Copyright: Its History and Its Law Part 10

There is no specific reference in the new American code as to anonymous or pseudonymous works, except as to duration of copyright. In practice, the Copyright Office a.s.sumes 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.

{Sidenote: Joint authorship}

There may be joint authorship in a work of common design, in which case the joint authors will become 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 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.

{Sidenote: Corporate bodies}

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.

{Sidenote: Posthumous works}

In the case of posthumous works, the person ent.i.tled to copyright would be the executor, administrator, or the heirs of the author, and the owner of an unpublished ma.n.u.script could probably enter and maintain copyright in the absence of other legal claimant.

{Sidenote: The Peary cases}

{Sidenote: Opposing decisions}

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 published simultaneously by the New York _Times_ and the London _Times_, but the difference of five hours enabled the correspondents of the New York _Sun_ and _World_ to cable the report to their respective papers in time for publication at the same hour in America as in the New York _Times_.

Antic.i.p.ating this course, the New York _Times_ had taken the precaution to publish the report in pamphlet or "book" form some hours before newspaper publication, and to copyright this as a book. When an injunction was asked in the U. S. Circuit Court from Judge Hand, that judge granted the injunction, but on the required production of the contract in court, dissolved his injunction on the ground that the contract between Peary and the New York _Times_ gave to the _Times_ only the right to news publication and specifically reserved to Peary magazine and book rights. He inferred thus that the _Times_ had no right to copyright the news report as a book, and was not the agent of the author for that purpose. To the contrary, Judge Grosscup in Chicago, in an exactly similar case against the Chicago _Inter-Ocean_ and other Chicago papers, and with the contract before him, maintained the copyright by the _Times_. The two contradictory decisions have not so far been adjudicated in the higher courts. It will be observed that the question is not strictly one of copyright, but of contract, and that it is not denied that the news report, in the literary form given it by the author, was a proper subject of copyright, though the news of the discovery of the North Pole might not be copyrightable. Judge Hand perhaps erred in a.s.suming that there could be separate copyright for news, magazine, or book publication, overlooking the fact that Peary had conferred on the _Times_ authority to protect the report sent to it by cable, while reserving to himself rights in magazine or book publication of his material, whether in the same or different form.

{Sidenote: Renewal rights}

In the renewal of copyright, the new American code follows the previous law in differentiating the persons ent.i.tled to renew the copyright. It provides (sec. 23) that in the case of a posthumous composite or corporate work originally copyrighted by the proprietor thereof or a work made for hire, the proprietor of such copyright shall be ent.i.tled to a renewal; but in other cases, including a separately registered contribution by an individual to a composite work, the author or the widow, widower or children, or, if such be not living, the author's executors or next of kin shall be ent.i.tled to a renewal. This means that there can be no renewal by an a.s.signee proprietor, and that in the absence of natural heirs of a personal author, no person is ent.i.tled to a renewal of his copyright. The new law has been specifically construed to this effect by the Attorney-General in his opinion of February 3, 1910. It should be noted that the word "administrators," included in the provision as to original application (sec. 8), is omitted from the provision as to renewal (sec. 23) including renewal of existing copyrights (sec. 24), indicating that while an author may make bequest of copyright for the renewal term, which right may then be claimed by his executor, the right to renew lapses when he makes no will and has no next of kin to inherit the right of renewal.

{Sidenote: a.s.signments}

Specific provision as to the method and record of the transfer of copyrights by a.s.signments are contained in the following provisions of the code of 1909:

"(Sec. 42.) That copyright secured under this or previous Acts of the United States may be a.s.signed, granted, or mortgaged by an instrument in writing signed by the proprietor of the copyright, or may be bequeathed by will.

"(Sec. 43.) That every a.s.signment of copyright executed in a foreign country shall be acknowledged by the a.s.signor before a consular officer or secretary of legation of the United States authorized by law to administer oaths or perform notarial acts. The certificate of such acknowledgment under the hand and official seal of such consular officer or secretary of legation shall be _prima facie_ evidence of the execution of the instrument.

{Sidenote: a.s.signment record}

"(Sec. 44.) That every a.s.signment of copyright shall be recorded in the copyright office within three calendar months after its execution in the United States or within six calendar months after its execution without the limits of the United States, in default of which it shall be void as against any subsequent purchaser or mortgagee for a valuable consideration, without notice, whose a.s.signment has been duly recorded.

