ship or contract must be shown whereby the right passes, otherwise it remains the property of the author. The author who does work on commission does not necessarily part with his copyright, it may be expressly or impliedly reserved;1 neither does an author under a publishing agreement necessarily convey his rights to the publisher. In either case it will depend on a construction of the contract between the parties.

The author of a literary or artistic work is the man who creates it in his mind. He may employ others in the execution of the details or in the merely manual or mechanical work and yet remain the sole author. The author of a photograph is the man who arranges the subject and makes choice of the time and light. It does not make him any less the sole owner of the work that he employs some one to take off the cap or perform other manual details. A man who compiles a dictionary or a directory may be the sole owner of it, although he has had scores of employees working up the separate parts for him.* But to constitute one an author he must show that his was the "inventive" or "creative" mind; it will not do that he has suggested a scheme and employed or procured some one else to carry it out independently;5 he must by his own intellectual labour applied to the material of his composition produce an arrangement or compilation new in itself. There may be joint authorship resulting in co-ownership.

When an unpublished work or copyright belongs to two or more persons in common, whether as co-authors or coassignees, either of the two may alone sue a wrongdoer,' and either may at his own expense publish the book without accounting to his co-owner.8

1 Press v. Munroe (1896), 73 Fed. Rep., 196; Black v. Allen (1893), 56 Fed. Rep., 764.

2 Black v. Allen (1893), 56 Fed. Rep., 764.

3 Burrow-Giles v. Sarony (1884), 111 U.S., 53.

4 Bullinger v. MacKay (1879), 15 Blatchf., 550.

5 Atwill v. Ferrett (1846), 2 Blatchf., 39; Roberts v. Myers (1860), 13 L. R. Mass., 396.

6 Gray v. Russell (1839), 1 Story, 11; Betts, J., in Atwill v. Ferrett (1846), 2 Blatchf., at

P. 46.

7 Aronson v. Fleckenstein (1886), 28 Fed. Rep., 75.

8 Carte v. Bailey (1874), 64 Maine, 458.

SECTION II. THE EMPLOYER.

Probably in the case of a paid servant who does literary or artistic work for his master in the course of his employment, the master is the proprietor of the work even in its embryo state, and no conveyance, transfer, or consent by or on behalf of the servant is necessary to entitle the master to enter the copyright in his own name as proprietor. In such a case he does not require to show that he is the "author" of the work; he is a proprietor, and is entitled to the copyright as such.1

In the case of work done on commission the relationship of the parties is somewhat different. The author is not a servant but an independent contractor, and therefore his work does not ab initio vest in his employer. There is a strong presumption in the case of a commission to execute work not in existence at the time, that the work when executed is to belong unreservedly to the person giving the order.2 The question depends, however, entirely on what the actual agreement between the parties was.3 An author, although he does work on commission, may well reserve the copyright to himself, giving to his employer a licence for a particular purpose only.* If it has been agreed expressly or impliedly that the employer is to become owner of the copyright, then the delivery of the manuscript or other work in fulfilment of the contract will pass the author's literary or artistic common law right to the employer, and the latter may take the copyright in his own name as proprietor. If the term of the contract were that the author should retain the copyright, copyright must be entered in the author's name.

1 Colliery v. Schools (1899), 94 Fed. Rep., 152; Schumacher v. Schwencke (1885), 25 Fed. Rep., 466; Mutual Advertising v. Refo (1896), 76 Fed. Rep., 961; Lawrence v. Dana (1869), 4 Cliff., 1; Little v. Gould (1851), 2 Blatchf., 165; Heine v. Appleton (1853), 4 Blatchf., 125; but see Pierpont v. Fowle (1846), 2 Woodb. and M., 23; Atwill v. Ferrett (1846), 2 Blatchf., 39.

2 Dielman v. White (1900), 102 Fed. Rep., 892.

3 Boucicault v. Fox (1862), 5 Blatchf., 87.

4 Press v. Munroe (1896), 73 Fed. Rep., 196; Black v. Allen (1893), 56 Fed. Rep., 764. 5 Lawrence v. Dana (1869), 4 Cliff., 1, at pp. 59, 66.

SECTION III.-THE STATE.

It has been questioned whether the Government of the United States or an individual State could take out a copyright for itself.1 It does seem doubtful whether the State can ab initio be the proprietor of a copyright. As was pointed out in Banks v. Manchester: 2

"The State cannot properly be called a citizen of the United States or a resident therein, nor could it ever be in a condition to fall within the description in the Revised Statutes, section 4952 or section 4954."

A corporation, however, has been held capable of entering itself as the original proprietor of a copyright. In the case of Heine v. Appleton, where an artist was employed on a Government expedition to Japan on the terms that all his artistic and scientific work should be the property of the United States Government, and the artistic material was, with the artist's consent, published by order of Congress in the report of the expedition, it was said that the artistic matter had been abandoned to the free use of the public. It does not appear, however, whether Congress, if they had taken steps, could or could not have secured a copyright in the literary or artistic matter in the report. Whether or not the Government of the United States or a State could be lawfully entered as the original proprietors of a work, it cannot be seriously doubted that as assignees they could acquire a copyright in matter already copyrighted by an individual. This they would be entitled to purchase and hold as any other Government property, such as ships, guns, and stores. A copyright might be taken out by an individual minister for the benefit of the people.5

SECTION IV. THE ASSIGNEE.

