LAW AN ADVERTISING MAN

SHOULD KNOW

LAWS THAT APPLY IN VARIOUS CASES

IDEAS

1. When Protected.-The advertising man deals in ideas more than in any other commodity. It is well, therefore, to know at the outset that mere ideas (unless reduced to a tangible form, as an advertisement or a drawing, which in some cases can be protected by copyright) cannot be protected unless certain precautions are taken in submitting them. One should make quite certain, when possible, that his idea has not been in the mind of some other person before submitting it, and then submit it only under circumstances which show a willingness on that person's part to pay for it on acceptance.

2. An essential element of ownership is dominion, the right to use and control, and this dominion is lacking when the idea cannot be put into effect without the action of another person.

An illustrative case grew out of the submission to Thomas F. Ryan, the capitalist, of a plan for the consolidation of certain white-lead interests. His informant had procured options, and opened negotiations for the purchase of those interests which would require several million dollars, and agreed to contribute thereto, if necessary, as much as $200,000, if Ryan would join him in the effort and contribute enough properly to promote the enterprise. Ryan expressed a willingness to help. him, provided a consideration of the plan and an examination

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of the option contracts by his attorneys and experts confirmed his judgment; which they did. Nevertheless, independently of the author of the idea, Ryan organized a company and through it secured control of the interests in question, with the result that he made immense profits in which the other person was given no share.

Being bound by nothing more substantial than an agreement to make an agreement, which is unenforceable, Ryan was freed of any liability by the courts.

In another case a solicitor confidentially disclosed to an executive head of a big company a system of soliciting life insurance devised by him; but could not recover.

3. Shortcoming of a "Gentlemen's Agreement.” A "gentlemen's agreement" is usually almost as valueless as no agreement, when it comes to protecting an idea, for, being verbal, it lacks tangible proof of its existence.

4. Modification of an Idea.-Where an idea is submitted voluntarily, and a modification of the idea is necessary before it can be put into full effect, a request from the person to whom the idea is submitted that the creator of the idea assist in making the modification creates an obligation on the part of the one making the request to pay for the idea as modified, and the service becomes an indivisible one, to be paid for as though a contract were made in the beginning for all the service involved.

5. Measure of Compensation When None is Specified. Where no definite price is agreed upon, the measure of value is what the idea is reasonably worth. In case of litigation that amount is one for the determination of the jury.

UNPUBLISHED MANUSCRIPT

6. A Limitation on Publicity Work.-Publicity work must be limited to the right of others in unpublished copy"unpublished manuscript," as it is called. This right carries with it the exclusive right of printing or of otherwise multiplying unpublished copy-the right to publish it first. It pro

tects the artist, the writer, and the advertising agent from a misappropriation by the advertiser of plans and copy submitted to him or brought to his notice.

The right in unpublished manuscript exists independently of copyright, though the term copyright is sometimes erroneously applied to it.

7. No Regard for Trailers.-Notwithstanding there can be no monoply in a mere idea, or in a mere plan or arrangement of copy, the law has no regard for trailers or imitators, and will not allow them to invade the right in unpublished manuscript by colorable alterations and variations to disguise the stolen work.

8.

Circulation and Use of Manuscript May Be Limited. The right in unpublished manuscript is absolute, and if an author chooses to show a work to others, he may prescribe reasonable limitations upon the extent of its circulation and use.

9. Declaration of Ownership.-Some advertisement writers, advertising agencies, and artists have a form which is stamped on advertisements and drawings, reading:

This "copy" submitted at the request of (the name of customer) is our (or my) property. It is being considered for use upon the understanding that it is not to be reproduced or displayed in any publicly accessible room or window until an agreement is completed with us (or me).

These notices frequently bear serial numbers, which are recorded in a book, and often bear a date as well as the name and address of the owner of the copy.

10. Showing Proofs of Cuts.-Proofs of syndicate cuts are sometimes shown on colored stock or on an uncolored stock so perforated as to make reproduction difficult, conditions which often in crease regard for the plates or matrices to be sold

As a buyer of ideas, the advertising man should, of course, respect another's rights.

11. Testimonial Letters.-Testimonial letters must be used with the greatest care, for it is a misdemeanor in some

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states to use another person's name for business purposes without his written consent. The author of a letter has a right to control its publication and recover damages where rights are not respected. A person cannot legally be forced to allow his letter to be used.

12. Photographer's Control Over Negatives.-The right of control over unpublished material enables a photographer to keep his negatives, and to refuse to make a print except on his own terms, short of a definite understanding.

13. Publication by Permission.-Should a letter or photograph be published by permission, then the writer or photographer, as the case may be, loses his control over it, unless it is protected by copyright.

14. Not Subject to Claim of Creditors.-Because of the author's right in unpublished manuscript, such manuscript cannot be seized and sold on execution. On this point it is held that "a man may write without any intention to publish. There is no law which can compel an author (or artist) to publish. No one else can determine this essential matter of publication. His manuscripts, however valuable, cannot without his consent, be seized by his creditors as property."

15. Mere Failure to Publish Does Not Alter Right in Unpublished Manuscript.-Mere failure to publish, even for a long time, in no way alters the right in unpublished manuscript, even though during such time the manuscript remains in the hands of a third person. Southey, for instance, did not lose his right in an unpublished manuscript by letting it remain 23 years in the possession of a bookseller. So, too, the personal representative of Lord Clarendon, the historian, had a right, nearly 100 years after Lord Clarendon's death, to prevent the representative of a person to whom Lord Clarendon had loaned unpublished manuscripts from publishing them. 16. Division of Rights.-Elbert Hubbard used to say that to be used efficiently a book should be adapted to a lecture,

then to an article, and then to an advertisement. Rights in unpublished manuscript are divisible as to each of these, and the right of publication in any one can be sold, and rights reserved in any or all of the rest.

17. Assignments May Be Oral or Written, Absolute or Conditional.—The right in unpublished manuscript, like any other personal property, is assignable. An assignment may be oral or in writing, absolute or conditional. Thus, there may be an assignment of a writing or illustration without an assignment of the right to publish, but such an intention must be clearly expressed.

18. Employer's Rights in Manuscript of Employe. An employer may acquire title to all the rights which exist in the intellectual efforts of an employe, provided they were contemplated by the contract of employment.

19. Forfeiture of Rights by Publication Without Copyright. By publishing copies thereof, the author or proprietor of a booklet or other intellectual production, not copyrighted, dedicates such matter to the public, and any person may thereafter use it for his own benefit. In seeking to determine whether one has thus lost his right in unpublished manuscript, it is important to consider what constitutes a publication.

20. What Constitutes Publication.-Printing alone does not amount to a publication, for the reason that a book may be withheld from the public long after it has been printed. To permit a copy of a manuscript to be made, or to give another a copy thereof, does not in itself constitute a publication, and no one can multiply such copies, nor make any other use of the work, without the consent of the author or proprietor.

The reading or display of an unpublished manuscript before a limited audience is not a publication. Thus, where at a meeting of a dental association an original essay was read, and afterwards handed with other essays to a representative of a magazine of dental literature, but was not published, and a