sum, and that the work should be sold to the public for a given price, it was held that the publisher was not a mere licensee to sell a given number of copies, but that being bound by the agreement to sell, and the author being bound to abstain from doing anything which would interfere with the sale, the publisher had a limited equitable interest in the copyright, to the extent of being entitled to be the sole publisher, until the number of copies fixed by the terms of the agreement should be exhausted.'

It is not settled in England, whether a conveyance of copyright must be by deed, as well as in writing. The cases which have held that a transfer in writing is necessary, did not decide whether a writing, not being a deed, would be sufficient. In a more recent case, Lord Ch. J. Tindal expressed an opinion that nothing short of a deed would answer; but the pleadings did not admit of the question being raised. The act 5 and 6 Vict. c. 45, s. 13, which makes an assignment by entry in the register as valid as if it had been made by deed, has been supposed to show the understanding of parliament, that the usual and necessary mode of transfer of copyright is by deed.4

The preceding observations may aid us in determining the effect of the contracts which ordinarily

Sweet v. Cater et al. 5 Jur. 68, cited Drewry on Injunctions, p. 211. See also Mawman v. Tegg, 2 Russ. 392. Sweet v. Shaw, 17 Law J.

216.

2 Power v. Walker, 4 Campb. 8. Clementi v. Walker, 2 B. & C. 861. 3 De Pinna v. Polhill, 8 Car. & P. p. 78.

See Appendix, p. 70.

take place between the writers of articles for magazines, and other periodical works, and the proprietors of such works. Does the mere transmission of a manuscript essay or article to the conductor of a magazine, for publication, coupled with the receipt. of such compensation as may be paid for it, carry with it the whole title of the copyright, so as to exclude the author from reprinting it in any other form thereafter? There is, doubtless, an implied contract on the part of the writer, not to reprint his essay at such a time, or in such a manner, as to deprive the party who has purchased the liberty of printing it, of the benefit of being the sole publisher thereof, for a reasonable length of time, which must depend on the circumstances of the case. Hence, the writer could not, without a breach of his implied contract, print his essay in another periodical, published simultaneously with the work for which he had originally written it. But where the law requires a written assignment of copyright, and no such assignment has been made, and there is no stipulation on the part of the writer never to re-print his essay, it would seem that the right to republish it, after a reasonable time, must remain with him at common law. But whether the projector and proprietor of a work, in which different persons have written parts, at his request, and have been paid for the same as contributors, without having made a legal assignment of their copyrights, is to be deemed the author and proprietor of the work, so as to en

title him to protection as against the public, is a different question. This point came before Sir John Leach, V. C., and he was of opinion that such a projector and proprietor was to be deemed the author and proprietor within the intendment of the statute of Anne, for the purposes of protection in a court of equity.1

Perhaps the provisions of the recent English statute on this subject may be regarded as, in part, declaratory of the previously existing law. Those provisions are made retrospective; manifesting thereby an intention to apply, by statute, to previously existing rights, principles understood to be already in existence, upon which the contracts might be presumed to have been made. The statute declares, in substance, that where essays, articles, &c. have been or shall be written for publication in, or as part of any encyclopedia, review, magazine, periodical work, or work published in a series of books in parts, or book whatsoever, on the terms that the copyright therein shall belong to the proprietor, pro

any

Barfield v. Nicholson, 2 Law Journ. 90, 102. In this case, the vice chancellor said, "I am of opinion, that, under that statute [8 Anne, c. 19] the person who forms the plan, and who embarks in the speculation of a work, and who employs various persons to compose different parts of it, adapted to their own peculiar acquirements that he, the person who so forms the plan and scheme of the work, and pays different artists of his own selection, who, upon certain conditions, contribute to

it, is the author and proprietor of the work, if not within the literal expression, at least, within the equitable meaning of the statute of Anne, which, being a remedial law, is to be construed liberally." S. C. 2 Sim. & Stu. 1. As to the property in a review, and the right to prevent the publication of works handed out to the public under false colors, as continuations of a former established work, see Hogg v. Kirby, 8 Ves. 215.

CONTRACTS BETWEEN AUTHORS AND PUBLISHERS. 229

jector, publisher or conductor of the work, and paid for by such proprietor, &c. the copyright thereof shall be the property of such proprietor, &c. who shall enjoy the same rights as if he were the actual author thereof, and shall have such term of copyright therein as is given by the act to the authors of books; except that in the case of essays, articles, &c. forming part of, or first published in reviews, magazines, or other periodical works of a like nature, after the term of twenty-eight years from the first publication thereof respectively, the right of publishing the same in a separate form shall revert to the author for the remainder of the term given by the act, provided, that during the twenty-eight years, the proprietor of the review, magazine, &c. shall not publish any such essay, article, &c. separately or singly, without the consent of the author or his assigns previously obtained; and provided also, that these enactments shall not affect the rights of any such author, who, by any contract, express or implied, may have reserved, or shall reserve to himself the right of separate publication; but that every author, so reserving the right of separate publication, shall have the copyright in his composition, when published, in a separate form, according to the act, without prejudice to the right of the proprietor of the review, magazine, &c.1

There have been several decisions in England,

1 Act 5 & 6 Vict. c. 45, § 18. See Appendix, p. 73.

upon contracts between authors and publishers, which may illustrate the subject at present under consideration. Where an author agreed, in writing, to supply a bookseller with the manuscript of a work to be printed by the latter, the profits to be equally divided between them, Lord Ellenborough held that an action could be maintained for damages for refusing to supply the manuscript.' But where an author was engaged for a certain sum, to write an article, to appear among others in a work called "The Juvenile Library," and before he had completed his article, and before any portion of it was published, the work in which it was to appear was discontinued, Lord C. J. Tindall held, that the publishers were not entitled to claim the completion of the article, in order that it might be published in a separate form for general readers, but were bound to pay the author a reasonable sum for the part which he had prepared. The contract in this case does not appear to have been in writing.

2

Where an author sells the copyright of a work published under his own name, and covenants with the purchaser not to publish any other work to prejudice the sale of it; it seems, that another pub

1 Gale v. Leckie, 2 Stark. N. P. C. 107. But if the author be justly apprehensive that the work, when published, will subject him to punishment, it seems that he may refuse to deliver the manuscripts. Ib. A contract with the proprietors of a theatre, not to write pieces for any

other theatre, is lawful, as a similar restraint of a performer would be; not resembling a covenant restraining trade generally. Morris v. Colman, 18 Ves. 437.

58.

2 Planché v. Colburn, 5 C. & P.