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32
THE LAW OF MOTION PICTURES
the writer belonged absolutely to the employer, the contract of employment being silent in whom the literary property was to vest.39
Where an author is engaged by a motion picture producer at a weekly, monthly, or yearly salary and the author agrees to furnish literary work as required by the producer, the relationship of master and servant is created, and the literary property belongs absolutely to the producer unless by express contract the parties thereto have agreed to the contrary.40 Even where the author receives in addition to the fixed compensation a share of the profits the rule is the same.41 The same is true as well
right, they cannot sue for an infringement of it.”
39 Colliery Engineer Co. v. United Correspondence Schools Co. (1899), 94 Fed. (C. C.) 152. “Itseems equally clear that under his contract, which made it Ewald’s duty while a salaried employe of complainant, inter alia, to compile, prepare and revise the instruction and question papers, the literary product of such work became the property of the complainant, which it was entitled to copyright, and which, when copyrighted Ewald would have no more right than any stranger to copy or reproduce.” See also : Schumacher v. Schwencke (1885), 25 Fed. (C. C.) 466; Frowde v. Parish (Can.) (1896), 27 Ont. 526; Nisbet v. Golf Agency
(Eng.) (1907), 23 T. L. R. 370; Chantrey, Chantrey & Co. v. Dey (Eng.) (1912), 28 T. L. R. 499.
40 Bleistein v. Donaldson Lith. Co. (1903), 188 U. S. 239; 23 Sup. Ct. 298. Holmes, J.: “There was evidence warranting the inference that the designs belonged to the plaintiffs, they having been produced by persons employed and paid by the plaintiffs in their establishment to make those very things. Gill v. United States (1896), 160 U. S. 426; 16 Sup. Ct. 322; Colliery Engineer Co. v. United Corresp. Schools Co. (1899), 94 Fed. (C. C.) 152; Carte v. Evans (1886), 27 Fed. (C. C.) 861.”
41 Mallory v. Mackaye (1898), 86 Fed. (C. C.) 122.