1849.

LEADER

V.

PURDAY.

One main object of the recent statute, was, to prevent questions of this sort from being raised by a mere wrongdoer. When Mr. Bellamy first conceived the notion of adapting the air of "Pestal" to words of his own composing, and of adding an accompaniment, he acquired to himself that which unquestionably might be the subject of copyright, and susceptible of assignment under the 13th section of the 5 & 6 Vict. c. 45. (a) The first question is, whether the plaintiffs succeeded in shewing that this was such a publication as came within the description in the declaration. The objection was, that the whole publication was not the property either of Bellamy or of the plaintiffs. That, the plaintiffs never pretended. All they say, is, that Bellamy had a clear and undoubted right to the words and the accompaniment, which he conveyed to them. Pestal had never been published as a song. Bellamy was the author of the words, and the accompaniment was composed, at his suggestion, and for his benefit, by his friend Horne. Both, therefore, became his property. To justify a claim of copyright, it is not necessary that there should be entire originality in every part of the work: if it were

(a) Which enacts, that, after the passing of this act, it shall be lawful for the proprietor of copyright in any book heretofore published, or in any book hereafter to be published, to make entry in the registry book of the Stationers' Company, of the title of such book, the time of the first publication thereof, the name and place of abode of the publisher thereof, and the name and place of abode of the proprietor of the copyright of the said book, or of any portion of such copyright, in the form in that behalf given in the schedule to this act annexed, upon payment of the sum of 5s. to the officer

of the said company; and that it shall be lawful for every such registered proprietor to assign his interest, or any portion of his interest, therein, by making entry in the said book of registry, of such assignment, and of the name and place of abode of the assignee thereof, in the form given in that behalf in the said schedule, on payment of the like sum; and such assignment, so entered, shall be effectual in law, to all intents and purposes, without being subject to any stamp or duty, and shall be of the same force and effect as if such assignment had been made by deed."

so, there could be no copyright in Pope's Iliad, Dryden's Virgil, Williams's Saunders, Hargrave and Butler's Co. Litt., and many other works similarly circumstanced. In declaring for an infringement of a patent right, where the claim is of a combination only, the declaration never need specify the particular parts of the machine or manufacture of which the plaintiff alleges himself to be the inventor: the plaintiff may claim generally. Besides, under the notice of objections here delivered, it was not open to the defendant to set up the authorship of Horne. In Boosey v. Davidson (a), it was expressly held, that the defendant is bound, in his notice of objections, to state the name of the party whom he alleges to be the proprietor or first publisher, the title of the work, the place where, and the time when the first publication took place. The agreement between Bellamy and Leader, of the 24th of October, 1844, was a mere executory agreement: it did not purport to be, nor did it operate as, an assignment of the copyright. The title of the plaintiffs arises wholly under the deed of the 11th of May, 1847. Copyright cannot be assigned by parol: the recent statute, as well as the 8 Ann. c. 19., evidently contemplate that the assignment must be by deed. [Coltman, J. Would copyright pass, even by deed, independently of the statute?] It is submitted that it

would.

Couch, in support of the rule. The only portions of the publication in question that were new, were, the words and the accompaniment. Assuming Bellamy's title to have been well conveyed to the plaintiffs, that did not justify them in claiming in their declaration the entire work; they should have limited their claim to the words and the accompaniment. The instance put on the other side, of Hargrave & Butler's Coke-upon

1849.

LEADER

v.

PURDAY.

1849.

LEADER

v.

PURDAY.

Littleton, is hardly analogous: in declaring for the piracy of a note of Mr. Hargrave's, the plaintiff certainly would not describe himself as the proprietor of the copyright of Coke-upon-Littleton, which is what the plaintiffs have in effect done here. The other instance of Williams's Saunders is equally inapplicable. [V. Williams, J. The text there was a translation from the old French. (a)] The provision in s. 18. of the 5 & 6 Vict. c. 45. (b), as to encyclopædias and serial

works, shews, that, in this case, there should have been
an assignment from Horne, to make the title perfect.
[Maule, J. The 18th section contemplates the case of
publisher employing an author to write an article for
an encyclopædia or other serial or periodical work, for
a consideration, and not a case like this, where the
suggested task is done through friendship only. This
was never intended to form a portion of a work.] There
was nothing to prevent Horne from giving the accom-
paniment to any one else, or from publishing it himself.
But it is said that the defendant was not at liberty to
urge this objection, because his notice of objections did
not give the name of Horne as the author or proprietor.
The objection, however, arises, not by way of defence,
but upon the plaintiffs' own case. It is a matter that
is exclusively within their knowledge: whereas, the
object of the 13th section of the statute, was, to give the
plaintiff information only of that of which he was igno-
rant. [Maule, J. It does not appear that the plaintiffs
knew any more about Horne than the defendant did.]
The plaintiffs were more likely to be informed as to the
title of the party from whom they took the assignment,
than the defendant was. Besides, their own title-page
stated that the music was "arranged by C. E. Horne."
[Maule, J. The plaintiffs did not provide themselves
with evidence of Horne's title, because the defendant's
notice of objections gave them no intimation that
Horne's title would come in question. If the plaintiffs
had incurred the expense of proving Horne's title, the
defendant would, upon the taxation of costs, have

a separate form, who, by any contract, express or implied, may have reserved, or may hereafter reserve, to himself such right; but every author reserving, retaining, or having, such

copyright in such composition
when published in a separate
form, according to this act,
without prejudice to the right
of such proprietor, projector,
publisher, or conductor, as

1849.

LEADER

v.

PURDAY.

1849.

LEADER

V.

PURDAY.

objected before the master, and with reason, that the expense of that proof ought not, under the circumstances, to be allowed.] The statute never could have intended that the want of a formal notice should prevent the defendant from availing himself of matters appearing upon the plaintiff's case. Then, as to the assignment,-Bellamy having already, by the agreement of the 24th of October, 1844, divested himself of all his interest in the copyright to Leader, there was nothing upon which the assignment of the 11th of May, 1847, could operate. [Coltman, J. Has it not been held that an assignment of copyright must be by deed?] It must, it seems, be in writing-Power v. Walker (a): but, though an intimation of opinion to that effect was thrown out by Tindal, C. J., in De Pinna v. Polhill (b), it has never been distinctly decided that the assignment must be by deed. [Maule, J. Bellamy does not profess to assign the copyright by the agreement of the 24th of October, 1844.] It has repeatedly been held, that an agreement operates as a present demise, even where every line of the document points evidently to the execution of a more perfect and formal contract.

COLTMAN, J. It appears to me that there is no ground for granting a new trial in this case. The first question is, whether the plaintiffs were entitled to claim copyright in the whole "book," a musical composition, consisting of an "air," in which no person claimed copyright, certain words and prefatory matter, of which one Bellamy (under whom the plaintiffs claimed) was the author, and an "accompaniment," which Bellamy procured a friend to compose for him. It is said, that, as the "air" was not the plaintiffs' property, the declaration improperly claimed the whole combination. It appears to me, however, that no difficulty of that (a) 3 M. & S. 7., 4 Campb. 8. (b) 8 C. & P. 78.