Implied ownership

Protection outside of copyright

ment to that effect is adduced." It is safer in all cases, for the protection of the employer and for the sake of clear relations with the actual person who does the work, that there should be a definite contract.

When a salaried law reporter had been employed by the State of New York under a law that the copyright of the Reports should vest in the State, Judge Nelson for the Circuit Court of Appeals, in 1852, in Little v. Gould, held as valid an entry by the Secretary of State, "in trust for the State of New York," though no formal assignment had been made.

In the absence of specific contract, or even in some cases of specific contract, many cross-questions may arise which the law does not and cannot determine in advance. In the case of a book "with illustrations by John Leech," where Leech retained the copyright of the designs, though the publishers owned the wood on which he had drawn them, an English court held to a distinction between the copyright and the right to the material, and directed the publishers to waive their lesser right and surrender the blocks, in view of the circumstances of the contract.

Most of the cases arising as to ownership are, in fact, issues outside of copyright law, as when in 1883 in Clemens v. Belford, in the U. S. Circuit Court in Illinois, Samuel L. Clemens vainly sought to restrain the use of his pen-name, "Mark Twain," in a collection of his uncopyrighted papers, Judge Blodgett holding that whoever has a right to publish has a right to state authorship, though an author can restrain the publication over his name of things he did not write. The same doctrine was upheld in 1910 in Ellis v. Hurst, where a publisher had printed with the real name of the author some non-copyright books which Edward S. Ellis had put forth under a

pseudonym. Judge Greenbaum, in the N. Y. Supreme Court, held that the law insuring right of privacy does not prevent the use of a writer's name on a book undoubtedly of his writing.

In 1908 Mr. Clemens sought in vain to prevent the use by others of his pseudonym, "Mark Twain," by incorporating a company with this name, planning thus to secure the exclusive use of the name for this corporation and practically obtaining a continuing trade-mark protection for it under this device. But that an author may protect a nom de plume of settled use independent of copyright or trade-mark was held in Landa v. Greenberg in 1908, in Chancery Division.

When, as in the case of a cyclopædia, many per- Work in sons are employed at the offices of an employer, using cyclopædias his materials and facilities, and especially if on salary, the courts would undoubtedly uphold his full proprietorship in their work. Where outside persons contribute special articles, the presumption would probably be that the ownership of the copyright, for that special publication, vested in the employer, but that neither he, without the author's consent, nor the author, without his consent, could publish the article in other competing shape. In Bullen v. Aflalo, the House of Lords, in 1903, reversing the lower courts, protected the proprietors of an encyclopædia who had purchased articles from authors, against reprints of the material elsewhere, by the authors themselves, on the ground "that the right to obtain copyright was intended to pass to the publisher, otherwise he would get nothing from his bargain; and unless the publisher and proprietor of the encyclopædia stood in the shoes of the actual writer and was the proprietor of the copyright, he would have nothing for his money, because the articles might be published by others and he would have no remedy, not having the copyright."

Association of author's name

Added

alteration

The right of a contributor to have his name associated with his work in the case of an encyclopædia, at issue in Basil Jones v. American Law Book Co., where the individual writer's name was replaced by that of a distinguished jurist, though upheld in 1905 by Judge McCall in the N. Y. Supreme Court, was denied in the reversal of this decision in 1908 by the Appellate Division through Judge Houghton.

Where a publisher had affixed additional material material and to a copyrighted book, the author was denied relief in Holloway v. Bradley, in 1886, by Judge Butler in the U. S. Circuit Court; but this decision would not hold where the added material was so placed as to give the false impression that it was written by the author of the copyrighted work. Thus in 1910, in Gilbert v. Workman, Sir W. S. Gilbert obtained an order in the Chancery Division through Justice Neville against the interpolation of a song into his copyrighted opera without his consent.

Separate registra

tion of contributions

This would hold true to like extent in respect to alterations, which might be permissible when in the nature of proof-reading correction or editorial revision, but contrary to equity when they pervert, obscure, or otherwise misrepresent the author.

In respect to composite works, the new American code indicates (sec. 23) that there may be separate registration of contributions, inferentially in the person of "an individual author," as distinguished from the general entry for copyright of the composite work. This doubtless refers to the practice, for instance, of the entry in his own name of his specific work, by a novelist or other contributor to a periodical, in addition to the general entry of the number of the periodical of which it is a copyrightable component part. The only direct effect is to give to the specific author prima facie evidence of ownership in his specific con

tribution, as distinguished from the right of the proprietor of the general copyright, and in some respects the clause is ambiguous and perhaps misleading, making it the more desirable that the relation of the individual author should be defined by contract. It is not really in conflict, however, with the principle that there cannot be two copyrights in the same work, as the evident distinction implied is that the proprietor of the general copyright holds the right for publication in the periodical and that the specific author reserves the right of publication in other form, which distinction is sufficiently provided for as a matter of contract and does not depend upon specific entry of the contribution. The wisest course may be for the proprietor of the periodical or other composite work to reassign his interest in the specific contribution, as was done by the proprietors of the Smart Set as adjudicated in the case of Dam v. Kirke La Shelle Co., cited in the chapter on dramatic and musical copyright, and thus remove possible doubt as to ownership.

There is no specific reference in the new American Anonymous code as to anonymous or pseudonymous works, ex- works cept as to duration of copyright. In practice, the Copyright Office assumes that the applicant for the entry of an anonymous or pseudonymous work is the qualified and legal author or proprietor, and any disputed question of fact would ultimately be decided by the courts.

There may be joint authorship in a work of com- Joint aumon design, in which case the joint authors will be- thorship come owners in common of the undivided property; but mere alterations or work on specific parts could not justify claim to more than such alterations or parts. The copyright would naturally be entered in both names, but as one copyright; it was held in

Corporate bodies

Posthumous works

The Peary

cases

1902, in Mifflin v. Dutton, by the U. S. Supreme Court, that "there cannot be duplicate copyrights of the same book in different names." If one of the joint authors and not the other should apply for entry, the Copyright Office would in practice probably record the copyright claim on the presumption that the author was acting in the common interest; but if two joint authors applied simultaneously and severally, the question of ownership would have to be settled by the courts.

A corporate body, even though not incorporated under statute, is considered an author in the case of its own proceedings or similar publications, and in 1903 Justice Holmes rendered the decision of the U. S. Supreme Court in the case of Bleistein v. Donaldson Lith. Co., though the court was divided on the subject, that a copyright taken in the name of the Courier Lithographing Company, which was only the trade name of the complainant, was valid.

In the case of posthumous works, the person entitled to copyright would be the executor, administrator, or the heirs of the author, and the owner of an unpublished manuscript could probably enter and maintain copyright in the absence of other legal claimant.

The first important case under the new American code, in September, 1909, dealt with the question who may obtain copyright. On the report of the discovery of the North Pole, the New York Herald procured from Dr. Cook his account of his journey and copyrighted it on its publication in the Herald,-which copyright does not seem to have been questioned. Immediately thereafter came Commander Peary's account of his polar journey, for which the New York Times had contracted with him before his departure in the previous year. The Peary report was pub