DONOGHUE v. ALLIED NEWSPAPERS, LIMITED.

Transcription

1 io6 CHANCERY DIVISION. [1938] FARWELL DONOGHUE v. ALLIED NEWSPAPERS, LIMITED [1936. D. 894.] J y Copyright No copyright in author of an idea Copyright in person who puts idea into form Onus on defendants Copyright Act, 1911 (16-2 Geo. 5, c. 46), s. 6. There is no copyright in an idea. Where a person communicates an idea to an author and the author clothes the idea in the form of an article or articles, the copyright is in the author. Evans v. E. Hulton & Co., Ld. (1924) Macgillivray's Copyright Cases, , 51, followed. Semble : Where articles in a newspaper about A are published under a title indicating that A is the author of the articles and A brings an action for infringement of copyright, the onus of proof that A is not the owner of the copyright is thrown on the defendants under s. 6 of the Copyright Act, WITNESS ACTION. In 1931 the persons responsible for the Sunday newspaper the News of the World, owned by the defendant company, were desirous of publishing a series of articles dealing with the racing career of the plaintiff. They employed a Mr. Felstead, who entered into negotiations with the plaintiff, and on April 4, 1931, the plaintiff signed the following agreement : " I agree to supply the Proprietors of the News of the World "material for approximately 50,000 words relating to my " experience on the Turf and other matters within my knowledge, "for the sum of 2000/. payment to be made as follows : 500J. "on the signing of this contract (receipt of which I hereby " acknowledge) and the remaining 1500Z. when Mr. S. T. Felstead, "acting on behalf of the News of the World, has written up the "material for publication and has it approved by me for use "and delivered the copy to you. In consideration of the "above-mentioned remuneration, I undertake that I will not "in the course of completing this contract supply any material "for publication to any other newspaper firm whatsoever." Following that there were various interviews between the plaintiff and Felstead, at which Felstead made notes, as the conversations went on, of the various matters and material with which the plaintiff supplied him, and he then proceeded

2 1 Ch. CHANCERY DIVISION. 107 to write up the articles required. When an article was in FARWELL type, or in manuscript form, Felstead took it to the plaintiff and read it over to him, and from time to time the plaintiff 1 2$J suggested various alterations, which alterations were written DoN GHUE in by Felstead in the margin, but these alterations were not always adopted in the form in which the articles appeared. There were several articles, and they appeared Sunday after Sunday in the News of the World under the heading " Steve "Donoghue's Racing Secrets"; "Enthralling Stories of the "King of Sports," and the first one, appearing on May 17, 1931, was called " My Greatest Derby." Parts of them were in the form of dialogues, and appeared on the face of them to be records of the actual dialogues that took place between the plaintiff and Felstead. In 1936 Felstead was anxious to make some use of the articles that had appeared in the News of the World. At that time a Mr. Lees was concerned in the publication of a paper known as Guide and Ideas, and Felstead suggested to him that the articles which had been published in the News of the World should be brought up to date and reduced in length. Felstead was paid 300/. and he endeavoured to persuade the plaintiff to consent to the publication of the articles. There was a conflict of evidence as to what then took place, and his Lordship accepted the plaintiff's evidence that Felstead offered him 150Z. or 200Z., but that he, the plaintiff, refused to have anything to do with the matter. In a letter, dated May 20, 1936, and written to Felstead, the proprietors of the News of the World gave their consent to the publication of the new articles. The first article appeared in Guide and Ideas on May 23, 1936, under the heading " My Racing Secrets. By Steve Donoghue." The plaintiff, through his solicitors, complained, and the further publication of the articles was stopped. The plaintiff then commenced this action, in which he asked for damages for infringement of copyright and an injunction to restrain the defendants from printing, publishing, selling or otherwise circulating the articles. Sir Patrick Hastings K,C. and A, A, Gordon Clark for the ALLIED NEWSPAPERS

