Copyright, Its History and Its Law/Chapter 13
XIII
Artistic Copyright
Threefold
value in art
worksThe artist-author, by the labor of his brain and hand, produces three classes of property right or a threefold value: he receives recompense from the sale of the original work made by his hand, or from the exhibition of it, or from the reproduction and sale of copies. The new American code is perhaps in advance of legislation in any other country in the protection of the artist, for it assures to him separate values in the right to sell his work and the right to reproduce and sell copies, neither one of which rights is necessarily transferred with the other ; it enables him to copyright his original work before the reproduction of copies, though it does not make absolutely clear whether the exhibition without restriction of an uncopyrighted work results in dedication ; and it protects his right to control and profit from reproductions, with the simplest possible copyright notice, not including date, though as to lithographic and photo-engraving reproductions it requires manufacture in this country. The literary, dramatic or musical author produces no value in the original work itself, except as his fame may ultimately make his manuscript valuable as an autograph, and in this respect the artist-author has an advantage of practical importance in the general provision separating the copyright from the right in the material object. On the other hand, show-right or right of exhibition is not as specifically treated or as clearly defined and protected as is playright or light of performance in the case of drama or music.
American
provisionsThe copyright of works of the fine arts and cognate works is specifically provided for in the code of 1909 by including as subject-matter of copyright (sec. 5) the following divisions: "(f) Maps; (g) Works of art; models or designs for works of art; (h) Reproductions of a work of art; (i) Drawings or plastic works of a scientific or technical character; (j) Photographs; (k) Prints and pictorial illustrations." It is not intended to include under subsection (k) labels or prints of advertising or commercial character which may be registered as trade-marks under the Trade-Mark law in the Patent Office. The proprietor of a work of art is given in addition to the general rights (sec. i, a) the specific rights (sec. i , b) " to complete, execute, and finish it if it be a model or design for a work of art."
Copyright
Office classi-
fication defi-
nitionsThe new Coypright Office Rules and Regulations, promulgated 1910, define these classifications in the followmg language:
"11. (f) Maps. — This term includes all cartographical works, such as terrestrial maps, plats, marine charts, star maps, but not diagrams, astrological charts, landscapes, or drawings of imaginary regions which do not have a real existence.
"12. (g) Works of art. — This term includes all works belonging fairly to the so-called fine arts. (Paintings, drawings, and sculpture.)
"Productions of the industrial arts utilitarian in purpose and character are not subject to copyright registration, even if artistically made or ornamented.
"No copyright exists in toys, games, dolls, advertising novelties, instruments or tools of any kind, glassware, embroideries, garments, laces, woven fabrics, or any similar articles.
"13. (h) Reproductions of works of art. — This term refers to such reproductions (engravings, woodcuts, etchings, casts, etc.) as contain in themselves an artistic element distinct from that of the original work of art which has been reproduced.
"14. (i) Drawings or plastic works of a scientific or technical character. — This term includes diagrams or models illustrating scientific or technical works, architects' plans, designs for engineering work, etc.
"15 (j) Photographs. — This term covers all positive prints from photographic negatives, including those from moving-picture films (the entire series being counted as a single photograph), but not photogravures, half tones, and other photo-engravings.
"16. (k) Prints and pictorial illustrations. — This term comprises all printed pictures not included in the various other classes enumerated above.
"Articles of utilitarian purpose do not become capable of copyright registration because they consist in part of pictures which in themselves are copyrightable, e. g., puzzles, games, rebuses, badges, buttons, buckles, pins, novelties of every description, or similar articles.
"Postal cards cannot be copyrighted as such. The pictures thereon may be registered as ' prints or pictorial illustrations' or as 'photographs.' Text matter on a postal card may be of such a character that it may be registered as a ' book.'
"Mere ornamental scrolls, combinations of lines and colors, decorative borders, and similar designs, or ornamental letters or forms of type are not included in the designation 'prints and pictorial illustrations.' Trademarks cannot be copyrighted nor registered in the Copyright Office."
The question
of exhibitionThe new law does not specifically make clear the relation between the exhibition of works of art and publication, or define whether or not exhibition may constitute dedication to the public and thus prevent the protection of the copyright thereafter. But in making copyright a sequent to publication (sec. 9) and providing (sec. 2) "that nothing in this Act shall be construed to annul or limit the right of the author or proprietor of an unpublished work, at common law or in equity, to prevent the copying, publication, or use of such unpublished work," it makes it at least probable that the author of an artistic or cognate work who simply exhibits, does not surrender the right to copyright. The trend of the courts in recent decisions has been, as in the Werkmeister case, cited below, to protect exhibited works, at least where any reservation of rights could be construed into the circumstances of the exhibition; but it is still uncertain whether the exhibition of a work of art at a public museum where there is no regulation against copying or reservation by the artist, might not constitute a dedication and thus prevent later copyright.
