proprietor of the work, if not within the literal expression, at least within the equitable meaning of the statute of Anne. In Hatton v. Kean1 the defendant had arranged certain of Shakespeare's plays with adjuncts of scenery, music, dancing, &c., and employed artists and authors to aid him in carrying his design into effect; amongst others, the plaintiff was employed to compose and arrange the orchestral accompaniments. The Court of Common Pleas held that the defendant was the author of the entire production. Erle, C.J., said :—

"I am of opinion that the music so composed by the direction and under the superintendence of the defendant, and as part of the general plan of the spectacle, must, as between him and the plaintiff, become the property of the defendant, and that consequently the defendant has violated no right of the plaintiff in causing it to be represented in the manner alleged." 2

In Wallerstein v. Herbert, where the facts were similar to those in Hatton v. Kean, that case was approved by the Court of Queen's Bench. Cockburn, C.J., said :—

"Looking at the nature of this composition, it is clear that it became a part and parcel of the drama, and was not an independent composition."

These decisions seem equally applicable to books which are not dramatic compositions, but quære whether Hatton v. Kean5 did not go too far. It seems a strange thing to say that the arranger of a play becomes the author of, inter alia, the musical accompaniment of which, perhaps, he could not have composed a single bar. Would, for instance, the author of a book be also the author of illustrations which he had procured another to draw for him? Kekewich, J., in Petty v. Taylor, thought

not.6

The mere suggestion of a subject or idea which is then entirely designed and executed by another does not constitute the originator of the idea an author, even although the actual

1 (1859), 7 C. B. (N.S.), 268.

3 (1867), 16 L. T. (N.S.), 453.

27 C. B. (N.S.), at p. 280.

4 (1859), 7 C. B. (N.S.), 268.

5 (1859), 7 C. B. (N.S.), 268. The decision in this case was no doubt right, but it should have been on the ground that the plaintiff was the employer or assignee of the defendant and not that he was the author.

6 See Petty v. Taylor [1897], 1 Ch., 465; Kekewich, J., at p. 475.

composer is his employee.1 In Shepherd v. Conquest2 the plaintiffs, proprietors of a theatre, employed a "stock author " who, on payment of a weekly salary and travelling expenses, composed plays for them. Under this employment the author composed "Old Joe and Young Joe," a dramatic piece, which he handed over to the plaintiffs, and which was produced by them at their theatre. There was no contract or assignment in writing, but there was an oral understanding that the plaintiffs should have the sole right of representing the piece in London. It was held in the Court of Common Pleas that the plaintiffs had acquired no title under the Dramatic Copyright Act, 3 & 4 Will. IV. c. 15, by reason of which they could sue an infringement of the performing right. Jervis, C.J., delivered the judgment of the Court :

"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 when the employer merely suggests the subject, and has no share in the design or execution of the work. 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."

There may be joint authorship of a book. To constitute joint authorship the work must be produced by joint labour in prosecution of a preconceived joint design. In Levy v. Rutley A wrote a play, to which subsequently B added a scene, and made a few alterations and additions in other parts of the piece. It was held that there was not joint authorship. Byles, J., said:

"If the piece had been originally written by A and B jointly in prosecution of a preconcerted joint design, the two might have been said to be the co-authors of the whole play, notwithstanding that different portions were respectively the sole productions of either."

1 Shepherd v. Conquest (1856), 17 C. B., 427; Nottage v. Jackson (1883), 11 Q. B. D., 627. 2 (1856), 17 C. B., 427.

3 On the facts of this case the work of the servant ought to have become vested in the employer.

4 (1871), L. R., 6 C. P., 523; and see Tree v. Bowkett (1896), 74 L. T. (N.S.), 77.

And Keating, J., said :—

"I entirely agree with my brother Byles that though it may not be necessary that each should contribute the same amount of labour, there must be a joint labouring in furtherance of a common design."

Quare whether co-authors are joint owners with the right of survivorship. In Marzials v. Gibbons1 it was suggested that they were, but see the decisions where co-assignees are held to be owners in common, or part owners without the right of survivorship. Quære also whether each co-author, as is the case with each co-assignee,3 is entitled to sue in respect of an invasion without the concurrence of the other co-author or co-authors.

