principle upon which they depend, is one of implied

contract.

Suck cases are those in which the real author, at the time he produced the composition, was in the employment of another. This principle is sometimes. called the law of literary accession, and is as follows: where, in the course of the production or composition of a literary scientific production, an author employs another or others to assist him, the product of their individual labor will belong to him who is the author or proprietor of the whole."

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The difference between the doctrine of literary accession and the preceding cases, where the labor of others was merged, consists in the fact of the employment. In the cases of the musical adaptation of an old air, and of the plot of a novel in a play, the point hinged upon, was, that ownership of the particular features of these compositions became merged in the ownership of the composition as a whole (and which was only valuable as a whole), and it made no difference that the feature happened to be the theme of the whole production, if, separated and isolated from the production, that theme was of no market value.

Still another variety of this general principle is to be found in what we have treated, further on in this chapter, under the head of proprietary copyright.

176. The doctrine of literary accession, however, will only be applied in favor of innocent parties, and those who have not willfully used or appropriated the property of others.

A wrong doer will not be permitted to derive

benefit from the otherwise accessorial character of that

'Pothier, proprieté, 170, 175. Hation v. Keene, 7 Com. B. N. S. 268, 29 L. J. 20 C. P.; 1 L. T. N. S. 10. 9 Am. Law Reg. 33. Vid. Code Nap. 566, 567.

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which he converts to his own use. And, as against such, the accessorial part will be held to be the principal and vital part. Accordingly, the publication of a book will be restrained or suppressed for piracy, where the matter pirated is accessorial only to former compositions in which there could be no copyright, and forms only a small portion of the whole contents.?

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The law of literary accessions is well illustrated in the case of a calico printer, who had discharged his head color-man. The color-man brought suit against him in trover for a book of entries of processes of mixing the colors used in his employ, which he had kept while in the defendant's employ. It was held that, even though many of the processes therein set forth were of the plaintiff's own invention, he could not recover, because they were the result of his employment; and that the master had a right to something beside the mere manual labor of the servant in the mixing of the colors; and though the plaintiff invented them, yet they were to be used for his master's benefit.

So where the plaintiff, an artist, accompanied an expedition to Japan, fitted out by the United States government, as a master's mate, and signed the shipping articles, and drew and received his pay as such, with the understanding that all sketches and drawings that he might make were to belong to, and become

2 S. & S. 1; 16 Com. Merlin: Questions de 659; "Proprietée LitKeene v. Wheatley, 9

1 Sweet v. Bunning, 2 T. J. ch. 90; B. 459; 3 Jur. 217; 5 Carr. & P. 58. Droit, "Contrefacon," § II. vol. 2, p. terraire," § II. vol. 6, p. 498, 4th ed.; Am. Law. Reg. 33; Keene v. Clarke, 5 Rob. 38.

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3 Swanst, 680,681; 5 Ves., 709; 3 Mylone & Co., 736, 737, 738; Sweet v. Benning, 16 Com. B. 459; Hatton v. Keene,

29 L. J. N. S. C. P. 20; 7 Com. B. N. S. 268; Keene v. Wheatley, 9 Am. Law. Reg. 33.

the property of, the government,—and he did make certain sketches and drawings, which were afterwards incorporated in a report of the expedition to the navy department, and ordered printed by congress,it was held, that he was not the "author or proprietor" of the prints and engravings, in such a sense as to be capable of taking out a copyright, after the publication by government.1

In another case, where an inventor, in the courseof his experimental essays, had employed an assistant, who suggested and adapted a subordinate improvement, it was held an incident or part of the employer's main invention.? Where an actor in the employ of a manager of a theater, who was also the proprietor of a manuscript play, took the leading part in the representation of the play on the stage, and in so doing introduced many new and original "gags" and interpolations, consisting of words, phrases, and sentences, some of which were written in pencil on the margin of the manuscript copy of the play, and some of which were retained only in the memory of the actor, it was held that these "gags" and interpolations were the property of the proprietor of the play, and not of the actor in her employ3 And, upon a like principle, in the case of a musical composition, it was held that a person who adapted words to an old air, and procured a friend to arrange an accompaniment, would acquire a copyright in the whole.

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This principle, however, will be exercised with great care, and should be considered in connection with

'Heine v. Appleton, 4 Blatchf. 125.

And see Lover v. Davidson, 1 Com. B. (N. S.) 82; Mac

lean v. Moody, 20 Scotch Sess. Cas. 2d series, 1164.

* Keene v. Wheatley, 9 Am. Law. Reg. 33.

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⚫ Cocks v. Purday, 2 Car. & Kirw. 269.

the rules before noticed, namely, that to constitute one an author he must, by his own intellectual labor, applied to the materials of his composition, produce an arrangement, combination, or performance new in himself. He cannot become entitled to its proprietorship by merely procuring another to do the work."

177. A question has arisen whether a greater degree of originality is necessary to sustain a claim to a copyright than would be sufficient to support a title to a patent. In the case of patent inventions, suggestions of servants employed in perfecting a discovery, tending to facilitate its practical application, may be adopted by the employer and incorporated into his design without detracting from his claim to originality. In Barfield v. Nicholson, Sir John Leach suggested the application of a similar principle to copyright. Chief Justice Jervis, however, leaned to a different opinion in the case of Shepherd v. Conquest,* remarking that the enactments upon which literary property and patents for inventions are respectively founded, differ widely in their origin and details; and that in order to show that the position and rights of an author within the copyright acts are not to be measured by those of an inventor within the patent laws, it is only necessary to bear in mind that, whilst on the one hand a person who imports from abroad the invention of another previously unknown here, without any further originality or merit in himself, is an inventor entitled to a patent; on the other hand, a person who merely reprints for the first time in this country a valuable foreign work, without bestowing

1 Atwill v. Ferrett, 2 Blatchford, 46. Ante pp. 360, 362. Per Story, J.

* Id. Pierpoint v. Fowle, 2 Wood & Minn. 46.

2 Sim. & St. 1; 2 L. J. 90, 102 ch.

upon it any intellectual labor of his own, as by translation, which to some extent must impress a new character, cannot thereby acquire the title of an author within the statutes relating to copyright. The chief justice proceeded: "We do not think it necessary, in the present case to express any opinion whether, under any circumstances, the copyright in a literary work, or the right of representation can become vested ab initio in an employer, other than the person who has actually composed or adapted a literary work. It is enough to say in the present case, that no such effect can be produced where the employer merely suggests the subject, and has no share in the design or execution of the work, the whole of which, so far as any character of originality belongs to it, flowed from the mind of the person employed. It appears to us an abuse of terms, to say that in such a case the employer is the author of a work to which his mind has not contributed an idea; and it is upon the author in the first instance that the right is conferred by the statute which creates it."1

Or again as in the case of succeeding essays or treatises upon identical subjects, or of new and improved editions of standard works, the same question, founded on a supposed analogy between patents and copyright, occurs.

It has seemed to us, however, that such an analogy, from the very nature of the things treated, cannot and does not exist.

The thing patented is actual, palpable, and material. The thing copyrighted is an invisible, impalpable idea a thought clothed in words. The idea is the common property of him to whom it shall occur; the language is the common heritage of the race. Does 1 Shortt, L. L. p. 85.

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