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which should be a complete copy and not tear sheets or pageproof. The use of the plural, "or copies," might refer to the morning and afternoon editions of a daily newspaper containing the same contribution, or to a contribution published in instalments. In the latter case, may the several instalments be deposited together for registration on one application and fee, or must a separate application and fee be submitted for each instalment? While no reported case is found dealing with this question, for the purposes of administration the prevailing view of the Copyright Office is that each instalment, being the writing of an author, must be regarded as a contribution to the particular issue. Inasmuch as the several instalments are published on different dates, there ultimately come into being a multiplicity of copyrights for the registration of which a separate application and fee is required for each. The applicable rule is found in the first paragraph of section 201.18 (as amended in 1938) of the Regulations of the Copyright Office (see Appendix), as follows:
"If special registration is requested for any contribution to a periodical, one complete copy of the number of the periodical in which the contribution appears should be deposited promptly after publication. The contribution to a periodical herein referred to includes any writing of an author published with copyright notice in any given number of a periodical.”
In the case of a novel or lengthy article first published serially in a copyrighted periodical, the author may save himself the trouble and expense of separate registration of the various instalments by granting the copyright privilege to the publisher of the periodical, to hold the legal title in trust for the author as to the whole or any partial interest in the copyright, such as the right to dramatize or translate or make any other version of the work. Quinn-Brown Pub. Corp. v. Chilton Co., Inc., 30 USPQ 373 (1936).
The publisher of a copyrighted periodical may assign to the author the copyright in any particular contribution owned by him as proprietor. Kaplan v. Fox Film Co., 33 USPQ 469 (1937). The ruling in Douglas v. Cunningham, 33 USPQ 470 (1933), that a transfer of the copyright in the entire issue is necessary to confer title to a particular contribution was disapproved in the Kaplan case and must be deemed unsound. Obviously the pro
prietor could not assign the copyright in contributions which he held in trust for other authors. In the case of New Fiction Pub. Co. v. Star Co., 220 F. 994 (1915), cited as authority for the conclusion reached in the Douglas case, the story published in the magazine bore a separate notice of copyright in the name of the author; the only question being whether the publisher of the magazine was an assignee or a licensee, it was held that he was only a licensee for the first serial rights and therefore could not sue for infringement without including the author as a party plaintiff. In the other case cited, Witmer v. Harold Lloyd Co., 46 F.2d 792 (1930), the story had been sold outright by the author to the publisher of the magazine in which it first appeared, who duly copyrighted the entire issue and afterwards transferred the copyright in this particular contribution by assignment, the validity of which was not questioned by the court. Hence this case, instead of being an authority for the ruling in the Douglas case, sustains the ruling to the contrary in the Kaplan case. Contributions to Composite Works
With regard to contributions to encyclopedias and composite works other than periodicals, for which the individual authors desire to secure copyright directly in their own names, the statute is silent as to the kind of deposit to be made. Under the prior law it was held sufficient to deposit the sheets containing the article taken from the bound volume as published, Black v. Allen, 56 F. 764 (1893), and it has been ever since then the general practice of the Copyright Office to accept such sheets for special registration, provided, of course, that the article was originally published with separate copyright notice in the name of the author. If not published with separate notice, the procedure of the author would be to obtain from the publisher and record in the Copyright Office an assignment of copyright in the particular article. Thereafter the author would be entitled under the law (section 46) to reprint his contribution with notice of copyright in his own name, but carrying the year date of original publication in the composite work.
Action for Infringement Conditioned upon Deposit of Copies
The concluding sentence of section 12 is of utmost importance, for upon its observance depends the right to vindicate in court the copyright you have taken pains to secure:
"No action or proceeding shall be maintained for infringement of copyright in any work until the provisions of this Act with respect to the deposit of copies and registration of such work shall have been complied with.”
"Action or proceeding” includes a suit to restrain a threatened infringement, and "maintained" includes such a suit. New York Times Co. v. Sun Printing & Pub. Assn., 204 F. 586 (CCA 2, 1913). The plural “copies” here must be deemed to include the “one complete copy” of a foreign published work deposited under this section; and also the "one complete copy” deposited under section 11 if the infringement occurs prior to publication. (See Chapter X, p. 94.)
In New York Times Co. v. Star Co., 195 F. 110 (1912), the court expressed the view that a deposit “in the mail” of the required copies properly addressed "would seem to be a compliance with section 12 sufficient to entitle him [the copyright proprietor] to maintain his action or proceeding" for preliminary injunction. Unfortunately for plaintiff the injunction had been served some hours before the copies were actually deposited in the mail, and the application to punish defendant for contempt for violation of the injunction was accordingly denied.
