UC-NRLF 125 ,CUTH, LIBRARY UNIVERSITY OF CAJ3KJBNBA 3GUQOL THE LAI OF ARTISTIC COPYRIGHT. A HANDY BOOK FOR THE USE OF ARTISTS, PUBLISHERS AND PHOTOGRAPHERS. WITH EXPLANATORY DIALOGUES, MARTIN ROUTH, M Of the Inner Temple, Barrister-at-Laio. REMINGTON AND CO., NEW BOND STREET, W. 1881. [All Rights Reserved.] To HEYWOOD HARDY, ESQ., At whose suggestion a practical explanation of the working of the Copyright Statutes, in relation to works of art was attempted, this book is affectionately inscribed by the AUTHOR. April, 1 88 1. 967 CONTENTS. INTRODUCTION ... ... ... ... pp. i 3 CHAPTER I. THE COMMON LAW RIGHT OF THE AUTHOR. Copyright defined and distinguished from the Author's Com- mon Law right Publication What amounts to publica- tion, and its effect No copyright in immoral or libellous works ... ... ... ... pp. 5, 9 CHAPTER II. DIALOGUE. Necessity of written agreement, in order to create copyright Property in copyright distinct from property in work of art Copyright in engravings, etchings, &c., how secured Registration of copyright in paintings, drawings, and photographs Effect of registration Assignment of copy- right and registration of assignment Copyright valuable to Artist as a veto on bad reproduction Effect of death of owner What is protected by copyright in engravings, &c. Chief forms of piracy and existing remedies ... pp. 10 26 CHAPTER III. DIALOGUE ON COMMISSIONED WORK. Commissioned work defined "Original work" No reason for distinction between commissioned and other work, except in cases of portraits Discussion on present law and pro- posed amendments Decorative designs for houses Written agreement necessary to vest copyright in com- missioned work in artist Agreement to paint a picture to be in writing under the Statute of Frauds Artist bound to deliver work within a reasonable time Sale of studies and sketches Woodcuts, &c., published in art periodical Copyright in Christmas cards, valentines, &c., how secured ... ... ... ... ... pp. 27 34 CONTENTS. CHAPTER IV. DIALOGUE ON PHOTOGRAPHY. Law of copyright in photographs Copyright in single portrait, what is an " original " photograph Copyright in groups Copyright cannot be assigned without a written agreement Property in negative Piracy ... ... pp. 35 41 CHAPTER V. COPYRIGHT IN ENGRAVINGS, ETCHINGS, AND LITHOGRAPHS. The Hogarth Acts Provisions of Acts to be strictly carried out Engravings forming part of a book or combined with letterpress Copyright in illustrated newspapers Assignment of copyright in engravings ... ... pp. 42 47 CHAPTER VI. PIRACY OF ENGRAVINGS, ETCHINGS, AND LITHOGRAPHS. Extent and nature of protection Engravings may be in- fringed by photography No monopoly in general in the subject of an engraving Penalties The summary remedy Remedy by injunction ... ... ... pp. 48 55 CHAPTER VII. COPYRIGHT IN PAINTINGS, DRAWINGS, AND PHOTOGRAPHS. No copyright until 1862 Summary of the provisions of the Fine Arts Act Practical result of section i Written agreement Effect of death or bankruptcy of proprietor of copyright Assignment of copyright in paintings Regis- tration, how made, and its effect ... ... pp. 56 64 CHAPTER VIII. PIRACY OF PAINTINGS, DRAWINGS, AND PHOTOGRAPHS. Chief forms of piracy Summary of provisions of Fine Arts Act as to piracy Penalties What amounts to piracy Remedy suggested by report of Royal Commission, 1878 pp. 65 69 CONTENTS. Ill CHAPTER IX. COPYRIGHT IN SCULPTURE, BUSTS, MODELS, &C. Who may acquire copyright, and in what works Conditions to be complied with Assignment and registration Piracy and penalties No copyright in architecture Architectural designs protected as drawings under the. Fine Arts Act, 1862 pp. 70 74 CHAPTER X. INTERNATIONAL COPYRIGHT. International copyright conventions No convention with America Deplorable results France Colonial copyright Canada ... ... ... ... pp. 75 78 CHAPTER XI. THE STATUTE OF FRAUDS. Provisions of the Act Practical directions Time for com- pletion of contract to execute work of art ... ... pp. 79 80 APPENDIX. 1. Statutes ... ... ... ... pp. 81 101 2. Forms ... ... ... ... ... pp. 102 113 3. Report of Law Amendment Society ... ... pp. 114 121 4. Copyright Bill of 1881 ... ... ... pp. 122 147 IV CONTENTS. TABLE OF CASES 'CITED. Alvanzo v. Mudie (10 Exchequer Rep., 203) ... 75 Beal ex parts (3 Law Rep., Queen's Bench, 387) ... 63 Bogue v. Houlston (5 De-Gex and Smale, 267) ... 45 Bonner v. Field (cited in 5 Term Rep., 44) ... 47 Bradbury v. Hotten (42 Law Journal Rep., Exchequer) ... 46 Brooke v. Milliken (3 Term Rep., 509) ... 54 Chappell v. Purday (i i Meescn and Wellsby Rep.) ... 64 Cox v. Land and Water Company (Law Rep., 9 Equity, 324) .. 46 De Berenger v. Wheble (2 Starkie, 540) ... 56 Dicks v. Brooks (Law Reports, 15 Chancery Division, 22) ... 50 Dubost v. Beresford (2 Campbell's Rep., 511) ... 9 Gambart v. Ball (14 Common Bench, New Series, 306) ... 48 Graves' Case (Law Rep., 4 Queen's Bench, 723) ... 37 Graves v. Ashford (Law Rep., 2 Common Pleas, 410) ... 44 Graves v. Mercer (16 Weekly Reporter, 790) ... 53 Jefferys v. Boosey (4 House of Lords Cases, 920) ... 12 Lee v. Griffin (30 Law Journal Rep., Queen's Bench, 254) ... 79 Lucas v. Cooke (Law Rep., 13 Chancery Division, 873) 60- Mayall v. Higby (i Hurlstone and Coltman, 148) ... 6 Moore v. Clarke (9 Meeson and Wellsby, 692) ... 53 Murray v. Heath (i Barn well and Adolphus, 804) ... 52 Prince Albert v. Strange (18 Law Journal Rep., Chancery, 120) ... 6 R. v. Closs (27 Law Journal Rep., Magistrate's Cases, 54) ... 6t) Rock v. Lazarus (Law Reports, 15 Equity, 104) 4; Sayre v. Moore (i East's Rep., 361 note) ... 52 Stockdale v. Onwhyn (5 Barnwell and Cresswell, 173) ... 9 Thompson v. Symonds (5 Term Rep. 41) ... 21 Turner v. Robinson (10 Irish Chancery Rep., 510) ... 8 \Vest v. Francis (5 Barnwell and Alderson, 737) ... 68 INTRODUCTION. IT is not the object of this little work to enter into a lengthy discussion on the respective rights of the public .and of the artist in a property which is exclusively the rcreation of the genius of the latter. The purpose is rather to try and explain the compromise between them by which they are at present bound, and which is known as Artistic Copyright. Artists are unanimous in thinking that in the making of this compromise they have been hardly treated by the Legislature. " Copyright/' they complain, v " should be ours until we part with it/' The answer of the Copyright Commissioners is as follows: "The evi- dence shows that persons buying pictures do not in general .think about the copyright, but that if the subject happens to be mentioned they are generally under the impression that the copyright is included in the purchase,- and are astonished if they are told that it is not. It is said that owing to this fact an artist, however eminent, when he is selling a picture, shrinks from mentioning the copyright ,and asking for an agreement to enable him to retain it ; he usually prefers that the copyright should be lost to both parties, as in the absence of any written agreement it would be, than that the purchaser should think that he is losing a valuable part of his bargain, and consequently should decline to complete the purchase. The principal reason why artists wish to retain the copyright is to keep .control over the engraver and photographer. To artists this control is a matter of considerable pecuniary value, B 2 INTRODUCTION. but they urge that they not only wish to control engraving in order to get the payment from the engraver,* but chiefly to prevent inferior engraving, which they consider preju- dicial to their reputation. It is admitted that if a picture is sold the artist would have no power to get it engraved when it is in the possession of the purchaser except by his consent, and artists are willing that this should continue to be the case ; but if this power of preventing engraving is so valuable, it is not easy to see why they should hesitate to explain the law to the purchaser, and offer to let him have the copyright, if he will preserve the picture from in- ferior engraving, rather than let the copyright be lost both to aitist and purchaser." They then recommend an altera- tion in the law to the effect that in the absence of a written agreement to the contrary the copyright in a picture should belong to the purchaser, and follow the ownership of the picture. With due respect and deference to the opinion of the majority of the Commissioners, I cannot adopt either their argument or their conclusion. There is something in natural justice which lells us that if a man elaborates from his brain a work of art, he has, by an inherent right, acquired a property in it. This property, which is the right of reproduction of the design as distinct from the original work, has now become a recognised and legalised property, and one which is often of more value than the original itself. To which of two persons should this second pro- perty in all justice belong ? to the purchaser of the work, which is nothing more than a single copy or expression of the design or abstract conception in the artist's mind, and which he can reproduce at will, or to the artist, whose genius has created the design ? At present the law is that it belongs to neither without the intervention of a written, agreement vesting it in one of them. That this state of things is a blot in our law, which must be remedied in any future legislation on the subject, is conceded by every one.. The only question which remains is whether copyright is * It may be supposed that the Commissioners meant " publisher." INTRODUCTION. . 3 to vest in the artist or the purchaser. It is submitted that as both properties owe their existence to the artist, they ought to remain his until he parts with them. Yet the Commissioners recommend that in parting with the one he should dispossess himself of the other, chiefly on the ground, it would seem, that a purchaser does not think about copyright at all, or, if the subject is called to his attention, is astonished that it does not belong to him ! The purchaser here alluded to is, of course, the unprofes- sional purchaser. The dealer and the publisher, who know what copyright is, and who are, under ordinary circum- stances, the only persons, other than the artist, to whom it is of the slightest pecuniary value, are willing that it should remain with the artist. This is proved by the evidence brought before the Royal Commission. One more observation on the Commissioners' report of 1878. They ask why the artist should hesitate to explain the law as it stands to a purchaser. This pre- supposes a knowledge of the law which the artist does not possess. To assist him to master the law suffi- ciently to give such an explanation to an intending pur- chaser, and to protect his own interests, some dialogues have been written, which it is hoped will be found to con- tain answers to most of the questions likely to arise in practice. In conclusion, the Author has availed himself of portions of the digest of the copyright law made for the Royal Commission by one of its members, Mr. Justice Stephen then Sir James Stephen, Q.C. whose masterly clearness in expounding the intricate statutes recommends itself to lawyers and the public alike. The Author's thanks are also due to Mr. Basil Field, of the firm of Field, Roscoe, and Co., Solicitors, whose zralous services in the cause of the artists are well known, and to Mr. J. W. Comyns Carr, for the practical hints which they have given him, and for the interest which they have shown in his work. Temple, May, 1881. THE LAW OF ARTISTIC COPYRIGHT. CHAPTER I. OF THE RIGHT OF THE OWNER AT COMMON LAW. COPYRIGHT, in its strictly legal sense, of which it is the object of this work to treat, is the sole and exclusive right of multiplying copies of an original work after it has been published ; and the word, thus defined, must not be con- founded with the other loose sense in which it is often used viz., the right of the owner to publish in part, or wholly, or to prevent others from publishing, a work, or copies of a work, not yet published. An artist who paints a picture has an undoubted and undisputed right to the canvas upon which the picture has been painted. He may, if he is so minded, withhold it absolutely from the view of others, or may proceed against any person who has surreptitiously copied it; he has also a right to any copies of the picture he may make, either by engraving, etching, or by any other process, for himself or for private circulation amongst his friends. He may lend the picture to others, and annex any condition he pleases to the loan ; the fulfilment of those conditions he may pro- ceed to enforce, and for their breach he may claim compen- sation. If he sells his picture the purchaser has the same right. But when once the picture has been published this right, this Common Law right of his, is gone,* and unless * Jeffreys and Boosey, 4 H. & C. 920. O THE LAW OF ARTISTIC COPYRIGHT. he has secured copyright by statute or copyright after pub- lication, in substitution of the old right, the picture becomes the property of the nation, so far as the right to reproduce the design is concerned a prey to the base crowd of imitators ever on the watch to make money out of the work of others. Copyright after publication is thus the creature of statute, and must, therefore, be secured by the means laid down by the particular statutes relating to the various works of art. The publication of a work of art for a special and limited purpose, upon any contract or upon a trust expressed or implied, does not authorise the person to whom such thing is published to copy or reproduce it, except to the extent and for the purpose for which it has been lent or entrusted to him. If an artist lends his painting to a photographer to make one or two copies from the negative for the artist's own use, the photographer can never make any other use of the nega- tive,* and this quite apart from thequestion of copyright law. The rights of owners of unpublished works are well defined by the case of Prince Albert v. Strange. f It appeared from the Bill that Her Majesty the Queen and the plaintiff had occasionally, for their amusement, made drawings and etchings, principally of subjects of private and domestic interest, of which etchings they had made impressions for their own use, and not for publication. A very few of these impressions had been distributed among the friends of Her Majesty and the plaintiff. For greater privacy, these impressions had, for the most part, been made by means of a private press, and the plates themselves had been ordinarily kept by Her Majesty under lock. Certain of the plates were, however, given to a printer in order that he might print off some impressions for Her Majesty. The printer employed one Middleton, who, without the printer's knowledge, and in violation of the confidence * Mayall v. Higby, i H. & C. 148. t 1 8 L.J. N.S.Ch, 120. i Mac. & Gor. 25. THE RIGHT OF THE OWNER AT COMMON LAW. 7 reposed in him, took impressions for himself, and one of the defendants bought, or in some manner obtained them, from Middleton. The defendants had thereby been enabled to form, and had formed, a gallery of etchings of which they intended to make a public, exhibition against the will of Her Majesty and the plaintiff. The defendants had also compiled a catalogue of the etchings to be con- tained in the gallery. An injunction having been granted to restrain both the exhibition and the publication of the catalogue, upon an application to dissolve the injunction so far as related to the catalogue, Lord Chancellor Cottenham said: "The right of the plaintiff to an injunction restraining the defen- dant from exhibiting, copying, or in any manner publishing or parting with or disposing of any of the etchings in question is perfectly clear The property in an author or composer of any work, whether of literature, art, or science, such work being unpublished and kept for his own use or pleasure, cannot be disputed; and it being admitted that the defendant could not publish a copy, that is an impression, of the etchings, how in principle does a catalogue list or description differ ? A copy or impression of the etchings could only be a means of communicating knowledge and information of the original, and does not a list and description do the same ? The means are dif- ferent, but the object and effect are similar, for in both the object and effect is to make known to the public, more or less, the unpublished works and compositions of the author which he is entitled to keep wholly for his private use and pleasure, and to withhold altogether, or so far as he may please, from the knowledge of others." Where copyright-after-publication has been lost through non-compliance with the statute, or where copy- right has not been registered before the piracy complained of, it will be material to discover whether or not the work has been published, for if so, the owner of the work has, as before stated, no right of veto on its reproduction. It is difficult to say what amounts to a publication of a 8 THE LAW OF ARTISTIC COPYRIGHT. work of art, and the question in most cases must be- answered with reference to the exact history of the work. It has already been shown by Prince Albert's case,, that the publication of a work for private purposes and private circulation, or the gift of a limited number of copies to friends, is not a publication, Neither does the exhibition of a picture for the purpose of obtaining subscribers to an engraving of it amount to a publication, for it would defeat the very object for which the picture was exhibited.* The sale of a picture is not a publication of it. The publication of a wood engraving of a painting in a maga- zine, with an article describing the painting, is not a pub- lication, of the painting, for to constitute a publication there must be publication of the thing itself, and not of a copy ; so the publication of a bust is not the publication of the statue from which the bust is taken.* The exhibition of a work of art at a public exhibition or gallery is a publication, unless there are express rules and regulations of the exhibition prohibiting copying. Thus, a painting exhibited in the National Gallery, where there are no rules to prevent copying, is a published painting. On one occasion a publisher wished to prevent Turner's "Temeraire " (in the National Gallery) from being copied, but he was told that the Trustees knew of no restriction whatever, and that if he had any peculiar rights he would have to establish them in a court of law. This took place before the existence of copyright after publication in a painting viz., prior to the passing of the Fine Arts Act of 1862. Of course if a publisher had secured copyright in a painting now on view in the Gal- lery he would be able to restrain any copying or reproduc- tion of it. It is believed to be the fact that the Trustees now refuse permission to copy any paintings or Qther works of art in which copyright exists. The exhibition of a painting or other work of art in the Royal Academy does not amount to a publication, the * Turner v. Robinson, 10 Ir. Ch. Rep., 510. THE RIGHT OF THE OWNER AT COMMON LAW. 9 rules of the exhibition being so framed as to prohibit copying even by the artist himself. Permission was re- fused to Mr. Cruikshank, who desired to copy one of his- own pictures, and also to E. M. Ward, R.A., to have a copy made of his " Marie Antoinette" during exhibition. Copyright cannot exist in immoral, irreligious, seditious, or libellous works of art, of whatever description they may be; and if a person were to destroy such a picture, print, or engraving he would be liable for nothing more than the damage done to the paper or canvas on which it was depicted."* * Dubost v. Beresford, 2 Camp. 511. Stockdale v. Onwhyn, 5 B. & C. 173- IO THE LAW OF ARTISTIC COPYRIGHT. CHAPTER II. DIALOGUE. Let the reader imagine an artist's studio, in which there is a painting in oil for sale. The following conversation may be supposed to take place between A., the artist, and B., an intending purchaser : B. : What is the price of that picture ? A. : . B. : I will buy it. A. : I reserve the copyright. B. : But that goes with the picture,, does it not? A. : Only in the case of commissioned work, which this is not. The Act* says that if there is no written .agreement signed by the purchaser vesting the copyright in the artist, or by the artist, or by his agent authorised in writing, vesting the copyright in the purchaser, at the time of the first sale, and before the transaction is completed, the copyright falls to the ground, and is irredeemably lost. In such a case any one who obtains access to the picture could pirate it in any way he pleased. I, therefore, must request you to sign this document (Form i f), which will vest the copyright in me, before I deliver you the picture. B. : But I do not care for half a picture; I want the whole thing or nothing at all. Not that I have any parti- cular use for the copyright myself, but I don't want any interference on the part of any one in my property. A. : What you appear to want is a picture and a half; but you forget that the copyright is a distinctive and valuable property, recognised by the law, which at present belongs to me. Yet you express no desire to buy it as such. At * 25 & 26 Vic., c. 68, s. i. t See Appendix. DIALOGUE. I I the same time, you refuse to comply with a form which will enable me to retain what ought to he, and is, my own. Such a property ought surely to be secured to one of us, and not be thrown to the winds. It is the old story over again, and you are no exception to the general run of un- professional buyers. They invariably raise difficulties the moment the subject of copyright is mentioned, insomuch that a young painter, who dare not jeopardise a sale, pre- fers to let drop the copyright altogether and trust to no harm coming of it, while the man of eminence in his pro- fession sells to dealers who will sign (Form i), and the purchaser buys the picture without the copyright from the dealer at an enhanced price.