neer. If ordinary plans are refused, where shall the line be drawn? Will the amount of text accompanying the drawing be the test, or the character of the book, or its form, the covers, the title page, or the binding? Will the method of reproduction, whether from a printing-press or a blue-print frame, enter into the case? An unprinted book, which existed only in the manuscript, has been held the subject of copyright.' Finally, will it matter if the book consist of one sheet or several? It has been held not, for a book may be on one sheet."

There is no just reason why an architect or engineer should not be protected by copyright as well as an artist. His property rights are certainly as well defined, and in view of other things copyrighted, it is difficult to see how it could be denied. The selfishness of the public and the fact that the progress and growth of our country may demand that the industrial and practical be not made exclusive, might be a remote reason why it should not be given the same protection; but this argument would apply as well to maps and charts, and to patentable inventions.

Under the United States copyright act of 1831, a photograph was not a subject of copyright,' but a later statute grants copyright protection to photographs and to the negatives thereof, and such an act has been held not unconstitutional."

A photographer has no right to make copies of a customer's photograph without his permission, and it may be doubted if he can copyright it. A private individual may enjoin the publication of his portrait when a public character cannot, unless the photograph has been secured by some violation. of confidence or breach of agreement. A person who is one of the foremost linventors of his time has been held a public character. The power of the World's Columbian Exposition to grant an exclusive privilege to make stereopticon views of objects within the exposition, and to sell such views, has been held a matter of grave doubt."

819. Rights of an Author, Inventor, or Designer when in the Employ of Another. In sympathy with and close connection to this subject of the ownership of designs and artistic features created by an architect or engi neer are his rights to plans, improvements, and inventions made by him while an employee. If in his contract of employment it is agreed or understood or may be reasonably implied that the production of his every effort, mental as well as physical, should be the property of his employer, that his designs, improvements, and inventions, and all other incorporeal creations should belong to his employer, then there can be no question but that the em

1 Roberts v. Myers, 23 Law Rep. 396; but see Jewelers' Merc. Agcy. v. Jewelers' W. Pub. Co., 32 N. Y. Supp. 41.

2 Drone on Copyright 142.

3 Wood v. Abbott, 5 Blatchf. (U. S.) 325. 4 Sarony v. Burrow Giles Lith. Co., 17 Fed. Rep. 591; Schreiber v. Thornton, 17

Fed. Rep. 693; see cases of copyrighted photograph cited in Springer Lith. Co. v. Falk (C. C. A.), 59 Fed Rep. 707.

5 Corliss v. E. W. Walker Co. (C. C.), 64 Fed Rep. 280.

Kilburn v. Ingersol (C. C.), 67 Fed, Rep. 46.

ployer could rightfully claim them; but if no such agreement has been made or can be implied, then the employee is entitled to the uses and benefits of his creations. Such an agreement has been held not against public policy."

Architects are usually employed for their ability to design and create features of utility and decoration, and it is submitted that their contract of employment would generally include the right to the use, at least, of any features of design, decoration, or arrangement that they might create; but it would not include any new method of construction, or a new material, or a new process for the manufacture of it.

It has been held that if a company employ a chemist to work with its materials as a chemical expert, in order to develop new products and processes for its benefit, it acquires no right to the chemist's discoveries made during such employment, but only a license to use them;' but if an employee invents flavoring compounds with materials supplied by the firm, and it is the intention of all the parties that the processes by which the compounds are prepared shall belong to the firm, and be trade secrets, the firm becomes the owner of the processes, though no assignment thereof is made by the inventor to the firm. If the employee has entered the receipts and processes in a book of his own he is entitled to keep it, though it seems the employer is entitled to a copy. A color-mixer in a carpet manufactory, without the knowledge of his employers, who has entered the receipts in his own instead of his employers' color-books, and, on the employee's discharge, his employers, believing the books their own, refused to let the employee take them away, it was held that the jury should be instructed, in an action by the employee for the detention, that the value of the receipts could not be considered in estimating the damages, and that, in considering violence in the detention as an element of damages, they must consider the negligent conduct of the employee, and that his employers were led thereby to believe that he was carrying away their own books. The employer has a right to the continued use, in his own business, of recipes for mixing colors, prepared by an employee whose duties require him to prepare mixtures of colors which will reproduce the shades indicated by designs submitted to him, and to enter the receipes in a book furnished for that purpose, and which are necessary for the immediate manufacture of the carpet designed, and its subsequent reproduction. The employer has recovered such receipt-books in trover from the employee."

