CHAPTER VIII. TRANSMISSION OF COPYRIGHT, AND OTHER INCIDENTS OF LITERARY PROPERTY. THE law of England and that of America recognize, as we have seen, the exclusive right of an author over his own productions existing in manuscript. This right is independent of the property in the paper itself, and consists in the exclusive authority to print and publish the literary contents. No question has ever been successfully made of the existence of this species of property, whatever disputes have arisen, from time to time, as to the effect upon it of publiIcation and sale. Literary property, in unpublished writings, has always been a well-settled right at common law.2 The nature of this property has been defined as "an incorporeal right in the nature of a faculty, and having reference to a future time for reaping the profits."3 Lord Mansfield described it as "a nincor 1 Ante, Chap. Il. 2 Millar v. Taylor, 4 Burr. 2398. Donaldson v. Becket, Ibid. 2408. Duke of Queensbury v. Shebbeare, 2 Eden's Ch. R. 329. Macklin v. Richardson, Amb. 694. Southey v. Sherwood, 2 Meriv. 434. Wheaton v. Peters, 8 Peters S. C. R. 591, 661. 2 Story's Eq. Jurisp. 943. 31 Bell's Com. 68. poreal right to print a set of intellectual ideas or modes of thinking, communicated in a set of words and sentences and modes of expression. It is equally detached from the manuscript, or any other physical existence whatsoever."1 This species of property has long been, and is at the present day treated as an inheritable right. The copy in Lord Clarendon's History,2 the manuscripts of a Conveyancer,3 the Letters of Lord Chesterfield, and the Writings of Washington,5 were severally held to have passed to personal representatives, 4 Burr. 2396. His Lordship there said, "It has all along been expressly admitted, that, by the common law, an author is entitled to the copy of his own work until it has been once printed and published by his authority; and that the four cases in chancery, cited for that purpose, are agreeable to the common law; and the relief was properly given, in consequence of the legal right.' "The property in the copy thus abridged, is equally an incoporeal right to print a set of intellectual ideas or modes of thinking, communicated in a set of words and sentences and modes of expression. It is equally detached from the manuscript, or any other physical existence whatsoever. "The property thus abridged is equally incapable of being violated by a crime indictable. In like manner, it can only be violated by another's printing without the author's consent; which is a civil injury. "The only remedy is the same; by an action upon the case, for damages, or a bill in equity for a specific relief. "No action of detinue, trover, or trespass quare vi et armis, can lie; because the copy thus abridged is equally a property in notion, and has no corporeal tangible substance. "No disposition, no transfer of paper upon which the composition is written, marked, or impressed, (though it gives the power to print and publish,) can be construed a conveyance of the copy, without the author's express consent to print and publish;' much less, against his will. "The property of the copy, thus narrowed, may equally go down from generation to generation, and possibly continue forever; though neither the author nor his representatives should have any manuscript whatsoever of the work, original, duplicate, or transcript. * Duke of Queensbury v. Shebbeare, 2 Eden's C. R. 329. 3 Webb v. Rose, cited 4 Burr. 2330. 737. 100. Thompson v. Stanhope, Amb. Folsom v. Marsh, 2 Story's R. with the sole right of publication. Indeed, there seems to be no reason why the remark of Lord Mansfield is not strictly true, that the property in manuscript, being the incorporeal right to print a set of intellectual ideas, communicated in words and sentences, may go down from generation to generation, and possibly continue forever; though neither the author nor his representatives should have any manuscript copy whatever of the work, original, duplicate or transcript.' It is also a right that adheres solely to the person entitled to exercise it, so long as he does not see fit to alienate it; and it cannot be seized by creditors, and does not pass to assignees under a bankruptcy.2 Being detached from the manuscript, or any other physical existence, and being a mere incorporeal right to print, or to withhold from printing—a faculty, or right to exercise a choice-it would seem to be beyond the reach of execution, or the opera See Millar v. Taylor, 4 Burr. 2397. The 5 and 6 Vict. c. 45, § 25, makes all copyright personal property, transmissible by bequest, or, in case of intestacy, subject to the same law of distribution as other personal property, and in Scotland it is to be deemed to be personal and movable estate. 2 1 Bell's Com. 68. See also 4 Burr. 2396, 2397. Mr. Godson says, "it is doubtful whether an unpublished manuscript can be taken in execution by creditors; " and cites 4 Burr. 2311, where the question is suggested by Lord Mansfield arguendo. Mr. Godson adds: "but the better opinion seems to incline against such a rule of law, because See tion of the bankrupt laws. The manuscript itself may possibly be taken in execution; but the transfer of the manuscript does not alone carry with it a conveyance of the copy, that is, the authority to print and publish.' If the mere paper can be seized under execution, it must be taken subject to the sole right of the author over the intellectual ideas that are written upon it. The author or proprietor of a manuscript may, by parol, at common law, license another to print and publish it; and such an authority may possibly be inferred from the acts of the parties. But there must be a consent proved, and such consent cannot be inferred from possession of the manuscript alone, even if there be but a single copy of it in existence.3 There are so many other purposes, which may account for the possession of a manuscript, without involving an authority to publish it, that mere possession would have a very slight tendency to prove that authority. The right to print and publish being a right detached from the manuscript, does not necessarily go along with it, and therefore its transfer must be proved by farther independent evidence. Whether the sole right to print forever the contents of an unpublished manuscript can, at common law, be conveyed by parol, so that the copyright will 14 Burr. 2396. Southey v. Sherwood, 2 Meriv. 431. Rundell v. Murray, Jacobs R. 311. 3 Duke of Queensbury v. Sheb beare, 2 Eden's Ch. R. 329. Pope v. Curll, 2 Atk. 342. 2 Story's Eq. Jurisp. § 342. 4 Burr. 2396. Ante, p. 217, note 1. vest in the person who may be thus authorized to publish, is a point admitting of great doubt. But it seems that under the statutes, in England, an assignment in writing has been held necessary to pass the copyright in an unpublished work. The 8 Anne, c. 19, § 1, declared that "the author and his assignee or assigns shall have the sole liberty of printing," and that "if any other bookseller, printer, or other person, &c. shall print, reprint, &c. without the consent of the proprietor first had and obtained in writing, signed in the presence of two or more credible witnesses, he shall forfeit," &c. Upon this statute, Lord Macclesfield, C. is said to have held, that the author might grant the right of the copy to a subsequent publisher, after it had been once published by the person to whom he had originally delivered the manuscript, the bare delivery amounting only to a license to print the first edition.1 In a more modern case, Lord Ellenborough said, that "the statute having required that the consent of the proprietor, in order to authorize the printing or reprinting of a book by any other person, shall be in writing, the conclusion from it seemed irresistible that the assignment must also be in writing; for if the license, which is the lesser thing, must be in writing, a fortiori the assignment, which is the greater thing, must also be." The plaintiff, who claimed as an assignee, was therefore nonsuited. This decision, whether correct or 1 Viner's Abr. 278. 7. It must be owned that this rea 2 Power v. Walker, 3 M. & S. soning is not satisfactory. The stat |