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lisher, who has no notice of this covenant, may be restrained from publishing a work subsequently purchased by him from the same author, and published under his name, on the same subject, but under a different title, and though there be no piracy of the first book.1

But in an action by several plaintiffs, for piracy of copyright, it appeared that the defendant, the author, had published the work in question pursuant to the conditions of a cognovit given by him to one of the plaintiffs and another person, in an action for not performing an agreement to write the work in question; and it was held that this was a sufficient defence.2

Although the interest in a manuscript does not pass to assignees under a commission of bankruptcy, yet the copyright of a printed book does so pass; and it seems that it is not necessary that there should be any instrument in writing between the bankrupt and his assignees.3

The provisions of the act 5 and 6 Vict. c. 45, with regard to the assignment of copyright, apply to dramatic and musical compositions, as well as books. The assignment of the copyright of a play was formerly held to have carried with it the sole right of representation also, which was secured to the author

Barfield v. Nicholson, 2 Sim. & Stu. 1. 2 Law Journal, 90.

2 Sweet et al. v. Archbold, 10 Bing. R. 133.

3 Mawman v. Tegg, 2 Russ. R. 385, 392. Keene v. Harris, cited 17 Ves. 338. Longman v. Tripp, 2 New R. 67.

by the 3 Wm. IV. c. 15. But in order to obviate the effect of this decision, it is now provided, that no assignment of the copyright of any book consisting of or containing a dramatic piece or musical composition, shall be holden to convey to the assignee the right of representing or performing such dramatic piece or musical composition, unless an entry in the registry book shall be made of such assignment ; wherein shall be expressed the intention of the parties, that such right should pass by the assignment.2

As to prints and engravings, it being enacted by the 8 Geo. II. c. 13, § 1, that before a print can be copied with impunity, the consent of the proprietor must be given in writing, signed in the presence of two witnesses, it is manifestly necessary to a valid assignment, in England, that it should be in writing.

The fourth section of the 54 Geo. III. c. 56, provides, that "no person who may purchase the right or property of a new and original sculpture or other matter above mentioned of its proprietor, by deed in writing, signed by such proprietor in the presence of and attested by two witnesses, shall be subject to any action for copying, casting, or vending the same." The assignment of copyright in sculpture must therefore be by deed signed in the presence of two witnesses, and attested by them.

In the United States, the act 30th June, 1834, § 1, provides, that all deeds or instruments in writing,

1 Cumberland v. Planché, 1 Ad. 2 Act 5 & 6 Vict. c. 45, § 22. & Ellis, 580.

for the transfer or assignment of copyrights, being proved or acknowledged in such manner as deeds. for the conveyance of land are required by law to be proved or acknowledged in the same state or district, shall and may be recorded in the office where the original copyright is deposited and recorded ; and every such deed or instrument that shall in any time hereafter be made and executed, and which shall not be proved or acknowledged and recorded as aforesaid, within sixty days after its execution, shall be judged fraudulent and void against any subsequent purchaser or mortgagee for valuable consideration without notice.1

This statute seems to recognize the doctrine, that transfers or copyright must be in writing, but it does not expressly declare that they shall be so. It applies to all kinds of literary property which can, in this country, be the subjects of copyright.

As to what passes by a general assignment of copyright, it is to be observed, that, after the publication of a book, the exclusive right to print and reprint it, or the estate of copyright, as it may be called, becomes a right for such term only as is provided by statute. In the United States, as was formerly the case in England, the statutes secure a resulting or contingent term to the author, in case he shall be living at the time of the expiration of the first term; and if the author be not living at the

'Act of Congress, 30th June, 1834, § 1. See Appendix, p. 100.

expiration of the first term, the second term goes to his widow, child, or children, if living. By a general assignment of copyright, it is clear that the whole of the author's interest for the first term, passes to his assignee; but whether the resulting or second term passes, so as to exclude the author and his representatives, and to enable the assignee to secure such term by complying with the directions of the statute concerning the renewal of the copyright, is a question of some difficulty. In England, upon the statute 8 Anne, c. 19, which gave a second term of fourteen years to the author, if living, at the end of the first term, it was held that a general assignment of all the author's "interest" in a copyright conveyed the contingent as well as the present interest.2

In the United States, in a case where a publisher agreed with an author, that the latter should prepare a certain book for the press, and the publisher engaged to pay the author a certain sum "for the copyright of the said book," it was held, that the resulting term, under the statute, did not pass to the publisher, and that the word "copyright" embraced only the term then capable of being secured, which at the time of the contract constituted the copyright of the book.3

1 Act Feb. 3d, 1831, § 1, 2. Carnan v. Bowles, 2 Bro. C. R. 80, and Rennet v. Thompson, there cited. Godson, p. 429, 2d edit. In Rundell v. Murray, Jacobs R. 315, Lord Eldon said, "I conceive that an author will not be taken to have assigned his contingent right in case

of his surviving the fourteen years, unless the assignment is so expressed as to purport to pass it."

3 Per Woodbury, J. in Pierpont v. Fowle, Circuit of the U. States, at Boston, May Term, 1847. See 1 Woodbury's R.

In like manner, the question may arise, whether a general assignment of copyright, by the author, will deprive his representatives of the additional term of fourteen years, given by the act of congress of 3d February, 1831, § 2; or whether the author himself has any power over this additional term, so far as the interests of his representatives are concerned. The statute provides that the author, if living at the expiration of the first term of twentyeight years, shall have a further term of fourteen years, on making a new entry for that purpose. This contingent interest the author may undoubtedly assign. But if the author is not living at the end of the first term, the additional term vests in his widow and child, or children, living at the time. It is not easy to see how the author can dispose of this interest. It is not created for him, but for his family; it vests only in case of his death, and the policy of the statute, it seems to me, has removed it from his control.1

1 See Appendix, p. 93.

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