"(Sec. 45.) That the register of copyrights shall, upon payment of the prescribed fee, record such a.s.signment, and shall return it to the sender with a certificate of record attached under seal of the copyright office, and upon the payment of the fee prescribed by this Act he shall furnish to any person requesting the same a certified copy thereof under the said seal.

{Sidenote: Subst.i.tution of name}

"(Sec. 46). That when an a.s.signment of the copyright in a specified book or other work has been recorded the a.s.signee may subst.i.tute his name for that of the a.s.signor in the statutory notice of copyright prescribed by this Act."

It should be noted that this last provision, authorizing the subst.i.tution of a name, is applicable only to the general copyright in a work, and not to a divided right; otherwise there would seem to be more than one copyright in the same work. The Copyright Office will, however, record a.s.signments of specific or divided rights without reference to this power of subst.i.tution. Further a.s.signment from one a.s.signee to another is permissible to any extent, and in cases of repeated a.s.signment of a general copyright there may be further subst.i.tution of names.

{Sidenote: Witnesses}

There is no specific requirement as to the witnessing of a.s.signments, which would therefore follow the usual principles of law. This was, however, an important question in England, and under the early English statute the courts held that a.s.signments must be in writing, attested by two witnesses; the later statute of Victoria modified the language, and the new English code requires a.s.signment in writing signed by the owner or his authorized agent, without specifying witnesses. But a.s.signment of common law rights (as in an unpublished ma.n.u.script) may doubtless be by word of mouth.

{Sidenote: "Outrights" and renewal}

Where an author sells his entire rights "outright," he cannot transfer the right to take out renewal, but he may directly or by inference bind himself to apply for such renewal in the interest of the new proprietor.

Under such a contract, this proprietor could probably require him by equity proceedings to take this step. Such a contract, however, would not bar the author from his right to renewal under the copyright law and through the Copyright Office, although it is possible that the courts might enjoin an author from renewal or a.s.signment of a renewed copyright in the interest of another than the original a.s.signee. It should be noted that in the case of composite, corporate or like impersonal works, copyrighted under the new code, renewal is not restricted to the _original_ proprietor, though by a.n.a.logy this should be the practice; but that in the case of renewal of copyrights existing before July 1, 1909, and in extension of the present renewal terms, the use of the phrase "such proprietor," referring back to "the original proprietor,"

does make such limitation.

{Sidenote: Proof of proprietorship}

Where the copyright proprietor of record is not the author, the courts may require him to prove his rights, in default of which the copyright certificate will be adjudged null and void, as was done in 1909 by the Circuit Court of Appeals both in Bosselman _v._ Richardson, where a son copyrighted paintings by his father and failed to prove that they had not before been published, and in Saake _v._ Lederer, where the court canceled the copyright of the play "Old Heidelberg" because Lederer had obtained from the German author only a license to perform and not a right to copyright.

{Sidenote: Foreign citizens}

As to copyright by others than citizens of the country, the law of 1909 provides (sec. 8) "that the copyright secured 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:

"(a) When an alien author or proprietor shall be domiciled within the United States at the time of the first publication of his work; or

"(b) When the foreign state or nation of which such author or proprietor is a citizen or subject grants, either by treaty, convention, agreement, or law, to citizens of the United States the benefit of copyright on substantially the same basis as to its own citizens, or copyright protection substantially equal to the protection secured to such foreign author under this Act, or by treaty; or when such foreign state or nation is a party to an international agreement which provides for reciprocity in the granting of copyright, by the terms of which agreement the United States may, at its pleasure, become a party thereto.

"The existence of the reciprocal conditions aforesaid shall be determined by the President of the United States, by proclamation made from time to time, as the purposes of this Act may require."

{Sidenote: Earlier provisions}

The Revised Statutes formerly extended copyright to "a citizen of the United States or _resident therein_ or his widow or children," and the act of 1891 provided for a _quasi_ international copyright on a basis similar to that in subsection (b), cited above, of the law of 1909, _i.

e._ on a basis of reciprocity. The new American code practically adopts the features both of the Revised Statutes and the act of 1891, though with verbal and substantial differences. The word "domiciled" is new in the law and has yet to be construed in a copyright case, but it is presumably the equivalent of "resident." The new Rules and Regulations of the Copyright Office use the phrase "(2) a resident alien domiciled in the United States at the time of the first publication of his work."