* B. : I understand very little about the question, I admit; t>ut I cannot Ret rid of the idea that you are withholding something. A. : I am withholding nothing, as I hope presently to convince you. Look at that picture ; the forms I use are old enough and universal enough, in all conscience. Then I take certain colours ; those colours are colours open to all. It is the particular grouping of the forms and the particular arrangement of the colours which create the individuality of that picture, and distinguish it from all other pictures. In other words, the design is a property which the law says is mine, that property being the right to prevent the public from depriving me of the profits I may derive from the exclusive reproduction of my work. B. : But how can you separate this property from the picture ? It must go with it. A. : Not so. The notion that nothing is property which cannot be ear-marked and recovered in detinue or trover may be true in an early stage of society, when pro- perty is in its simple form, and the remedies for violation of it also simple; but it is not true in a more civilised state, when the relations of life, and interests arising therefrom become complicated. In other matters the law has been .adapted to the progress of society, according to justice and * Evidence of Basil Field, Esq., before Copyright Commission, 1878. 12 THE LAW OF ARTISTIC COPYRIGHT. convenience, and by analogy it should be the same with artistic works ; and they would become property, with all its incidents, on the most elementary principles of securing to industry its fruits and to capital its profits. It is just, not only to the artist, but useful to the community.* JB. : Well, I admit the existence of two properties, but I say that, having bought the one, I ought to have the other. A. : My contention is that, having created the two pro- perties, which the law recognises as distinct, I ought not to be deprived of one because I sell the other. I cannot compel you to sign my form, except by declining to sell, but I think you are morally bound to do so. In reality, my retention of copyright is a protection to you. E. : In what way ? A. : I have here the original oil sketch which I made for the picture you wish to buy, and for which I have been offered ^100. I have also, as you see, upon my easel a highly finished study of the same design in water colour. If no agreement is made between us, the purchasers of these will be able to reproduce them in any form they please. It is, therefore, to your interest, as well as to mine, that a definite arrangement should exist. B. : Very well ; I ask you to sign an agreement to give me the copyright (Form 2f). A. : Then in that case I shall be obliged to charge a higher price for the sacrifice, for I shall be obliged to destroy my original sketch and the water colour study, although they were both absolutely necessary to me in order to enable me to complete the painting of your picture. B. : But the value of my picture would be increased, would it not, by the exhibition of your water colour study, and by the sale of your original sketch ? A. : Undoubtedly. In a sale at Christie's I have knowrt JVlr. Woods say, "The study for this work was sold in. * Sir Wm. Ele, in Jefferys v. Boosey, 4 H. L. C. 867. f See Appendix. DIALOGUE. 13 this room for ," in order to enhance the value of the more important work. But you will not get this advan- tage unless you give me the copyright in the original picture. What is good for me and good for you, will, unless you comply with my request, lead to evil for us both. B. : I don't understand. A. : If I have the copyright, I can sell these original sketches, and also other small studies which I have madefor the picture, without the right of reproduction. But if no agreement is made between us, the owner of the original sketch in oil, or of the water colour study, or of any of those small studies, will be able to reproduce his purchase, as I pointed out before, in any way in which he likes. B. : Then we come back to the same point. I would again suggest that you should assign the copyright to me. A. : Then I must ask you to buy all three pictures and the copyright of the original. B. : But I don't want three pictures of the same class. A. : Just now you said you did not want half a picture; but there is no alternative. The only way out of the diffi- culty is to let me reserve the copyright. B. : But without any agreement being signed I could surely keep the picture and publish engravings of it myself ? A. : Certainly. But you might want to sell the picture or to publish it; in which case some one else could at once publish a similar engraving, or cheap and bad copies, thus injuring the sale and value of your property. Besides, there will be the study and the original sketch unpro- tected. B. : But I complain of the latter; you have no right to sell those. A. : I was obliged to make the study of the design, and the original sketch; they cost me both more time and more actual brain-work, in order to complete them, than your picture. Am I to be deprived of all reward for this -work, which was rendered necessary in order to create what you buy ? You must either pay for this work, or your 14 THE LAW OF ARTISTIC COPYRIGHT. complaints are wholly without foundation. In selling them to others I relieve you from paying me the sum which I realise by their sale. The exhibition of them enhances the value of your property, yet you refuse to give me the copy- right in the latter, although one effect of your so doing would be to protect your engravings should you wish to issue them. B. : Assuming that you have the copyright, what is to protect me from further replicas by you ? A. : I am not at all likely to make any ; my reputation would suffer, like the reputation of the few artists of eminence who have done such things. This, however, is a pure matter of business; so, putting all question of honour and moral duty aside, I would give you an under- taking concurrently with your signing (Form i), binding myself not to issue a replica of the same size, material, or scheme of colour. B. : Well, to return to the engraving of which we were speaking. I should have a separate copyright in that, should I not ? and if so, the issue of a second engraving would be an infringement of that copyright. A. : You would have a copyright in your engraving provided that the name of the proprietor and the date of the first pullication were truly engraved on each plate, and were printed on every impression ;* but if you parted with your picture, or published it, you could. not prevent any person from going to the original picture and making there- from a similar engraving, so long as he did not make use of any of the work on your plate. Practically, however, the only pirate of an engraving is the photographer, owing to the difficulty there is in proving any other copy to be mechanically exact. B. : But why should I not register the copyright in this painting directly I have it delivered to me ? A. : You could register the copyright, it is true; but so could I, for that matter, or, in fact, any one else, for they make no enquiries at Stationers' Hall. You fill up and * 8 Geo. II., c. 13 ; and 7 Geo. III., c. 38. DIALOGUE. 15 sign a form,* pay your shilling, and the thing is done; but registration does not give you anything which you have not already.f Besides, there is a penalty for making a false entry in the book. B. : But the entry is primd facie evidence of ownership of the copyright. J I could bring an action and give the entry in evidence. A. : Yes, and the first question that would be asked of you in cross-examination would be, " Was there a written memorandum signed by the artist at the time you bought the picture ? " Your answer in the negative, or mine to the same effect for I should probably have to be there as a witness would stop the case, for it would show that there was no copyright in existence, and never could be. Besides, look at the form of registration. You have to insert the date of the memorandum ; and how could you fulfil that requirement? It is moreover a misdemeanour to make a false entry. B. : But I know of hundreds of paintings not painted on commission which have been registered without any document having been signed either by the buyer or the artist. A. : It is done every day ; but that proves nothing, except the amount of ignorance, or of something worse, that prevails on the subject of copyright. Registration without the Right to Register is of no avail if a case con- cerning the copyright of a picture crops up in a court of law. B. : But tell me further what is the exact effect of regis- tration. A. : It enables the proprietor of the copyright in a painting to sue for piracy. He cannot sue until registra- tion, nor then for anything done prior to registration. B. : If it is a condition precedent to the right to stop * See Appendix. t Lucas v. Cooke, L.R. xiii., Ch. Div. 873. J 5 and 6 Viet., c. 45, s. 1 1. Fine Arts Act, 1862; 5 and 6 Viet, c. 45, s. 12. For Form, sec Appendix. l6 THE LAW OP ARTISTIC COPYRIGHT. piracy, one would imagine that the entries of original pro- prietorship of paintings are very numerous at Stationers* A. : No, that is not the case; the artists are very negli- gent in that respect.* B. : Suppose, for instance, that piratical copies have been made of an unregistered picture, and I am the inno- cent purchaser of them, and that you are the owner of the copyright ? A. : In that case, the moment I register I can give you notice not to part with your copies for the purposes of sale, hire, exhibition, or distribution, and enforce penalties in case you disregard my notice. B. : Then ignorance in no excuse for me ? A. : That is so under the Engraving Acts. In 17 Geo. III., c. 57, the words "knowing the same to be printed or reprinted/' which occur in 8 Geo. II., c. 13, being left out ; but in certain cases under the Fine Arts Act guilty knowledge has to be proved. B. : Could you not go against the real culprit, the origi- nal pirate, in the case just put to you ? A. : No, for his act took place prior to registration. Such is the present state of the law. B. : Must the original assignment of copyright and all interim assignments be registered in cases where copy- right has changed hands ? A. : No; it is sufficient that the assignment to the per- son registering be registered. There must be a memo- randum in writing (either Form I or Form 2) to begin with, and all interim assignment must be in writing, signed by the person assigning the copyright, f otherwise the person registering will have no title. B. : I don't exactly see the use of registration. A. : It is simply a cheap and easy form of primd facie evidence of title, and convenient to art publishers, whose works are very frequently pirated. To all other * Evidence of the Registrar before the Royal Commission, t Fine Arts Act, s. 3. DIALOGUE. 17 persons it is an unmitigated evil, as being a condition pre- cedent to right of action, which often, when neglected, protects the evil doer, and which gives the injured party, when complied with, no advantage that he would not have were registration unnecessary. B. : Now, supposing I sign this document (Form i), what use do you intend to make of the copyright ? A. : I wish for the future to protect myself from bad copies and spurious imitations of my work, the circulation of which will also affect you, by casting doubt upon and de- preciating the value of my genuine work. When I find my paintings reproduced in inferior chromo-lithography, badly engraved, reproduced in colours often different to those in the original, it is high time for me to look after my reputa- tion. It was only the other day that a subject of my picture, representing a child in mourning, was reproduced with the child in a flaming scarlet frock, taking all the point and sentiment out of the design. I have also known dealers who have engraved the picture, and then have pro- duced the engraving in two halves, creating a subject that was never in the artist's mind at all at the time he painted the original picture. Then, again, one does not want the designs of one's pictures hawked about on advertisements for patent mustard, and other articles, nor sent round in circulars and such like modes of advertisement. B. : But surely you could trust me to protect your in- terests. Why not give me the copyright ? A. : I should be satisfied to do so were I certain that the picture and the copyright would both continue to be your property. You may, however, sell the picture, and in order to protect me you would have to undertake not to part with the copyright. At your death it would pass, without mention under your will, as part of your residuary personal estate, or go to your next-of-kin in case of your dying in- testate. The owner (who might be the trustee of a marriage settlement!) would not in all probability know that he possessed it, so that any piracy of it would go on with impunity. On the other hand, had I the copyright, c j8 THE LAW OF ARTISTIC COPYRIGHT. I should be able to check an infringement at once. Besides, well-known artists, or their representatives, are always accessible to publishers or engravers, whereas in cases where a picture has changed hands it is often, for the reasons just given, impossible to know where the copy- right is, or whether any exists. B. : You would not object to a good mezzotinto en- graving or etching, I presume ? A. : On the contrary, either the one or the other would do my reputation good. I will, if you choose, sell you a license to copy (Form 5 *) my work in either of those ways, keeping the copyright in order to protect myself from bad reproduction of my picture by others ; but you are not an art publisher by trade, so you could not profitably engrave my picture. B. : How so? A. : You could not give the retail trader any guarantee as to the number of proofs taken from the plate, or as to the nature of the impression. He would therefore refuse to buy. In the case of a professional art publisher it is known by the position of an embossed stamp, marked on the margin of an engraving by the "Print Sellers' Associa- tion," whether a certain impression is bond-fide an " artist's proof " " proof before letters " or " proof after letters/' as the case may be ; and the Association will only stamp the number of proofs of each class declared by the pub- lisher before publication. B. : I do not want to engrave the picture; but assuming that I did, what guarantee should I have that you would not engrave the picture yourself? You would still have the right to engrave. A. : Yes ; but not having the picture, I could not exer- cise such a right. And if I gave you the license, I would append an undertaking not to reproduce in the same material and size, if you desired it (Form 5). B. : Surely the possession of the copyright imports a power of access to the picture. * See Appendix. Lucas v. Cooke, L,R. xiii, Ch. Div., 872. DIALOGUE. 19 A. : By no means ; that is a popular error. You can hide your picture from the sight of man if you like. Until you publish the picture you can proceed against any person who copies it without your leave.* This right of yours is a common law right, and is quite distinct from the copy- right which I wish to reserve. You could proceed against me if I used your picture to copy while it was in your possession, notwithstanding that I had the copyright. We could both of us proceed against the third party above mentioned you at common law for damages for copying your property without your leave, f and I for damages and penalties under the Fine Arts Act, 1863, for infringing my copyright. B. : What amounts to a piracy within the meaning of the Fine Arts Act, 1863 ? A. : Under that statute a picture may not be reproduced or colourably imitated in any material or by any process. It is, therefore, an offence to imitate a picture by statuary or photography. B. : Would a photograph of an engraving of a picture be an infringement of the copyright in a picture? A. : Yes; when the subject of a picture is copied it is of no consequence whether that is done directly from the picture itself, or through intervening copies. If in the result that which is copied be an imitation of the picture, then it is immaterial whether that be arrived at either by direct or intermediate steps. J B. : But suppose I bought a license to engrave your picture ; surely I might photograph the engraving and sell that? A. : Certainly not ; that would be an infringement of my copyright in the picture. B. : But you told me that I should also have copyright in the engraving. A. : That is perfectly true, but the protection given by * Prince Albert v. Strange, 18. L.J. Ch., 120. i Mac and Gor, 25. f Ib. .J Exparte Beal, 3 L.R.Q.B., 387. 2O THE LAW OF ARTISTIC COPYRIGHT. the Engraving Acts is only commensurate with the skill of the engraver. What right has he to the reproduction of the design ? That is my work, and is consequently protected by the copyright in my picture. B. : Then what is the use of the copyright in the en- graving if the law is as you state ? A. : To give the engraver protection for his own meri- torious work. Look at this beautiful print, "The Hugue- not/' engraved by Oldhain Barlow from Mr. Millais* picture. It is difficult to conceive any skill or art much higher than that which has, by a wonderful combination of lines and touches, reproduced the very texture and softness of the hair, the very texture and softness of the dress, and the expression of love and admiration in the eyes of the lady looking up at her lover. That art or skill was the thing which, as I believe, was intended to be protected by the Engraving Acts.* B. : But suppose the engraver or etcher was also the designer ? A. : Then part of his meritorious work would be the design, which would also be protected. The first Engraving Act (8 Geo. II., c. 13) only gave protection to the en- graver who was also the designer of his work, owing, I suppose, to the fact that Hogarth, f who caused the Act to be introduced, was generally the designer of his en- gravings. B. : You said just now that I could acquire copyright in an engraving provided that the name of the proprietor, and the date of first publication, were truly engraved on each plate, and printed on every print : would the issue of one copy without such words being printed thereon vitiate the copyright? A. : It would. B. : I always see " Published by so-and-so/' and have- * Dicks v. Brooks, L.R. xv., Ch. Div., 22. t On this statute being passed Hogarth designed and engraved a small plate in commemoration of the event. An inscription on the print says that the Act was " obtained by the endeavours, and almost at the sole expense, o .the designer of this print, in the year 1735." DIALOGUE. 21 always thought it was the publisher's name that ought to be engraved on the print, not the proprietor's. A. : Many publishers think so, and will tell you they are right ; but the Act says " proprietor/'* Therefore, if the publisher is not also the proprietor, there is no copy- right; because the proprietor's name is not on the print.f B. : With regard to the date why is that to be placed on the plate ? A. : In .order to enable a person to know when the en- graving was first published, and whether the copyright has expired or not. Accuracy with regard to the date is essential. J B. : Has the copyright in an engraving, print, etching, or lithograph to be registered ? A. : No ; registration has nothing whatever to do with copyright, in these subjects, but notwithstanding this, many publishers are stupid enough to go to Stationers' Hall and register their engravings, or the copyright in the original picture when they do not possess it. It is a loss of the fee, and a trouble for nothing. B. : Let us return to our subject, my picture. It seems to me that neither I nor my family could copy my picture for amusement or study, if the copyright remained with you. A. : The penal clauses of the Act are limited to copying for (C sale, hire, exhibition, or distribution; " so that your picture would be available for the purposes you name. B. : Notwithstanding that I am not prepared to buy a license to engrave, I should very much like to possess a good engraving of the picture. A. : Give me the copyright in my work, and you may at no distant date be able to possess such an engraving. It generally happens in this way A publisher, on learning from me, the artist, that I have the copyright, will ask who * See Appendix. -T Thompson v. Symonds, 5 T.R., 41. : Bonner v. Field ; see Thompson v. Symonds, 5 T.R., 44. - Fine Arts Act, 62, s. 6 ; Appendix. 22 THE LAW OP ARTISTIC COPYRIGHT. has the picture. He will then go to you and say, " If you will let me have the picture for engraving I have leave from the artist I will employ a first-rate engraver, and it will be thoroughly well done under the supervision of the artist, and the proofs touched by him. I will give you so much, or so many proofs, for the loan of the picture, and engage not to keep it more than a certain time." The result is that you, the purchaser, get the immense advan- tage of having the picture well engraved, because a well engraved work is worth very much more in the market. I, the artist, get the advantage of having my work well en- graved, which is a capital advertisement, and also a sum of money from the publisher, both for the license to engrave (Form 5*) and for correcting or touching the proofs. The publisher gets the advantage of having a good title. The public get a good engraving instead of a bad one, and the artist-engraver is employed instead of some of the herd of cheap-jacks who are employed when no title can be made.f B. : I will sign your document with pleasure. (Form i.) A. : Thank you. You may rely on me that any license given by me to reproduce your picture will have no other effect than to enhance the value of it ; but you will have the right of veto, if you choose, upon any scheme for reproduction, because, as pointed out above, no one can gain access to it while it remains in your possession. The copyright you have given me lasts, re- member, for my lifetime, and for seven years from the date of my death. B. : That seems a very short and uncertain time. A. : Yes, especially as an artist's reputation and popu- larity are usually of slow growth. Besides, it often takes three or four years to engrave a picture, so that a copyright is of very little value to the artist's widow. In any future legislation there is little doubt that the term will be for the life of the artist, and for thirty years after his death. * See Appendix. t Evidence of Basil Field, Esq., before Copyright Commission, DIALOGUE. 