Before copyright has been secured the common law rights in a manuscript or other unpublished work may be conveyed

1 Banks v. Manchester (1888), 128 U.S. Rep., at p. 253.

2 Ibid.

3 Schumacher v. Schwencke (1885), 25 Fed. Rep., 466; Mutual Advertising v. Refo (1896), 76 Fed. Rep., 961.

4 (1853), 4 Blatchf., 125.

5 Little v. Gould (1851), 2 Blatchf., 165.

3

by parol; no writing or evidence in writing is required.' If a publisher takes a copyright in his own name with the knowledge and acquiescence of the author, the publisher is the lawful owner of the copyright subject to his accounting to the author in terms of the contract between them.2 Under the Act of 1831, and until the Revised Statutes, 1874, were passed, it would seem that a manuscript could not be assigned except by writing. Although the common law exclusive right of first production may pass by parol or delivery, it does not necessarily pass with possession or even with the ownership of the manuscript or other work. An author or other proprietor may sell documents, pictures, or other literary or artistic articles, reserving to himself the right of publication and right to acquire copyright and subsequently multiply copies. If an author's manuscripts are sold in execution, the purchaser does not acquire the right of publication.

4

After copyright has been secured the assignment is governed by statute. Section 4955 of the Revised Statutes, 1874, provides that copyrights are assignable in law by any instrument in writing, and such assignment must be recorded in the office of the Librarian of Congress within sixty days after its execution; in default of which it is void as against any subsequent purchaser or mortgagee for a valuable consideration without notice.

It must be considered at least doubtful whether this section affects a question between the parties or between the assignee and one who does not claim through the assignor.5 Mr. Drone, in his work on copyright, expresses an opinion that the first part of the section is merely permissive, and intended to

1 Callaghan v. Myers (1888), 128 U.S. Rep., 617; Black v. Allen (1890), 42 Fed. Rep., 618; Carte v. Evans (1886), 27 Fed. Rep., 861; Lawrence v. Dana (1869), 4 Cliff., 1, at p. 59; Little v. Gould (1851), 2 Blatchf., 165.

2 Pulte v. Derby (1852), 5 M'L., 328; Little v. Gould (1851), 2 Blatchf., 165; Lawrence v. Dana (1869), 4 Cliff., 1.

3 Act of February 3, 1831, sec. 9; Parton v. Prang (1872), 3 Cliff., at p. 549; but see contra, Lawrence v. Dana (1869), 4 Cliff., 1, at p. 59; Pulte v. Derby (1852), 5 M'L., 328.

4 Parton v. Prang (1872), 3 Cliff., 537; Yuengling v. Schile (1882), 12 Fed. Rep., 97; Werckmeister v. Springer (1894), 63 Fed. Rep., 808; Stevens v. Gladding (1854), 17 How., 447; Stephens v. Cady (1852), 14 How., 528; Carte v. Bailey (1874), 64 Maine, 458; see MacKaye v. Mallory (1882), 12 Fed. Rep., 328.

5 Webb v. Powers (1847), 2 Woodb. and Min., 497; see Gould v. Banks, Stephens v. Cady, Little v. Hall, ubi supra.

S

show that if the assignment is in writing no formalities are required. I doubt if this is sound. I think that even as between assignor and the assignee the assignment must be in writing; but I think the assignee can, without recording the assignment, sue his assignor or any third person, except those who claim a title through the assignor.

An agreement to assign may be made by parol, and where there was no subsequent assignment in proper form damages could be recovered for breach of the agreement.'

Any alien friend may be an assignee of a copyright in the United States.2

The assignee appears to take with the copyright an assignment of the assignor's choses in action; he has been held entitled to sue in respect of infringements committed prior to assignment.3

5

An assignment need not necessarily be made by conveying the author's entire right to one person. It may be conveyed to two or more persons in common, or an undivided interest may be conveyed to one or more persons. We have seen that the statutory right of reproduction is divisible from the right of property in the concrete work. Thus an author may sell his painting or manuscript and retain the right to multiply copies. Further, the various 'rights of copyright may be split up as the holder pleases; one may have the right of printing, another the right of translating, and a third the right of performing. The assignment may also be limited as to a particular country or countries, the right to perform or print in America may be given to A, and the right to perform or print in Great Britain to B. Probably an assignment cannot be limited to a portion of the United States. I do not think that a copyright could be assigned for a limited time.9

8

As a rule a licensee cannot sue in respect of an infringe

1 Gould v. Banks (1832), 8 Wend., 562.

2 Black v. Allen (1893), 56 Fed. Rep., 764; Carte v. Evans (1886), 27 Fed. Rep., 861.

3 Gilmore v. Anderson (1889), 38 Fed. Rep., 846.

4 Black v. Allen (1893), 56 Fed. Rep., 764; Carte v. Bailey (1874), 64 Maine, 458.

5 Werckmeister v. Springer (1894), 63 Fed. Rep., 808.

6 Publishing Co. v. Munroe (1896), 73 Fed. Rep., 196.

7 Davies v. Vories, 42 S. W.,

707.

8 Keene v. Wheatley (1860), 9 Am. L. Reg., 45. 9 But see Little v. Gould (1851), 2 Blatchf., 165.