mutual

required to accept another. This is especially true Contract where, on a profit-sharing or royalty arrangement, the personal and author relies on the skill of the publisher for his market. Where E. V. Lucas had arranged with Grant Richards to publish a work on half profit, it was held in the Chancery Division in 1905 by Justice Warrington in a suit against the publishers' trustee in bankruptcy, that the contract was terminated by bankruptcy and that Mr. Lucas on fair purchase of the remaining copies, might contract with another publisher. There is more question when the contract is for a specified sum; and where the copyright is assigned by outright purchase the rule would not hold good, for the publisher then becomes the copyright proprietor. But even when a publisher has bought a copyright "outright," he may not do the author the wrong of printing the work in such altered shape as to injure the author's reputation, as was held in 1832 in the English case of Archbold v. Sweet, where a third edition of Archbold's legal work printed "with very considerable additions," which, the plaintiff showed to contain gross blunders, was enjoined. But when work is done, to be published under the name of another, the actual writer may not prevent alteration by the employer, as was decided in Cox v. Cox in 1853, by the Vice Chancellor. Such a personal contract cannot be transferred as a bankruptcy asset, and on the bankruptcy of the publisher the rights revert to the author, except that stock on hand may perhaps be sold to another, who may not, however, distribute it to the disadvantage of the author. The personal contract involves personal guarantee by each party to the other of good faith and coöperative support, and neither party may act to the disadvantage of the other. The author, during the continuance of a publishing contract, must not permit the use of his

English development of this doctrine

work otherwise, to the prejudice of the original publisher, and the publisher must not sell copies to the injury of the future market of the author.

This general doctrine was worked out in a chain of early English cases, the first of which was that of Sweet v. Cater, in 1841, where Vice Chancellor Shadwell decided that the plaintiff publisher who had contracted with Sir Edward Sugden to publish a tenth edition of 2500 copies of his legal work, could, until the specified copies were sold, prevent the publishing of another edition by the defendant publisher, despite any arrangements between the author and the latter. It was strongly upheld by Vice Chancellor Page Wood in the case of Stevens v. Benning, in 1854, affirmed on appeal by the Lords Justices, and Reade v. Bentley, in 1857. In the first case Forsyth contracted for the publication of his legal work, undertaking to make future revision for subsequent editions, with the publishing firm of the elder Benning, and on its bankruptcy, four hundred copies of the second edition were sold to Stevens & Norton, which firm sued to prevent the younger Benning from publishing a third edition as revised by Forsyth. The Vice Chancellor held that though the plaintiffs might presumably sell the copies, if done without disadvantage to the author, the original contract was not an assignment, but a personal contract which could not pass to the plaintiffs, and therefore denied an injunction. In the second case, where Charles Reade sought to resume his rights in "Peg Woffington” and “Christie Johnstone," from his publisher Bentley, after all expenses had been paid and profits on several editions accounted for, the Vice Chancellor held that the contract, as of a personal nature, could be terminated by the author when that did not involve loss to the other party. Copies printed to replace others destroyed by

fire were decided in the case of Blackwood v. Brewster, in 1860, in the Scotch Court of Session, not to constitute a new edition. In the later case of Hole v. Bradbury, in 1879, a joint author and the heir of a deceased joint author of "A little tour in Ireland" were adjudged by Justice Fry to be entitled to resume their rights and to recover the illustrations from publishers who had succeeded to the business of the original publishing firm.

to other

In Warne v. Routledge, in 1874, where Mrs. Cook Author's sought to transfer from one publisher to another with- transfer out notice a book of which 44,000 copies had been publishers printed and 42,000 sold, the plaintiff publisher sought to restrain the defendant from issuing a new edition until the remaining copies had been sold. Sir George Jessel, M. R., held that the right of publishing was an exclusive one for the time of the contract, though the word exclusive was not used, but that the author could provide for publication by another publisher immediately on terminating a contract, a decision which has been criticized as not compatible with other decisions nor sound law.

Where a proprietary name becomes identified with Proprietary a publication, an assignment of the work may estop name the person named from use of his name or advertisement of his service elsewhere, as in the English case of Ward v. Beeton, in 1875, where the originator of "Beeton's Christmas Annual," who had been dismissed by the publishers of that work, was restrained from advertising that he would edit a similar publication for another publisher. But the editor's name is not necessarily part of the title, and an editor may not restrain its omission from the title-page, as was held in the English case of Crookes v. Petter, in 1860. It was decided in the English case of Howitt v. Hall, in 1862, by Vice Chancellor Page Wood, that where a

Copies remaining unsold

American

publisher had procured from an author the copyright for a limited term, in that case four years, he had the right to sell, after the expiration of the contract term, copies printed in good faith within the term, though the court indicated that if there had been an excessive printing of the work with the evident purpose of stocking up for sale after expiration of the contract, such course would not be permitted. This precedent indicates that a publisher would have the right to sell copies printed during the original term of copyright and remaining in stock, even if an author under the renewal provision of the American code exercised the right to make arrangements with another publisher for the renewal term. To like effect it was decided in the English case of Taylor v. Pillow, in 1869, by Vice Chancellor James, that a copyright proprietor assigning the copyright might thereafter dispose of copies of a song remaining unsold, in the absence of stipulations to the contrary. These questions are usually decided in advance in American publishing practice by provision in the contract between author and publisher that copies remaining unsold at the end of the contract term may be reclaimed by the author at a stated price and some such provision is always desirable.

The same doctrine was upheld in the American case confirmation of Pulte v. Derby, in 1852, in the U. S. Circuit Court by Judge McLean, who held that where the contract for publishing a second edition provided that the publishers might print as many copies as they could sell, the publishers might make successive printings in that edition, and that the use of the words "third edition" on the title-page did not terminate the arrangement. The author could not meantime publish otherwise, but the publishers, who held legal title to the copyright within the terms of the contract, could

not exercise rights beyond the second edition, nor could they assign their rights.

American publishers usually expect the author to Renewal make a contract for the entire copyright period, and term to make application in their behalf for the renewal term. It is true that the very large percentage of) books lose their value long before the close of the original term, and that the percentage where renewal, is desirable is very small.

It was a thought to which "Mark Twain's" mind often recurred that a long copyright term was not desirable, because so few books were of value at the end of one or two decades, and he frequently put forward a scheme for extending copyright from period to period, based on the issuance of a cheap edition under the author's sanction. This scheme, which he presented in some detail at the time of the Congressional copyright hearings, did not receive support from other students and advocates of copyright.

A contract giving publishers the "whole and exclu- License not sive right of publication," was decided In re Clinical assignment Obstetrics by the Chancery Court, through Justice Warrington, in 1908, to be a personal contract and license, not an assignment of copyright, and the assignment entries were ordered to be expunged, in line with the decision in 1907 by the Court of Appeal in Re "The Liedertafel series" et al.

The publication of a book involves many indirect Author's and expenses, in addition to the direct cost of manufac- publisher's ture, such as the share of general office expenses, the profits large item of advertising and the like. These are difficult to allot, and this helps to make the "half profits" system a fruitful occasion of disagreements. On this system or on the commission basis, the nature and proportion of these indirect charges should be clearly set forth in the publishing agreement. On a "half