23 B. : What are the chief forms of piracy now-a-days ? A. : To begin with, I suffer much from imported works. Lithographs are made abroad generally in Germany from prints which have been published over here from my pictures. These lithographs are then imported into this country, and hawked about, or sold by the inferior print- sellers, at an exceedingly cheap rate. Vulgar and distorted things they are, too, as a rule. B. : Then the proprietor of the engraving suffers as much as you do? A. : Yes. B. : But is there no remedy ? A. : There is the loth section of the Fine Arts Act,* which absolutely prohibits the importation, and gives power to the Custom House Officers to detain any copies declared by the owner of the copyright to be piratical; but the rubbish gets smuggled in, and then the difficulty is to prove guilty knowledge in the party selling, so that prosecutions hardly ever occur. B. But is this traffic in piratical copies very great ? A. It is ; it extends all over the country. B. It seems to me that all you want is a systematic and vigorous prosecution of offenders. The law might certainly be amended in one instance viz., by giving a power of immediate seizure ; but apart from that, the re- medies provided appear to me adequate to put a stop to these practices. A society, employing paid detectives to be always on the watch, would have a deterrent effect, I should think. Do you suffer in any other way ? A. : Yes ; photographs are made in this country from en- ravings of my works, which are hawked about from door to oor. Before they can be seized the hawker must be sum- moned, and he generally vanishes before a summons can be served. B. : In this case also the publisher of the engraving suffers ; but how does this affect you ? A photograph is generally an exact, and not a distorted copy of your work; it cannot injure your reputation. * See Appendix. 24 THE LAW OF ARTISTIC COPYRIGHT. A. : If the publisher of the engraving cannot secure his monopoly, he consequently cannot give me the price for the picture, or for the right to engrave, which he otherwise would do. As a matter of fact, these prices have fallen inmensely since this form of piracy has been prevalent; publishers will not pay what they used to do. B. : You want the law ' remedied by the giving of an immediate power of seizure in this case, as well as in the case of imported piracies. A. : Yes ; an immediate power of seizure at the risk of the person who authorised the seizure, if he subse- quently failed to prove the ownership of copyright in him- self. B. : Would you allow such power of seizure in case the hawker had bought innocently ? A. : Yes; leaving it to the discretion of the magistrate to remit the penalty in such a case if he thought fit to do so. B. : Is there any other form of piracy ? A. : Yes. The making copies of pictures, signing them, and selling them as originals. B.: But that is forgery, surely. A.: No, not at Common Law ;*" but the yth section of the Fine Arts Actf meets the case. You could not have better legislation on the subject, but it is difficult to carry out the law in practice. I have half-a-dozen such copies of my works submitted to me every year. B. : But have you no right to detain or to destroy such copies ? A. : No. I must first prove that the person submitting the copy to me is privy to the fraud. But I could give him notice not to part with it for sale, hire, exhibition, or dis- tribution, if I possessed the copyright in the original. B. : Of course you could not interfere with mere imita- tion of your style unless your signature be also forged, and then the case would come under the 7th section. A. : That is so, and I hope soon that we shall have an * See p. 5. it See Appendix. DIALOGUE. 25 Act* passed which will give a power to search houses for piratical copies and photographs of pictures, the only way in which this, and the other forms of piracy can be stopped. B. : Can the owner of the copyright in a painting alter the painting ? A. : No, except by the artist's consent. Look at sec- tion 7, sub-sec. 4, of the Fine Arts Act, it runs thus with regard to paintings " Where the author or maker of any painting made either before or after the passing of this Act shall have sold or otherwise parted with the posses- sion of such work, if any alteration shall afterwards be made therein by any other person, by addition or other- wise, no person shall be at liberty, during the life of the author or maker of such work, without his con- sent to make or knowingly to sell or publish, or offer for sale, such work or any copies of such work so altered as aforesaid, or of any part thereof, as or for the unaltered work of such author or maker/' This section says " No person," so that the owner of copyright is barred by it. B. : That seems a very fair provision for the protection of the artist. A. : Yes ; but it does not go far enough, as I will pre- sently show you. Mr. Charles Landseer painted a picture .entitled " The Eve of the Battle of Edgehill," which con- tained, amongst other things, two dogs, which had been wrought upon by his brother, Sir Edwin Landseer, and greatly improved. A dealer, who bought the picture, cut out the dogs and sold them as Sir Edwin's work, and, filling up the hole in the original painting with two dogs painted by a third and third-rate artist, sold it as the work of Charles Landseer. B. : Such a case is within the plain words of the sec- tion. A. : Yes, for the framers of the Act had it before them * See Appendix, for the Law Amendment Society's Report on Copyright .and for the Copyright Bill of 1881. 2,6 THE LAW OF ARTISTIC COPYRIGHT. when they presented the Bill. But listen to this. A dealer buys my picture and the copyright. It represents an animal and three figures, and has a title indicative of the idea which I wish to convey. The picture is engraved in its entirety by a well-known engraver, and the engrav- ings are published ; but subsequently the design is cut in half, the animal and one figure only appearing, under a different title and with the announcement that the work is by me, although the idea conveyed by the mutilated design is one which I never had in my mind at all at the time I painted the original picture. B. : Surely this comes within the spirit of the 4th sub- section. A. : It is doubtful whether it comes within the letter of it, which seems to point to an alteration in the original picture ; but that section could be very easily altered to meet the case by the insertion of " or in the design of " after " therein/' and by the insertion of " such work or any copies of such work or of the design thereof so altered as aforesaid " after " offer for sale." * * See Appendix. DIALOGUE. 27 CHAPTER III. COMMISSIONED WORK. DIALOGUE. \Enter (C.) a gentleman who has commissioned A. to paint him a picture.'} C. : So you have finished my commission ; does the copyright belong to me ? A. : It does, as nothing was agreed about it at the time you desired me to paint the picture. C. : But I thought some agreement in writing was neces- sary under the Fine Arts Act,, 1862, in all cases where a painting, drawing, or the negative of a photograph, is first sold. A. : In all cases except where the work has been com- missioned as in this case.* C. : How do you define work done on commission ? A. : If you ask me to paint you a picture for a valuable consideration, and I paint it, that is a commission, whether the subject is suggested by you or not. C. : I like that sketch on your easel. Suppose I ask you to paint that, would it be commissioned work ? A. : The prevailing opinion is that it would ; but on the other hand it must be remembered that copyright is only given to an "original" work. When my abstract conception has been already expressed in a sufficiently concrete form, as in that sketch, for you to judge whether you would like it or not ; the design exists, and it is doubtful whether a more complete artistic representation of it would be held to be an " original " work to which copyright would attach. * See Appendix. 28 THE LAW OF ARTISTIC COPYRIGHT. C. : Why should there be any difference as regards copyright between a picture that has been commissioned and one that has been simply painted and offered after- wards for sale ? A. : Again you put to me a poser. It is the artist's work in each case, and it can hardly be said that the man who merely suggests a subject is entitled to a valuable pro- perty in the work when produced. If he actually made the design the case would be altered. My opinion is that the law should give all copyright to the artist in the absence of agreement; but I would have a reservation forbidding him to use his right of reproduction, in the case of por- traits taken on commission, without the consent of the person commissioning the work, and perhaps a similar provision against the issuing of replicas without consent. C. : I understand that you make these exceptions rather on the ground of deference to public opinion than in de- ference to the wish of artists. A. : In deference to public opinion, to which the artists have no objection, and to get over certain difficulties with regard to portraiture and replicas. The Copyright Com- missioners recommend that, in future, copyright in paint- ings and drawings should vest in the purchaser, in the absence of agreement, instead of falling to the ground, as it does now in all cases where work is not commissioned. On the other hand, the artists say that it should vest in them, and that the recommendation of the Commissioners is an unjust one as far as they are concerned. The Commis- sioners reply that the difficulties above-mentioned pre- vent their giving copyright to the artist. But in their report the Commissioners, in dealing with photographs which they propose to class (as they ought to be classed if classed at all with other works of art) with engrav- ings rather than with paintings, make a provision with regard to portraits taken by photography, and say that the copyright of these should be in the photographer, without the power of reproduction in the absence of the consent of the person commissioning the work. The DIALOGUE. 29 artists are willing to agree to a similar reservation in the case of portraits and replicas, and this being the case, it certainly seems unjust to them that they should not be able to retain their property without formal agreement. C. : It seems to me that your proposal is the fairer one of the two, for it gets over the one point on which the artists ought to give way. There is no doubt that a man who gives a commission for a portrait of his wife, or daughter, or himself, should have the absolute and entire control of the copyright, as a veto on any sort of republi- cation ; but would you not have a difficulty in defining a portrait ? A. : Practically none whatever. C. : Would the word include the portrait of an animal of a dog, for instance? and if so, would it include a pack of hounds, or a picture of a house or a room, or any object without life? Ts it to include pictures of persons taken in character, not so much for the sake of the por- trait of the person as for the sake of groups where the scene is the object of the work, though the pictures of the persons present are portraits ? B. : These difficulties are rather apparent than real. But the objection will apply equally to the reservation of the Commissioners in the case of photographic portraits mentioned just now. C. : I feel another difficulty. Suppose I were to ask Mr. Stacey Marks, R.A., to execute some of his beautiful decorative designs in my house ? A. : That being commissioned work, you would, under the law as it stands, have the copyright. C. : But under the future law, as advocated by you, it would vest in him. 1 should not like him to repeat my decorations elsewhere. A. : He would be very unlikely to do so, for the sake of his own reputation, if for no other reason ; but the real question is which of the two should have the trouble of insisting on an agreement. It is his design, but under the law at present the copyright goes to you unless you sign 30 THE LAW OF ARTISTIC COPYRIGHT. an agreement. I say that it should go to him unless he agrees with you that it should not do so. You would have no difficulty in obtaining from him an undertaking not to reproduce the design. Besides, it is only fair that he should have the copyright, in order to protect him- self and the owner of the house from bad copies of the design. C. : How do you mean ? A. : Under the present law the copyright as before pointed out is in you. In case you part with the house, and for- get as you no doubt would forget to assign the copy- right in writing to the future lessee or to your landlord, the copyright would remain with you, and neither the future owner nor Mr. Marks could sue a pirate, who, per- haps, might have taken the house simply for the purpose of piracy. There was a case which came under my notice where, without any written agreement, an associate of the Royal Academy was employed to make some decorative designs for a theatre. That was done on commission, and the designs were exceedingly popular. The person giving the commission got into difficulties, and sold the theatre. The present owners of the theatre, and, therefore, of the decorations, and the artist who designed them, cannot between them prevent pirates from making copies, and generally very bad copies, of them. C. : Well, to return to the picture you have painted for me. Supposing it had been agreed that you should re- serve the copyright, would any memorandum be necessary in that case ? A. : Yes. I should then have asked you to be good enough to sign this document (Form i), which would vest the copyright in me. I invariably make the purchaser of my pictures, whether done on commission or otherwise, sign this document, except in a case where I paint a por- trait, for then I feel that the copyright, or rather the veto on repetition, should go with the picture. A good etching or engraving of those pretty faces would do my reputation good, and considering that the subject is a group of your DIALOGUE. 31 daughters, and that you are a man of position, it is extremely unlikely that you will allow any bad copies of my work to be produced. C. : Was there a binding contract between us as to this picture ? A. : There must be either a written memorandum of the commission signed by the person to be charged with the contract, or the purchaser must give something in earnest to bind the bargain or in part payment ; otherwise I should not be bound to execute the picture, nor you to accept and pay for it when executed. You will, remember, however, that I asked you for a small cheque on account, which you gave me, so that there was a binding contract between us.* C. : But I suppose you could have kept me waiting an unconscionable time for my picture ? A. : I should have been bound to deliver your portrait within a reasonable time, as time was not mentioned. C. : Of what use is the copyright to me ? A. : You hold the picture free from any interference on the part of any one. Register your copyright at Stationers' Hall (which you may do for is.) at once; you then can sue for any reproduction of it which may take place after regis- tration in my life-time and until seven years after my death. You need never trouble your head as to whether you have by any act published your picture ; you can sell the picture or give it away without feeling any anxiety that bad copies of it may be produced with impunity. C. : You have, I notice, some studies and sketches made for my picture. Would the sale of these amount to an infringement of my copyright ? A. : Technically I should be inclined to say it would ; but various opinions have been given on the subject. Before I can paint my pictures I frequently find it neces- sary to make a number of sketches or studies, which, grouped together, make up the picture in its finished state. These works may be studies expressly made for * " Statute of Frauds," see Chap. XI. 32 THE LAW OF ARTISTIC COPYRIGHT. the picture about to be painted, or they may be sketches which have been made at various times and kept as materials for future pictures. If the law is as I am in- clined to think, it is certainly a great hardship to me that I should not be allowed to sell them. C. : I should doubt whether your fears would prove well grounded if a case was ever brought into court. My copyright could not be injured by their sale. They are re- produced in my picture, but in a more or less altered shape, and combined with other independent work. You would surely be safe as long as you did not reproduce the original design. A. : I am inclined, on consideration, to come round to- your view, although no less a person than the late Lord Westbury thought otherwise. Of course, if the copyright remained with me, I should be protected, but as it is now yours, perhaps you would be good enough to sign a memor- andum giving me liberty to sell the studies and sketches (Form 4*), so that I should be safe in case you assigned your copyright to some other person. C. : If I sell my picture without mentioning the copy- right, does it lapse ? A. : No ; it remains with you, as pointed out just now with regard to the house decoration, and you could sell it to me if you chose. I have frequently bought up some of my old copyrights cheap from dealers who have parted with the pictures, and I have stopped a great deal of bad reproduction by that means. [Enter (E,} the Editor of an Art Periodical'] E. : I want a subject of yours for my Christmas number. A. : I have nothing ready but those two pictures which you see there. One has been painted on commission for Mr. Agnew ; the other is at your service. E. : I like them both, but prefer Mr. Agnew's. * See Appendix. DIALOGUE. 33 A. : The copyright is in him. E. : Then 1 should have, I suppose, to purchase the copyright from Mr. Agnew in order to publish a wood engraving in my journal ? A. : No ; all you want is a license (Form 5*) from Mr. Agnew. I have nothing to do with the case. If I allowed you to copy the picture he could proceed against us both against me for breach of trust,, and against you for in- fringement of his right. You must go to him, and I have 110 doubt he will grant you what you require. E. : I think, perhaps, I should be delayed if I went to him, and so must be content with your second picture. A. : Give me what I ask for the picture, and I will give you a license to engrave it on wood (Form 5) . You must, however, sign this document (Form i), in order to vest the copyright in me. In my license to you I will undertake not to produce a wood engraving of your pic- ture; and you will then, having the picture in your possession, possess the right of veto on any scheme for reproduction by me. Thus I shall be able to protect my reputation, while you will be able to protect your property. E. But have I any copyright in my wood-cut when en- graved ? How do you intend to bring it out? In my periodical, combined with letterpress. Has the first number of your periodical been re- A. E. A. . gistered under the Literary Copyright Act of 1842? E. No. A. Then you have started a difficult point ; but I think you have copyright in your wood-cut, in the same way that you would have copyright in an engraving i.e., to the extent that no one could make use of your meritorious work. You could, however, make yourself perfectly safe by having your name cut in the block, with the date of publication, and printed on every print, f * As to effect of license, see p. 18. t See Cox v. Land and Water Company L.R. 9, Eq., 324 ; Bogue v. Houlston, post, p. 45. 34 THE LAW OP ARTISTIC COPYRIGHT. E. : But if I had no copyright what is to protect you ? A. : Any copy of your wood-cut is an infringement of my copyright in the picture ; so I am perfectly safe. E. : I could sue in your name, if you gave your consent and if I indemnified you against the costs, I suppose ? A. : Yes. E. : Do your ever make designs for Christmas cards or for valentines ? A. : I have a few sketches which might do for the pur- poses you mention. How do you propose to bring them out? E. : By chromo-lithography and other processes. How am I to protect myself with regard to them ? A. : It depends upon the process employed. If you intend to use lithography they come under the Engraving Acts ; if photography, or hand-painting, under the Fine Arts Act, 1862. DIALOGUE. 35 CHAPTER IV. DIALOGUE ON PHOTOGRAPHY. SCENE. Photographic Studio. Enter a gentleman (M.). M. : I see that you have my portrait in your window labelled " Copyright/' PHOTOGRAPHER: May I ask your name? M.: Lord H P. : Certainly,, I have your portrait exhibited for sale both singly, and in a group combined with the portraits of your fellow Cabinet Ministers. Have you any objection? M. : I wish, rather, to ascertain whether I have any right to object. What is the law in relation to photographic copyright ? P. : The law places photographs on a par with paintings and drawings ; but curious difficulties arise in interpreting .and applying the law, owing to the inherent difference which exists between the two. I should have thought that photo- graphs, if they are to be classed for legislation at all with works of art, should have been dealt with by the En- graving Acts, since the processes of reproduction or print- ing off from the negative in the one case, and from the plate in the other, are somewhat nearly allied ; and, were it not that the Fine Arts Act, 1862, assumes that until that time there was no copyright in a photograph, it seems to me unquestionable that the words of an Act of Parliament* which gave copyright to lithographs, are wide enough to embrace photography also. M. : I understand, then, that whenever paintings and drawings are mentioned in the previous dialogues the con- versation would equally apply to photographs ? * 15 and 1 6 Vic., c. 12, s. 14. 