Protection of
unpublished
workIn providing however (sec. 11) specifically "that copyright may also be had of the works of an author of which copies are not reproduced for sale, by the deposit, with claim of copyright . . . of a photographic print if the work be a photograph; or of a photograph or other identifying reproduction thereof if it be a work of art or a plastic work or drawing," it gives to the artist or the author of a cognate work an easy means of protecting his production beyond question; and he is not wise who neglects the simple precaution provided in the law.
Copyright
noticeIt is not made absolutely clear in the new law whether the copyright notice must be attached to the original of a work of art; but again the provision for protection is so simple that it is wise to take advantage of the method of the law, by placing the copyright notice on the original. The copyright notice may be in the form (sec. 18) "'Copyright' or the abbreviation 'Copr.' accompanied by the name of the copyright proprietor," the year of publication not being required in the case of an artistic work. It is further provided that "in the case of copies of works specified in subsections (f) to (k), inclusive, of section five of this Act, the notice may consist of the letter C inclosed within a circle, thus: (c), accompanied by the initials, monogram, mark, or symbol of the copyright proprietor: Provided, That on some accessible portion of such copies or of the margin, back, permanent base, or pedestal, or of the substance on which such copies shall be mounted, his name shall appear."
If the copyright notice is attached to the original, it is not made clear whether it should be on the face of the work and visible to the casual spectator; but again the wise artist will take an easy precaution.
DepositIt is further required (sec. 12) that "if the work is not reproduced in copies for sale, there shall be deposited the copy, print, photograph, or other identifying reproduction " required as above stated, "accompanied in each case by a claim of copyright."
The new Copyright Ofifice Rules and Regulations schedule (17) among unpublished works that may be registered " (c) photographic prints; {d) works of art (paintings, drawings, and sculpture), and (e) plastic works," and states specifically as to the deposit in such cases:
"19. (2) In the case of photographs, deposit one copy of a positive print of the work. (Photo-engravings or photogravures are not photographs within the meaning of this provision.)
"20. (3) In the case of works of art, models or designs for works of art, or drawings or plastic works of a scientific or technical character, deposit a photographic reproduction."
As deposit in the case of an unpublished work takes the place of publication and deposit in the case of works reproduced for sale, there can be no claim for statutory protection of an unpublished work of art without the deposit of the identifying copy, and the general provision (sec. 13) for fine and for voiding of copyright in the case of non-deposit, has, of course, no bearing on unpublished works. Any action or proceeding in respect to an unpublished work not registered by deposit must therefore be under common law and not under statutory provision.
Summary
of require-
mentsTo sum up, the author of a work of art, who is exhibiting his painting or statue or other work and not multiplying copies for sale, will assure himself of full protection if before such exhibition he places on the original work, in some visible but not obtrusive fashion, the letter C inclosed in a cirple with his name or mark, and deposits a photograph of such work with the Librarian of Congress or in the mails addressed to him, accompanied by a claim of copyright, — for which an application form (J2, "photograph not reproduced for sale") is furnished on request by the Copyright Office from Washington,—with inclosure of one dollar.
As soon as the artist multiplies copies for sale, or permits reproduction of his work, as in a newspaper report of an exhibition, for instance, he must then take the precaution of depositing two copies of such reproduction os provided in general by the act, and it is further provided (sec. 18) "that on some accessible portion of such copies or of the margin, back, permanent base, or pedestal, or of the substance on which such copies shall be mounted, his name shall appear." In case two copies are not so deposited, it is probable that a fine and forfeiture of copyright would ultimately ensue, as indicated in section 13.
It is specifically provided (sec. 14) that copyright is distinct from the property in the material object, which accompHshes for the artist the important result that when he sells his painting he does not transfer the copyright, but retains that for himself unless he specifically contracts with the buyer to include in the sale the copyright or the right to copyright. This adopts into the law the decision of the courts that copyright does not pass with a painting unless distinctly included in the transfer. The provision (sec. 41) is specific that the copyright "is distinct from the property in the material object copyrighted, and the sale or conveyance, by gift or otherwise, of the material object shall not of itself constitute a transfer of the copyright, nor shall the assignment of the copyright constitute a transfer of the title to the material object." Thus the author of a work of art has two separate properties, the painting, statue or other work in itself, on the one hand, and the copyright or the right to copyright on the other, neither of which is transferred by the transfer of the other unless both are specifically included in the transfer.
