PART I.

He

plaintiff to abstain from publishing a single copy of the CHAPTER XV. Work, so long as he expressed his readiness to continue publishing. But the plaintiff has no reciprocal power. could never compel the defendant to publish more than a single edition of the work. His powers are limited to what the contract gives him; and according to the contract, when the defendant has published a second edition the contract on his part is fulfilled. This is a position of considerable hardship for an author, and one which ought to be clearly shown upon the face of a contract, to have been contemplated by the parties who entered into it. . . . . It cannot be contended that the agreement on the author's part is like a grant, in which the onus is upon the grantor, of showing that he has not parted with all which the grant appears to comprise. The onus is here with the party who contends that this agreement amounts to a licence, which upon the face of it, it does not. It certainly is not an assignment of the copyright. It does not appear to me to create more than a joint adventure; and if licence there be at all, it is only a licence so far as may be necessary for carrying out that joint adventure, and an implied licence for that purpose. That being so, the onus is upon the defendant of showing that the contrary construction is necessary; and that not being shown, a construction which would leave the author fast bound, and the publisher entirely free, after the publication of one edition, is not a reasonable construction to adopt in considering the effect of an agreement of this character?" His Honour showed his disapprobation of the loose manner in which the agreement had been framed, by giving no costs, considering each party equally in fault for having entered into an agreement so difficult of interpretation.

Where a writer agreed with a publisher to edit a translation of Montaigne's works, adding notes and a biographical sketch of the author, for a particular sum, to be increased by certain other sums as further editions should be published, all the copies published to be printed by the publisher, the intention being that he should have the copyright; and the work was published before the stat. 5 & 6 Vict. c. 45; the question was raised, but it was not necessary to decide it, whether the writer was the author and owner of the copyright in the work. "I do not wish to express a decided opinion," said Blackburn, J., "but my present impression is that he would have been the author, and that the copyright would have been in him, although a court of equity might have called on him to transfer the copyright" to the publisher. Mellor, J., was of a similar

7

PART L

CHAPTER XV.

photographs.

pinion. (a) After the death of the publisher in this case, is widow, with the writer's knowledge and assent, regisred the copyright in her own name, under 5 & 6 Vict. 15; and it was held that the prima facie evidence of her ile afforded by the register was not rebutted by the bsence of proof of a formal assignment in writing.(b) In the case of photographs, paintings, and drawings, Paintings, ere can be no equitable title by a parol agreement to drawings, and sign, as sect. 3 of 25 and 26 Vict. c. 68, expressly prodes, with respect to them, that "every assignment and ery licence to use or copy, by any means or process, the sign or work which shall be the subject of such copyright all be made by some note or memorandum in writing, to esigned by the proprietor of the copyright, or by his ent appointed for that purpose in writing."(c) A valid assignment of the copyright in dramatic and Dramatic and usical compositions, regarded simply as literary productions, positions. id not carrying with them the right of representation, may made either, first, by an instrument in writing which need t be under seal or attested by witnesses, (d) or, secondly, entry in the book of registry at Stationer's Hall in the rm above given (p. 156) for the assignment of books. The necessity of writing to confer a title by assignment, lid at law, is apparent from the cases already cited with ference to the assignment of copyright in books, as the interpretation clause (sect. 2) of 5 & 6 Vict. c. 45, e word "book" is used to include "every volume, part division of a volume, pamphlet, sheet of letter-press, eet of music, &c."

musical com

formance.

or per

The right of representing or causing to be represented Right of repreramatic or musical piece is distinct from the copyright sentation c the book containing such dramatic or musical piece, and e assignment of the latter does not carry with it a title the former. Sect. 22 of 5 & 6 Vict. c. 45, enacts "that assignment of the copyright of any book consisting of containing a dramatic piece or musical composition shall holden to convey to the assignee the right of representing performing such dramatic piece or musical composition, ess an entry in the said registry book shall be made of -h assignment, wherein shall be expressed the intention of parties that such right shall pass by such assignment." This section was in all probability passed to obviate the ect of the decision in Cumberland v. Planché, (e) that when (a) Hazlitt v. Templeman (13 L. T. N. S. 593). (b) Ib. (c) Strahan v. Graham (16 L. T. N. S. 87). (d) See the cases quoted ante, p. 152-155. (e) 1 A. & E. 580.

PART I

an author simply assigned the copyright, he also parted CHAPTER XV. With the right of representation. (a)

Assignment
of right of
representation
separately.

Writing is necessary to the assignment of the right to represent, or cause to be represented, a dramatic or musical piece. This has been held to follow by inference from sect. 2 of 3 & 4 Will. 4, c. 15 (the Act which gave the authors of dramatic pieces the sole right of causing them to be represented), which imposes a penalty on any person performing dramatic pieces "without the consent in writing of the author or other proprietor first had and obtained.” As this section renders a consent in writing necessary to justify a single representation, it has been decided by the Court of Common Pleas in Shepherd v. Conquest (b) that an assignment conveying the exclusive right to represent throughout Her Majesty's dominions, or (if that be possible) in some definite part of them, must, in order to be valid, be in writing also. In that case the plaintiffs had engaged by word of mouth one Courtney to visit Paris for the purpose of adapting a piece there in vogue for representation upon the English stage, the terms being that the plaintiffs should give him a weekly salary and pay his expenses, and should have the sole right of representing the piece in London, Courtney to retain the right of representation in the provinces. In pursuance of the agreement Courtney proceeded to Paris, and adapted a piece, which was represented by the plaintiffs at their theatre. Courtney afterwards assigned the copyright in the piece to the defendant, who caused it to be represented at his theatre, whereupon the plaintiffs, claiming the sole right of representation, brought an action to recover the penalties imposed by sect. 2 of 3 & 4 Will. 4, c. 15. It was held that there had been no valid assignment to the plaintiffs either of the copyright in the piece, or of the sole right of representation, and consequently that they must fail in their action.

