J. 1896 PETTY v. KEKEWICH J., after commenting on the evidence, continued KEKEWICH as follows:-On the question of law I have only to decide one point. That point is this: Both as regards the Fine Arts Copyright Act of 25 & 26 Vict. c. 68, and the Copyright Act of 5 & 6 Vict. c. 45, Mr. Wesley Petty is registered as the proprietor TAYLOR. of the copyright. Each statute in effect provides that there shall be entered on the register the name and place of abode of the proprietor of the copyright; and in each entry Mr. Wesley Petty is alone described as the proprietor of the copyright. If, as a matter of fact, he was not the proprietor, then there is no registration. I assume that the case of the plaintiffs is dependent on registration, and, the registration failing, the case fails also. The action is brought by Mr. Wesley Petty and Petty & Sons, Limited, as co-plaintiffs, and in my opinion Petty & Sons, Limited, are in fact the proprietors of these copyrights, but they are not registered. Now it is decided, and it seems to me to be perfectly clear even without a decision, that a combination of two persons, neither of whom is entitled to sue, cannot constitute a person who is entitled to sue. In the case of the London Printing and Publishing Alliance v. Cox (1) Fry L.J. puts it in this way: "I have no doubt whatever that a trustee in whom a copyright is vested may be registered as the owner, and may sue in that character; but it is impossible for one person to be the owner and another person to be on the register, and for those two persons successfully to sue." If Petty & Sons, Limited, are the proprietors and Wesley Petty is not the proprietor, then this case is exactly that which the Lord Justice put. No possible status can be given to one bad plaintiff by the conjunction of him with another bad plaintiff. Of course, if either is a good plaintiff, the conjunction with a bad plaintiff would in these modern days not matter. The question is, Is Mr. Wesley Petty the proprietor of these copyrights, or any of them? To my mind the answer to that question is precisely the same under both Acts. Mr. Warrington has endeavoured to separate them, and to say that they raise different considerations; but it seems to me that for the present purpose the arguments (1) [1891] 3 Ch. 303. J. 1896 PETTY V. TAYLOR. KEKEWICH Which are applicable in one case are equally applicable in the other. Referring first to the Act of 1862 (25 & 26 Vict. c. 68), I agree with the argument that under the first section of that Act three different states of circumstances are contemplated. Either the person who is the author may be the proprietor of the copyright, or the vendee, or assignee from him, may be the proprietor, or the proprietor may be a person for or on behalf of whom the work of art has been made or executed for a good or valuable consideration. If I thought in this case that these drawings were made or executed for or on behalf of Wesley Petty, I should consider that he was properly registered as the proprietor, notwithstanding that there is no agreement in writing entered on the register. The agreement in writing would be wanted if it was intended to reserve the copyright to the author as against a vendee or assignee. It would be wanted also if it was intended to vest that copyright in the vendee or assignee. It is not wanted, as I understand the meaning of the first section, where the copyright is vested in a person for or on behalf of whom the work of art was made or executed. The point is deserving of attention; but I need not further refer to it, because the case really turns on the fourth section, which provides that there shall be entered on the register “the name and place of abode of the person in whom such copyright shall be vested." Now, the registered proprietor of the copyright in these two figures is Mr. Wesley Petty. He is the managing director of Petty & Sons, Limited. It is, I think, immaterial that before the incorporation of the company he carried on business by himself or in partnership, though I observe, of course, that it is the old practice, existing before the incorporation, which has led to the present dilemma. He was, throughout all these transactions, the manager, the active man, and representative of Petty & Sons, Limited. He was minded to have drawings of these two figures produced for publication in the proper way in the course of business. His firm print; they, as a rule, do not do anything more than print. They therefore employed the firm of Taylor & Co. to produce the figures which they wanted, namely, those of two gentlemen in different attitudes clothed in Chesterfield coats. Taylor & Co. J. 1896 PETTY v. TAYLOR. employed an artist to design the drawings. The exact relation KEKEWICH of the artist to Taylor & Co. is not quite clear, but he seems to have been one whom they from time to time employed, and I gather that Petty & Sons, Limited, not only knew Taylor & Co., but also knew the artist. But he must be regarded as merely a servant of Taylor & Co., who were employed by Wesley Petty, the managing director of Petty & Sons, Limited. It seems to me to be established beyond dispute, that Petty & Sons, Limited, acted through their agent in instructing Taylor & Co., who executed the order through their agent, the artist; but there was no employment of the artist by Wesley Petty in his individual personal character. He never purported to give directions, or to pay a bill, or in any way throughout to do anything of any kind connected with this business, except in his character of representative of the incorporated company, Petty & Sons, Limited. Then it is said that he is a trustee for the company. It is more easy sometimes to say that a man is a trustee than to explain how he is a trustee, or