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I. COPYRIGHT: CASES AND MATERIALS
On the other hand, ... 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 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.
The explanation of that is this, that that in which 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 ...
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. ...
[T]he plaintiff was not the author, or even the joint author, of the articles in the News of the
Wo r l d. If that be so, it must necessarily follow that he cannot maintain this action.
NOTES:
- Fixation:In the United Kingdom, this decision may be affected today by the
new fixation requirements of the present Copyright, Designs and Patents Act
1988 (U.K.). Section 3(1) of that Act provides that a “’literary work’ means any
work, other than a dramatic or musical work, which is written, spoken or sung.”
Section 3(2) provides that copyright does not subsist in the work “unless and
until it is recorded, in writing or otherwise”. Section (3) provides that “it is
immaterial for the purposes of subsection (2) whether the work is recorded by
or with the permission of the author; and where it is not recorded by the author,
nothing in that subsection affects the question whether copyright subsists in the
record as distinct from the work recorded.”
These provisions suggest that an oral speech may be a literary work, although
no copyright arises until it is recorded; but if it is so recorded, even by another,
the maker of the speech will be considered its author and may have a copyright
in the recorded form. Whether the person recording also has a copyright, solely
or jointly, may depend on the form of the record, i.e., whether it is written or is
automatically recorded on tape or disk.
- Joint authors: The idea/expression dichotomy becomes important in
deciding whether collaborators on a single work are entitled to share in the
work’s copyright. If they have each contributed “expression”, then each counts
as an “author”; if one has merely contributed “ideas”, he does not count as
either a sole or joint author of the work: see Ray v. Classic FM plc [1998]
F.S.R. 622 (U.K.: High Court), where the court said:
