Chapter LXVIII: Section IV: The Assignee

Before copyright has been secured the common law rights in a manuscript or other unpublished work may be conveyed by parol; no writing or evidence in writing is required.[1469] If a publisher takes a copyright in his own name with the knowledge and acquiescence of the author, the publisher is the lawful owner of the copyright subject to his accounting to the author in terms of the contract between them.[1470] Under the Act of 1831, and until the Revised Statutes, 1874, were passed, it would seem that a manuscript could not be assigned except by writing.[1471] Although the common law exclusive right of first production may pass by parol or delivery, it does not necessarily pass with possession or even with the ownership of the manuscript or other work. An author or other proprietor may sell documents, pictures, or other literary or artistic articles, reserving to himself the right of publication and right to acquire copyright and subsequently multiply copies.[1472] If an author's manuscripts are sold in execution, the purchaser does not acquire the right of publication.

After copyright has been secured the assignment is governed by statute. Section 4955 of the Revised Statutes, 1874, provides that copyrights are assignable in law by any instrument in writing, and such assignment must be recorded in the office of the Librarian of Congress within sixty days after its execution; in default of which it is void as against any subsequent purchaser or mortgagee for a valuable consideration without notice.

It must be considered at least doubtful whether this section affects a question between the parties or between the assignee and one who does not claim through the assignor.[1473] Mr. Drone, in his work on copyright, expresses an opinion that the first part of the section is merely permissive, and intended to show that if the assignment is in writing no formalities are required. I doubt if this is sound. I think that even as between assignor and the assignee the assignment must be in writing; but I think the assignee can, without recording the assignment, sue his assignor or any third person, except those who claim a title through the assignor.

An agreement to assign may be made by parol, and where there was no subsequent assignment in proper form damages could be recovered for breach of the agreement.[1474]

Any alien friend may be an assignee of a copyright in the United States.[1475]

The assignee appears to take with the copyright an assignment of the assignor's choses in action; he has been held entitled to sue in respect of infringements committed prior to assignment.[1476]

An assignment need not necessarily be made by conveying the author's entire right to one person. It may be conveyed to two or more persons in common, or an undivided interest may be conveyed to one or more persons.[1477] We have seen that the statutory right of reproduction is divisible from the right of property in the concrete work.[1478] Thus an author may sell his painting or manuscript and retain the right to multiply copies. Further, the various rights of copyright may be split up as the holder pleases;[1479] one may have the right of printing, another the right of translating, and a third the right of performing. The assignment may also be limited as to a particular country or countries,[1480] the right to perform or print in America may be given to A, and the right to perform or print in Great Britain to B. Probably an assignment cannot be limited to a portion of the United States.[1481] I do not think that a copyright could be assigned for a limited time.[1482]

As a rule a licensee cannot sue in respect of an infringement; but a licensee has been held the proper party to sue when he was an exclusive licensee, and by the terms of his licence was to bring all necessary suits.[1483] Copyright passes by bequest or on intestacy to the executors or administrators of the owner.[1484] On bankruptcy the bankrupt's copyrights may be applied for the benefit of the estate; but it would probably be necessary for the Court to order a transfer in conformity with the requirements of the Copyright Acts.[1485] Probably a bankrupt's manuscripts and other private matter could not be published for the benefit of the estate without the consent of the bankrupt.