36 THE LAW OF ARTISTIC COPYRIGHT. P. : That is so. But you must regard the negative of the photograph, and not the photograph itself, as that which corresponds to the painting. Look, if you please, to this copy of the first section of the Fine Arts Act, 1862. * " The author of every original photograph shall have the sole and exclusive right of copying, engraving, reproducing, and multiplying such photograph, and the negative thereof by any means and of any size, for the term of the natural life of such author, and seven years after his death." M. : Then the copyright to start with is in the pho- tographer P. : Yes ; but the effect of the rest of the section which follows is, that, upon the first sale of the negative, the copy- right must be preserved by an agreement in writing, signed: either by the vendor or purchaser of the negative, giving: the copyright to the other party, otherwise it is irre- deemably lost ; except in cases where the negative is made on behalf of any other person for a good or valuable con- sideration, in which case the copyright, if 110 agreement is- made, vests in the sitter or commissioner. M. : Then, applying this to my photograph the single one I mean where is the copyright ? I paid you nothing, for you requested me to sit ; and, if I remember rightly,, you presented me with several copies from the negative. P. : The work was not made for a good and valuable consideration, and there was no agreement. The copy- right accordingly vests in the author, and belongs to me. M. : Do you mean to say that I could not, if I objected,, prevent you from exhibiting my portrait for sale or otherwise from hawking it about the streets, for in- stance ? P. : You could not stop me doing any of these things ; you would be taken to have known why I wanted your portrait, for you came into my studio with your eyes open. M.: Could I compel you to sell a copy to me? P. : Certainly not, unless I had a copy exhibited for * See Appendix. DIALOGUE. 37 sale in my window, for that would amount to an invitation to buy. M. : But suppose I sold one of my portraits, which you gave me at the time, to the editor of a periodical, and he re- produced it by photography, or engraving, would that be an infringement of your copyright? P : It would. M. : If the copyright was mine, I suppose I could prevent you from selling my portrait or exhibiting it in your window ? P. : Yes ; and upon conviction before a magistrate, the negative would be forfeited by you.* M. : But you have sold my photograph already, and have no agreement in writing reserving the copyright, therefore the copyright is lost, is it not ? P. : No, the sectionf states " Upon the first sale of the negative." Although copyright is given by the first part of the section, to the photograph and the negative, the pro- viso for reservation, in case of a sale, deals only with the negative. The negative of the photograph, as pointed out before, is thus placed on the same footing as a painting, in case of assignment or sale ; and in theforms,f " photograph ,and the negative thereof" should be substituted for '" painting." M. : What is an " original photograph ? " I cannot understand my portrait being an " original " portrait, at least not in the sense in which the word "original" is applied to a painting. P. : It is difficult to say what can be meant by an. -original photograph ; all photographs are copies of some object. But a photograph taken from a picture, with con- sent of the owner is an original photograph, in so far that to copy it is an infringement of the statute. M. : But could you prevent me from sitting in the same attitude for another photographer ? * Fine Arts Act, s. 6. t Fine Arts Act, s. I. J See Appendix. Graves Case, L.R. iv, Q.B. 723. 38 THE LAW OF ARTISTIC COPYRIGHT. P. : No ; although it is unlawful to copy a photograph,, or the negative, in which there is a subsisting copyright, it is permitted to copy the subject-matter of the photo- graph by taking another photograph.* M. : Why do you put the word " copyright " on your photograph ? is it required by the Act of Parliament ? P. : It is not, and mi^ht just as well not be there. It has been the custom of my firm to use the word, and this is all I know about it. M. : Now with regard to the group. You were com- missioned to take that, by myself and colleagues, and were paid by us all as you supplied the copies. Where is the copyright in the group ? P. : It is clearly not in me; and whether in all of you jointly, or jointly and severally, is a very difficult question. I think it rests with you all jointly ; but I fancy the ques- tion is one on which lawyers would wrangle until the Day of Judgment in a Court of Law. M. : If your view is correct, you would have required our joint signatures to a document reserving the copyright. P. : Yes ; and you would now have to sue a pirate jointly. This is one of the curious difficulties to which I just now alluded. M. : Assume that you were to take one of the portraits out of the group, and were to issue it, without consent, could I proceed against you ? P. : It would be clearly a piracy of the copyright in the group. f According to my view you would have to pro- ceed in the names of all the group, and to obtain their consent to the proceeding. You would also have to have the names of all the group placed on the register, in order to enable you to proceed. (As to registration, see Dialogue, p. 15, ante.} M. : Supposing that one member of the group had commissioned you to photograph it, and had paid for all the copies of the negative, would that alter the case ? P. : It would. The copyright would be in him alone.. * Fine Arts Act, 1862, s. 2. f Fine Arts Act, ss. 6 and n- DIALOGUE. 39 M. : Is there an individual copyright for each portrait, as distinct from the copyright in the group as a whole ? P. : No ; but it may be created. For instance, you, with the consent of your group, might commission me to issue your portrait or the portrait of any other niernber of the group. The copyright of that portrait, when issued, would be in ycwa ; or M. : Will removing or altering one portrait, alter or affect the nature of copyright in the group ? P. : If done with the consent of the owner of the copy- right, a new copyright is created in the alteration ; but if dorie without his consent it is an infringement, and cannot be the subject of copyright. M. : Let me put this case to you A negative is pur- chased by photographer A. from photographer B., who, forgetting whether it was done on commission or not, has previously registered the copyright ; does the copyright pass from B. to A. ? P. : It cannot pass without a written agreement signed by B., as before pointed out; nor does it pass if B. had no- title. Registration has nothing to do with the case as against the real owner.* If, therefore, the portrait was executed on commission, it remains in the sitter. M. : Supposing the sitter hears of the infringement, against whom is he to go against B. or his executors, or against A. ? P. : He should go against all, or any, persons whom he finds pirating his property ; but he must remember that he must be registered in order to proceed at all, and that he cannot proceed then for anything done prior to registration. M. : But A. is perfectly innocent in the matter. P. : He may have his remedy against B. or his execu- tors, for B. has sold without a title. M. : Upon whom does the onus of proof of having paid for a negative lie ? P. : It is impossible to give a general answer to your * See Dialogue, p. 15 ante. 4O THE LAW OF ARTISTIC COPYRIGHT. question, and I should have to be guided by the particular facts of any case which arose. Registration gives a prlind facie title to the proprietor as against all the world. So it would shift the onus of proof on to the person trying to contest th property of the person registered as pro- prietor. M. : Supposing I consent to sit to you for one and a certain purpose for instance, to appear in a certain pic- ture, for which I do not pay could you use my photo- graph for other purposes contrary to my wish ? P. : No. Although I have a copyright in the negative of the portrait which you allow me to take, you have a right independent of the copyright laws altogether to pre- vent me from using your portrait, or my copyright, for any purpose other than that which was in my contemplation at the time I entered into the agreement.* M. : Then in that case, if negatives, other than the one for which the sitting was given, were surreptitiously taken of me by you, you would be unable to publish such other photographs against my wish ? P. : That is so. M. : Does the copyright in a portrait cease at the sitter's death ? P. : The sitter's death has nothing to do with it. It ceases seven years after the death of the photographer, and devolves on the personal representatives of the proprietor, in the same way as any other personal property. M. : Have such personal representatives of the owner of the copyright a right to claim the negative from the photographer ? P. : They have only the right which the proprietor had. It is generally supposed that the copyright belongs to the commissioner, and the negative and the glass on which it is to the photographer.f M. : Are your portraits much pirated ? P. : Yes, to a great extent in illustrated newspapers and * Prince Albert v. Strange, 2 De G. & Sm., 652. f " Copinger on Copyright," 2nd Ed., p. 408. DIALOGUE. 41 other works. They are often reproduced in lithography abroad, especially in Hamburg, and imported into this country. M. : Why do you not proceed against the pirates ? P. : It has certainly occurred to us to do so, but when we have thought of the time and expense, we have not pursued the question. M. : It seems to me, that if the law has provided you with remedies, and you do not take the trouble to avail yourselves of them, you have little right to complain. Surely, if the property is valuable, it would be worth while to give pirates an occasional wholesome lesson. Why not start a Photographers' Protection Society ? I suppose you have read the report of the Copyright Commission on the subject of photographs ? P. : What is the substance of their recommendation as to any future legislation on the subject? M. : That copyright in photographs be for thirty years from publication, and copyright to belong to the proprietor -of the negative; but, in the case of photographs taken on commission, that no copies be sold or exhibited without .the sanction of the person who ordered them. P. : That seems a very fair and easy way of settling all, or nearly all, of the difficulties before alluded to, which exist amder the present law in relation to photographs. 42 THE LAW OF ARTISTIC COPYRIGHT. CHAPTER V. COPYRIGHT IN ENGRAVINGS, ETCHINGS, AND LITHOGRAPHS, ETC. THE copyright in engravings, &c., is created by the fol- lowing statutes : 8 Geo. II., c. 13 ; 7 Geo. III., c. 38; 17 Geo. III., c. 57 ; which will be found in the Appendix. They are commonly known as the Hogarth Acts. 8 Geo. II., c. 13, was entitled "An Act for the encouragement of the arts of designing, engraving, and etching historical and other prints, by vesting the properties thereof in the inventors and engravers, during the time therein men- tioned." It recited that divers persons had, " by their genius, in- dustry, pains, and expense, invented and engraved, or worked in mezzotinto, or chiaro-oscuro, sets of historical and other prints, in hopes to have reaped the sole benefit of their labours ; and that print-sellers and others had of late, without the consent of the inventors, designers, or proprietors of such prints, frequently taken the liberty of copying, engraving, and publishing, or causing to be copied, engraved, and published, base copies of such works, to the very great prejudice and detriment of the inventors, designers, and proprietors;' 5 and enacted that " every person who shall invent and design, engrave, etch, or work in mezzotinto or chiaro-oscuro, or from his own works and invention shall cause to be designed and engraved, etched, or worked in mezzotinto or chiaro-oscuro any his- torical or other print or prints, shall have the sole right and liberty of printing and reprinting the same for the term of 14 years, to commence from the day of the first publish- ing thereof, which shall be truly engraved with the name COPYRIGHT IN ENGRAVINGS, ETCHINGS, ETC. 43 of the proprietor on each plate, and printed on every such print or prints." Spurious plates are to be forfeited to the proprietor of the original plate, and also the prints, together with 55. for every print, to be recovered by any informer half to the King and half to the informer. By 7 Geo. III., c. 38, copyright is extended to work of which the engraver is not the designer. It enacts that prints of any portrait, conversation, landscape, or architec- ture, map, chart, or plan, or any other print or prints what- soever, whether from the engraver's or etcher's own design,, or from any picture, drawing, model, or sculpture, whether ancient or modern, shall have the benefit of the former Act and of this Act. The same penalties are recoverable within six months of the offence, and the period of copy- right is extended to 28 years from the first publication. By 17 Geo. III., c. 57, a special action for damages is given to the proprietor; and 6 and 7 Wm. IV., c. 59, ex- tends the three foregoing Acts to Ireland. By 15 and 16 Vic., c. 12, s. 14, it was declared that the provisions of the four before-mentioned Acts are intended to include prints taken by lithography, or any other mechanical process, by which prints or impressions of draw- ings or designs are capable of being multiplied indefinitely, and the Acts shall be construed accordingly. The following is an analysis of the provisions of the Hogarth Acts.* Every one has for 28 years from the first publishing thereof the sole right and liberty of mul- tiplying, by any means whatever, copies of any print of whatever subject which he has.f (1) Invented or designed, graved, etched, or worked in mezzotinto or chiaro-oscuro ; or which he has (2) From his own work, design, or invention, caused or procured to be designed, engraved, etched, or worked, in mezzotinto or chiaro-oscuro ; or which he has (3) Engraved, etched, or worked in mezzotinto or chiaro- * Stephen's Dig. See Copyright Commissioners Report of 1878. f Effect of 8 G. II., c. 13, s. i, as enlarged and altered by 7 G. III., c. 38,. ss. i, 2, 6. Extended to Ireland by 6 and 7 W. IV., c. 59, s. i. -44 THE LAW OF ARTISTIC COPYRIGHT. oscuro, or caused to be engraved,, etched, or worked, from any picture, drawing, model, or sculpture, either ancient or modern. Provided that such prints are truly engraved with the name of the proprietor, and the date of first publication on each plate, and printed on every print. Prints taken by lithography and other mechanical pro- cesses are now upon the same footing as engravings.* It will be seen that registration is not requisite for ail engraving, etching, lithograph, or for any other work which comes under the Engraving Acts. Section i of 8 George II., c. i3,f requires ''That the day of first publishing shall be truly engraved with the name of the -proprietor on each plate, and printed on every such print or prints/' No action for infringement of copyright can be main- tained unless these requirements are strictly carried out. Many persons imagine that the publisher's name and not the proprietor's should be engraved. Unless the publisher is also the proprietor the error is fatal. The designation " proprietor" need not be added to the name. In Graves v. Ashford.J L. C. JB. Kelly said, "Upon the engraving before us we find these words ' London: Published by Henry Graves & Co., May ist, 1861, Printseller to the Queen, 6, Pall Mall.' Henry Graves and Co. are the proprietors of the engraving. The >question is whether the legislature, when they required the name of the proprietor to appear, required that he should be expressly described as* being the proprietor. They cer- tainly have not said so in terms, and we must put a rea- sonable construction upon the words they have used. Every one who is at all conversant with these things looks at what is called the ' publication line'- for the name of the proprietor. The name which appears on the face of the print must be assumed to be that of the proprietor ; and it * 15 and 16 Vic., cap. T2, s. 14. Graves v. Ashford, L.R. 2 C.P. 410. Gambart v. Ball, 14 C.B.N.S. 306. Post, p. 48. f Ante, p. 42. J L.R. 2 C.P. 421. COPYRIGHT IN ENGRAVINGS, ETCHINGS, ETC. 45 cannot alter the effect, or be less a compliance with the Act, because he is called the publisher. I think the statute has been substantially and literally complied with." The trading name of the firm of proprietors is sufficient.* The exact date must appear.f The only case where registration is necessary with re- gard to engravings, etchings, or lithographs, is where they form part of a book, [n this case it is sufficient to acquire copyright in the book by registration under the Literary Copyright Act, 1842, and the works of art need not have the name of the proprietor and date of first publication engraved on the plate and printed on each print. In the year 1851 J Mr. Herrman Plonquet, of Stuttgard, contributed to the Great Exhibition in Hyde Park a number of stuffed animals, in single figures, and groups, in imita- tion of the actions of human beings. These figures having excited considerable attention and interest, Mr. David Bogue, bookseller and publisher, of Fleet Street, employed artists at great expense to make drawings from the figures and groups, and arranged a work consisting of letter press and wood cuts, representing these animals and groups of animals. This publication he sold at 3$. 6d. plain and 6s. coloured, under the title of " Comical Creatures from Wur- temburg, including the Story of Reynard the Fox, &c." The work, which consisted of a number of stories and fables, comprising the story of Reynard, an old tale in which no copyright existed, was published in the autumn of 1851, and soon reached a third edition. Mr. Bogue registered his property as a book. In January, 18/52, Messrs. Houl- ston and Stoneman commenced the publication of a serial work entitled " The Story Book for Young People/' and they issued the first number containing "The Comical History and Tragical End of Reynard the Fox," at the price of 2d. It appeared from the bill filed against them by Mr. Bogue, that his publication consisted of letter press * Rock v. Lazarus, L,R. 15, Eq. 104. t Thompson v. Symonds, 5 T.R. 44. i Bogue v. Houlston, 5 De G. and Sm : 267, 21 L.J.Ch : 70. 46 THE LAW OF ARTISTIC COPYRIGHT. and woodcuts printed on the same large sheets of paper, and that the woodcuts appeared as separate leaves when the sheets were folded in their quarto size ; it also ap- peared that the defendants were merely the publishers of the book for a Mr. Philp, who deposed that he had been engaged in designing and issuing various publications, in a cheap form, for the use and benefit of the poorer classes, and amongst them, illustrations of the Great Exhibition ; that he had employed numerous artists to select objects for his work : that amongst the illustrations supplied to him were the sketches contained in the defendant's publication and that the artist who supplied these sketches, by his affidavit, asserted that he had copied them from the original figures in the Exhibition. In granting an injunction against the defendants, Vice-Chancellor Parker, who was satisfied, upon inspection, that, although the stories were different, the designs of the defendants were copies of those of the plaintiff, for they had not only copied the designs, but the .descriptive labels, said " It has been suggested that the plaintiff has not made out any copyright in his designs, because he has not complied with the requisitions of the Act 8 Geo. II., c. 13, which regulates the copyright in en- gravings and designs, and which provides that the date of the publication, with the name of the proprietor of every engraving, should be engraved on each plate and printed on each print. But the plaintiff has acquired copyright in his book. It appears to me that a book must include every part of the book ; it must include every print, design, or engraving which forms part of the book, as well as the letterpress therein, which is another part of it." The foregoing case throws light on the question whether the proprietor of an unregistered illustrated newspaper has copyright in the woodcuts and engravings published therein. It has been decided in Cox v. Land and Water Journal Company* that the proprietor of a newspaper has, without registration, such a property in all its contents as will entitle him to sue in respect of a piracy, and applying * L.R. 9, Eq. See Bradbury v. Hotten, 42 L.J.Ex. 28. COPYRIGHT IN ENGRAVINGS, ETCHINGS, ETC. 47 the reasoning of Vice-Chancellor Parker in Boguev. Houl- ston to this, it seems that if it is unnecessary to comply with the condition as to the proprietor's name and the date in the case of an engraving in a book, it can also be dispensed with in the case of a newspaper which has not been registered. The decision in Cox v. Land and Water Company is, however, a doubtful one.* Copyright, how- ) The names of the parties thereto. (c) The name and address of the person in whom such copyright is vested in virtue thereof, and of the author of the work. (d) A short description of the nature and subject of such work, and, if the person registering so desires, a sketch, outline, or photograph of the work in addi- tion thereto. No proprietor of any such copyright is entitled to the benefit of The Fine Arts Act, 1862, until such registration, and no action can be maintained, nor any penalty re- covered, in respect of anything done before registration.