Chapter XLIV: Section II: The Owner of the Copyright

=The Engraver.=--The persons to whom the copyright is given by the Acts are, "Every person and persons who shall invent or design, engrave, etch, or work in mezzotinto or chiaro oscuro, or from his own work, design, or invention, shall cause or procure to be designed, engraved, etched, or worked in mezzotinto or chiaro oscuro any prints ... and every person who shall engrave, etch, or work in mezzotinto or chiaro oscuro, or cause to be engraved, etched, or worked any print taken from any picture."

The engraver, therefore, is the first owner of the copyright when he does the work on his own behalf, or, if he does it on behalf of another, executes it entirely from his own work, design, or invention.

=The Employer.=--When one man employs another to execute an engraving it would seem that by the Acts[825] the copyright vests _ab initio_ in the employer:

1. In the case of an engraving taken from another work of
art.
2. In the case of an engraving with an original design,
if it is executed from the employer's own work,
design, or invention.

An employer may be the inventor of a design even although he is unable to draw, and would himself be unable to execute it. For instance, in the case[826] of a war map for the Franco-Prussian war in 1870, it was held that a publisher who had employed an engraver, giving him material and instructions from time to time was the inventor, and therefore the first owner in the copyright in the map. Bacon, V. C., said:

"As to whether the design or invention is that of the plaintiff
or not is a mere matter of character.... The compiler has proved
that it is the design of the plaintiff; that the plaintiff brought
to him his rough sketch or draught, a drawing of the same size
as the stone on which it was to be engraved, pointing out, as
the compiler has said, 'a rough sketch of the forts and towns to
give me an idea; he furnished me also with a large French map,
and some maps published in the _Times_ and _Daily Telegraph_; he
gave me notice also daily of the earthworks that were made and
produced, besides a picture published in the _Illustrated London
News_.' That the plaintiff cannot draw himself is a matter
wholly unimportant if he has caused other persons to draw for
him. He invents the subject of the design beyond all question.
He prescribes the proportions and the contents of the design;
he furnishes a part of the materials from which the drawing has
to be made in the first instance, and afterwards collects daily
from the proper sources, and even, if it be necessary to say so,
from official sources, the decrees, the reports, the bulletins
and accounts contained in the newspapers of the different phases
of the war, and especially of the places in which earthworks are
thrown up. These he communicates to the man whom he has employed
to make a drawing for him.... It is clear to my mind that this
is a work of diligence, industry, and for aught I know of genius
on the part of the plaintiff, for the notion never seems to have
occurred to the compiler himself."

If the person employed is the servant of the employer and not an independent contractor, the whole right in the engraving will probably, irrespective of the Acts, vest _ab initio_ in the employer.[827]

=The Assignee.=--In one case[828] it was contended that there could be no assignment under the Engraving Acts enabling an assignee to sue in his own name, since these Acts only provide for the licence and exemption from liabilities of a purchaser.[829] It was held, however, that there could be an assignment, and that the assignee could sue in his own name.[830]

As a licence is required to be in writing, signed by the proprietor and in the presence of two or more credible witnesses,[831] so must the assignment which passes a greater right.[832]

The sale of plates will not in itself operate as an assignment;[833] but, if it were clearly intended to pass the whole right, probably it would pass with the plates without assignment in writing.[834]

Before publication the whole right in the engraving, _i. e._ the common law right, may be assigned without writing.[835]