Fraser v. Yack

JENKINS, Circuit Judge (after stating the facts as above). The office of all construction and interpretation of contracts is to ascertain the intention of the parties, and the meaning of the words they have used,—their real design as disclosed by the whole contract. For that purpose we may resort to surrounding circumstances and the condition of the parties at the time, not to ascertain what they may have secretly intended, but to resolve doubtful expressions and to ascertain the true meaning of the agreement. And this is to be judged, not from any separate provision or disconnected expression in the writing, but taking it in its entirety. It is insisted for the appellant that the right acquired by Lovell to the manuscript of “The Little Minister,” so far at least as concerns the United States of America and Canada, was that of proprietor, and that therefore he had under the law the right of copyright. At the date of this contract, May 8, 1890, copyright was not authorized in this country in favor of foreign authors (Rev. St. § 4952); nor, as it would seem, could a foreign author assign or transfer to a citizen his manuscript or common-law right of property therein, so that the latter could have copyright protection within the United • States. Yuengling v. Schile (C. C.) 12 Fed. 97, 102-107. The international' copyright law granting copyright to foreign authors was passed March 3, 1891, and went into effect July 1, 1891. 26 Stat. 1106-1110, c. 565. It thus appears that the contract in question was entered into nearly ten months prior to the passage of this law. At its date Mr. Barrie had no right to acquire copyright within the United States, and could grant no such right. Nor could an assignee of his manuscript and common-law right therein acquire such copyright. It is therefore manifest that it was not, and could not have been, within the contemplation of the contracting parties to grant or to acquire a right to that which did not exist and was not the subject of a.grant. Unless, therefore, by the agreement in question Lovell became the owner and the proprietor of the manuscript, to the exclusion of Mr. Barrie’s right therein, and could avail himself, with respect to that work, of the privilege conferred by subsequent legislation, lie has no right to copyright of the work. The parties at the execution of the contract were thus circumstanced: Mr. Barrie was engaged in writing a novel for serial publication in an English magazine, to be therein published monthly, commencing with the January number, 1891. By the agreement, Mr. Barrie granted and assigned to Mr. Lovell “the sole and exclusive right to publish from advance sheets, in the United States and dominion of Canada,” the work to be published serially in the English magazine during the year 1891, and agreed to deliver to Lovell'a complete copy of the work, “either in the form of advance sheets or MS., at least two calendar months prior to the serial completion of such work in England.” In considération thereof, Lovell agreed to pay “for the sole and exclusive tuse of advance sheets .of the said novel in the United States and the dominion of Canada” £20 upon its publication in America. It may be doubted whether the contract contemplated the serial publication of the work in America, as it provides for the delivery of the advance 288 sheets or manuscript at least two calendar months prior to the serial ■completion of the work in England; and we are not informed by the bill concerning the fact of serial publication here, so that we can judge of the practical construction placed upon the contract by the parties. If Mr. Barrie was not bound to furnish any advance sheets or any portion of the manuscript until two months prior to the completion of the serial publication in England, then it is clear that as to the parts published in England before the filing of copies of the book with the librarian of congress, namely, the first 38 chapters, there was no possible right of copyright under the international copyright law. Holmes v. Hurst, 174 U. S. 82, 19 Sup. Ct. 606, 43 L. Ed. 904; Same v. Donohue (C. C.) 77 Fed. 179. The story contained 45 chapters, and was -completed in England in the December number of the magazine, and .all but seven chapters were published in England prior to the deposit of the book in the office of the librarian of congress. At the most, therefore, copyright could only comprehend the last seven chapters of the •work. Bearing in mind that, upon publication in England of the work •or parts of the work, there could be no copyright in the United States under the international copyright law- of the parts thus published, and -that at the time of the contract there was no international copyright law, the meaning of the contract would seem to be clear. Mr. Barrie -could only secure any sum for publication of the work in America by granting the use of his manuscript in advance of its publication in England, for any American publisher could after such publication issue it here without liability to Mr. Barrie or to Mr. Lovell. It could be reproduced with impunity. An American publisher could only be first upon the market here by publishing it simultaneously with or in advance of its publication in England, and that could only be accomplished by ■obtaining advance sheets of the manuscript before the appearance of ■the story or any of its parts in the English magazine. It is clear to us that the purpose of the contract was to accomplish this simultaneous publication. Mr. Barrie did not sell his manuscript, or dispose of hi's -common-law right thereto. He merely agreed to furnish advance sheets, and gave to Lovell the exclusive right to publish them either simultaneously with, or within a short time before, the completion of ■the serial publication in England. Lovell agreed to pay £20, not for -the work, not to become proprietor of the work, but “for the sole and -exclusive use of the advance sheets” of the novel in the United States. This is a mere license to Lovell, giving him the advantage of the use -of advance sheets. That use, it is true, was to be exclusive; that is to say, Mr. Barrie agreed on his part that he would not furnish advance •sheets to another. Lovell only acquired a qualified interest. He did •not become the absolute owner. One of the qualities of absolute ownership in a work is that-the author has the right to withhold it •from publication if he so desire. Lovell could not do that. Under this contract he was bound to publish it, for the consideration expressed in the contract was not payable until publication. This construction of the instrument is fortified also by the amount of the con-sideration. As the author had no right of copyright, and as upon publication in England any one had right to publish it in America, the .author could receive nothing for the work published here, except 'such 289 as he might be able to obtain by allowing its publication here simultaneously with or in advance of its publication in England. That accounts for the trifling consideration in the contract, and speaks the intent of the parties. It is inconceivable that a distinguished author would have disposed of proprietorship in his manuscript for so inconsiderable a sum. We are of opinion that the contract conferred no rights of proprietorship in the manuscript, but only the right of publication coincidently with or in advance of the publication of the work in England. The decree is affirmed.