* But it is not necessary to the validity of a registered assign- ment that previous assignments should be registered. Any person aggrieved by any such entry may apply to the High Court, or any judge thereof, to have such entry expunged or varied, and the Court may make such entry as it thinks just. It is a misdemeanour to make or cause to be made any false entry in such book wilfully. f The officer in charge of the book is bound to give sealed and certified copies of the entries contained therein on payment of a fee of 55., and such copies are primd facie proof of the matters alleged therein. The fee for registration is one shilling; the search fee also one shilling. Forms can be obtained at the office for one penny each. A copy of the form is given in the Appendix. It must be signed by the proprietor of copy- right, and should be taken not sent to the office by some trustworthy person. Copyright may be registered at any time, but it ought to be done at once, otherwise a piracy may go unpunished. Where copyright has been assigned more than once, the proprietor may register it without mentioning either the original, or any of the prior assignments, but all subse- * Graves' Case, L.R., 4 Q.B., 715. f 5 and 6 Vic., c. 45, s. n, 12, and 14, extended bys. 5 of Fine Arts Act. See Appendix. REGISTRATION OP PAINTINGS, DRAWINGS, ETC. 63 quent assignments must be registered, the reason being that any one may trace out the proprietorship. The assignee of a registered copyright should therefore re- gister immediately. With regard to the description of the work, the object of the Legislature, as pointed out by the Act, is that there shall be such description as to enable a person who has the picture or work before him to judge whether or not the registration applies to the one he is about to copy. In Beal's case* Lord Blackburn says : " In all cases it would be a question of fact whether the description is sufficient to point out the picture registered. The picture 'Ordered on Foreign Service' represents an officer, who is ordered abroad, taking leave of a lady, and no one can doubt that is the picture intended. So, again, ( My First Sermon ' describes with sufficient exactness a child, im- pressed with the novelty of her situation, sitting in a pew and listening with her eyes open ; while the same child, fast asleep in a pew, forms the subject of ' My Second Sermon/ Who can doubt that in each of these cases the description is sufficient ? There may be a few instances in which the registration of the name of the picture is not sufficient; for instance, Sir Edwin Landseer's picture of a Newfoundland dog might possibly be insufficiently re- gistered under the description of 'A Distinguished Member of the Humane Society/ Similarly, a well- known picture called e A Piper and a Pair of Nut- crackers/ representing a bullfinch and a pair of squirrels, might not be accurately pointed out by its name. In either of these cases the names would scarcely be suffi- cient, and it would be advisable for a person proposing to register them to add a sketch or outline of the work." In case of commissioned work, if the registration be made by the person who commissioned the work, he should leave a blank space, under " Date of Agreement/' and " Names of Parties/' or write, " Painted on Commission." A person to be " aggrieved" must show that the entry in * 3 L.R.6LB., 393. 64 THE LAW OF ARTISTIC COPYRIGHT. the register is inconsistent with some right which he sets- up in himself or in some other person, or that the entry would really interfere with some intended action on the part of the person making the application. For instance, if a person brought to the notice of the Court that he had a right to take copies of certain pictures but was afraid to do so while the entry existed, he would be a persort " aggrieved " within the meaning of the section. * * Chapptll v. Pur day, 1 1 M. & W., 303 ; Graves Case, L.R, 4, GL Bench, 715. PIRACY OF PAINTINGS, DRAWINGS, ETC. 65 CHAPTER VIII. PIRACY OF PAINTINGS, DRAWINGS, AND PHOTOGRAPHS. THE manner in which the chief piracies of paintings are made is as follows : (1) Piratical copies are made abroad, and imported into this country for sale. (2) Photographs or lithographs of engravings made from a picture are hawked about. (3) Copies of paintings are made, signed, and sold as originals. (4) The style of a particular painter is imitated, and his signature forged. Artists complain that the present law is powerless to put an end to these forms of piracy. The fault is rather with themselves. A perusal of the Fine Arts Act will show that the law gives a remedy in each case, but artists will not avail themselves of it, on the ground that proceed- ings waste their time and involve them in expense. So does the protection of all property. Let artists and pub- lishers combine to enforce the law. An association, with a lawyer at its head, and with two or three sharp agents under him, would soon root out the evil,* The following is a summary of the provisions of the Fine Arts Act, 1862, with regard to piracy : Every one (including the author when he is not the pro- prietor) commits an offence who, without the consent of the proprietor of the copyright therein, does any of the following things with regard to any painting, drawing, or photograph, in which copyright exists : (a) Repeats, copies, colourably imitates, or otherwise multiplies for sale, hire, exhibition, or distribution, any such work, or the design thereof. * See Dialogue, p. 23 ante. F 66 THE LAW OP ARTISTIC COPYRIGHT. (ft) Causes or procures to be done anything mentioned in . (c) Sells, publishes, lets to hire, exhibits or distributes, offers for any such purposes, imports into the United Kingdom any such repetition, copy, or other imitation of any such work, or of the design thereof, knowing that it has been unlawfully made. (d) Causes or procures to be done anything mentioned in (c). Every one, whether the owner of copyright or not, com- mits an offence who (e) Fraudulently signs, or otherwise affixes, or fraudu- lently causes to be signed, or otheiwise affixed to or upon any painting, drawing, or photograph, or the negative thereof, any name, initials, or monogram. (f) Fraudulently sells, publishes, exhibits, or disposes of, or offers for sale, exhibition, or distribution any paint- ing, drawing, or photograph, or the negative of a photograph, having thereon the name, initials, or monogram of a person who did not execute or make such a work. (g) Fraudulently utters, disposes of, or puts off, or causes to be uttered or disposed of, any copy or colourable imitation of any painting, drawing, or photograph, or negative of a photograph, whether there is subsisting copyright therein or not, as having been made or executed by the author or maker of the original work from which such copy or imitation has been taken. (h) Makes, or knowingly sells, publishes, or offers for sale any painting, drawing, or photograph which, after being sold or parted with by the author or maker thereof, has been altered by any other person by addi- tion or otherwise, or any copy of such work so altered, or of any part thereof, as the unaltered work of such author or maker during his life or without his consent. Every one who commits any of the offences (#), (6), (c}, or (d) forfeits to the proprietor of the copyright for the PIRACY OF PAINTINGS, DRAWINGS, ETC. 67 time being a sum not exceeding j^ro,* and all such repe- titions, copies, and imitations made without such consent as aforesaid, and all negatives of photographs made for the purpose of obtaining such copies. Every one who commits any of the offences (e), (f), (g), or (li) forfeits to the person aggrieved a sum not exceeding ^10, or double the price, if any, at which all such copies, -engravings, imitations, or altered works were sold or offered for sale; and all such copies, engravings, and imita- tions and altered works are forfeited to the person whose name, initial, or monogram are fraudulently signed or affixed, or to whom such spurious or altered work is fraudulently or falsely ascribed; provided that none of the last-mentioned penalties are incurred unless the person to whom such spurious or altered work is so fraudulently ascribed, or whose name, initial, or monogram is so fraudu- lently or falsely ascribed was living at or within twenty years next before the time when the offence was com- mitted, f The penalties hereinbefore specified are cumulative, J .and the person aggrieved by any of the acts before men- tioned may recover damages in addition to such penalties, and may in any case recover and enforce the delivery to him of the things specified, and recover damages for their retention or conversion. The penalties may be recovered either by action or before two justices or a stipendiary magistrate. There is also the remedy by injunction. || The importation into the United Kingdom of repeti- tions, copies, or imitations of paintings, drawings, or pho- tographs wherein, or in the design whereof, there is an existing copyright under 25 and 36 Vic., c. 68, or of the design thereof, or of the negatives of photographs, is absolutely prohibited, except by the consent of the pro- : * 25 and 26 Vic., c. 68. s. 6. t 25 and 26 Vic., c. 68, s. 7. Steph. Dig. J Brooke v. Milliken, 3 T.R., 509; ex parte Beal, L.R. 3, Q.B., 395. 25 and 26 Vic., c. 68, s. 8 ; 2 and 3 Vic., c. 71, s. 14; n and 12 Vic., c. 43, ss. 29, 33, 34. See p. 54 ante. || Ante p. 55. 68 THE LAW OP ARTISTIC COPYRIGHT. prietor of the copyright or his agent authorised in writing.* What is a copy ? The definition given in the case of West v. Frances is that " a copy is that which comes so near to the original as to give every person seeing it the idea created by the original. "f The correctness of this definition has been doubted, J and in exparteBea\ a more tangible explanation is given of the construction to be put upon the word as used in the 6th section of the Act. Lord Blackburn there says : " The copyright in the picture belongs to Mr. Graves. He made an engraving of it, of which he sold copies. He had not given any right to others to multiply them, and the photographs for which the penalties were recovered were made by photographing the engraving, and not the original picture; and it has been argued that the photograph of the engraving, being a reproduction of a copy of the design of the painting, is not a copy of the painting itself. It seems to me that cannot be so. When the subject of a picture is copied, it is of no consequence whether that is done directly from the picture itself, or through intervening copies. If in the result that which is copied be an imitation of the picture, then it is immaterial whether that be arrived at directly or by intermediate steps. A doubt was suggested by the Court whether there might not be a difficulty arising upon the wording of s. 6,|| whether the enactment might merely mean the imitation of a painting by a painting, of a drawing by a drawing, and of a photograph by a photo- graph, and that a photograph of a drawing would not be within the meaning of the Legislature. But when we look at the ist section,^" which is the key to the whole * Fine Arts Act, s. 10. f 5 B. and A., 737. J In Dicks v. Brooks, L.R. xv., Ch. Div., 29. Bacon V.C. says : " The definition read from West v. Francis I should not adopt exclusively and conclusively as applying to every case, although it applies perfectly to the case in which it was used." L.R. 3, G.B. 393. || See Appendix. t Ante, p. 36. PIRACY OF PAINTINGS, DRAWINGS, ETC. 69 Act, the terms used are so extensive that it is plain that a photograph of a painting, of a drawing, or of another photograph, made without the consent of the owner, though of a different size, provided it be a reproduction of .the design, is such an infringement as would subject the maker to the penalty." At common law it had been decided in 1857* that to sign .a painter's name to a picture which has not been painted by him is no forgery. The person doing so cannot be in- dicted for forging or uttering the forged name of the painter, for the crime of forgery must be committed with reference to some document or writing, and does not extend to the fraudulent imitation of a name put on a picture merely as a mark to identify it as the painter's work ; but if a person knowingly sells as an original, a copy of a picture, with the painter's name imitated upon it, and, by means of the imitated name, knowingly and fraudu- lently induce another to buy and pay for the picture as a genuine work of the artist, he may be indicted as a cheat by means of a false token at common law independently of s. 7 of the Actf which now covers such a case. With regard to the piratical copies which are hawked about the country, and particularly photographs of copy- right paintings and engravings, the power given to proceed by summons has at present proved ineffectual to stop the traffic, because the persons selling these copies go round from house to house, and refuse to give either a name or address, and are gone before a summons can be procured. Tn the Report of Copyright Commission there is a re- commendation that in any future Act a clause to the effect that "all such unlawful articles may be seized without warrant by any peace officer under the orders and responsibility of the proprietor of the copyright, or any person authorised by him," &c. In the Bill now before the House of CommonsJ a similar clause is inserted. * R. v. Closs, 27 L.J.M.C., 54. f See Appendix. See Appendix. 70 THE LAW OP ARTISTIC COPYRIGHT. CHAPTER IX. COPYRIGHT IN SCULPTURE AND BUSTS, MODELS, &C. THE Act upon which copyright in sculpture depends is 54 Geo. III., c. 56 ;* an earlier statute (38 Geo. III., c. 71) being now repealed. The plastic art may, at present, be copied by the graphic art. There is no protection afforded to the sculptor against paintings, drawings, engravings, or photographs; copy- right in a work of sculpture, whether commissioned or not, belongs to the sculptor, provided he complies with the re- quirements of the Sculpture Act, the material provisions of which are as follows : Every person who makes, or causes to be made, any new and original sculpture, or model, or copy, or cast of (1) The human figure. (2) Any bust. (3) Any part of the human figure clothed in drapery or otherwise. (4) Any animal. (5) Any part of an animal combined with the human figure or otherwise. (6) Any subject, being matter of invention in sculpture. (7) Any alto or basso-relievo, representing any of the matters above-mentioned. (8) Any cast from nature. (a) of the human figure. (b) of any part or parts of the human figure. (c) of any animal. (d) of any parts of the animal. (e) of any such subject (i.e., being matter of inven- * See Appendix. COPYRIGHT IN SCULPTURE AND BUSTS, ETC. Jl tion in sculpture), containing or representing any of the things hereinbefore-mentioned, whether separate or combined, has the sole right and property therein for the term of 14 years from the first putting forth or publishing the same, provided that the proprietor causes his name with the date to be put on all and every such new and original sculpture, model, copy, or cast before it is published.* "This section," says Mr. Justice Stephen,f "is a miracle of intricacy and verbosity. It contains an ' oP which may be a misprint, as it seems to make nonsense of several lines, and a most puzzling ' such, ' of which I have given a conjectural interpretation. Moreover, every sub- stantive is given both in the singular and the plural ' figure or figures/ ' part or parts, ' &c., &c. The section forms a sentence of 38 lines ; the first half of which is re- peated in the second half in so intricate a way that the draftsman appears to have lost himself in the middle of it. It admits of a doubt whether a cast from nature of an , animal is the subject of copyright at all, and whether it must not be a cast from a cast from nature." If the proprietor be living at the end of the term of 14 years his right returns to him for a further term of 14 years, unless he has divested himself thereof. The very letter of the law must be complied with. In order to acquire copyright the sculptor must engrave, not only on the finished work, but on every model, copy, or cast prepared by him in the process of making it, his name, and the day of the month and year when the work is first shown, and such date must not be altered. Statues and models, and everything that comes within the Act, may be registered at the office for the Registration of Designs, now the office of the Commissioners of Paten ts.J The proprietor shall give such copy, drawing, print, or * 54 Geo. III., c. 56, ss. i and 6. See Appendix. f Digest appended to Copyright Commissioners' Report, 1878. i 13 and 14 Vic., c. 104, s 6. See Appendix. 72, THE LAW OF ARTISTIC COPYRIGHT. description of his work as shall in the judgment of the Registrar be sufficient to identify it, and the name of the proprietor and his address. The Registrar of Designs shall then grant a certificate of such registration. A photograph would answer the purpose of this section better than a description of the piece of sculpture. The application to register can be made by the proprietor for the time being as well as by the author. Every copy or cast of such sculpture, model, copy or cast, which shall be published by the proprietor after regis- tration, must be marked with the word " registered," and with the date of registration.* The effect of registration, under the Designs Act,f is to add penalties for piracy to the right of action for damages given by the Sculpture Act.J For every offence the pirate is to forfeit- to the proprietor a sum of not less than <^5 and not exceeding ^30. These penalties are recoverable either by action of debt or summarily before justices. In the latter case the aggre- gate amount of penalties recoverable for offences, in respect of any one design committed by any one person, is limited to the sum of < J ioo. Copyright in sculpture can only be assigned by deed, and attested by two witnesses. A form is given in the Appendix, but the assignor will probably need the ser- vices of a professional man in order to carry out an assign- ment. The action for damages under the Sculpture Act must be commenced within six months after the commission of the offence; that for penalties within twelve months. || With regard to sculpture, the Report of the Royal Com- mission is as follows : " We are disposed to think that every form of copy, * 13 and 14 Vic., c. 104, s. 7. See Appendix. f A. I 54 Geo. III., c. 56, s. 3. 5 and 6 Vic., c. 100, s. 8. 13 and 14 Vic., c. 104, s. 7. || 5 and 6 Vic., c. 100, s. 12. COPYRIGHT IN SCULPTURE AND BUSTS, ETC. 73 whether by sculpture, modelling, photography, drawing, engraving, or otherwise, should be included in the protec- tion of copyright. It might be provided that the copying of a scene, in which a piece of sculpture happened to form an object, should not be deemed an infringement, unless the sculpture should be the principal object, or unless the chief purpose of the picture should be to exhibit the sculp- ture. It was also suggested that copyists of antique works ought to be protected by copyright as far as their own copies are concerned. Many persons spend months in copying ancient statues, and the copies become as valuable to the sculptors as if they were original works. It may be doubted whether the case does not already fall within the Sculpture Act ; but we recommend that such doubts should be removed, and that sculptors who copy from statues in which no copyright exists should have copyright in their own copies. Such copyright should not, of course, extend to prevent other persons making copies of the original work." 74 THE LAW OF ARTISTIC COPYRIGHT. ARCHITECTURE. At present there is no copyright in an architectural design farther than that it is protected as a drawing by the Fine Arts Act, 1862, and so may not be copied on paper. In justice, it would seem that the design of a building should be as much entitled to protection as that of a statue. Mr. Charles Barry, the President of the Royal Institute of British Architects, gave evidence before the Copyright Commission in February, 1877, and suggested that the right to reproduce a building should be reserved to the architect for 20 years ; and further that copyright in archi- tectural designs should be reserved to the author from the date of the erection of a building, or the sale of the design. His suggestions were, however, rejected, on the ground, as the Report of the Commissioners states, that it would be impossible to carry them out in practice. If the architect wishes to acquire copyright in his draw- ings he should be careful to carry out the practical sugges- tions as to the signing of the memorandum and. registration, to be found in the Chapters on Copyright in- Paintings, Drawings, and Photographs. INTERNATIONAL COPYRIGHT. 75 CHAPTER X. INTERNATIONAL COPYRIGHT. COPYRIGHT in works of art first published in foreign countries is granted to the authors of such works in the manner, to the extent, and on the terms following, if what the Government of this country regards as due protection has been secured by the foreign country, in which such works are first published, for the benefit of persons interested in similar works first published in British dominions.* Her Majesty may, by Order in Council, direct that the authors of any works of art, being first published in such foreign country, shall have copyright therein under the Engraving,, Sculpture, and Fine Aris Acts, but no author of any such foreign work of art is entitled to any benefit under the provisions of the International Copyright Act, unless the work is registered at Stationers' Hall.f A foreign print or engraving must have the name of the proprietor and date of first publication engraved on the plate and printed on each print. { The importation into any part of the British dominions- of copies of any work of art, the copyright of which has been protected by the provisions of the Act, is absolutely pro- hibited, unless by the consent of the registered proprietor or by that of his agent authorised in writing. Notwithstanding great exertions that have from time to time been made, it has hitherto been found impracticable to arrange any terms of reciprocal protection with the * 7 and 8 Vic., c. 12, s. 2, included in Fine Arts Act, 1862 ; 15 and 16 Vic., c. 12. t For a form of registration, see Appendix. J Alvanzo v. Mudie, 10 Exch., 203. 15 and 16 Vic., c. 12, s. 9. 