subject of copyright by this title, or his executors, administrators, or assigns, shall have copyright for such work under the conditions and for the terms specified in this title.” It is asserted that this grant contains no exception of any kind, and therefore accords the protection of the other provisions of the copyright law to stateless persons.
Defendants, however, assert that the only source of authority for the issuance of copyrights to aliens is found in the remainder of the statute, which continues: “The copyright secured by this title shall extend to the work of an author or proprietor who is a citizen or subject of a foreign State or nation only:” (a) when the alien author is domiciled within the United States at the time of the first publication of his work; or (b) when the foreign state affords reciprocity in the granting of copyright to American citizens. These claims of the parties are mutually exclusive. If the first sentence is a broad grant of authority, the plaintiff’s position is sound; if the only grant of copyright protection to aliens is that of the second sentence, to those who are citizens or subjects of other nations, defendants have their justification for treating this work as in the public domain.
It is well settled that a “proprietor,” not the author, stands in no better status in acquiring a copyright than does the author, and hence the Eher firm could not claim the benefits of the statute if Hitler was not in a position to do so. Bong v. Campbell Art Co., 214 U.S. 236, 29 S.Ct. 628, 53 L.Ed. 979, 16 Ann.Cas. 1126; cf. Copyright Office, Rules and Regulations, 2(2), 17 U.S.C.A. following section 53.
We think, however, that the statute does not deny protection to the literary property of a stateless person. No limitation upon the broad grant of the first sentence is expressed, and there is no reason why one should be read into it. It appears to be a general grant of protection to all authors, with the second sentence excepting a particular class for special treatment. And the history of the legislation tends to confirm this view.
Prior to 1891, copyright privileges in the United States were limited to an author who was “a citizen of the United States or resident therein.” From the time when in 1837 Henry Clay made his report to the United States Senate (reprinted in G. H. Putnam, The Question of Copyright, 2d Ed. 32–39) urging copyright protection to citizens of Great Britain and France, there had been continuous and determined pressure, under the leadership of some of the greatest names in American literature, to secure protection of foreign writings in this country. This was put not merely on grounds of ethics and morality—as in the Rev. Henry Van Dyke’s address on “The National Sin of Piracy”—but on grounds of protection of American authors from the underselling of foreign books. Thus in 1886, a memorial to Congress was presented by 144 American authors in the following terms: “The undersigned American citizens, who earn their living in whole or in part by their pen, and who are put at disadvantage in their own country by the publication of foreign books without payment to the author, so that American books are undersold in the American market, to the detriment of American literature, urge the passage by
such work under the conditions and for the terms specified in this title. The copyright secured by this title shall extend to the work of an author or proprietor who is a citizen or subject of a foreign State or nation only:
“(a) When an alien author or proprietor shall be domiciled within the United States at the time of the first publication of his work; or
“(b) When the foreign State or nation of which such author or proprietor is a citizen or subject grants, either by treaty, convention, agreement, or law, to citizens of the United States the benefit of copyright on substantially the same basis as to its own citizens, or copyright protection, substantially equal to the protection secured to such foreign author under this title or by treaty; or when such foreign State or nation is a party to an international agreement which provides for reciprocity in the granting of copyright, by the terms of which agreement the United States may, at its pleasure, become a party thereto.
“The existence of the reciprocal conditions aforesaid shall be determined by the President of the United States, by proclamation made from time to time, as the purposes of this title may require.” (Act of Mar. 4, 1909, c. 320, § 8, 35 Stat. 1077, 17 U.S.C.A. § 8. An amendment of Dec. 18, 1919, c. 11, 41 Stat. 369, added a proviso allowing the registration of works produced by such foreign citizens during the duration of the World War for a period of fifteen months after the date of the President’s proclamation of peace.)