Manufactur-
ing clause
covers litho-
graphs and
photo-en-
gravingsThe copyright in certain classes of reproductions of works of art is dependent however on manufacture in this country, as in the case of books. This provision no longer includes photographs as in the preceding law, but is confined specifically (sec. 15) to "text produced by lithographic process, or photo-engraving process," "illustrations within a book consisting of printed text and illustrations produced by lithographic process, or photo-engraving process, and also to separate lithographs or photo-engravings, except Foreign
subjects
exceptedwhere in either case the subjects represented are located in a foreign country and illustrate a scientific work or reproduce a work of art." It is further provided that "in the case of the book . . . if the text be produced by lithographic process, or photoengraving process . . . the copies so deposited shall be accompanied by an afifidavit . . . that such process was wholly performed within the limits of the United States." This affidavit, therefore, is not required in the case of separate lithographs or photo-engravings. The manufacturing provisions chiefly concern the publishers of books, but they imply that artists cannot send works abroad to have reproductions made. But by the opinion of January 9, 191 1, approved by the Attorney-General, a design, drawing, or painting made and located abroad intended as "the first step" for lithographic reproduction, may be registered, if a "work of art"—which question of fact is to be determined by the Register of Copyrights; and such lithographic reproductions of it may be imported.
German
post-cardsIt was held by the Attorney-General January 27, 1910, that lithographic reproductions of original paintings in the form of illustrated post-cards made in Germany, are subject to registration, provided the original paintings may properly be classified as works of art ; and thus importation of such post-cards would be permissible.
Artistic merit
unimportantWhile there must be originality in a work of art, especially under English law, this means little more than a prohibition of actual copying, and as in the case of literary and dramatic works, artistic merit is of little importance.
Application
formsThe Copyright Office furnishes without charge application forms, lettered as indicated, for the following classes of art works: (F) published map; (G) work of art (painting, drawing, or sculpture) ; or model or design for a work of art; (H) reproduction of a work of art; (I) drawing or plastic work of a scientific or technical character ; (J1) photograph published for sale, (J2) photograph not reproduced for sale; (K) print or pictorial illustration. Thus the applicant should send for application blank (G), if for an original work of art, (H), if for a reproduction, or the proper blank in the other specified cases. But it should be noted that it is both unnecessary and undesirable to apply separately under different blanks as (G) and (H), since the single copyright on the original work covers reproductions. CertificatesCertificates are returned by the Copyright Office on receipt of the application form and of the statutory fee of one dollar, covering the same specified subjects.
Term in
unpublished
workWhen an original work of art is copyrighted, but is not published by reproduction of copies for sale or distribution, it is uncertain under the law, as in the case of dramatic and musical compositions, from what date the copyright protection runs and whether the sole right of reproducing copies for sale terminates at the end of a statutory term beginning with the registration of the original work or with its publication by the reproduction of copies for sale. The Copyright Office issues a certificate of the registration of the original work as covering a period of twenty-eight years and will doubtless base a renewal on the termination of this term; and only a court decision will determine whether the copyright of the original unpublished work exists in perpetuity until publication or whether the right to reproduce copies for sale lapses with the termination of twenty-eight or fifty-six years from the registration of the original work.
Date not
requiredThe omission of the requirement of date in the copyright notice in the case of a work of art is significant and important, although it has the disadvantage that knowledge of the expiration of the term of copyright can be had only by specific inquiry from the Copyright Office. It has been the mistaken practice of more than one artist, under the old law, to enter Re-copyright
objectionablecopyright on his original sketch or on his original work under date of its beginning, again on the finished original under date of its completion, and possibly again on reproductions under the date of the first publication of copies; and when also the artist changed the name of his work under these progressions, confusion became worse confounded. From this superfluous zeal and mistaken carefulness, serious results have come, as in Caliga v.. Inter-Ocean Newspaper Co., decided in 1909 by the U. S. Supreme Court through Justice Day, wherein an artist failed to protect himself against an infringing reproduction, because he brought suit under a "second copyright which he had entered on finishing his picture, instead of under the original and lawful copyright, under which he had originally entered his work. The fact that by this second copyrighting he laid claim to a longer term than the law allowed, made the second copyright void and a suit under it of no avail. Under the new law the author of a work of art is not only given specifically the exclusive right "to complete, execute, and finish it if it be a model or design for a work of art" as in the previous law, so that an artistic work is protected by one copyright from design to completion and reproduction; but he may also protect his original work during its progress or exhibition before publication and thus safeguard his future right to control and benefit from the multiplication of copies.