3 io8 CHANCERY DIVISION. [1938] FARWELL plaintiff. The owner of the copyright in cases like this is the person who originates the story. Here the plaintiff originated 1 2^J all the stories that appeared in the articles published in DONOGHUE F ur ther, the only value of those articles was that they were ALLIED NEWSPAPERS written about the plaintiff, whose name was well known to the public. Fergus Morton K.C. andf. E. Skone James for the defendants. The agreement of April 4, 1931, was an agreement that the copyright in the articles, when published, should belong to the News of the World. The defendants cannot say that the plaintiff was under a contract of service, and s. 5, sub-s. 1 (b), of the Copyright Act, 1911, does not apply, but sub-s. 3 does apply. (1) The articles were not copyright in news supplied by the plaintiff, but in the articles written up by Felstead for the News of the World. They therefore became vested in the News of the World by way of equitable assignment. The sole author was Felstead ; the plaintiff only supplied incidents in his life. Evans v. E. Hulton & Co., Ld. (2) is the nearest case to the present, and the judgment of Tomlin J. applies. The decisions in Springfield v. Thame (3) ; A. & C. Black, Ld. v. Claude Stacey, Ld. (4) ; and Tate v. Fullbrook (5) are to the same effect. Gordon Clark in reply. In all these cases the question of authorship depends entirely on the facts in each particular case. In Evans v. E. Hulton & Co.,Ld. (2) the decision was on the facts of that case. There the author of the idea merely gave the idea to another, who wrote it down and then made it up into an article, and the interest in the article was the subject-matter of the idea. Here the plaintiff supplied all the materials for the articles, and their interest lay in the fact that they were about incidents in the life of the plaintiff, whose name was well (1) Sect. 5, sub-s. 3 : " Where, "Act as the owner of the copy- "under any partial assignment of "right, and the provisions of this "copyright, the assignee becomes "Actshall have effect accordingly." "entitled to any right comprised "in copyright, the assignee as (2) Macgillivray's Copyright "respects the right so assigned, Cases, , 51. "and the assignor as respects the (3) (1903) 89 L. T "rights not assigned, shall be (4) [1929] 1 Ch "treated for the purposes of this (5) [1908] 1 K. B. 821.

4 1 Ch. CHANCERY DIVISION. 109 known to the public. If Dr. Johnson had said to Boswell FARWELL that he wanted his sayings put in book form the copyright could not be said to be in Boswell. 1 22J In the agreement of April 4,1931, the plaintiff only restricted DoN GHUE himself by agreeing not to give material to other newspapers ALLIED,.....,., - T. TTT. NEWSPAPERS during the publication of the articles. The News of the World had no interest in the articles once they were published. FARWELL J. The first question that I have to determine is whether the plaintiff is or is not either the sole or the joint owner of the copyright in the original articles which appeared in the News of the World. If the plaintiff has no copyright, either as sole owner or as joint owner, in these articles, this action necessarily fails, and it will be unnecessary for me to consider the further question which I shall have to consider if that is not the position namely, as to the effect of the agreement of April 4, 1931, and whether that agreement amounts to an equitable assignment of the plaintiff's copyright to the News of the World. It is necessary, in considering whether the plaintiff is the owner or part owner of the copyright in this work, to see in what it is that copyright exists under the Copyright Act of This at any rate is clear beyond all question, that there is no copyright in an idea, or in ideas. A person may have a brilliant idea for a story, or for a picture, or for a play, and one which appears to him to be original; but if he communicates that idea to an author or an artist or a playwright, the production which is the result of the communication of the idea to the author or the artist or the playwright is the copyright of the person who has clothed the idea in form, whether by means of a picture, a play, or a book, and the owner of the idea has no rights in that product. On the other hand, and this I think is equally plain, if an author employs a shorthand writer to take down a story which the author is composing, word for word, in shorthand, and the shorthand writer then transcribes it, and the author has it published, the author is the owner of the copyright and not the shorthand writer. A mere amanuensis does not, by taking

5 no CHANCERY DIVISION. [1938] FARWELL down word for word the language of the author, become in any sense the owner of the copyright. That is the property of ^ the author. DOKOGHUE The expi anat i on 0 f tnat is this, that that in which ALLIED copyright exists is the particular form of language by which the information which is to be conveyed is conveyed. If the idea, however original, is nothing more than an idea, and is not put into any form of words, or any form of expression such as a picture, then there is no such thing as copyright at all. It is not until it is (if I may put it in that way) reduced into writing or into some tangible form that there is any copyright, and the copyright exists in the particular form of language in which, or in the case of a picture the particular form of the picture by which, the information or the idea is conveyed to those who are intended to read it or to look at it. In the present case, the ideas of all these stories, apart altogether from what one may call merely the embellishments which were undoubtedly supplied wholly by Mr. Felstead the ideas of all these stories, and in fact the stories themselves, were supplied by the plaintiff; but in my judgment, upon the evidence it is plain that the particular form of language by which those stories were conveyed was the language of Mr. Felstead and not of the plaintiff. Although many of the stories were told in the form of dialogue, and to some extent Mr. Felstead no doubt tried to reproduce the story as it was told to him by the plaintiff, nevertheless the particular form of language in which those adventures or stories were conveyed to the public was the language of Mr. Felstead and not the language of the plaintiff. One case has been cited to me which is, I think, very near to the present one, and if I were to decide in favour of the plaintiff on this first point I think that I should be disregarding the decision of Tomlin J. in Evans v. E. Hulton & Co., Ld. (i) The facts of that case are not quite on all fours with the present one ; but the principle upon which that judgment rests is the same as that which I have to apply in this case. (i) Macgillivray's Copyright Cases, , 51.

