Chapter XXIV: Section III: The Author

Copyright in every book published in the lifetime of the author thereof "shall be the property of such author and his assigns."[319] Copyright therefore in the first instance ordinarily vests in the author. The word author is not defined in the Act, and from time to time difficult questions have arisen as to who is the author of a particular book within the meaning of the Act. Difficulties have generally arisen from the fact that two or more people have been engaged in the production of a book. The rule appears to be that, if the literary matter is composed by those who make the manuscript,[320] the author is the man from whom emanates the general conception and design, and that although much of the detail may have been the work of subordinate brains and hands, he is the author of the entirety, and may sue for any infringement of it. Thus in _Scott_ v. _Stanford_,[321] where the plaintiff compiled and published periodically statistical returns of the London coal market, Page Wood, V. C., in giving judgment, said that it appeared to him quite immaterial whether the plaintiff had been assisted in the compilation by his own clerks or by those of the Corporation. In _Barfield_ v. _Nicholson_[322] a case under the statute of Anne, Leach, V. C., said that he was of opinion that under the statute the one who formed the plan and embarked on the speculation of a work, and employed various persons to compose different parts of it adapted to their own peculiar acquirements, was the author and proprietor of the work, if not within the literal expression, at least within the equitable meaning of the statute of Anne. In _Hatton_ v. _Kean_[323] 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."[324]

In _Wallerstein_ v. _Herbert_,[325] where the facts were similar to those in _Hatton_ v. _Kean_,[326] 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. _Kean_[327] 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.[328]

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 composer is his employee.[329] In _Shepherd_ v. _Conquest_[330] 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.[331] 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_[332] 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."

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."

_Quære_ whether co-authors are joint owners with the right of survivorship. In _Marzials_ v. _Gibbons_[333] 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.[334] _Quære_ also whether each co-author, as is the case with each co-assignee,[335] is entitled to sue in respect of an invasion without the concurrence of the other co-author or co-authors.

Until _Walter_ v. _Lane_[336] 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_[337] 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 published 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.