76 THE LAW OP ARTISTIC COPYRIGHT. American people, the result being, that an English artist, or publisher, has no remedy whatever against the piracy of his works in the United States. The works of British authors and painters may be, and generally are, taken without leave by American publishers sometimes muti- lated, issued at a cheap rate to a population of nearly fifty millions of people, who are, perhaps, the most active readers in the world, and not seldom in forms that are most objectionable to the feelings of the original artist or .author. The reason for this deplorable state of things is not far to seek. The original works published in America are less numerous than our own. Thus the American pub- lisher is tempted to take advantage of the works of the older country, and at the same time is induced to curtail the publication of original works of his own land. The American author also has not the same need of a conven- tion as the English, since our law affords copyright pro- tection throughout the British dominions to foreigners as well as to British subjects provided they publish their works in the United Kingdom before bringing them out elsewhere, while the American law, unlike ours, does not make first publication at home a condition of obtaining copyright. It is consequently the practice of some Ameri- can authors to publish their works first in the United Kingdom, and so to obtain British copyright, and then to republish them in the United States, and obtain American copyright, or to publish in the two countries almost simul- taneously.* The reasons above given show the difficulties which lie in the way of a satisfactory solution of the question, .although as a matter of fact they relate to books more than to works of art, except illustrations contained in books. By a temporary residence in the United Kingdom an American artist can obtain copyright here in his paint- ing, and then he can obtain copyright in his own country. The Copyright Commissioners are adverse to the taking * See Report of Copyright Commissioners. INTERNATIONAL COPYRIGHT. 77 of any measures of a retaliatory character, such as the withdrawal from the Americans of the privilege of copy- right on first publication in this country, and they recom- mend the appointment of a mixed commission to examine and report upon the whole subject with a view to the arrangement of the terms of a copyright convention between the two nations. France. By the Convention of 1851, and a decree of 1852, the works of English authors published out of France are protected, and an Englishman who publishes a work of art in France may, by complying with the. law of France, acquire copyright for his own life, and for fifty years after his death, on condition that he deposits in the National Library a copy of the work, for otherwise he will not be able to proceed for piracy of his copyright. Copyright conventions have been arranged with most of the nations of the European Continent, whereby recipro- cal protection has been secured for the authors of those countries and for British subjects. To mention the copy- right laws of those countries is beyond the province of a handbook, and the reader is referred to the larger works on the subject which are to be found in our legal libraries. Colonial Copyright. The Acts relating to copyright in works of the fine arts apply to all the British dominions.* With regard to Canada, the British artist's position is regulated by an Act passed by the Dominion Parliament in i8y5,t which gives copyright for 28 years to any person, domiciled in Canada, or in any part of the British possessions, or being * The Imperial statutes relating to Colonial Copyright are 5 and 6 Vic., c.. 45; 10 and n Vic., c. 95; 16 and 17 Vic., c. 107; and 18 and 19 Vic., c. 96; and the Canada Copyright Act, 1875, 3$ an( ^ 39 Vic., c. 53. The latter, however, is the only one of these Acts which relates to works of art. f The Canadian Act, 1875, is g iven in tne schedule to the 38 and 39. Vic., c. 53. 78 THE LAW OP ARTISTIC COPYRIGHT. a citizen of any country having an International Copy- right Treaty with the United Kingdom, who is the author of any original painting, drawing, statue, sculpture, or photograph, or who invents, designs, etches, or engraves, or causes to be engraved, etched, or made from his own design any print or engraving, and to the legal representa- tives of such person. This is subject to the condition that the work of art be produced or reproduced in Canada. Such production or reproduction may be previous to, contemporaneous with,* or subsequent to publication elsewhere, but the copyright is not to continue in Canada after it has expired anywhere else. If at the expiration of the 28 years the author is still living, or has died and left a widow or child, a further period of fourteen years for copyright accrues to him or them. The person desirous of obtaining such copyright must deposit with the Minister of Agriculture two copies of a photograph, print, cut, or engraving, and in the case of paintings, drawings, statuary and sculpture a written de- scription of the work, and the copyright will then be recorded. Upon every photograph, print, cut, or engraving must be impressed, on its face, the words, " Entered according to Act of Parliament of Canada, in the year , by A. B., in the Office of the Minister of Agriculture." But as re- gards paintings, drawings, statuary, and sculptures, the signature of the artist \vill suffice. Interim copyright, pending the production or reproduc- ttion in Canada, can be obtained to last for a month. THE STATUTE OF FRAUDS. 79 CHAPTER XI. THE STATUTE OF FRAUDS. A CONTRACT to paint a picture, or to execute a work of art on commission, for a price of j^io or upwards, and a con- tract for the sale of a work of art, is a contract within the lyth section of 29 Car. II, c. 3, and is therefore not en- forceable unless one of three things take place (1) The purchaser must accept the work of art and actually receive it ; or (2) The purchaser must give something in earnest to bind the bargain, or in part payment ; or (3) Some note or memorandum of the bargain must be made, and signed by the party to be charged there- with or his agent. An artist should therefore obtain a small cheque or pay- ment on account, or obtain the commissioner's signature to a document stating the material terms of the agreement, otherwise the purchaser may refuse to accept the work of art when completed, or to pay for it. On the other hand, the commissioner or purchaser would do well to obtain the signature of the artist to a similar document, or to pay him something on account, or he may be kept waiting by a dilatory artist, or not ob- tain his work of art at all. In the case of Lee v. Griffin,* which was an action for the price of a set of artificial teeth, it was objected on behalf of the defendant, that where the chief part of what is supplied is the skill, the contract is not for the sale of goods within the Statute of Frauds. Lord Blackburn said : " Here, if the teeth had been delivered and accepted, * 3oL.J.GLB.,254. 80 THE LAW OP ARTISTIC COPYRIGHT. the contract for the sale of a chattel would have been complete. I do not think the relative value of the labour, and of the materials on which it is bestowed, can in any case be the test of what is the cause of action ; and that if Benvenuto Cellini had contracted to execute a work of art for another, much as the value of the skill might exceed that of the materials, the contract would have been the less for the sale of a chattel/' If time be not mentioned in an agreement for the execu- tion and delivery of a work of art, the artist is bound to- deliver it within a reasonable time. The agreement above mentioned is, of course, altogether independent of the question of copyright. APPENDIX. 8 1 APPENDIX. 8 George IT., c. 13 (1735). An Act for the Encouragement of the Art of Designing, Engraving, and Etching Historical and other Prints, by vesting the Properties thereof in the Inventors and Engravers during the time therein mentioned. WHEREAS divers persons have, by their own genius, in- dustry, pains, and expense, invented and engraved, or worked in mezzotinto, or chiaro-oscuro, sets of historical and other prints, in hopes to have reaped the sole benefit of their labours: And whereas printsellers and other per- sons have of late, without the consent of the inventors, designers, and proprietors of such prints, frequently taken the liberty of copying, engraving, and publishing, or caus- ing to be copied, engraved and published, base copies of such works, designs, and prints, to the very great prejudice and detriment of the inventors, designers, and proprietors thereof: For remedy thereof, and k>r preventing such prac- tices for the future, may it please Your Majesty that it be enacted ; and be it enacted by the King's most excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons, in this present Par- liament assembled, and by the authority of the same, That from and after the twenty-fourth day of June, which shall be in the year of our Lord one thousand seven hun- dred and thirty- five, every person who shall invent and design, engrave, etch, or work, in mezzotinto or chiaro- oscuro, or from his own works and invention shall cause to be designed and engraved, etched, or worked, in mezzo- tinto or chiaro-oscuro, any historical or other print or G 82 THE LAW OF ARTISTIC COPYRIGHT. prints, shall have the sole right and liberty of printing and reprinting the same for the term of fourteen years, to com- mence from the day of the first publishing thereof, which shall be truly engraved with the name of the proprietor on each plate, and printed on every such print or prints; and that if the printseller or other person whatsoever, from and after the said twenty-fourth day of June, one thousand seven hundred and thirty-five, within the time limited by this Act, shall engrave, etch, or work as aforesaid, or in any other manner copy and sell, or cause to be engraved, etched, or copied and sold, in the whole or in part, by vary- ing, adding to, or diminishing from the main design, or shall print, reprint, or import for sale, or cause to be printed, re- printed, or imported for sale, any such print or prints, or any parts thereof, without the consent of the proprietor or proprietors thereof, first had and obtained in writing, signed by him or them respectively, in the presence of two or more credible witnesses ; or, knowing the same to be so printed or reprinted, without the consent of the proprietor or proprietors, shall publish, sell, or expose to sale, or otherwise, or in any other manner dispose of or cause to be published, sold, or exposed to sale or otherwise, or in any other manner disposed of, any such print or prints, without such consent first, had and obtained as aforesaid, then such offender or offenders shall forfeit the plate or plates on which such print or prints are, or shall be copied, and all and every sheet or sheets (being part of, or whereon such print or prints are or shall be so copied or printed), to the proprietor or proprietors of such original print or prints, who shall forthwith destroy and damask the same ; and further, that every such offender or offenders shall forfeit five shillings for every print which shall be found in his, her, or their custody, either printed or pub- lished, and exposed to sale or otherwise disposed of, con- trary to the true intent and meaning of this Act, the one moiety thereof to the King's most excellent Majesty, his heirs and successors, and the other moiety thereof to any person or persons that shall sue for the same, to be re- APPENDIX. 83 covered in any of His Majesty's Courts of Record at Westminster, by action of debt, bill, plaint, or information in which no wager of law, essoign, privilege, or protection, or more than one imparlance, shall be allowed. II. Provided nevertheless, That it shall and may be lawful for any person or persons who shall hereafter pur- chase any plate or plates for printing from the original proprietors thereof to print and reprint from the said plates without incurring any of the penalties in this Act men- tioned. III. And be it further enacted by the authority afore- said, That if any action or suit shall be commenced or brought against any person or persons whatsoever for doing or causing to be done anything in pursuance of this Act, the same shall be brought within the space of threemonths after so doing; and the defendant and defendants in such action or suit shall, or may, plead the general issue, and give the special matter in evidence ; and if upon such action or suit a verdict shall be given for the defendant or defen- dants, or if the plaintiff or plaintiffs become nonsuited, or discontinue his, her, or their action or actions, then the defendant or defendants shall have and recover full costs for the recovery whereof he shall have the same remedy as any other defendant or defendants in any other case hath or have by law. IV. Provided always, and be it further enacted by the authority aforesaid, That if any action or suit shall be com- menced or brought against any person or persons for any offence committed against this Act, the same shall be brought within the space of three months after the dis- covery of every such offence, and not afterwards, anything in this Act contained to the contrary notwithstanding. V. Repealed by 30 and 31 Viet., c. 59. VI. And be it further enacted by the authority aforesaid, That this Act shall be deemed, adjudged, and taken to be a Public Act, and be judicially taken notice of as such by all judges, justices, and other persons whatsoever, without especially pleading the same. 84 THE LAW OF ARTISTIC COPYRIGHT. 7 George III. c. 38 (1766). An Act to amend and render more effectual an Act made in the Eighth Year of the Reign of King George the Second, jor Encouragement of the Acts of designing, engraving, and etching historical and other Prints ; and for vesting, in and securing to, Jane Hogarth, Widow, the Property in certain Prints. WHEREAS an Act of Parliament passed in the eighth year of the reign of His late Majesty King George the Second, intituled "An Act for the Encouragement of the Arts of designing, engraving, and etching historical and other Prints, by vesting the Properties thereof in the Inventors and Engravers, during the time therein mentioned," has been found ineffectual for the purposes thereby intended : Be it enacted that the King's most excellent Majesty, by and with the advice and consent of the Lord's spiritual and temporal, and Commons, in this present Parliament assem- bled, and by the authority of the same, that from and after the first day of January, one thousand seven hundred and sixty-seven, all and every person or persons who shall invent or design, engrave, etch, or work mezzotinto or chiaro-oscuro, or, from his own work, design, or invention, shall cause or procure to be designed, engraved, etched, or worked in mezzotinto or chiaro-oscuro, any historical print or prints, or any print or prints of any portrait, conversa- tion, landscape, or architecture, map, chart, or plan or any other print or prints whatsoever, shall have, and are hereby declared to have, the benefit and protection of the said Act and this Act, under the restrictions and limitations herein- after mentioned. II. And be it further enacted by the authority aforesaid, That from and after the said first day of January, one thousand seven hundred and sixty-seven, all and every person and persons who shall engrave, etch, or work in mezzotinto or chiaro-oscuro, or cause to be engraved, etched, or worked any print taken from any picture, draw- APPENDIX. 85 ing, model, or sculpture, either ancient or modern, shall have, and are hereby declared to have, the benefit and pro- tection of the said Act and this Act, for the term herein- after mentioned, in like manner as if such print had been graved or drawn from the original design of such graver, etcher, or draftsman ; and if any person shall engrave, print, or publish, or import for sale, any copy of such print, contrary to the true intent and meaning of this and the said former Act, every such person shall be liable to the penalties contained in the said Act, to be recovered a? therein and hereinafter is mentioned. III. and IV. repealed by 30 and 31 Viet., c. 59. V. And be it further enacted by the authority aforesaid, That all and every the penalties and penalty inflicted by the said Act and extended, and meant to be extended, to the several cases comprised in this Act shall and may be sued for and recovered in like manner and under the like restric- tions and limitations as in and by the said Act is declared and appointed; and the plaintiff or common informer in every such action (in case such plaintiff or common in- former shall recover any of the penalties incurred by this or the said former Act) shall recover the same, together with full costs of suit. Provided, also, that the party prosecu- ting shall commence his prosecution within the space of six calendar months after the offence committed. VI. And be it further enacted by the authority afore- said, That the sole right and liberty of printing and re- printing intended to be secured and protected by the said former Act and this Act, shall be extended, continued, and be vested in the respective proprietors, for the space of twenty-eight days, to commence from the day of the first publishing of any of the works respectively hereinbefore, and in the said former Act mentioned. VII. And be it further enacted by the authority afore- said, That if any action or suit shall be commenced or brought against any person or persons whatsoever, for doing, or causing to be done, anything in pursuance of this Act, the same shall be brought within the space of six 86 THE LAW OF ARTISTIC COPYRIGHT. calendar months after the fact committed ; and the defen- dant or defendants in any such action or suit shall or may plead the general issue, and give the special matter in evidence; and if, upon such action or suit a verdict shall be given for the defendant or defendants, or if the plaintiff or plaintiffs become non-suited, or discontinue his, her, or their action or actions, then the defendant or defendants shall have and recover full costs ; for the recovery whereof he shall have the same remedy as any other defendant or defendants in any other case, hath or have by law. 17 George III., c. 57 (1777). An Act for more effectually securing the Property of Prints to Inventors and Engravers &?/ enabling them to sue for and recover Penalties in certain cases. WHEREAS an Act of Parliament passed in the eighth year of the reign of His late Majesty King George the Second, intituled " An Act for the Encouragement of the Arts of designing, engraving, and etching historical and other Prints, by vesting the Properties thereof in the Inventors and Engravers during the Time therein men- tioned : " And whereas, by an Act of Parliament passed in the seventh year of the reign of His present Majesty for amending and rendering more effectual the aforesaid Act, and for other purposes therein mentioned, it was (among other things) enacted, That from and after the first day of January one thousand seven hundred and sixty seven, all and every person or persons who shall engrave, etch, or work in mezzotinto or chiaro-oscuro, or caused to be engraved, etched, or worked, any print taken from any picture, drawing, model, or sculpture, either ancient or modern, should have, and were thereby declared to have the benefit and protection of the said former Act and that Act, for the term thereinafter mentioned, in like manner as it such print had been graved or drawn from the original design of such graver, etcher, or draughtsman ; and whereas the said Acts had not effectually answered APPENDIX. 87 the purposes for which they were intended, and it is neces- sary for the encouragement of artists, and for securing to them the property of and in their works, and for the advancement and improvement of the aforesaid arts, that such further provisions should be made as are hereinafter mentioned and contained : May it therefore please your Majesty that it may he enacted ; and be it enacted by the King's most excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons, in this present Parliament assembled, and by the authority of the same, That from and after the twenty- fourth day of June, one thousand seven hundred and seventy-seven, if any engraver, etcher, print seller or other person shall, within the time limited by the afore- said Acts, or either of them, engrave, etch, or work, or cause or procure to be engraved, etched, or worked in mezzotinto or chiaro-oscuro, or otherwise, or in any other manner copy, in the whole or in part, by varying, adding to, or diminishing from the main design, or shall print, re- print, or import for sale, or cause or procure to be printed, reprinted, or imported for sale, or shall publish, sell, or otherwise dispose of, or cause or procure to be published, sold, or otherwise disposed of, any copy or copies of any historical print or prints, or any print or prints of any portrait, con- versation, landscape, or architecture, map, chart, or plan, or any other print or prints whatsoever, which hath or have been or shall be engraved, etched, drawn, or de- signed in any part of Great Britain, without the express consent of the proprietor or proprietors thereof first had and obtained in writing, signed by him, her, or them respectively, with his, her, or their own hands in the pre- sence of, and attested by, two or more credible witnesses, then every such proprietor or proprietors shall, and may, by and in a special action upon the case, to be brought against the person or persons so offending, recover such damages as a jury on the trial of such action, or on the execution of a writ of inquiry thereon, shall give or assess, together with double costs of suit.* * Double cost abolished by 24 and 25 Vic., c. 101. 88 THE LAW OF ARTISTIC COPYRIGHT. 54 George III., c. 56. An Act to amend mid render more effectual an Act of His present Majesty, for encouraging the Art of making new Models and Casts oj Busts, and other Tilings therein mentioned ; and for giving further Rncouragment to such Arts. [i8th May, 1814.] WHEREAS, by an Act, passed in the thirty-eighth year of the reign of His present Majesty, intituled "An Act for encouraging the Art of Making new Models and Casts of Busts, and other Things therein mentioned," the sole right and property thereof were vested in the original proprietors for a time therein specified ; And whereas the provisions of the said Act having been found ineffectual for the purposes thereby intended, it is expedient to amend the same, and to make other provisions and regu- lations for the encouragement of artists, and to secure to them the profits of and in their works, and for the advancement of the said Arts: May it therefore please your Majesty that it may be enacted, and be it enacted by the King's most excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons in this present Parliament assembled, and by the authority of the same. That from and after the passing of this Act, every person or persons who shall make or cause to be made, any new and original sculpture, or model, or copy, or cast of the human figure, or human figures, or of any bust or busts, or of any part or parts of the human figure, clothed in drapery or otherwise, or of any animal or animals, or of any part or parts of any animal combined with the human figure or otherwise, or of any subject being matter of invention in sculpture, or of any alto or basso- relievo representing any of the matters or things herein- before mentioned, or any cast from nature of the human APPENDIX. 