6 1 Cb. CHANCERY DIVISION. Ill In that case the person who supplied the information was FARWELL a foreigner, and no doubt he did not convey the information in a form which would have been suitable for an article in a 1-2? newspaper, and to that extent it may be that the person who 0N GHUE wrote it down and supplied the article had more to do than KT ALLIED r r Mr. Felstead in the present case ; but the principle applicable is the same. What Tomlin J. said was this (i): " One thing "is reasonably plain, I think, that probably Mr. Zeitun would "not himself claim that he was capable of producing in the "English tongue a literary work which would find a market. "He certainly agreed that he has never attempted to do so, and " I should doubt his capacity to do so. The fact that he is the "subject-matter of the production in the sense that it is an "incident from his life, for which he provided the material, "does not seem to me to make him in any sense the joint author "with Mr. Evans of the manuscript which was in fact written, "and, upon the facts which I have stated, I find that he did "not take any part in producing the express matter which is the "original literary work, the subject-matter of copyright." What I understand the learned judge to mean by the " express matter " is that which I have endeavoured to define as the particular form of language in which the information is conveyed, and although it may be that in the present case the plaintiff could give more help to Mr. Felstead than Mr. Zeitun could give in the case of Evans v. E. Hulton & Co., Ld. (2), to the author of the manuscript, nevertheless, although the plaintiff supplied all the substance of the articles, it was conveyed in language which was the language of Mr. Felstead, and for which the plaintiff himself was not responsible. I confess that I come to this conclusion, namely, that the plaintiff has failed to show that he is the owner or part owner of the copyright in these articles, with some regret. The articles in this paper Guide and Ideas were published as being the adventures of Steve Donoghue entitled " My Racing "Secrets. By Steve Donoghue," and no doubt that was so because, both in that case and in the earlier case, the persons (1) Macgillivray's Copyright Cases, , 51, 56. (2) Ibid. 51. NEWSPAPERS

7 112 CHANCERY DIVISION. [1938] FARWEIX who are responsible for the papers desired to lead the public to believe that what they were reading was something of which I 2 Steve Donoghue himself was the author, and I think that so DONOGHUE (j escr ibi n g the articles does have the effect, under s. 6 of ALLIED the Copyright Act, 1911 (1), of throwing the onus on the JN EWS PAPERS defendants. But notwithstanding that, it appears to me that I am forced to come to the conclusion although as I say, rather unwillingly that the plaintiff was not the author, or even the joint author, of the articles in the News of the World. If that be so, it must necessarily follow that he cannot maintain this action. It is unnecessary, in the view that I take of the matter, to deal with the question whether the agreement of April 4,1931, operated as an equitable assignment or not; but, as this case may go further, I should say this, that on the question of fact whether Mr. Donoghue ever agreed or consented to the publication of the second series of articles, on the evidence that I have heard, having seen the witnesses in the witnessbox and heard them cross-examined, my view is that the account given by the plaintiff is the right one, and that he never did consent, and if his consent was necessary, it never was obtained. That is not, of course, material upon the view that I take of this matter, and upon the short ground that the plaintiff is not the owner or the joint owner of the copyright in the articles in question, the action is dismissed with costs. Solicitors for plaintiff: W. H. Court & Son. Solicitors for defendants: Theodore Goddard & Co. (1) Sect. 6, sub-s. 3 : "In any "question is in issue, then "action for infringement of copy- "(a) if a name purporting to "right in any work, the work shall "be that of the author of the "be presumed to be a work in "work is printed or otherwise "which copyright subsists and the "indicated thereon in the usual "plaintiff shall be presumed to be "manner, the person whose '' the owner of the copyright, unless '' name is so printed or indicated "the defendant puts in issue the "shall, unless the contrary is "existence of the copyright, or, as "proved, be presumed to be the "the case may be, the title of the "author of the work ; " "plaintiff, and where any such P. J. B.