An owner of a process or invention for manufacturing an article, which was kept secret from all but confidential employees, may restrain former

1 Cases collected in 4 Amer. & Eng. Ency. Law 178; Smith's Master and Servant 166-7, and English cases cited; see Pape v. Lathrop (Ind.). 46 N. E. Rep. 154 [1897]. Hulse v. Machine Co. (C. C. A.), 65 Fed. Rep. 864.

Clark v. Fernoline Chem. Co., 5 N. Y.

Supp. 190.

4 Baldwin v. Von Micheroux (Sup), 25 N. Y. Supp. 857; accord Dempsey v. Dobson (Pa.), 34 Atl. Rep. 459.

5 Dempsey v. Dobson (Pa. Sup.), 34 Atl. Rep. 459.

Makepeace v. Jackson, 4 Taunt. 770.

employees from disclosing, or using in a rival establishment, their knowledge thereof, acquired while occupying such confidential relation; and it is immaterial that there was no written contract between them, or that at the commencement of the employment the employees were minors, and performed comparatively unimportant duties.'

The mere fact of the employment does not give the title to a manuscript to the publisher. Whether one who is paid to write an article for a periodical, magazine, or cyclopedia can have copyright in the article so as to prevent the publisher from using it in book form or otherwise than for what it was written, depends also upon the agreement between the parties expressed or implied.'

820. Things Made or Created Outside of Office Hours.-What an employee writes or prepares outside of office hours or independently of the duties for which he is employed and paid, belongs to himself individually.' A contract to give one's whole time, as a draughtsman to the interests of his employer, an architect, has been held not to be broken by doing a little work on holidays and at night for other parties, and, it may be added, for himself, so long as such work does not result in damage to the employer.*

821. Creations Made from Materials Collected while in Another's Service.—A draughtsman or engraver in the government employ can have no copyright in a chart prepared for the government; and it was so held of an artist that accompanied a government expedition. An assistant in an engineer's office who executes and completes a map in conformity with the general design furnished by his employer, who made rough sketches and supplied newspaper maps, official reports, etc., can have no copyright in the map.'

If the changes and improvements in a map are material, it is a new map, and must be copyrighted before it is published, in order to protect it from piracy."

822. New Creation Made from Materials Collected by Others. It seems that in making a map an engineer may take advantage of all prior publica tions, but he must not make a mere copy nor a servile imitation. He must bestow mental labor upon what he takes from other maps and charts, and subject it to such revision and correction as to produce an original result. He should not deny the use made of preceding works and the changes must be material, and not merely colorable. Whether the changes are merely

colorable, and the new work a mere servile imitation is a question for the jury in each case.' The change of a plain map to a mercator projection has been held not a servile imitation, but an original work. But the publication of a map at a smaller scale than the original was held a piracy." A chart of township boundaries is a subject for copyright.'

The natural objects from which a chart is made, being open to the examination of all, a copyright cannot subsist as to the general subject. A right in such a subject is violated only when copies are made from the chart of him who has secured the copyright, and thereby avails himself of his labor and skill. The results of the labor of a draughtsman while in the scrvice of the commonwealth, working at her cost, belong to the commonwealth, and the publication of a map made from materials collected while in such service will be restrained by injunction. A tradesman who employs another for pay, to complete a book of monumental designs for him is entitled to copyright in the book. The employee cannot publish designs copied from it.'

823. Employees Right to His Inventions.-Mechanical, civil and electrical engineers, chemists and mechanics, are inventors by trade. Poverty frequently requires them to accept employment under masters, less capable and less deserving, who profit from their labors and often appropriate the fruit of their inventive genius, sometimes rightfully, and frequently without any legal right whatever. In the absence of an express agreement that the inventions and improvements made by the employee shall belong to the employer, the latter can claim no rights to such inventions of the employee."

