Copyright: Its History and Its Law Part 9

{Sidenote: British Periodicals}

The statutes of Great Britain have hitherto provided that a work published in parts or a periodical may be fully protected by copyright entry of the first part; the new code covers newspapers and periodicals generally as collective works. When the London _Times'_ memoir of Beaconsfield was reprinted as a penny pamphlet, the _Times_ brought suit as a matter of common law right, but the judge held that a newspaper was copyrightable under the statute, and therefore that a common law suit could not hold.

{Sidenote: Oral works}

The American law now specifically protects oral works by including in the cla.s.sification (sec. 5, c) "lectures, sermons, addresses, prepared for oral delivery," and by a.s.suring (sec. 1, c) exclusive right "to deliver or authorize the delivery of the copyrighted work in public for profit if it be a lecture, sermon, address, or similar production." The phrase "similar production" and the spirit of the statute suggest that, though the ma.n.u.script of a book cannot be copyrighted prior to publication, a "reading" from an unpublished book, as a chapter, scene, or poem, might be registered and protected for oral delivery before publication; and the Copyright Office will make such registry on such application. The former law made no specific provision, but the courts seemed disposed to protect a lecturer on the common law ground that the lecture read is not published by reading, and can be controlled as a ma.n.u.script. In the application of common law doctrine to extemporaneous or other oral deliveries, the question of implied contract between the speaker and his auditors enters, and the trend of court decisions is that a hearer who has purchased or obtained a ticket, may make notes for his own use but may not publish them for profit. In the leading English case of Abernethy _v._ Hutchinson, in 1825, Lord Chancellor Eldon protected Dr. Abernethy against the publication of notes of unwritten medical lectures, evidently obtained through a student hearer.

{Sidenote: Newspaper reports}

Newspapers have, however, in practice freely republished lectures, and probably even under the present law the courts would permit, unless report was specifically and entirely forbidden by the speaker, a reasonable report but not a _verbatim_ reproduction of the address, as within the bounds of "fair use." The publication of an unauthorized report by one newspaper would not justify another newspaper in copying the report without consent of the copyright proprietor on the ground of publication, for such unauthorized publication cannot deprive the copyright proprietor of his rights. If a speaker delivers an address, extemporaneously or even from written ma.n.u.script without registering the address as an unpublished work or taking other precautions, it is probable that the courts would protect his rights at common law; but it would be hazardous not to take advantage of the statute.

{Sidenote: Lectures in England}

Lectures have hitherto been protected in England in case the lecturer gave notice of reservation in writing two days in advance to two justices at the place of reading, but this complicated proviso caused speakers to rely rather on the common law doctrine that oral delivery is not publication. The new British code specifically provides that delivery is not publication, but permits newspaper report unless the speaker prohibits such report by notice posted near the main entrance and except during public worship near the speaker's position; "newspaper summary" within "fair dealing" is expressly permitted.

{Sidenote: Letters}

Letters are not specified either in English or American statutes under copyright law. A private letter has been held an unpublished ma.n.u.script, the right to publish or copyright remaining with the author while living, though the material letter, its paper and ink, has pa.s.sed to the receiver. Thus in 1741 Pope prevented Curl, an English bookseller, from republishing his letters to Swift, and in 1774, in Thompson _v._ Stanhope, Lord Chesterfield prevented his son's widow from publishing letters which he had made a gift to her. Letters, however, are copyrightable by themselves or as part of a book; and the writer may protect a letter against unauthorized publication by himself publishing and copyrighting it. The U. S. Supreme Court in 1841, in Folsom _v._ Marsh, enjoined the republication of letters of Washington, published by authority in Sparks's "Life of Washington," through Justice Story, who said: "The author of any letter or letters, and his representatives, whether they are literary letters or letters of business, possess the sole and exclusive copyright therein; and no person, neither those to whom they are addressed, nor other persons, have any right or authority to publish the same." But as ma.n.u.scripts posthumously published, the copyright in letters may belong to the receiver or his a.s.signs; and in Macmillan _v._ Dent, in 1906, the English Court of Appeal held, where the owners of letters of Charles Lamb had sold the copyright to certain publishers, these could not be republished by another who had later bought the material letters even under the authorization of the representative of Lamb's heirs. In Philip _v._ Pennell, Whistler's executrix was denied an injunction to prevent the use of biographical information obtained from the receivers of letters. But _obiter dicta_ indicated that the courts may grant to the writer's representatives an injunction against publication or misuse. The laws of some countries specifically permit the publication of letters in the interest of justice. Unless the letter is of the nature of privileged correspondence, the courts can probably require the production of a letter in court, and in fact do subpoena telegraph companies to produce the originals or transmittal records of telegrams in court, and thus make them _quasi_ public property. The sale of a ma.n.u.script letter cannot authorize a vendee to publish it without consent of the writer, and the receiver of a letter is perhaps bound to keep a letter private or destroy it, if so required by the writer, but this is a right difficult of enforcement if not doubtful _in esse_. The receiver of a letter has probably a right to destroy it at his will, unless the writer has required its return to him.

