Paige v. Banks

Messrs. Clarkson Nott Potter and W. W. Campbell, for the appellants: The intention of the parties, to be collected from the whole agreement, was simply to convey the copyright, though it may be admitted for the sake of argument that the agreement contains provisions sufficient to create a license if the copyright had not been specifically conveyed. Now, this thing called 'copyright' is, so far as the law recognizes it, or so far as it is a matter of practical value and of sale, a creature of statute. A man has no more 'copyright' than what the statute gives him. When this agreement was made Mr. Paige had the exclusive right in himself and in his assigns to print, publish, and sell, at the longest for a term of twenty-eight years; and no greater or additional right. That assuredly is what he meant to sell, and all that he meant to sell. Now a new statute–one not dreamt of by any one in 1828–gives to Mr. Paige subsequently a new and different sort of right. How can it be said that Mr. Paige meant to assign that when he assigned the other? There are no words in his agreement such as 'whatever copyright he may hereafter have granted to him;' by which it might be inferred that he meant to part with more property than he had; an inference not to be made easily in any case. Questions have arisen often in the kindred case of patents, how far a grant of a patent right carried a subsequent extension of it. In Wilson v. Rousseau,4 a covenant by the patentee prior to the patent act of 1836, which authorized extensions, that the covenantee should have the benefit of any improvement in the machinery, or alteration or renewal of the patent, was held not to exclude an extension by an administrator under that act; and this court was not unanimous in holding that an extension passed even in such a case as Railroad Company v. Trimble,5 where a patentee conveyed all the right, title, and interest which he had in the 'same invention,' as secured to him by letters-patent, and also all 'the right, title, and interest which may be secured to him from time to time, the same to be held by the assignee for his own use and for that of his legal representatives, 'to the full end of the term for which said letters are or may be granted.' 2. The copyright act of 1790 gives the right to the author and to his assigns. The act of 1831 which created this new term, gives it specifically to the author if living, to his family if he is dead. Assignees are not mentioned in it, nor provided for. It looks much as if Congress in this case had meant specially to take care of men of literary genius; often as we know not men of business, and, therefore, subject to be hardly dealt with by the trade. A book is rarely much demanded after it has been published twenty-eight years. Some books, the works of men of high genius, are as much so or more than ever. The provision seems specially to have been for the authors of them; and for their families; just as Congress by various acts provides for our soldiers, our occupants of bounty lands, making very liberal provision for them and for their families, but declaring that their vendees shall take nothing. Mr. G. T. Curtis, in his work on Copyright,6 questions whether the author by any assignment could dispose of the contingent interest given by the act of 1831, so as to deprive his widow and children of the right in case of his death. A similar provision in the patent law has been construed by this court against the right.7