In case of the sale of the original work of art, the right to exhibit, of course, passes with the original, Exhibition
right transferalthough the right to copyright and reproduce copies is expressly reserved to the artist. In view of the uncertainty whether the unrestricted public exhibition of a work of art constitutes dedication and prevents copyright thereof, the carelessness of the purchaser of the original might raise question as to the validity of later copyright of reproductions by the artist. It is therefore unwise for an artist to sell the original of a work of art without affixing to it the required copyright notice and depositing one copy of an identifying photograph or print.
Early Eng-
lish decisionThe leading case under English law as to exhibition is that of Turner v. Robinson in the Irish Court of Chancery in 1860, previous to the passage of the act of 1862 which first provided statutory copyright for paintings, and interpretative therefore of common law. Turner's "Death of Chatterton" had been reproduced in a magazine and exhibited at the Royal Academy and in Manchester, and was thereafter exhibited for the purpose of obtaining subscriptions for an engraving, in Dublin, where a photographer copied it and published a stereoscopic reproduction. The Master of the Rolls held that the painting had never been published because the exhibitions were on condition that no copies should be made, and the engraving in the magazine was only a rough representation and not a publication of the picture. The Court of Appeal also held against the defendant, but because of his breach of contract, and declined to decide whether there had been publication in London or Manchester. The Lord Chancellor, however, expressed the opinion that exhibition at the Academy, though conditioned, was publication, though a private view in a studio, rather than a picture gallery would not be. The Court of Appeal did not pass on the further opinion of the Master of the Rolls that the publication of a print was not publication of the picture. These confusing opinions left the question in very misty shape and the most important interpretation of English practice has come from an American court.
The latest and leading case as to exhibition is that of Werckmeister v. American Lithograph Co., The Werck-
meister lead-
ing caseAmerican Tobacco Co., et al., which was decided by the U. S. Supreme Court in 1907, in an opinion written by Justice Day. The English artist Sadler had sold, in 1894, to Werckmeister of the Berlin Photographic Co. the copyright in his picture "Chorus," which he exhibited at the Royal Academy Exhibition of 1894, and the design had been reproduced by the American Lithograph Co. for use on an American Tobacco Co. label, though the photograph had been given protection by copyright. In reply to the claim of the infringers that such exhibition constituted dedication to the public, the Supreme Court's decision quoted from Slater on "The law relating to copyright and trade-marks."
U.S.
Supreme
Court
opinion"It is a fundamental rule that to constitute publication there must be such a dissemination of the work of art itself among the public as to justify the belief that it took place with the intention of rendering such work common property," the court adding, "and that author instances as one of the occasions that does not amount to a general publication the exhibition of a work of art at a public exhibition where there are by-laws against copies or where it is tacitly understood that no copying shall take place, and the public are admitted to view the painting on the implied understanding that no improper advantage will be taken of the privilege. We think this doctrine is sound and the result of the best considered cases." The court said further: "We do not mean to say that the public exhibition of a painting or statue where all might see and freely copy it might not amount to publication within the statute, regardless of the artist's purpose or notice of reservation of rights which he takes no measure to protect."
In fact, in Pierce & Bushnell Co. v. Werckmeister, in 1896, the U. S. Circuit Court of Appeals, through Unrestricted
exhibition
hazardousJudge Colt, had held that the exhibition of Naujok's painting of St. Cecilia, in Berlin and Munich, without copyright notice on the original work, constituted publication and dedication, and therefore denied protection to photographic copies thereafter copyrighted and published.
