[W]hat is called literary property has a character and attributes of its own and ... such a contract
as we are now called upon to consider must be interpreted and the rights of the parties
determined with regard to the special nature of the thing which is the subject of the contract. ...
An ancient manuscript or a papyrus might have by reason of its antiquity or the circumstances
surrounding its discovery some intrinsic monetary value. But what may be the value to the writer
or to the publisher of the manuscript in question here, so long as it is allowed to remain in the
pigeonhole of the latter?The majority of French writers ... held that the obligation to publish is always to be considered
as an implied term in every contract for the purchase of the manuscript of a book. ... It cannot
be denied that, by the appellant’s refusal, the respondent was deprived of the chief consideration
which moved him to write the manuscript, that is, the benefit to his literary reputation resulting
from publication.EXAMPLE 2:The plaintiffs, a British comedy group called Monty Python, produced a
television comedy series for the BBC. The contract between the plaintiffs and
the BBC prevented changes to the plaintiff’s films without their consent. The
BBC through its agent sub-licensed the defendant ABC television network to
show the series on U.S. commercial television. ABC edited the series to
eliminate allegedly offensive material and to make room for television
commercials. The plaintiffs sued ABC for copyright infringement, claiming that
their contract with the BBC prevented unauthorized editing and that the
defendant’s broadcast licence was equally subject to that term. The plaintiffs
also claimed that the defendant’s broadcasting of the edited series
misrepresented the true authorship of the films. The Court granted a pretrial
injunction on both grounds.Gilliam v. American Broadcasting Companies Inc., 538 F.2d 14 (U.S.: Court
of Appeals, 2d Circuit, 1976)JUDGE LUMBARD for the majority of the Court:[T]he editing was substantial, i.e., approximately 27 per cent of the original program was
omitted, and the editing contravened contractual provisions that limited the right to edit Monty
Python material. ...[U]nauthorized editing of the underlying work, if proven, would constitute an infringement of
the copyright in that work similar to any other use of a work that exceeded the license granted
by the proprietor of the copyright.BBC was not entitled to make unilateral changes in the script and was not specifically
empowered to alter the recordings once made; Monty Python, moreover, had reserved to itself
any rights not granted to BBC. Since a grantor may not convey greater rights than it owns, BBC’s
permission to allow ... ABC, to edit appears to have been a nullity. ...If ... ABC honestly determined that the programs were obscene in substantial part, it could have
decided not to broadcast the specials at all, or it could have attempted to reconcile its differences
with appellants. The network could not, however, free from a claim of infringement, broadcast
in a substantially altered form a program incorporating the script over which the group had(^82) retained control. ...