89 figure, or of any part or parts of the human figure, or of any cast from nature of any animal, or of any part or parts of any animal, or of any such subject containing or repre- senting any of the matters and things hereinbefore men- tioned, whether separate or combined, shall have the sole right and property of all and in every such new and origi- nal sculpture, model, copy, and cast of the human figure -or human figures, and of all and in every such bust or busts, and of all and in every such part or parts of the human figure, clothed in drapery or otherwise, arid of all and in every such new and original sculpture, model, copy, and cast, representing any animal or animals, and of all and in every such work representing any part or parts of any animal combined wtth the human figure or otherwise, .and of all and in every such new and original sculpture, model, copy, and cast of any subject, being matter of in- vention in sculpture, and of all and in every such new and original sculpture, model, copy, and cast in alto or basso- relievo, representing any of the matters or things herein- before mentioned, and of any such cast from nature, for the term of fourteen years from first putting forth or pub- lishing the same : Provided, in all and in every case, the proprietor or proprietors do cause his, her, or their name or names, with the date, to be put on all and every such new and original sculpture, model, copy, or cast, and on every such cast from nature, before the same shall be put forth or published. II. And be it further enacted. That the sole right and property of all works, which have been put forth or pub- lished under the protection of the said recited Act, shall be extended, continued to, and vested in, the respective pro- prietors thereof for the term of fourteen years, to commence from the date when such last-mentioned works respectively \vere put forth and published. III. And be it further enacted, that if any person or persons shall, within such term of fourteen years, make or import, or cause to be made or imported, or exposed to sale, or otherwise disposed of, any pirated copy or pirated 90 THE LAW OP ARTISTIC COPYRIGHT. cast of any such new and original sculpture, or model, or copy, or cast of the human figure or human figures, or of any such bust or husts, or of any such part or parts of the human figure, clothed in drapery or other- wise, or of any such work of any animal or animals, or of any such part or parts of any animal or animals combined with the human figure or otherwise, or of any such subject being matter of invention in sculpture, or of any such alto or basso-relievo representing any of thematters or things hereinbefore mentioned, or of any such casts from nature as aforesaid, whether such pirated copy or pirated cast be produced by moulding or copying from, or imita- ting in any way, any of the matters or things put forth or published under the protection of this Act, or of any works which have been put forth or published under the protection of the said recited Act, the right and property whereof is and are secured, extended,, and protected by this Act in any of the cases as aforesaid, to the detriment, damage, or loss of the original or respec- tive proprietor or proprietors of any such works so pirated ; then in all such cases the said proprietor or proprietors, or their assignee or assignees, shall, and may, by and in a special action upon the case to be brought against the- person or persons so offending, receive such damages as a jury on a trial of such action shall give or assess, together with double cost of suit. IV. Provided, nevertheless, That no person or persons who shall or may hereafter purchase the right or property of any new and original sculpture or model, or copy or cast, or of any cast from nature, or of any of the matters and things published under, or protected by virtue of this Act, of the proprietor or proprietors, expressed in a deed in writing signed by him, her, or them respectively, with his,, her, or their own hand or hands, in the presence of, and attested by, two or more credible witnesses, shall be sub- ject to any action for copying, or casting, or vending the same, anything contained in this Act to the contrary notwithstanding. APPENDIX. 9T V. Provided always, and be it further enacted, That all actions to be brought as aforesaid, against any person or persons for any offence committed against this Act, shall be commenced within six calendar months next after the discovery of every such offence, and not afterwards. VI. Provided always, and be it further enacted, That from and immediately after the expiration of the said term of fourteen years, the sole right of making and disposing of such new and original sculpture, or model, or copy, or cast of any of the matters or things hereinbefore mentioned, shall return to the person or persons who originally made, or caused to be made the same, if he or they shall be then living, for the further term of fourteen years, excepting in the case or cases where such person or persons shall by sale or otherwise, have divested himself, herself, or them- selves, of such right of making or disposing of any new and original sculpture, or model, or copy, or cast of any of the matters or things hereinbefore mentioned, previous to the passing of this Act. 5 8c 6 Viet., c. 45, ss. ii, 12 & 14. XI. And be it enacted, That a book of registry, wherein may be registered, as hereinafter enacted, the proprietorship in the copyiight of books, and assignments thereof, and in dramatic and musical pieces, whether in manuscript or otherwise, and licenses affecting such copyright, shall be kept at the Hall of the Stationers' Company by the officer appointed by the said Company for the purposes of this Act, and shall at all convenient times be open to the in- spection of any person, on payment of one shilling for every entry which shall be searched for or inspected in the said book; and that such officer shall, whenever thereunto reasonably required, give a copy of any entry in such book, certified under his hand, and impressed with the stamp of the said Company, to be provided by them for that purpose, and which they are hereby required to provide, to any person requiring the same, on payment to him of the sum 92, THE LAW OF ARTISTIC COPYRIGHT. of five shillings; and such copies so certified and im- pressed shall be received in evidence in all courts, and in all summary proceedings, and shall be primd facie proof of the proprietorship or assignment of copyright or 'license as therein expressed, but subject to be rebutted by other evidence, and, in the case of dramatic and musical pieces, shall be primd facie proof of the right of repre- sentation or performance, subject to be rebutted as afore- said. XII, And be it enacted, That if any person shall wil- fully make, or cause to be made, any false entry in the registry book of the Stationers' Company, or shall wilfully produce or cause to be tendered in evidence any paper falsely purporting to be a copy of any entry in the said book, he shall be guilty of an indictable misdemeanor, and shall be punished accordingly. XIV. And be it enacted, That if any person shall deem himself aggrieved by any entry made under colour of this Act in the said book of registry, it shall be lawful for such person to apply by motion to the Court of Queen's Bench, Court of Common Pleas, or Court of Exchequer, in term time, or to apply by summons to any judge of either such Courts in vacation, for an order that such entry may be expunged or varied ; and that upon any .such application by motion or summons to either of the said Courts, or to a Judge as aforesaid, such Court or Judge shall make such order for expunging, varying, or confirming such entry, either with or without costs, as to such Court or Judge shall seem just; and the officer ap- pointed by the Stationers' Company for the purposes of this Act shall, on the production to him of any such order for expunging or varying any such entry, expunge or vary the same according to the requisitions of such order. APPENDIX. 93 13 8c 14 Viet., c. 104, ss. 6 & 7. An Act to extend and amend the Acts relating to the Copy- right oj Designs. [i4th August, 1850.] VI. That the Registrar of Designs, upon application by~ or on behalf of the proprietor of any sculpture, model, copy, or cast within the protection o^ the Sculpture Copy- right Acts, and upon being furnished with such copy, drawing, print, or description, in writing or in print, as in the judgment of the said registrar shall be sufficient to identify the particular sculpture, model, copy, or cast, in respect of which registration is desired, and the name of the person claiming to be proprietor, together with his place of abode, or business, or other place of address, or the name, style, or title of the firm under which he may be trading, shall register such sculpture, model, copy, or cast in such manner and form as shall from time to time be prescribed or approved by the Board of Trade for the whole or any part of the term during which copyight in such sculpture, model, copy, or cast may or shall exist under the Sculpture Copyright Acts ; and whenever any such registration shall be made, the said registrar shall certify under his hand and seal of office, in such form as the said board shall direct or approve, the fact of such registration, and the date of the same, and the name of the registered proprietor, or the style or title of the firm under which such proprietor may be trading, together with his place of abode or business or other place of address. VII. That if any person shall, during the continuance of the copyright in any sculpture, model, copy, or cast which shall have been so registered as aforesaid, make, import, or cause to be irade, imported, exposed for sale, or otherwise disposed of, any pirated copy or pirated cast of any such sculpture, model, copy or cast, in such manner 94 THE LAW OF ARTISTIC COPYRIGHT. and under such circumstances as would entitle the pro- prietor to a special action on the case under the Sculpture Copyright Acts, the person so offending shall forfeit for every such offence a sum not less than five pounds, and not exceeding thirty pounds, to the proprietor of the sculpture, model, copy or cast whereof the copyright shall have been infringed ; and for the recovery of such penalty the proprietor of the sculpture, model, copy or cast which shall have been so pirated, shall have and be entitled to the same remedies as are provided for the recovery of penalties incurred under the Designs Act, 1843. Provided always, that the proprietor of any sculpture, model, copy or cast which shall be registered under this Act shall not be entitled to the benefit of this Act, unless every copy or cast of such sculpture, model, copy or cast which shall be published by him after such registration shall be marked with the word " registered," and with the date of registra- tion. 25 & 26 Viet., c. 68. An Act for Amending the Law relating to Copyright in Works of the Fine Arts, and for Repressing the Com- mission of Fraud in the Production and Sale of such Works. [29th July, 1862.] WHEREAS by law, as now established, the authors of paintings, drawings and photographs, have no copyright in such their works, and it is expedient that the law should in that respect be amended : Be it therefore enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons in this present Parliament assembled, and by the authority of the same, as follows : I. The author, being a British subject or resident within the dominions of the Crown, of every original APPENDIX. 95 ; painting, drawing and photograph, which shall be or shall have been made either in the British dominions or else- where, and which shall not have been sold or disposed of before the commencement of this Act, and his assigns, shall have the sole and exclusive right of copying, engrav- ing, reproducing, and multiplying such painting or draw- ing, and the design thereof, or such photograph, and the negative thereof, by any means and of any size, for the term of the natural life of such author, and seven years after his death ; provided that when any painting or draw- ing, or the negative of any photograph, shall for the first time after the passing of this Act be sold or disposed of, or shall be made or executed for or on behalf of any other person for a good or a valuable consideration, the person so selling or disposing of, or making or executing the same, shall not retain the copyright thereof, unless it be expressly reserved to him by agreement in writing, signed, at or before the time of such sale or disposition, by the vendee or assignee of such painting or drawing, or of such nega- tive of a photograph, or by the person for and on whose behalf the same shall be so made or executed, but the 'Copyright shall belong to the vendee or assignee of such painting or drawing, or of such negative of a photograph, or to the person for or on whose behalf the same shall have been made or executed ; nor shall the vendee or .assignee thereof be entitled to any such copyright, unless, at or before the time of such sale or disposition, an agree- ment in writing, signed by the person so selling or dis- posing of the same, or by his agent duly authorised, shall have been made to that effect. II. Nothing herein contained shall prejudice the right of any person to copy or use any work in which there shall be no copyright, or to represent any scene or object, notwithstanding that there may be copyright in some re- presentation of such scene or object. III. All copyright under this Act shall be deemed per- sonal or moveable estate, and shall be assignable at law, and every assignment thereof, and every licence to use or g THE LAW OF ARTISTIC COPYRIGHT. copy by any means or process the design or work which shall be the subject of such copyright, shall be made by some note or memorandum in writing, to be signed by the proprietor of the copyright, or by his agent appointed for that purpose in writing. IV. There shall be kept at the Hall of the Stationers' Company, by the officer appointed by the said Company for the purposes of the Act passed in the sixth year of the reign of Her present Majesty, intituled, " An Act to Amend the Law of Copyright," a book or books entitled, "The Register of Proprietors of Copyright in Paintings, Drawings and Photographs," wherein shall be entered a memorandum of every copyright to which any person shall be entitled under this Act, and also of every subse- quent assignment of any such copyright; and such memorandum shall contain a statement of the date of such agreement or assignment, and of the names of the parties thereto, and of the name and place of abode of the person in whom such copyright shall be vested by virtue thereof, and of the name and place of abode of the author of the work in which there shall be such copyright, together with a short description of the nature and subject of such work, and in addition thereto, if the person registering- shall so desire, a sketch, outline, or photograph of the said work ; and no proprietor of any such copyright shall be entitled to the benefit of this Act until such registration, and no action shall be sustainable, nor any penalty be recoverable in respect of anything done before registration. V. The several enactments in the said Act of the sixth year of Her present Majesty contained, with relation to- keeping the register book thereby required, and the inspec- tion thereof, the searches therein, and the delivery of cer- tified and stamped copies thereof, the reception of such copies in evidence, the making of false entries in the said book, and the production in evidence of papers falsely pur- porting to be copies of entries in the said book, the appli- cation to the Courts and Judges by persons aggrieved by en- tries in the said book, and the expunging and varying such APPENDIX. 97 entries, shall apply to the book or books to be kept by virtue of this Act, and to the entries and assignments of copyright and proprietorship therein under this Act, in such and the same manner as if such enactments were here expressly enacted in relation thereto, save and except that the forms of entry prescribed by the said Act of the sixth year of Her present Majesty may be varied to meet the cir- 'Ciimstances of the case, and that the sum to be demanded by the officer of the said Company of Stationers for making any entry reouired by this Act shall be oneshilling 'Only. VI. If the author of any painting, drawing, or photo- graph in which there shall be subsisting copyright, after having sold or disposed of such copyright, or if any other person, not being the proprietor for the time being of copy- right in any painting, drawing or photograph, shall, without the consent of such proprietor, repeat, copy, colourably imi- tate, or otherwise multiply for sale, hire, exhibition or dis- tribution, or cause or procure to be repeated, copied, colourably imitated, or otherwise multiplied for sale, hire, exhibition, or distribution any such work or the design thereof, or knowing that any such repetition, copy, "or other imitation has been unlawfully made, shall import into any part of the United Kingdom, or sell, publish, let to hire, exhibit, or distribute, or offer for sale, hire, exhibi- tion, or distribution, or cause or procure to be imported, sold, published, let to hire, distributed, or offered for sale,bire, ex- hibition, or distribution, any repetition, copy, or imitation of the said work, or of the design thereof, made without such consent aforesaid, such person for every such offence shall forfeit to the proprietor of the copyright for the time being a sum not exceeding ten pounds ; and all such repetitions, copies, and imitations made without such consent as afore- said, and all negatives of photographs made for the purpose of obtaining such copies, shall be forfeited to the proprietor of the copyright. VII. No person shall do, or cause to be done, any or either of the following acts : that is to say, H 90 THE LAW OP ARTISTIC COPYRIGHT. First, no person shall fraudulently sign or otherwise affix, nor fraudulently cause to be signed or other- wise affixed, to or upon any painting, drawing, or photograph, or the negative thereof, any name r initials, or monogram : Secondly, no person shall fraudulently sell, publish, exhibit, or dispose of, or offer for sale, exhibition, or distribution, any painting, drawing or photo- graph, or negative of a photograph, having thereon the name, initials, or monogram of a person who did not execute or make such work : Thirdly, no person shall fraudulently utter, dispose of, or put off, or cause to be uttered or disposed of,, any copy or colourable imitation of any painting, drawing, or photograph, or negative of a photo- graph, whether there shall be subsisting copyright therein or not, as have been made or executed by the author or maker of the original work from which such copy or imitation shall have been taken : Fourthly, where the author or maker of any paint- ing, drawing, or photograph, or negative of a photo- graph, made either before or after the passing of this Act, shall have sold or otherwise parted with the possession of such work, if any alteration shall* afterwards be made therein by any other person, by addition or otherwise, no person shall be at liberty, during the life of the author or maker of such work,, without his consent, to make or knowingly to sell, or publish, or offer for sale, such work or any copies of such work so altered as aforesaid, or of any part thereof, as or for the unaltered work of such author or maker : Every offender under this section shall, upon conviction, forfeit to the person aggrieved a sum not exceeding ten pounds, or not exceeding double the full price, if any, at \vhich all such copies, engravings, imitations, or altered APPENDIX. 