Page:Copyright, Its History And Its Law (1912).djvu/474

 442

COPYRIGHT

Implied obligations

Contract personal and mutual

against an author who had sold to other publishers modifications of an arithmetical series of which the copyright had been sold to the plaintiffs, in Wooster V. Crane in the U. S. Circuit Court of Appeals, in 1906. In Brooke v. Chitty, however, in 1831, Lord Brougham declined to restrain Chitty from writing a certain book, on the ground that the court could not act until there was actual printing and publication. The publisher, vice versa, cannot be restrained from publishing a rival work, even though it competes di- rectly with a work already published or contracted for, unless that is distinctly forbidden in the contract with the first author.

If a publisher prints without special agreement a manuscript submitted for approval, the courts will enforce reasonable payment; and in 1893, in Mac- donald v. National Review, in an English county court, it was held that printer's proof sent by the publisher to the author, implied acceptance for pub- lication. That the publisher may be held responsible for loss of a manuscript by the negligence of his employees, was held in Stone v. Long, in the King's Bench Division, by Master Chitty in 1903. An implied obligation to publish an accepted work was recognized in the Canadian case of Le Sueur v. Morang, where the Canadian Supreme Court afifirmed in 1 91 1 the decision that if a publisher withholds from publication a work of which he had bought the copyright " outright," the author might claim the work on return of the purchase money.

The contract between author and publisher is of a personal nature and therefore not assignable, in the absence of specific provision, except with consent of the other party. As it is with a particular author that a publisher contracts for a book, so an author con- tracts with a publisher of his choice and cannot be