why. In one sense he is a trustee for the company. I have no doubt that if he can properly be held to be the proprietor of this copyright, he is so far a trustee of his proprietorship for the company that he cannot set up his own title against his principals; but he is not a trustee in the sense that any legal ownership ever became vested in him. Copyright is a thing known to the law as capable of acquisition and assignment in a particular way, and there is nothing to shew here that Wesley Petty ever acquired anything at all. He acted simply as the agent of the incorporated company. There is a passage in the judgment of Lindley L.J. in the case of London Printing and Publishing Alliance v. Cox (1) which I think worthy of notice on this point, though, perhaps, not as a decision. He was considering there the relative position of Mr. Keep and the proprietors of Myra's Journal, and how far there had been an assignment by the one to the others. He assumed that Mr. Keep had the property vested in him when he wrote a certain letter of April 19, and then he says (2): "It is contended that this letter amounted to (1) [1891] 3 Ch. 291. (2) [1891] 3 Ch. 301. 1896 PETTY v. TAYLOR. KEKEWICH an assignment of the copyright by Mr. Keep to Myra's J. Journal. If it did, then the proprietors of Myra's Journal were, from April 19, the proprietors of the copyright; but the proprietors of Myra's Journal are not registered, and they cannot therefore maintain the action. If, on the other hand, that letter did not amount to an assignment of the copyright, then the copyright would remain with Mr. Keep, as a trustee for the proprietors of Myra's Journal, and, Mr. Keep being registered, the action may be sustained so far as that point of form is concerned." Lindley L.J. is there dealing with a case where there was undoubtedly a proprietor. Keep was originally the proprietor of the copyright. question was whether he had or had not assigned. If he had, then the proprietorship had passed; if he had not, it remained in him. But having started with one proprietor, if you want to discover another you must find an assignment. There is no pretence for saying there is an assignment here. Wesley Petty did not acquire the copyright for himself, but merely as an agent. The result is, that Wesley Petty has been wrongly registered as proprietor of the copyright in these drawings, and on that ground the registration of the art copyright fails. Mr. The I turn now to the statute 5 & 6 Vict. c. 45. To my mind the question here is precisely the same, but Mr. Warrington made one point in his reply which must be noticed. By s. 13 of the statute in question it is required that "the name and place of abode of the proprietor of the copyright" shall be entered on the register. In the case of this copyright Mr. Wesley Petty occupied precisely the same position as in the other case. He acted merely as the agent of Petty & Sons, and, as in the other case, he was a nominee, but not a trustee. He was not a trustee, because no property was acquired by or vested in him. But it is argued that there is a distinction. It is sufficient for me to notice the book called "Art and Virtue of Dressing Well." It is said that as Mr. Wesley Petty prepared the letterpress of that book, which is a substantial part of it, he could register the book, as having been the author of it, and that the book being properly registered in his name the figures which form part of the book are protected. I will J. 1896 PETTY v. TAYLOR. assume in the plaintiffs' favour that Mr. Wesley Petty was KEKEWICH the author of the letterpress, and in that way the author of the book. He put into the book these drawings which, as I have said, were not his nor produced by him, and the copyright in which, if there is any copyright at all, is not vested in him. Here I note the practical force of the difficulty raised by Mr. Renshaw, that copyright cannot be rightly claimed in one and the same work under two different statutes and two different registrations, a point which may deserve much further consideration; but I am only dealing now with Mr. Warrington's point, in support of which Grace v. Newman (1) was cited. The head-note of that case, which, as I have taken care to see, conforms to the Vice-Chancellor's judgment, is as follows: "The plaintiff, a cemetery stonemason, employed and remunerated a person to collect monumental designs, and published a book containing sketches of such designs, with scarcely any letterpress. Held, that the plaintiff had copyright in the book, and was entitled to an injunction to restrain the publication of designs copied from it." If my view is right, Mr. Wesley Petty never personally employed or remunerated any one. did so in his character of agent, but not otherwise; and, assuming him to have been the author of the letterpress, yet the rest of the book, that is to say, the figures, were not done for him, but for somebody else; and it seems to me monstrous to suppose, and I am sure Grace v. Newman (1) does not support the proposition, that a man in protecting his copyright in the letterpress of which he is the author can thereby protect or acquire any copyright in works of art which are introduced into the letterpress as illustrations, and the copyright in which is vested in other persons who are strangers to the literary author. It is not at all an uncommon case for two persons jointly to publish a book, one supplying the letterpress, the other the illustrations. I cannot see my way to saying that in such a case the man who is the author of the letterpress becomes the author of the book, including the illustrations, so as to protect those illustrations. I cannot see why the contention should not be reversed, and the author of the illustrations (1) L. R. 19 Eq. 623. He |