Under Rev. St. § 4929, which authorized the issuance of a design patent to any person who, "by his own industry, genius, efforts, and expense, has invented," etc., the use of the word "expense" is not limited to mere disbursement of money, and does not prevent the granting of a patent to one who invents a design while in the employ of another, especially where it does not appear that any "expense" was necessary in producing the design. It does not matter that the improvements are in machines with which he is connected in his service. The employer has no right to inventions made by the employee after his term of employment has expired." If an engineer has been hired expressly to invent, an equitable title to his inventions will

9

1 Copinger on Copyright (1st ed.), 90; Sayre v. Moore. 1 East 361.

3 Amer. & Eng. Ency. Law 139–140. 3 Farmer v. Calvert, etc., Co., 5 Am. L. T. Rep. 174.

Blunt v. Patten, 2 Paine 397 [1828]; Sanborn Map & Pub. Co. v. Dakin Pub. Co., 39 Fed. Rep. 266.

5 Commonwealth v. Desilver, 3 Philadelphia 31 [1858].

Grace v. Newman, L. R. 19 Eq. Cas. 623 [1875].

7 Smith's Master and Servant (4th ed.), 164: Hapgood v. Hewitt, 119 U. S. 226; Gill v. United States, 16 Sup. Ct. Rep. 322;

McWilliams Mfg. Co. v. Blundell, 11 Fed. Rep. 419; Niagara Radiator Co. v. Meyers (Sup.), 40 N. Y. Supp. 572; Green v. Willard Barrel Co., 1 Mo. App. 202; but see some early English cases; Bloxam v. Elsee, 1 C. & P. 558, before service began; Hill v. Thompson, 8 Taunton 395; Makepeace v. Jackson, 4 Taunton 770, color-printers' book of receipts recovered by employer in trover from employee.

8 Matthews Mfg. Co. v. Trenton Lamp Co. (C. C.), 73 Fed. Rep. 212.

322.

10

Gill v. United States, 16 Sup. Ct. Rep.

Appleton v. Bacon, 2 Black (U. S.) 699.

vest in his employer;' and an employee may make an assignment of inven tions that are yet in embryo in his mind, or even make a general sale of the Inventive power of his mind."

Of course nice questions arise when an engineer is working with or under the eye of his employer, who may constantly make suggestions, frivolous and worthless perhaps, but which, when related in court, may be made to embody the whole invention and the engineer to appear as a subordinate under the direction and supervision of a natural born genius, the employer. There have been employers who have honestly won the name of inventor, and when it is proved, they are the more deserving of the glory and reward, having made the invention without the aid of the technical training which every engineer is supposed to have had. Such cases are the exception in these days.

When it is proved that the employer has made a new discovery and has hired engineers and agents to assist him in carrying out that principle, and they, in the course of the experiments arising from that employment, have made valuable discoveries accessory to the main principle, and tending to carry it out in a better manner, such improvements are the property of the inventor of the original principle, and may be embodied in his patent.'

824. What is Invention, and Who is the Inventor ?" Invention is the work of the brain and not of the hands. If the conception be practically complete, the artisan who gives it reflex and embodiment in a machine is no more the inventor than the tools with which he works. Both are instruments in the hands of him who set them in motion, and prescribes the work to be done. Mere mechanical skill can never rise to the sphere of invention. The latter involves higher thought, and involves and brings into activity a different faculty. Their domains are distinct. The line which separates them is sometimes difficult to trace; nevertheless, in the eye of the law, it always subsists. The mechanic may greatly aid the inventor, but he cannot usurp his place. As long as the root of the original conception remains in its completeness, the outgrowth, whatever shape it may take, belongs to him with whom the conception originated." So where an employer had drawn a design of an engine in the sand, and directed an employee or assistant to prepare the drawings and the engine was built, it was held that the one who drew the original design in the sand was the inventor. To claim the invention the employee must discover the principle of the machine or invent the important movements of it."

The law has been very clearly laid down by Mr. Justice Clifford in the following words: "Tersons employed, as much as employers, are entitled to their own independent inventions; but where the employer has conceived

Continental Wind Mill Co. v. Empire Wind Mill Co., 8 Blatchf. (U. S.) 295; Joliet Mfg. Co. v. Dice, 109 Ill. 649.

Cases in 18 Amer. & Eng. Ency. Law 135; Hulse v. Bonsack Mach, Co. (C. C A ), 65 Fed. Rep. 864.

3 Per Earle, J., Allen v. Rawson, 1 C. B. 567 [1845].

Blandy v. Griffith, 3 Fish. 615 [1869] 5 Bloxam . Elsee, 1 Car. & P. 567; Allen v. Rawson, 1 Man, G. & S. 551.