{Sidenote: Residence}

A resident, under the American decisions, is a person who intends to reside permanently in this country. It is decided by the intention of the resident. A person who is residing here without intention of permanence probably cannot maintain copyright under this clause. For English copyright, on the contrary, a person temporarily residing in His Majesty's dominions has been considered a resident. "The United States"

would doubtless be construed to include territories and dependencies, as specific jurisdiction is given (sec. 34) to stated courts in Alaska, Hawaii, the Philippine Islands and Porto Rico, in addition to the general decisions of the U. S. Supreme Court.

Under the statute of Anne the English courts differed persistently on the question whether a non-resident foreigner could obtain British copyright by first publication within the British dominions, until in 1854, in the ultimate case of Jefferys _v._ Boosey, the House of Lords, after consulting the judges, of whom six denied and four sustained the contention, decided unanimously that a non-resident foreigner could not acquire copyright by first publication. Under the law of 1842, the question was again raised, in view of the variation of the language from that in the statute of Anne; in 1868, in the case of Routledge _v._ Low, in which an American author claimed copyright for his work first published in London while he resided for a few days in Canada, the House of Lords held that a foreigner might thus obtain copyright by temporary residence within the British dominions and indicated, but did not decide, that a foreigner could obtain copyright by first publication, even if not temporarily resident within the British dominions. After the pa.s.sage of the "international copyright amendment" in 1891, the American law authorities consulted with the law officers of the Crown, who rendered a decision that foreign authors were ent.i.tled to British copyright on the sole condition of first publication, and on this decision the President based his proclamation of reciprocal relations with Great Britain. The new British measure retains first publication within the included parts of the Empire as the essential condition, except in unpublished works, unless otherwise provided under international copyright, though the Crown may withdraw this privilege from foreigners whose countries do not a.s.sure reciprocity.

{Sidenote: Intending citizens}

The provision of subsection (a) is chiefly useful, it would seem, to protect intending citizens who have applied for naturalization papers and incidentally renounced their previous allegiance to another power and thus put themselves beyond the pale of the international conventions.

{Sidenote: Time of first publication}

"First publication" is not limited in terms to the United States, and the "alien author or proprietor," provided he makes application under this clause and is not a citizen of a country with which the United States has a copyright convention, must therefore be domiciled here, it would seem, at the time of first publication, in whatever country that may be.

{Sidenote: Non-qualified authors cannot transfer}

It has twice been decided, both prior to and since the "international copyright amendment" of 1891, that a foreign author not qualified to secure a copyright cannot indirectly obtain one by a.s.signment to an American or other proprietor. In 1890 J. M. Barrie a.s.signed to J. W.

Lovell, and he to the U. S. Book Company, his American rights in "The little minister," and after the act of 1891 the latter endeavored to restrain a dramatization of the story. Judge Jenkins held with the lower court that the foreign author could transfer only, prior to the act, the right to publish from advance sheets and not the right to copyright. In the case of Bong _v._ Campbell Art Co., in which it was sought to protect under the act of 1891 a work by a Peruvian painter, Hernandez, whose country had no international relations with the United States, through transfer to a German proprietor, whose country had reciprocal relations, it was held in 1909 by the U. S. Supreme Court, through Justice McKenna, that an author who is a citizen of a country with which the United States has no copyright relations cannot indirectly obtain American copyright by making a citizen of a country with which the United States has copyright relations the proprietor of his work. A proprietor has been construed by the courts to mean merely an a.s.signee of a qualified author. It is evident, therefore, despite the ambiguous phrasing of the statute, that an a.s.signee proprietor, though domiciled in the United States at the time of first publication of a work, could not obtain copyright unless the author were so domiciled, for the contrary ruling would nullify the general purport of the law by permitting an a.s.signee to acquire rights which the non-qualified author could not secure. The evident construction of the word "proprietor" in this clause is as proprietor of an impersonal work and not an a.s.signee proprietor. The Rules and Regulations of the Copyright Office, construing the code of 1909, say specifically (2): "If the author of the work should be a person who could not himself claim the benefit of the copyright act, the proprietor cannot claim it."

{Sidenote: Foreign ownership}

But it seems that a foreigner may enter copyright in the work of a citizen or resident author--it being foreign authorship, not ownership, which the law refuses to protect, though this point has not been judicially determined. Under the provision (sec. 62) of the new American code giving copyright to an employer as author "in the case of works made for hire," it would seem that a person ent.i.tled to make copyright entry might, as an employer, obtain copyright on the work of an alien employee not domiciled here and not otherwise ent.i.tled to enter copyright; but it is probable that this construction would not extend to a separate or separable work, as this would be contrary to the principles adjudicated as above cited.