§ 539. Assignment of Copyright. - Copyrights are made assignable in law by any instrument in writing; but the assignment, unless recorded in the office of the Librarian of Congress within sixty days after its execution, is void against any subsequent purchaser or mortgagee for a valuable consideration without notice. It is not uncommon for contracts to be made between author and publisher which may amount to an assignment of copyright, or a license to publish, according to circumstances; and publishers in these days frequently take out the copyright in their own names, a course especially proper in the case of magazines which they, and not the editor or contributors, own.2 § 540. Infringement of Copyright; Remedies, etc. The remedies for the infringement of copyright are not unlike those in the case of patents; and the injured party may proceed either by bill in equity and obtain an injunction, or by action at common law for damages. The general jurisdiction of controversies arising under the copyright laws belongs to the courts of the United States; and the rules of pleading, of proceedings on appeal, of damages for infringement (whether the infringement relates to a book, map, engraving, dramatic composition, manuscript, or any other subject of literary copyright), and of limitations, are affected largely by statute provisions. The right of action for infringing copyright, as well as the copyright itself and the means of securing redress, are only those prescribed by Congress.4 before publication complies with statute. The three requirements are discussed in Belford v. Scribner, 144 U. S. 488; Callaghan v. Myers, 128 U. S. 617. 1 Act July 8, 1870, § 89; U. S. Rev. Stats. § 4955. 2 See Bright. Fed. Dig. "Copyright," 4; Little v. Hall, 18 How. 165. 3 Act July 8, 1870, §§ 98-108; U. S. Rev. Stats. (1878) §§ 49644971; Bright. supra, 5, 6; Abb. Nat. Dig. "Copyright," 5. The unauthorized printer and the publisher of a copyrighted book are equally liable for an infringement; and both may be required to account for the profits of the unauthorized publication. 144 U. S. 488. 4 Thompson v. Hubbard, 131 U. S. 123. As to damages, see 124 U. S. 612; 144 U. S. 488. Where portions only are copied, but so intermingled with the rest of the work as not to be distinguishable, the entire profits may be recovered in a suit. 144 U. S. 488. For the effect of non-assertion of copyright, see Paige v. Banks, 13 Wall. 608. § 541. English and Foreign Patent and Copyright Laws. — We have dwelt, in this chapter, more particularly upon the American law of patents and copyrights, because this system is sui generis, and not fairly to be compared with that of England and other countries whose statutes are so different from our own. English patent law is founded upon an old "statute of monopolies ; " ours draws its inspiration rather from the constitutional policy of promoting the progress of science and useful arts; and there are some nations, such as Holland and Switzerland, whose legislators deem it better to dispense with patent rights altogether. Our copyright laws are frequently criticised as imperfect, inasmuch as they permit of piracy in foreign works; and doubtless an international, copyright system, which would fairly secure to authors the just fruits of their toil the world over, is desirable, and may yet be partially reared.1 1 Supra, § 519. 2 See Whitman Pat. Laws, pt. ii., passim. 8 Aliens and non-residents of the United States were not formerly protected under our copyright laws. U. S. Rev. Stats. § 4971. But see new international copyright mentioned in next note. For English law of patents and copyrights, see Kerr on Injunctions, cs. 19, 20; Wms. Pers. Prop. pt. iii. c. 2; Fisher's Dig. "Patents," &c. Trademark protective legislation is held unconstitutional as concerns the United States, and not within the purview of the Federal constitution. Trademark Cases, 100 U. S. 82. Labels simply intended to designate articles cannot be copyrighted. 140 U. S. 428. As to design patents, see Gorham Co. v. White, 14 Wall. 511. The English statute, 8 Anne, c. 19, § 1, gave a copyright in books then printed for twenty-one years, and to authors and their assignees the exclusive copyright for fourteen years; and by § 9, after the expiration of the fourteen years, another similar period if the author was living. This 4 Since the text was written an CHAPTER XI. ANNUITIES, PENSIONS, AND INSURANCE POLICIES. § 542. Annuities; their Nature and Incidents.-I. That species of incorporeal chattel which is known as the "personal annuity" plays rather an important part in English property law; though in America it seems to have attained very little consequence in comparison. Personal annuities are annual or periodical payments of money not charged on real estate, and such payments to a beneficiary are expressed sometimes for years though usually for life. An annuity in general may be charged only upon real estate, or only upon personal; or it may be charged generally upon one's whole estate, real and personal combined. Annuities are sometimes limited to the heirs" or "heirs of the body" of the grantee, in which latter case they descend on his dying intestate, just like real estate. But, for all this, a personal annuity is personal property; and it will pass by a person's will under the bequest of all his personal estate; while if it be given to one for ever, the executor and not the heir of the grantee takes it. Questions regarding annuities generally arise thus under the construction of wills; and where an annuity is given by will without direction as to the time of its commencement, the rule is that it commences at the testator's death.2 Blackstone, while classifying annuities under the international copyright system with Europe has (1895) been secured. See Act March 3, 1891, c. 565; and proclamations of same year. On the subject of Patents, see latest edition of the text-book of Mr. George T. Curtis; or W. C. Robinson's later and more extensive work (1895). See also Merwin on the Patentability of Inventions; Bump's Law of Patents, Copyrights, &c. The recent treatises of Curtis and Drone on copyright deserve mention; also the English work of Copinger; and Morgan's Law of Literature. 