Chapter XLIX: Section II: The Owner of the Copyright

=The Author.=--The copyright is given to "the author and his assigns," except when the work is executed for or on behalf of any other person for a good or valuable consideration.[946] The author is the actual artist whose mind has created the work.[947] The giving of ideas and suggestions to another is not sufficient to constitute an author,[948] but, on the other hand, there might be an author who had done little or nothing of the manual work required in the execution. In _Nottage_ v. _Jackson_ the question of authorship in works of art was fully discussed. Brett, M. R., said:

"The author of a painting is the man who paints it, the author of
a drawing is the man who draws it,... of a photograph the author
is the person who effectively is as near as he can be the cause
of the picture which is produced, that is, the person who has
superintended the arrangement, who has actually formed the picture
by putting the people into position and arranging the place in
which the people are to be--the man who is the effective cause of
that. Although he may only have done it by standing in the room
and giving orders about it, still it is his mind and act, as far
as anybody's mind and act are concerned, which is the effective
cause of the picture such as it is when it is produced."

Cotton, L. J., in the same case, said:

"In my opinion 'author' involves originating, making,
producing, as the inventive or master mind, the thing which is
to be protected, whether it be a drawing or a painting or a
photograph.... It is not the person who suggests the idea but the
person who makes the painting or drawing who is the author."

=The Employer.=--When an artistic work, protected by 25 & 26 Vict. c. 68, is executed by the author for or on behalf of any other person for a good or valuable consideration, the copyright vests in the employer and his assigns, unless it be expressly reserved to the author by agreement in writing signed by the employer.[949] This provision applies to the everyday case of a person employing and paying a painter or photographer to take his portrait. The copyright vests in the customer.[950] The case, however, is not always so simple. Difficult questions arise where the artist, usually a photographer, requests the sitter, probably an actress or athlete, to allow his portrait to be taken on the understanding that the artist may publish and sell copies.[951] The sitter probably receives free copies or copies at a reduced price. The difficulties to be solved are purely questions of fact in each case, viz.:

1. Was the portrait taken for or on behalf of some person
other than the artist?
2. Did the artist receive good and valuable consideration?

As a rule, where a photographer invites celebrities to sit for him, the understanding will be that the portrait is taken on the photographer's behalf;[952] but at the same interview some plates might be taken on behalf of the photographer and some on behalf of the sitter.[953] The valuable consideration received by the photographer need not be a money payment, but may consist merely in the right given to him to publish and sell copies.[954]

When a managing director of a company employed A to make drawings for a trade catalogue, the letterpress of which he wrote himself, it was held that he was acting merely as agent for the company, and that as the drawings were made not on his behalf but on behalf of the company he was not the proprietor.[955]

=The Assignee.=--Assignment is required to be by some note or memorandum in writing signed by the proprietor of the copyright or his agent appointed for that purpose in writing.[956] Registration is not necessary to effect assignment,[957] although the assignee must be registered before he can sue.[958]

No particular words are required in an assignment,[959] but there must be a present grant and not only an executory contract.[960]

_Partial Assignment._--It is doubtful whether a copyright can be partially assigned, either limited as to a copying of a particular kind or limited as to place or time.[961] What is called by the parties an assignment may only amount to a licence. In _Lucas_ v. _Cooke_[962] the proprietor of the copyright in a picture granted the following document to an engraver: "I assign to you for the purposes of an engraving of one size the copyright of the picture painted by Mr. E. V. Eddie, entitled "Going to Work," and being a portrait of my daughter." Fry, J., said:

"The result of this instrument in my view was that after the
preparation of the engraving and the registration, Mr. Lucas (the
engraver) became the owner of the copyright of the print or
engraving, and Mr. Halford remained the owner of the copyright of
the painting."

It was held that the engraver, in order to succeed against a copyist, would have to show that the alleged infringement was a copy of his engraving, another copy of the picture itself was no infringement of his rights. The transaction was a licence, and probably a licensee can never sue in his own name. In one case,[963] however, Mathew, J., held that a sole licensee for a limited time could sue, and did not require to be registered. The plaintiff had acquired from the proprietor of the copyright in a picture the sole right to reproduce it in chromo for two years. The defendants also produced a chromo of the picture taken directly from the picture and not from the plaintiff's chromo. Mathew, J., held that the plaintiff, as sole licensee, was entitled to prevent any one infringing his right, and that being a licensee and not an assignee, his name was not required to be on the register. This is a very doubtful decision.