Reservation
on saleThat the sale of the original work of art as a material object does not involve the transfer of the copyright is a direct application in the new American code of previous judicial decisions. In Werckmeister v. Springer Lith. Co., in 1894, where the defense contended that the purchaser of a painting was the person authorized to become the copyright proprietor, this contention was absolutely overruled, in the U. S. Circuit Court in New York, by Judge Townsend. But it may nevertheless be desirable to include in any contract of sale a specific reservation of copyright, especially in the case of works executed for public authorities or to be exhibited in a public place. In Dielman v. White, in 1900, Judge Lowell in the U. S. Circuit Court in Massachusetts declined to enjoin a photograph of certain mosaics by Dielman in the Library of Congress, the original cartoon for which as sent to Venice, as well as the mosaic work itself, bore copyright notice, on the ground that the correspondence with the government constituting the contract, did not clearly reserve to the artist the right to copyright and prevent copying, — though this decision may be questioned.
Publication
construedThe courts are disposed to limit the definition of publication to insure the fullest protection of an author's right. In Werckmeister z;. Springer Lith. Co. it was further held by Judge Townsend that the printing in an exhibition catalogue of a cut of a painting was for the information of patrons and was not publication. In the same case the defense contended that the sale of an earlier replica of the plaintiff's painting constituted a publication and forfeited copyright, but the court held that the replica was not a copy but was made beforehand to assist in the preparation of the painting afterward copyrighted, and that there was no publication.
In Falk v. Gast, in 1893, where the defense claimed that the copyright notice was omitted from published copies, referring to a sample sheet of miniature reproductions sent to dealers for their information and convenience, the U. S. Circuit Court of Appeals, through Judge Shipman, held that this issue of sample sheets did not constitute publication. This doctrine of limitation had a curious application in Harper v. Shoppell, in 1886, in which Judge Wallace, in the U. S. District Court, held, where an electrotyper had sold to a third party an unauthorized electrotype of a copyrighted illustration, that the copyright law w£is not violated because the illustration had not been printed or published.
Danger of
forfeitureThe artist-author or the proprietor of an artisticcopyright should be most careful to comply with the statutory requirements as to notice and other formalities, as otherwise copyright may be forfeited. Several court decisions indicate that the copyright notice should be placed on the original when exhibited, even if copies are not then reproduced for sale; and as the question is not made quite clear in the new code, it is wise to follow this indication. In the original trial in 1902 of the Werckmeister case, Judge Thomas in the U. S. Circuit Court held that the omission of copyright notice from the exhibited original waived the copyright, but his decision of the case was reversed by the U. S. Supreme Court on other grounds as previously stated, and this particular point remains unsettled. Copyright is not forfeited where a notice properly affixed has been omitted in later use beyond the control of the copyright proprietor. " If copied afterwards or put upon a new mount the complainant should not suffer," said Judge Coxe in Falk v. Cast in reference to copies from which the notice had been separated. In Bennett v. Carr, in 1899, the U. S. Circuit Court of Appeals, through Judge Thomas, nonsuited the complainant because he had not deposited a written description, in addition to filing identifying copies, both formalities being required under the old law.
Limited use
and licenseThe principle is especially important regarding works of art that a copyright proprietor may grant specific license for the limited use of his work; and this has many times been upheld by judicial decisions. In the American courts, such cases have usually been settled by preliminary injunction, without further trial, so that most of the cases are unreported in the law digests, as in that of Miles v. American News Co., in 1898, where General Miles obtained a preliminary injunction restraining the distribution by the defendants of " Remington's frontier sketches," including illustrations made for and copyrighted in General Miles' "Personal recollections." In the English case of Nicholls V. Parker, in 1901, it was held that a license to print illustrations in the Graphic did not permit their use in another periodical of the defendant despite the defense of "custom of the trade," which the judge characterized as "ridiculous." In the important case of Green v. Irish Independent, the Court of Appeal held that the newspaper, though acting "in good faith and without knowledge," was guilty of infringement in printing an illustration sent to it as an advertisement which the proprietor had not licensed for such use. Where, in Guggenheim v. Leng, in 1896, the periodical Sports printed and sold as a separate sheet an illustration licensed for use in the periodical, it was held in the Queen's Bench Division that publication and sale of the supplement separately from the paper was beyond the terms of the license and therefore an infringement.