The subject-matter of copyright in respect to musical and dramatic compositions and works of art, is treated specifically in later chapters on dramatic and musical copyright and on artistic copyright.

{Sidenote: Designs patentable}

Designs for use in manufacture are, in the United States, subjects of patent and not copyright. It is provided by the act of May 9, 1902, that "any new, original, and ornamental design for an article of manufacture"

may be patented, and this cla.s.sification inferentially excludes such designs from copyright. This generalized description of design patents replaced, at the suggestion of the Commissioner of Patents, the specific descriptions in the design patents act of December 1, 1873, and adopted instead the more comprehensive phraseology of the act of February 4, 1887, for the punishment of infringement of design patents. In like manner the new British code excludes designs registrable under the patents and designs act, 1907, "except designs which, though capable of being so registered, are not used or intended to be used as models or patterns to be multiplied by any industrial process."

{Sidenote: Foreign practice}

"The foreign copyright legislation," as is stated in Copyright Office Bulletin, No. 9 of 1905, "instead of specifically naming the productions which are subject-matter of copyright, generally uses some inclusive expression, such as 'all writings,' 'every kind of literary work,'

'works of literature,' 'literary and scientific works,' 'every production of literature and science,' and even such inclusive terms as 'every work of the intellect.'" Spain adds the inclusive phrase "produced or published by ... any kind of impression or reproduction known now or subsequently invented." Great Britain, most of her colonies, and some other countries have set forth specific categories.

But the new British measure uses the general phrase "every original literary dramatic musical and artistic work"--this replacing the several categories in the several previous laws. In a few countries ma.n.u.scripts, personal letters and telegraphic messages, mostly in newspaper use, and in Ecuador, t.i.tles of periodicals, are specifically scheduled as subjects of copyright.

{Sidenote: International definition}

The Berlin convention uses the general expression "literary and artistic works," which it defines as including "all productions in the literary, scientific or artistic domain, whatever the mode or form of reproduction," then specifying in detail categories of literary, dramatic, musical and other artistic works, as set forth in the chapter on international conventions and arrangements.

VII

OWNERSHIP OF COPYRIGHT: WHO MAY SECURE COPYRIGHT

{Sidenote: Persons named}

The American code of 1909 names (sec. 8) "the author or proprietor of any work made the subject of copyright by this Act, or his executors, administrators, or a.s.signs" as the persons in whom the copyright may lodge. It also provides specifically (sec. 62) that "the word 'author'

shall include an employer in the case of works made for hire."

The American law formerly named "the author, inventor, designer, or proprietor of any work, and the executors, administrators, or a.s.signs of any such person" as the persons in whom copyright may lodge. The Librarian of Congress accordingly issued copyright certificates for books as to an "author" or "proprietor" only, a.s.suming usually that an editor was the "author" and a publisher the "proprietor," and never going behind the claim set forth in the application. Under the new law the applicant is designated only as the "claimant," and no such distinction is made, except that the Copyright Office has an index card for proprietor, as well as author, when another than the author makes the application.

