96).

The appellate court was obviously moved by considerations higher than the literal terms of the statute. The court said:

"Any other result than this would be unfortunate, for it would mean that stateless aliens cannot be secure in even their literary property. True, the problem of statelessness has only become acute of late years, but it promises to become increasingly more difficult as time goes on. The rule contended for by the defendants would mean that the United States, contrary to its general policy and tradition, is putting another obstacle in the way of survival of homeless refugees, of whom many have been students and scholars and writers."

The ruling therefore must be regarded as for the benefit primarily of Hitler's victims rather than the author himself or his original publisher.

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