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SCENARIO WRITER
207
any reservation as to publication, could tender back the advance royalties, where the publisher failed to publish the work, and compel a re-assignment of the same. In that case, however, the author, under the contract, was to receive his remuneration in royalties based only upon the actual retail sale of the work, and this was an element that carried great weight with the court in arriving at its conclusion.
The bench was divided, three to two, and Judge Anglin in an elaborate dissenting opinion expressed the sounder doctrine that, unless the contract especially so provided, the publisher was under no obligation to risk his money in producing the work; and while it is true that an author sells his work with an eye to the enhancement of his reputation and fame which publication would bring about, he ought to expressly contract for the publication of it, if he thinks enough of himself and his work.4
It would follow that where a scenario writer sells his scenario to the motion picture producer, the latter is
4 Morang & Co. v. Le Sueur (1911), 45 Canadian Sup. Ct. 95. See excerpt from dissenting opinion quoted in Section 28.
See in this connection: Fechter v. Montgomery (Eng.) (1863), 33 Beav. 22, where an actor was engaged for a specified period, the performances of the artist to commence several weeks after the making of the contract. When the time for the performance of the contract arrived, the manager refused to give the de
fendant a part in any play, but paid him the stipulated salary. The defendant becoming tired of his inactivity obtained employment at a rival theatre. In an action for an injunction plaintiff was defeated, the court holding that one of the objects of the contract was to enable the defendant to appear in public; that the actor was paid not in terms of money alone but in opportunity to appear in public, and to acquire reputation and fame.