99 works shall have been sold or offered for sale ; and all such copies, engravings, imitations, or altered works shall be forfeited to the person, or the assigns or legal representa- tives of the person, whose name, initials, or monogram shall shall be so fraudulently signed or affixed thereto, or to whom such spurious or altered work shall be so fraudu- lently or falsely prescribed as aforesaid : Provided always, that the penalties imposed by this section shall not be in- curred unless the person whose name, initials, or mono- gram shall be so fraudulently signed or affixed, or to whom such spurious or altered work shall be so fraudulently or falsely ascribed as aforesaid, shall have been living at or within twenty years next before the time when the offence may have been committed. VIII. All pecuniary penalties which shall be incurred, and all such unlawful copies, imitations, and all other effects and things as shall have been forfeited by offenders, pursuant to this Act, and pursuant to any Act for the protection of copyright engravings, may be recovered by the person hereinbefore, and in any such Act as afore- said empowered to recover the same respectively, and hereinafter called the complainant or complainer, as fol- lows : In England and Ireland, either by action against the party offending or by summary proceedings before any two justices having jurisdiction where the party offending resides : In Scotland, by action before the Court of Sessions in ordinary form, or by summary action before the Sheriff of the County where the offence may be committed or the offender resides, who, upon proof of the offence or offences, either by confession of the party offending, or by the oath or affirmation of one or more credible witnesses, shall convict the offender, and find him liable to the penalty or penalties aforesaid, as also in expenses; and it shall be lawful for the Sheriff, in pronouncing such 100 THE LAW OF ARTISTIC COPYRIGHT. judgment for the penalty or penalties and costs, to insert in such judgment a warrant, in the event of such penalty or penalties and costs not being paid, to levy and recover the amount of the same by poinding: Provided always, that it shall be lawful to the Sheriff, in the event of his dismissing the action and assoilzieing the defender, to find the complainer liable in expenses, and any judgment so to be pronounced by the Sheriff in such summary application shall be final and conclusive, and not subject to review by advocation, suspension, reduc- tion or otherwise. IX. In any action in any of Her Majesty's Superior Courts of Record at Westminster and in Dublin, for the infringement of any such copyright as aforesaid, it shall be lawful for the Court in which such action is pending, if the Court be then sitting, or if the Court be not sit- ting then for a Judge of such Court, on the application of the plaintiff or defendant respectively, to make such order for an injunction, inspection, or account, and to give such direction respecting such action, injunction, inspec- tion and account, and the procedings therein respectively, as to such Court or Judge may seem fit. X, All repetitions, copies, or imitations of paintings, drawings or photographs, wherein or in the design whereof there shall be subsisting copyright under this Act, and all repetitions, copies and imitations of the designs of any such painting or drawing;, or of the negative of any such photograph which, contrary to the provisions of this Act, shall have been made in any foreign State, or in any part of the British Dominions, are hereby absolutely pro- hibited to be imported into any part of the United King- dom, except by or with the consent of the proprietor of the copyright thereof, or his agent authorised in writing; and if the proprietor of any such copyright, or his agent, shall declare that any goods imported are repetitions, copies, or imitations of any such painting, drawing, or photograph, or of the negative of any such photograph, APPENDIX. 101 and so prohibited as aforesaid, then such goods may be detained by the officers of Her Majesty's Customs. XF. If the author of any painting, drawing or photo- graph in which there shall be subsisting copyright after having sold or otherwise disposed of such copyright, or if any other person, not being the proprietor for the time being of such copyright, shall, without the consent of such proprietor, repeat, copy, colourably imitate or otherwise multiply, or cause or procure to be repeated, copied, colour- ably imitated or otherwise multiplied, for sale, hire, exhi- bition, or distribution, any such work or the design thereof, or the negative of any such photograph, or shall import or cause to be imported into any part of the United Kingdom, or sell, publish, let to hire, exhibit, or distribute or offer for sale, hire, exhibition or distribution, or cause or procure to be sold, published, let to hire, exhibited or distributed, or offered for sale, hire, exhibition or distribu- tion any repetition, copy or imitation of such work, or the design thereof, or the negative of any such photograph made without such consent as aforesaid, then every such proprietor, in addition to the remedies hereby given for the recovery of any such penalties, and forfeiture of any such things as aforesaid, may recover damages by and in a special action on the case, to be brought against the person so offending, and may in such action recover and enforce the delivery to him of all unlawful repetitions, copies, and imitations, and negatives of photographs, or may recover damages for the retention or conversion thereof: Provided that nothing herein contained, nor any proceeding, con- viction or judgment, for any act hereby forbidden, shall affect any remedy which any person aggrieved by such Act may be entitled to, either at law or in equity. XII. This Act may be considered as including the pro- visions of the Act passed in the Session of Parliament held in the seventh and eighth year of Her present Majesty, intituled, " An Act to Amend the Law relating to Inter- national Copyright," in the same manner as it such pro- visions were part of this Act. IO2 THE LAW OF ARTISTIC COPYRIGHT. FORMS. FORM i. Form for the Entire Reservation of Copyright by the Author, whether his work has been Commissioned or not. PAINTINGS. DRAWINGS. PHOTOGRAPHS. IT IS HEREBY AGREED between Artist, residing at in the United Kingdom, and the undersigned of that the Copyright of the Painting entitled representing made by the said and now sold for the first time to me, is reserved to the said Signed Dated FORMS. FORM i. Form of Sale of Copyright ly Artist. PA INTINGS. DRAWINGS. PHOTOGRAPHS. IT is HEREBY AGREED between the under- signed, residing at in the United Kingdom, Artist, and of that in consideration of the Sum of over and above the Price of the Work hereinafter described, paid by the said to the said the said is entitled to the 'Copyright in the Painting made by the said entitled .anc representing no\* first sold or disposed of to the said [If any additional terms be agreed upon, add them here, e.g., that the Artist be at liberty to sell replicas, studies, or sketches.] Signed Dated IO4 THE LAW OF ARTISTIC COPYRIGHT. FORM 3. Form of Assignment of Copyright by the person who has acquired it from the Artist. PAINTINGS. DRAWINGS. PHOTOGRAPHS. [Address] I, of being the pro- prietor of the Copyright for all purposes in a painting made by Artist, of entitled and representing hereby in consideration of sell and assign all such my Copyright. [If any additional terms be agreed upon, add them here.} Signed To [name of assignee] of Dated FORMS. 105, FORM 4. For partial reservation of Copyright ly the Author in case of Commissioned work. PAINTINGS. DRAWINGS. PHOTOGRAPHS. [Address and Date.] As at my request you have made a painting for me at the price of entitled and representing] I admit that at, or prior to, the time of the same being delivered to me, I agreed with you that all Copyright for the purposes of making (say an etching) should be your property, and that you should be entitled to sell, or otherwise dispose of, all sketches and studies, made or executed in connection, with the said work. Signed To Artist, of IO6 THE LAW OP ARTISTIC COPYRIGHT. FORM 5. License ly Proprietor of Copyright. PAINTINGS. DRAWINGS. PHOTOGRAPHS. SCULPTURES. To of I HEREBY, in consideration of paid to me by you, grant and assign to you for the pur- pose of producing a of the size of and for no other purpose whatever, this exclusive license to copy the Paint- ing (or as the case may bej entitled representing made by me [here add any other terms that may be agreed upon, e.g., " And I undertake not to reproduce the work in a similar manner."] Signed Address Dated FORMS. 107 FORM 6. Form of Sale and Assignment of License ly Licensee from Owner of Copyright. PAINTINGS. DRAWINGS. PHOTOGRAPHS. SCULPTURES. [Address and Date.'] \j being the proprietor of a License to Copy a Painting, [or as the case may be ; here copy the words of the License in every particular] in consideration of the sum of hereby sell and assign such License to you. [If any additional terms be agreed upon, add them here.] Signed To [Address] 108 THE LAW OF ARTISTIC COPYRIGHT. FORM 7. Form of Assignment of Copyright in Etchings and Engravijigs. ETCHINGS. ENGRAVINGS. LITHOGRAPHS. To of I, being the Proprietor of the Copyright in my entitled hereby, in consideration of the Sum of assign the said Copyright in the said to you. Signed by me this day of 18 In the presence of Two Witnesses. i. a. N.B. No registration is necessary. FORMS. FORM 8. Form of Appointment of Agent for the Sale of Copyright, or to give a License to Copy. PAINTINGS. DRAWINGS. PHOTOGRAPHS. [Address] Date I HEREBY APPOINT you my Agent to Sell the Copyright in, or to give a License to engrave, a Painting made by entitled and representing [Signature of proprietor of copyright."] To [Name and Address of Age?it] no THE LAW OF ARTISTIC COPYRIGHT. Memorandum Jor Registration under Copyright (Works of " Art) Act. Price of Form, id. Fee, is. TO THE REGISTERING OFFICER APPOINTED BY THE STATIONERS' COMPANY. I, of do hereby certify, That I am entitled to the Copyright in the undermentioned Work ; and I hereby require a Memorandum of such Copyright [or the Assignment of such Copyright,] to be entered in the Register of Pro- prietors of Copyright in Paintings, Drawings, and Photo- graphs, kept at Stationers' Hall, according to the particu- lars underwritten. (Every particular given must be clearly written.) Date of Names Name and Place Name and Place Description of Work. Agreement or of Parties to of Abode of Proprietor of of Abode of Author of Assignment. * Agreement.* Copyright. Work. Dated this , 188 . day of (Signed) N.B. Office Hours, 10 to 4 / Saturdays 10 to 2. * If the work be commissioned work, and the commissioner is still the owner of the copyright, he should leave these spaces blank. FORMS. Ill La Forme pour requtirir I' Enregistrement de Propriete a Stationers' Hall, London. A MONSIEUR LE REGISTRAIRE NOMM^ PAR LA CORPORA- TION DBS LIBRAIRES. Moi, de je certifie par ceci, que je suis le Proprietaire du Droit d'Auteur d'um Livre, intitule et je vous require par ceci d'inscrire sur le Livre d'Enregistre- ment de la Corporation des Libraires ma Propriete du tel Droit d'Auteur selon les details ci dessous ccrits. Le Titre du Livre. Le Nom et La De- meure d'Auteur on du Compositeur. Le Nom et la De- meure de Proprie- taire du Droit d'Auteur. L'Epoque et la Lieu de la premiere Publi cation. Date ce jour de , 18 . Temoin (Signe) (N.B. II faut quetous le details soient ecrits tres clare- ment.) Form of original entry under International Copyright Act. This Form is, at present, used for every work, whether Book, Print, Piece of Sculpture ; whether, French, Ger- man, &c v &c. THE LAW OF ARTISTIC COPYRIGHT. The foregoing Form should be altered to suit the re- quirements of the International Copyright Acts in the case of works of art, the particulars required being, in the case of registry of a Name and Place Name and Ad- Date of Print. The Title. of Abode of Mas- ter, Designer, or dress of Proprietor of First Publication in Engraver. Copyright. Foreign Country. Sculpture. Descriptive Title. Ditto of Sculp- tor. Ditto. Ditto. Painting, Drawing, or Short descrip- tion of nature Ditto of Author. Ditto. Ditto. Photograph. and subject of Work, and, if desired by the person regis- ter i n g, a sketch, out- line, or photo- graph. N.B. In the case of a print, a copy of such print upon the best paper upon which the largest number of im- pressions shall have been printed for sale must be deposited. FORMS. IJ3 Form of Assignment of Copyright in Sculpture. This indenture, &c., between A. (assignor) of, &c., of the one part, and P. (purchaser) of, 8tc., of the other park Whereas the said (A) has executed a (statue), entitled, &c., and representing, 8tc., and hath contracted with the said (P) for the absolute sale of the copyright of the said work for the sum of , Now this indenture witnesseth, That in consideration of the sum of to the said (A), well and truly paid by the said (P), he the said (A) doth grant, assign, and set over, All that the said (statue) and the whole, entire, and exclusive copyright, and all and singular the right, title, &c., of him the said (A) of and in and to the same. To Have 'and to Hold the said (statue) and copyright, and all the profit and advantage that shall and may arise from the reproduction and vending of the same unto the said (P), his executors, administrators, and assigns, as fully and beneficially, and for such time and respective times as the said (A) can or may assign the same. In witness, &c. 114 THE LAW OF ARTISTIC COPYRIGHT. LAW AMENDMENT SOCIETY, i, ADAM STREET, ADELPHI, W.C. REPORT ON COPYRIGHT, Adopted by the Council, February 17 th, 1881. Your Sub-Committee have met five times, and have been favoured with the assistance of Mr. Basil Field, repre- senting the interests of artists, and of Messrs. Bolton and Mote, representing those of dramatic authors. The result of their labours has been the adoption of the follow- ing heads for a Bill, which in the matter of artistic copyright mainly agree with a memorial presented to Her Majesty's Government by the Royal Academy on the subject of the recommendations of the Royal Commis- sioners relating to artistic copyright, and in the rest of the subject mainly agree with the Report of the Royal Com- missioners, except that with regard to the duration of copyright, other than artistic, your Sub-Committee have of course followed the direction given to them : I. That registration of copyright in works of all classes published in the United Kingdom, and in dramatic or musical works first performed in the United Kingdom though not published (but not in paintings, drawings, or sculpture, since there is nothing in them analogous to publication), should be compulsory; that is to say, as recommended by the Royal Commissioners, that a copy- right owner should not be entitled to take or maintain any proceedings, or to recover any penalty in respect of his REPORT OF LAW AMENDMENT SOCIETY. 115 copyright until he has registered, and that he should in no case be able to proceed after registration for acts of piracy preceding it. 2. That if owners of copyrights in paintings, draw- ings, or sculpture, should desire to register their copy- rights, for the purpose of evidencing their title or otherwise, they should have power to do so. 3. That to ensure the system of compulsory registra- tion being properly managed and complete, and having regard to the general importance of the subject and the magnitude of the interests involved, it is desirable that registration should be effected at a Government Office, to be established and maintained for that purpose in the manner recommended by the Royal Commissioners, and that a register should no longer be maintained at Stationers' Hall. 4. That in the case of books, photographs, engravings, prints, or similar works, copyright should mean the ex- clusive right of multiplying copies of the work protected, including, in the case of engravings, prints or similar works, the exclusive right of multiplying copies of them by photography or any other kind of art. That in the case of lectures, if printed and published, copyright should mean the exclusive right both of multiplying copies of the lectures and of re- delivering them. That in the case of musical or dramatic works, copyright should mean the exclusive right of multiplying copies of the works protected, and that the exclusive right of performing them should be originally annexed thereto, so that the two may be secured by one and the same registration ; but that after such registration the copyrght and performing right in musical and dramatic works should be assignable separately. 5. That the term of copyright in all the cases defined in Clause 4, and also the term of the performing right in musical and dramatic works, should, in accordance with your Resolution, be fifty years from the date of registration. 6. That in the case of paintings, drawings or sculpture, Il6 THE LAW OF ARTISTIC COPYRIGHT. copyright should mean the exclusive right of multiplying copies of the design of the work protected, whether in the same or any other material or kind of art, as by painting,, drawing, modelling, photography, engraving or otherwise, and whether of the same or any other dimensions. 7. That in the case of paintings, drawings or sculpture, the term of copyright should be the life of the artist and thirty years after his death. 8. That on the sale of a painting, drawing, or piece of sculpture, or when such a work is executed on commission, the copyright in it should remain with the artist in the absence of a written agreement to the contrary ; but that the purchaser or other owner should have an equal power with the artist or other owner of the copyright to prevent third parties copying its design in any manner which would be an infringement of such copyright. If the work, or the chief part of it, be the likeness of the pur- chaser, or of any person whose likeness was stipulated in the commission for the work, the consent of the purchaser or other owner of the work should be necessary for the reproduction of its design in any manner by the artist or other owner of the copyright. That the purchaser or other owner of a painting or drawing should be protected against replicas.* 9. That the present law by which, in the case of articles in magazines, reviews, or other collective works except encyclopaedias, written and paid for on the terms that the copyright shall belong to the proprietor of the collective work, a right of separate publication reverts to the author after twenty-eight years, should be modified, three years being substituted for twenty-eight; and that during the three years the author of an article as well as the proprietor of the collective work should have power to take proceedings in order to repress piracy. * The Bill will also contain a clause empowering the artist who has sold his copyright in a work to sell bona fide sketches and studies used in its com- position, or to use them again, provided that he do not repeat the design of the work. REPORT OF LAW AMENDMENT SOCIETY. II 7 10. That the present law as to presentation of books to the British Museum and other libraries should remain un- altered. 11. That in the case of British subjects copyright under the Act to be passed should extend to all the British dominions, and should be enjoyed in respect of paintings, drawings or pieces of sculpture wherever made, and in respect of works of all other classes first published or per- formed in any part of the British dominions, and registered either in the United Kingdom or in such other part of the British dominions as they were respectively first published or performed in, if registration should be required for copy- right by the law of that part of the British dominions in which they were first published or performed. 12. That aliens, wherever resident, should be entitled to copyright in paintings, drawings, and sculpture, if they bring their works into the British dominions in order to retain or sell them there ; and to copyright in works of all other classes, on satisfying the conditions expressed in Clause ii. 13. That a British author, who first publishes his work out of the British dominions, or whose play or musical composition is first performed out of those dominions, should not be prevented thereby from obtaining copyright in those dominions by subsequent publication or perform- ance therein, together with registration where necessary as aforesaid, provided such conditions be satisfied within three years from the first publication or performance abroad. 14. That the power to search houses for piratical copies and photographs of pictures, which was proposed to be given in the Copyright Bill of 1869, should be conferred.* 15. That the power to seize piratical copies and photo- graphs of pictures being hawked about for sale, which w r as proposed to be given in the Copyright Bill of 1869, should be conferred.* * This power will extend to the case of piratical copies and photographs of works of sculpture, engraving, and photography, as well as of pictures. Il8 THE LAW OF ARTISTIC COPYRIGHT. 1 6. That with regard to the colonial question, the re- commendations contained in paragraphs 182-216 of the report of the Royal Commissioners should be carried into effect* 17. That the licensed colonial reprints referred to in paragraph 217 of the Royal Commissioners' report should be admitted without restriction into all parts of the British dominions. 1 8. That with regard to copyright in foreign works under the International Copyright Acts, the necessity for registration in this country, and for the deposit of a copy of the foreign work, imposed by the Statute 7 and 8 Viet., c. 12, should be abolished, as recommended by the Royal Commissioners. 19. That with regard to the right of translation of foreign books and plays, the necessity for registration and deposit of a copy of the work, as well as that for publication and registration of translations, whether partial or complete, imposed by the Statute 15 and 16 Vic., c. 12, should be abolished, as recommended by the Royal Commissioners. 20. That in lieu of the present law, there should be reserved to authors and playwrights of any State with which there exists a copyright treaty a general right, during three years, of translating their books and plays, and of adapting their plays for the English stage ; and that if the author or playwright exercises such right during the three years, he should have a copyright for ten years from the date of registering the translation or adaptation, together with performing right for the same period in the case of the translation or adaptation of a play. 21. That if the foreign author or playwright does not exercise the right reserved to him under the preceding clause, it should be lawful for anyone to translate or adapt the book or play, and thereby to acquire copyright and per- forming right for ten years from the date of registering the translation or adaptation. To prepare a Bill on copyright, embracing the whole * See Note on p. 119. REPORT OF LAW AMENDMENT SOCIETY. 1 19 subject and giving effect to the above heads, would be a work of great labour and expense: and your Sub-Committee . are therefore unable at present to do more than to report the conclusions they have arrived at, and to recommend to the Council of the Society that it should take such steps as may seem advisable with a view to meeting the neces- sary cos 1 : of obtaining legislation. The Bankruptcy Bill of 1859, and the Artizans' Dwellings Bill, are instances in which the Society has defrayed or contributed to the cost of legislation ; and while your Sub-Committee believe that in the present instance large pecuniary support may be found outside, they also think that the occasion is one which would justisfy such a contribution from the funds of the Socieiy as it may be able to afford. J. WESTLAKE. J. LEYBOURN GODDARD. WILLIAM FOOKS. Note to paragraphs numbered* 16