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NATURE OF THE CONTRACT OF CO-AUTHORSHIP 45
co-author has granted a license and the licensee has breached his contract, the licensor may maintain his action against his licensee without joining the licensor’s co-authors.
One co-author may maintain an action against his coauthors for infringements of the common property.59
Section 10. — Nature of the contract of co-authorship.
Contracts between co-authors, and contracts between the manager or publisher and the co-authors for the crea
right. See also: Stevens v. Wildy (Eng.) (1850), 19 L. J. Ch. 190.
In Tree v. Bowkett (Eng.) (1896), 77 L. T. 77, the question is discussed whether a licensee must be made a party to an action brought against an infringer by the co-authors.
59 Herring v. Gas Consumers’ Assoc. (1878), 3 McCrary C. C. 206. The question here presented was whether a joint author of a patent could infringe upon the patent owned jointly without being liable to his co-owner for the wrong done. The court held that he could not. The court says: “Can a part owner infringe the common patent and escape all liability? If he can it is obvious that, however small his aliquot part, he can make the enjoyment of the patent value
less to his joint owner. He has, by virtue of the joint ownership, a right to use the patent, but he has no right, more than a stranger, to infringe the same. If there is an infringement the right of recovery is in the party wronged. All the joint owners should ordinarily be parties plaintiff, but if the wrongdoer is one who is guilty to the damage of the other joint owner, the other should not be left remediless. As to such infringement they are strangers. . . . Were this not so, the door would be open to the gravest frauds by one joint owner against all other joint owners. See also: Pitts v. Hall (1854), 3 Blatchf. 201, at page 208.
Cescinsky v. Routledge (Eng.) (1916), 85 L. J. K. B. 1504; 115 L. T. 191.