{Sidenote: The author primarily}

The author is the person primarily ent.i.tled to copyright. He may sell or otherwise transfer his production before it is copyrighted, in which case the new proprietor obtains all the common law rights of property, both in the ma.n.u.script and its publication, including the right to copyright. This common law right, including the right to copyright, may extend, Drone argues, to the finder of an unpublished ma.n.u.script, provided no one successfully disputes his ownership of his find, if the ma.n.u.script be copyrightable; but there are no decisions on this point.

If a copyright is taken out by another person (as the publisher of the book), it is done impliedly in trust for the author, as is a usual custom among American publishers. The proprietor is defined to mean "the representative of an artist or author who might himself obtain copyright."

{Sidenote: Claimant's right to register}

The Register of Copyrights is not a _quasi_ judicial officer, as is the Commissioner of Patents, and he does not undertake to make decision as to the right of the claimant, this question being one for determination by the courts in specific instances. In cases of doubt, however, he may in practice, for the sake of convenience and of clearness of record, call the attention of the claimant to such doubt and invite explanation, but he probably would not be justified in refusing to register the application for a claimant who a.s.serted his right to such entry. A former Librarian of Congress, then directly the copyright officer, used to say that he would enter copyright for any one on the Bible in King James' version if formal application were made to him, thus emphasizing the statement that he had no judicial authority. In the case of Everson _v._ John Russell Young, then Librarian of Congress, Judge Cole in 1889, while refusing the mandamus asked for, a.s.serted incidentally that "the Librarian had no discretion." Where a second application is made for the entry of the same copyrightable work by a second party, the copyright officer would not decline to register the second application, if the claimant insisted on his right, after the fact of the first registration had been brought to the second claimant's notice, and the question of ownership would have to be brought before the courts. It is only in the case of works evidently not copyrightable, or in the case of claimants not ent.i.tled to apply for registration, as a citizen of a foreign country with which the United States has no copyright relations, or in other cases evidently beyond the scope of the law, that the copyright officer would exercise discretion and decline to make the record.

{Sidenote: Employer as author}

The provision of the new code specifically including as author (sec. 62) "an employer in the case of works made for hire" is new in American law, but it adopts previous decisions of the courts. It does not, however, adjudicate the application or specific definition of this phrase, which remains in large measure a question of contract. Earlier copyright decisions were to the effect that the authorship may inhere in the employer, if the design of the work is so far his as to make him the virtual creator and the actual writer a deputy merely; but that he is not an author who "merely suggests the subject, and has no share in the design or execution of the work." But under the new law, the case turns upon the meaning of "employment," which would be clear in the case of writers paid wages or salary for doing the work on an encyclopaedia, but might not be clear in the case of an author paid in advance or on account by a publisher, though working on a general plan suggested or invented by the publisher. In such cases the proprietary right, including the right to secure copyright, depends upon the contract, implied or express, and the courts will decide this according to the law of contracts. In Boucicault _v._ Fox, in 1862, Judge Shipman, in the U.

S. Circuit Court, held, as to the play "The octoroon," that "a man's intellectual productions are peculiarly his own, and he will not be deemed to have parted with his right and transferred it to his employer until a valid agreement 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 a.s.signment had been made.

{Sidenote: Implied ownership}

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 ill.u.s.trations 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 circ.u.mstances of the contract.

{Sidenote: Protection outside of copyright}

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.

{Sidenote: Work in cyclopaedias}

When, as in the case of a cyclopaedia, many persons are employed at the offices of an employer, using 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 encyclopaedia 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 pa.s.s to the publisher, otherwise he would get nothing from his bargain; and unless the publisher and proprietor of the encyclopaedia 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."

{Sidenote: a.s.sociation of author's name}

The right of a contributor to have his name a.s.sociated with his work in the case of an encyclopaedia, 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.

{Sidenote: Added material and alteration}

Where a publisher had affixed additional material 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.

{Sidenote: Separate registration 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 contribution, 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 rea.s.sign 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 Sh.e.l.le Co., cited in the chapter on dramatic and musical copyright, and thus remove possible doubt as to ownership.

{Sidenote: Anonymous works}