1 See Wms. Pers. Prop. 5th Eng. ed. 180-182; Co. Lit. 144 b; Earl of Stafford v. Buckley, 2 Ves. Sen. 171; Taylor v. Martindale, 12 Sim. 158. 2 Craig v. Craig, 3 Barb. Ch. 76; Wiggin v. Swett, 6 Met. 194; Hilyard's Estate, 5 W. & S. 30. head of incorporeal hereditaments, has distinguished them from "rent charges;" a rent charge, as he says, being a burden imposed upon and issuing out of lands, whereas an annuity is a yearly sum chargeable only upon the person of the grantor. At the present day, and in this country, some life insurance companies issue life annuities as a branch of their business; and such annuities are found convenient to bestow in various other instances.2 An annuity payment is to be distinguished from interest for a debt; since the latter accrues from day to day, notwithstanding a contract for payment at fixed periods; whereas an annuity is payable at regular consecutive periods, whether of greater or less extent than a year.3 At the common law, therefore, there could be no apportionment of an annuity where the life dropped off in the middle of a period; and the rule is that an annuity is not apportionable.5 But as regards annuities, as well as rents, wages, and salaries, the old rule has greatly relaxed; and the right of an apportionment is at the present day sometimes given by statute, and sometimes may be inferred from the nature of the contract.6 The rule itself, moreover, as construed in courts of equity, does not apply to dower or sums for the maintenance of a wife or child; while even an annuity to a widow "in lieu and full satisfaction of all dower" is within the exception, and runs to the last day of her life, although it was payable quarterly and the widow died in the middle of a quarter.7 § 543. The Same Subject. - English writers and the English courts have also much to say of bank annuities," or stock in the public funds. Mr. Williams says that soon after the revolution of 1688 a portion of the public debt was funded or transferred into "perpetual annuities;" and he 12 Bl. Com. 40, 41. 2 Annuities have been part of our national policy in dealing with Indian tribes. 148 U. S. 691. 5 Heizer v. Heizer, 71 Ind. 526. 6 See 3 Kent Com. 471, n.; St. 4 Wm. IV. c. 22. Right to apportion income cannot be prejudiced by changes 32 Bl. Com. 41, notes by Chitty in the character of the investment. and others. 42 Bl. Com. 43, n.; 1 Salk. 65; supra, § 145. 11 Phila. 134. 7 Hay v. Palmer, 2 P. Wms. 501; Blight v. Blight, 51 Penn. St. 420. further speaks of the "consolidated bank annuities," in which one has a right to receive a certain percentage.1 But the periodical payments on all loans of this character which may be issued by our government are regarded in the light of interest on a loan, and not as annuities at all.2 Annuities given by will are to be regarded as legacies, in the absence of some special reason for treating them otherwise; and as to their abatement, the same general rule is mainly applicable as to other legacies. But it is sometimes a matter of question whether an annuity is payable out of the capital or income of an estate.3 § 543 a. Pensions, Salaries, Wages, etc. - A species of property similar to the annuity is the pension; though the term "pension" is most commonly applied to a stated and certain allowance of the annuity character, which government grants to an individual, or those who represent him, for valuable services performed for the country. In England civil, as well as military, pensions are granted in a variety of cases, agreeably to custom or statute; to judges, political incumbents, and various public servants upon their retirement, as well as to soldiers and sailors and their dependents, from highest to the lowest grade; so that one's public service and salary become fortified by the usual consideration of half-pay or provision for one's family when active service shall end.5 We have a later tendency, somewhat in the same direction, so far as judicial allowances are concerned; but civil pensions or halfpay have always been deemed foreign to American and popular institutions where public office is held rather by popular favor than as the vested right of individuals. But so far as 1 Wms. Pers. Prop. 5th Eng. ed. 181, 182. See Baker v. Farmer, L. R. 3 Ch. 537. 2 Supra, § 478. 8 2 Redf. Wills, 2d ed. 451, n., and cases cited; Perry Trusts, § 566; Croly v. Weld, 3 De G., M. & G. 993; Bates v. Barry, 125 Mass. 83. Where an annuity is bequeathed payable out of the income of the estate, and the income fails, the principal cannot be resorted to. Delaney v. Van Aulen, 84 N. Y. 16. 4 Bouvier Law Dict. "Pension." 5 To superannuation allowances in various municipal and miscellaneous instances, and even in private individual relations of employment, the word "pension" is popularly applied, especially in England. See 24 Q. B. D. 371. |