Sect. 22 of 5 & 6 Vict. c. 45, in cases where it is intended to assign the right of representation as well as the copyright of a dramatic or musical piece, renders necessary an entry in the book of registry of the assignment, expressing an intention to convey the right of representation. The language of the enactment refers only to cases where it is intended to convey both copyright and the right of representation; nothing is said as to the mode of assigning the

(a) Per Cur. in Lacy v. Rhys (4 B. & S. 873; 33 L. J. 157, Q. B. 9 L. T. N. S. 607; 12 W. R. 309).

(b) 17 C. B. 427; 25 L. J. 127, C. P. See 17 C. B. 442.

ight of representation separately. We have just seen that

PART L

t must be assigned by writing, and there does not seem to CHAPTER XV. e any other requisite to a valid assignment.

Sect. 22 has no application to the case of a simple signment of the exclusive right of representation, and instrument assigning that right does not require to be gistered, even though it likewise convey the copyright. (a) here a deed assigned "both copyright and acting right" a dramatic piece, it was held by the Court of Queen's ench that registration was not required to entitle the signee to bring an action for infringement of his rightat sect. 22 does not apply to a case in which there is, in rms, an assignment of the right of representation itself. (b) Where A. wrote a letter to B., agreeing to "let B. have" drama belonging to A., in discharge of a particular sum ich A. owed to B., this was held by Byles, J., at Nisi ius, to be a complete assignment to B. of A.'s whole operty in the drama.(c)

The consent of the author or proprietor of a dramatic ce, to its representation, need not be under the hand of author or proprietor himself, but may be given by an ent.(d)

It is a curious omission in the Acts of Parliament relating Published copyright, that none of them mentions the assignee of engravings. engraver, or expressly confers a copyright on such ignee. But sect. 2 of 8 Geo. 2, c. 13, the Act which t gave a copyright in prints, and imposed penalties for ringement of it, provides, "that it shall and may be ful for any person or persons who shall hereafter chase any plate or plates for printing, from the original prietors thereof, to print and reprint from the said plates hout incurring any of the penalties in this Act menned." This section, says Buller, J., in Thompson v. monds, (e) takes it for granted that the proprietor may ign. And Grose, J., in the same case added, "When print was originally published the requisites of the tute were complied with. Then the exclusive right was ted in the engraver; and the instant he assigned to the

a) Lacy v. Rhys (4 Best & S. 873; 33 L. J. 157, Q. B.: 9 L. T. N. S. 12 W. R. 607). Marsh v. Conquest (17 C. B. N. S. 418; 33 L. J. C. P.; 10 L. T. N. S. 717; 12 W. R. 309).

b) [b.

c) Lacy v. Toole (15 L. T. N. S. 512). The semble in that case, that assignment of the right to represent need not be in writing, is rrect, as the case of Shepherd v. Conquest, referred to supra, shows, Moreton v. Copeland (16 C. B. 517).

e) 5 T. R. 46.

PART L

plaintiff, the latter had every right that the engraver had CHAPTER XV. before."

Drawings, paintings, or photographs.

The assignee may maintain an action for penalties in his own name. It was argued in Thompson v. Symonds that the effect of the 1st and 2nd sections of 8 Geo. 2, c. 13, taken together, was that the purchaser from the original engraver is merely exempt from the penalties of the statute, but that if any other person copy the plate the action must be brought by the original proprietor, who, perhaps, may be considered as a trustee for the assignee, as to any damages that he may recover. But this reasoning did not prevail, and the assignee was held entitled to maintain the action in his own name.

An assignment of the copyright in engravings, it would seem, must be in writing, signed by the proprietor with his own hand, in the presence of, and attested by, two or more credible witnesses. None of the Acts contains any provision as to the mode of assigning the copyright, but 17 Geo. 3, c. 57, gives to the proprietor a remedy by special action on the case against any one who prints, reprints, imports for sale, publishes, sells, or otherwise disposes of, any copies of any print, engraved, etched, drawn, or designed in Great Britain "without the express consent of the proprietor or proprietors thereof first had and obtained in writing, signed by him, her, or them respectively, with his, her, or their own hand or hands, in the presence of, and attested by, two or more credible witnesses." As a licence requires the observance of these formalities, it should seem that their observance is also necessary in case of an assignment of the copyright. A deed does not appear to be necessary.

The Act which first conferred a copyright in paintings, drawings, and photographs, 25 & 26 Vict. c. 68, has a special provision (sect. 3) as to the mode of assigning the copyright, or of giving permission to copy, or use in any other way, the subject of the copyright. In the case of every such assignment, or licence, a writing is necessary signed by the proprietor of the copyright, or his agent appointed for the purpose by writing. Furthermore (by sect. 4) the protection of the Act is withheld from, and no action for penalties is maintainable by, an assignee, unless an entry is made in "The Register of Proprietors of Copyright in Paintings, Drawings, and Photographs," kept at Stationers' Hall, of the assignment, stating the date of the assignment, the names of the parties, the name and place of abode of the assignee and of the author of the work, and a short description of the nature and subject of the work.