Until Walter v. Lane was decided in the House of Lords, it was a prevalent opinion that the author must be he who actually designs and by himself or through others composes the literary matter contained in the book. That case, however, demonstrates that the author is the first producer of literary matter in "book" form, i.e. in some permanent form from which it can be copied by the printer's compositor, usually, but not necessarily, manuscript. As a rule such person is also the composer of the literary matter contained in the book, but this is not a necessary attribute of the character of author. In Walter v. Lane Lord Rosebery had delivered without reserve of any kind certain public speeches. They were delivered orally, not having been previously committed to writing. On the various occasions when they were delivered reporters from the Times were present, and they took down the speeches verbatim. From these reports they were transcribed into long hand, and published in the Times. Mr. Lane, a publisher, took these speeches from the columns of the Times, and without any authority from the proprietors thereof, published them in a volume entitled "Appreciations and Addresses, by Lord Rosebery." In this action at the instance of the proprietors of the Times for the infringement of the copyright in their reports, it was finally held in the House of Lords, firstly, that as these reports contained literary matter pub

1 (1874), L. R., 9 Ch., 518; and see Bowen, L.J., in Nottage v. Jackson (1883), 11 Q. B. D., 627.

2 Powell v. Head (1879), 12 Ch. D., 686; Lauri v. Renad [1892], 3 Ch., 402. 3 Ibid.

4 [1900], A. C., 539.

5 Ibid.

E

lished for the first time in "book" form, they were the subject of copyright, and secondly, that the reporters were the authors within the meaning of the Act, since they first reduced the literary matter orally delivered by Lord Rosebery to "book" form.

SECTION IV.-THE EMPLOYER.

Under Section 18.-An employer is ab initio entitled to the copyright when he employs an author within the meaning of and subject to the conditions imposed by section 18. Section 181 enacts that—

"When any publisher or other person shall before or at the time of the passing of the Act have projected, conducted, and carried on, or shall hereafter project, conduct, and carry on, or be the proprietor of any encyclopædia, review, magazine, periodical work, or work published in a series of books or parts, or any book whatsoever, and shall have employed or shall employ any persons to compose the same in any volumes, parts, essays, articles, or portions thereof for publication in or as part of the same, and such works, volumes, parts, essays, articles, or portions, shall have been or shall hereafter be composed under such employment on the terms that the copyright therein shall belong to such proprietor, projector, publisher, or conductor, and paid for by such proprietor, projector, publisher, or conductor, the copyright in every such encyclopædia, review, magazine, periodical work, and work published in a series of books or parts, and every volume, part, essay, article, and portion so composed and paid for shall be the property of such proprietor, projector, publisher, or other conductor, 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 to the authors of books by this Act; except only that in the case of essays, articles, or portions forming part of and first published in reviews, magazines, and 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 this Act: provided always that during the term of twenty-eight years the said proprietor shall not publish any such essay, article, or portion separately or singly without the consent previously obtained of the author thereof or his assigns: provided also that nothing herein contained shall alter or affect the right of any person who shall have been or who shall be so employed as aforesaid to publish any such his composition in a separate form, who by any contract, express or implied, may have reserved or may hereafter reserve to himself such right; but

every author reserving, retaining, or having such right, shall be entitled to the copyright in such composition when published in a separate form, according to this Act, without prejudice to the right of such proprietor, projector, publisher, or conductor, as aforesaid."

The nature of a proprietor's rights in the articles contributed to his periodical under section 18 is well summarised by Chitty, J., as follows:

"This 18th section when fairly examined comes to this: the author of a literary work is the proprietor of the copyright under the general sections of the Act. If it is unpublished matter, probably the better term is to say that his right is to prevent any one else from publishing. If it is published matter, then his right is a true copyright, and it is to prevent anybody else from multiplying copies, and that right is vested in him. Then comes this 18th section, the short effect of which is to transfer for a limited period a portion of the copyright to the proprietor of the periodical for whom the article has been composed; it being a condition that there shall not only be a composition of the article on the terms that it shall belong to the proprietor or publisher, but also that the sum agreed to be paid has been paid." 1

Scope of Section.-In some of the earlier cases it seems to be suggested that section 18 applies only to works of a periodical nature. But this gives no meaning to the words "or any book whatsoever," which surely could not be construed as including only books ejusdem generis as periodicals. The first part of the section appears to include all books if produced under the conditions as to employment and payment there enacted.3 The judgment in Shepherd v. Conquest suggests that in the opinion of the Court in that case section 18 did not apply when the performing right in a play was claimed by the proprietors of a theatre, the play having been produced by a "stock author" in their employment. It is difficult to see why section 18 should not be equally applicable to the performing right as to the copyright. Section 20 of 5 & 6 Vict. c. 45 provides that—

"The provisions hereinbefore enacted in respect of the property of such copyright and of registering the same shall apply to the liberty of

1 Chitty, J., in Trade Auxiliary v. Middlesborough (1889), 40 Ch. D., at p. 430.

? And in one case it was even doubted whether it applied to newspapers, Platt v. Walter (1867), 17 L. T. (N.S.), 157.

3 Lamb v. Evans [1893], 1 Ch., 218; Trade Auxiliary v. Middlesborough (1889), 40 Ch. D., 425. 4 (1856), 17 C. B., 427.