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 Acts825 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 case826 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 case828 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