would be held equivalent to such, so that on the extension being acquired the purchaser could compel an assignment.

If the author of an unpublished work conveys all right, title, and interest in it to another, he certainly cannot take out an extended term to run against his grantee.' It seems doubtful whether he can take it out at all. Certainly his grantee cannot, and probably the author could not for his benefit.

If the original term is invalid there will be no right to a renewal.2

1 Paige v. Banks (1871), 13 Wall, 608; (1871), 7 Blatchf., 152.

2 Wheaton v. Peters (1834), 8 Pet., 591, 654.

CHAPTER III

WHO IS THE OWNER OF THE COPYRIGHT?

UNDER Section 4952 of the Revised Statutes as amended by the Act of March 3, 1891, the statutory right is vested in "the author, inventor, designer, or proprietor, and the executors, administrators, or assigns of any such person."

Care must be taken in entering a copyright that it is entered by and in the name of the owner of the common law right in the literary or artistic work. The entry does not require to be in the name of the author or to disclose who he is. It must be in the name of the owner, and if entered in the name of any other person it will be a bad entry.1 Thus, when a printer in his own name copyrighted a book of which he was not the owner, he could not maintain an action either for his own use or for the use of the owner. Every action for infringement must be brought in the name of the owner of the copyright for the time being; and it would seem, if he is not the author himself, he must show a derivative title from the author.3 The owner of a manuscript by an author unknown would not be entitled to copyright as "proprietor" and first publisher.1

SECTION I.-THE AUTHOR.

Prima facie the author is owner of the copyright. If he is in a position of employment the right in his work may vest on creation in his employer; or he may have contracted in such a way that the property passes to another. But some relation

1 Lawrence v. Dana (1869), 4 Cliff., 1.

2 Koppel v. Downing, 24 Wash. L. R., 342.

3 Little v. Gould (1851), 2 Blatchf., 165; Green v. Bishop (1858), 1 Cliff., 186, 198; Yuengling v. Schile (1882), 12 Fed. Rep., 97, 100.

4 Yuengling v. Schile (1882), 12 Fed. Rep., at p. 106.

5 Heine v. Appleton (1853), 4 Blatchf., 125.

1

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; 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.1 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; 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.

5

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.5 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."

4

A corporation, however, has been held capable of entering itself as the original proprietor of a copyright.3 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.

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.