On the other hand, in Lumiere v. Pathe Exchange, Inc., 275 F. 428 (CCA 2, 1921), it was held that "deposit and registration is each a condition precedent of the right to maintain an action for infringement". The plaintiff had deposited the required two copies of his photograph in the Copyright Office but inadvertently used the wrong form of application and procured a certificate of registration as an unpublished work, when in fact the photograph had already been published some 14 months before suit. The court ruled that this would not do, but that he could still get a certificate of registration as a published work and thereafter maintain another action.
The same ruling was followed in the recent case of Rosedale v. News Syndicate, Inc., 50 USPQ 27 (1941), where the evidence showed that, prior to publication, the work of art in question had been duly registered under section 11, and that upon publication the required two copies were sent to the Copyright Office in obedience to the law, but without the required application for a second registration and certificate. (See Chapter X, p. 98.) Inasmuch as the alleged infringement took place after the work had been reproduced in copies offered for sale, the court refused to entertain jurisdiction in the absence of a certificate of registration of the published work, and accordingly dismissed the complaint, but without costs and without prejudice "in view of the plaintiff's apparent efforts to comply with the statute".
Section 12 of the Act further requires that the copies deposited in the case of a book or periodical “shall have been produced in accordance with the manufacturing provisions specified in section 15 of this Act," which has been interpreted to mean that such copies shall not have been produced "in violation" of those provisions. 28 Op. Att. Gen. 265 (1910).
Section 15 embodies an outstanding feature of our copyright system, the like of which is not found in the copyright laws of any other country (subject to a qualified exception with respect to licenses in the Canadian Act, as to which see infra, page 168). The feature is that in the case of a book or periodical in which copyright is claimed, the typesetting, printing and binding shall (with certain exceptions) take place "within the limits of the United States."
This requirement in the final analysis has proved to be the real stumbling block to our joining the family of nations in what is commonly called the International Copyright Union. It is not, strictly speaking, a formality for securing copyright, but amounts to the same thing. It is a condition essential to adequate protection of the work, being claimed necessary to protect American labor against foreign competition in the physical process of turning out a book. The author may be said to create the "soul" of the book, while the printer functions in the way of making it available to the public in bodily form and is therefore deemed entitled to consideration as well as the author. Both contribute in their several spheres to the progress of science and useful arts. The interests of the printer, however, it is claimed by the authors, more logically could be taken care of under the tariff laws as in the case of other products of American labor. But this is a matter for determination by Congress.
Books of Foreign Origin in Foreign Language
Inasmuch, however, as books in foreign languages would have only a limited circulation in this country, it was deemed permissible by the committee in charge of the present Act to relax somewhat the former rigid policy to the extent of allowing such foreign books the privilege of copyright without the need of reprinting here. And so, in section 15 it is provided that only books and periodicals in the English language shall be subject to manufacture in the United States, expressly exempting from this requirement "the original text of a book of foreign origin in a language or languages other than English.” It was assumed, and correctly no doubt, that such foreign books as commanded a substantial audience in this country would be translated into English, and hence become subject to the manufacturing clause and thus give American labor its due.
It seems that the phrase "of foreign origin" was meant to include only books of foreign authorship even though printed in a foreign language.* The late Mr. R. R. Bowker, author of the earliest commentary on the present Copyright Act, entitled "Copyright, Its History and Its Law" (1912), states (at page 156) that he was the draftsman of this amendment and that it was not intended to include books in foreign languages by American (i.e., United States) authors. And the late Mr. R. Underwood Johnson, on presenting the amendment to the committee in charge of the bill as secretary of the Authors' Copyright League, explained the matter as follows: "To express clearly at once the significance of this proviso (i.e., the clause referred to above), the American Authors' Copyright League moves for the abolition of the manufacturing clause as it relates to books in foreign language of foreign origin, not books in foreign languages of American origin. If the governor of Minnesota, for instance, should print in Norwegian his reminiscences, we should not desire to interfere with the publication of that being required in this country by the American typesetters." (Original Hearings, vol. 3, 1908, page 56.)
The exception would undoubtedly include an authorized translation from English into a foreign language made by a foreign translator, for such translation would, under section 6 of the Act, be regarded as a "new work” subject to copyright, and hence the term "original text” is to be deemed applicable to such translation. (See ruling on this point by Treasury Dept., Div. of Customs, June 23, 1910, in The Publishers' Weekly, vol. 78, No. 3, p. 407.)