Character
not method
of useCopyright in a work of art is dependent upon character rather than use. "A picture is none the less a pictureandnonethelessasubjectof copyright that it is used for an advertisement," said Justice Holmes in the U. S. Supreme Court, in Bleistein v. Donaldson Lith. Co., in 1903, the leading case on this subject, in which three lithographs designed for a circus poster were protected. In Mott v. Clow, in 1896, Judge Grosscup in the U. S. Circuit Court in Illinois had held that illustrations, in this instance of bathtubs in a trade catalogue, which "are mere advertisements," are not entitled to copyright; and in Schumacher v. Wogram, in 1888, it had been held by Judge Wallace that a picture of a young woman holding a bouquet intended for a cigar label could not be protected as copyright, but should be registered as a trade-mark. "The distinction here," said Judge Wallace, "seems to be that a picture expressly intended as a label should be considered a trade-mark, though a picture which may be used for a label is not for this reason excluded from copyright." An artistic design for paper-box covers was held copyrightable in 1910 in De Jonge v. Breuker & Kessler, in the U. S. Circuit Court, by Judge McPherson, who also held that the same subject could not be protected both under copyright and as trade-mark.
IllustrationThat an illustration of a person, incident or scene in a copyright work is not an infringement of its copyright, was indicated in 1909 in Harper v. Kalem Co., in the opinion of the U. S. Circuit Court of Appeals in New York, through Judge Ward, who said: "As pictures only represent the artist's idea of what the author has expressed in words, they do not infringe a copyrighted book or drama and should not be enjoined." That illustrations may be protected as part of a book without reference to tiie engravings act,was held in Marshall v. Bull, in 1901, in the English Court of Appeal, which held also that though electrotype blocks had been legally sold, unauthorized reproduction from such blocks constituted infringement.
Description
of artistic
workLikewise, a. description in words of a copyrighted work of art is probably permissible without infringement of copyright, when the work is published or publicly exhibited. But this does not hold good in the case of an unpublished or privately exhibited work, as was held in 1849 in the case of Prince Albert v. Strange, where a descriptive catalogue of unpublished etchings by Queen Victoria and the Prince Consort was enjoined, as well as the exhibition of prints therefrom unlawfully obtained.
PortraitsIn the case of portraits, whether by painting, sculpture or photography, an important question as to ownership arises. A portrait paid for by the subject or a person other than the artist is the property, for copyright as well as other purposes, exclusively of that person; but if an artist produces a portrait at his own expense, even if by the suggestion of another person, the right to copyright remains with the artist. The general principle was best stated by Judge Wheeler in 1894, in the U. S. Circuit Court in New York, in Press Pub. Co. v. Falk, where the World was held to have infringed the copyright in the photograph of an actress, copyrighted by the photographer and not paid for by her, though a complimentary copy, given to the actress, had been sent by her to the newspaper. "When a person has a negative taken and photograph made, for pay, in the usual course, the work is done for the person so procuring it to be done, and the negative, so far as it is a picture or capable of producing pictures of that person, and all photographs made from it, belong to that person; and neither the artist nor any one else has any right to make pictures from the negative or copy the photographs, if not otherwise published, for any one else. But when a person submits himself or herself as a public character to a photographer for the taking of a negative, and the making of photographs therefrom for the photographer, the negative and the right to make photographs from it belong to him. He is the author and proprietor of the photograph, and may perfect the exclusive right to make copies by copyright." The same principle was upheld in the closely similar English case of Ellis v. Ogden, in 1894, by Justice Collins in the Queen's Bench Division. But in the case of Ellis v. Marshall, in 1895, Justice Charles in the same court held that where two actors had been invited by a photographer to sit for him in costume and some photographs had also been taken in plain clothes, of which the actors purchased copies, they were entitled to authorize publication in a magazine. It may be noted that New York and other states have statutes forbidding portraiture of persons without their consent; but this prohibition would probably not apply to photographing of a crowd, unless the portrait of a special person were lifted out or made prominent. A photographer may not exhibit a photograph of a patron, as in his shop window, without the sitter's consent.
Right of
employerThe employer of an artist in other work as well as portraiture may become ipse facto the copyright proprietor. In 1871, in Stannard v. Harrison, where a wall map had been made by an engraver from rough sketch and material and from directions given by the plaintiff, the English Court of Chancery, through Vice-Chancellor Bacon, held: "That the plaintiff cannot draw himself is a matter wholly unimportant if he has caused other persons to draw for him. He invents the subject of the design beyond all question . . . this is a work of diligence, industry, and for aught I know of genius on the part of the plaintiff." This case, which arose under the engravings acts in England, where an engraving may be copyrighted by an
employer, — though the engraver of his own original design is the only person entitled to copyright, — is of wide bearing throughout artistic copyright. On the other hand, in 1898, in Bolton v. London Exhibitions
Co., Justice Mathew in the Queen's Bench Division held that the employer, who had given to the engraver only a "general idea" of what he desired, was not the party liable for infringement.
PhotographsPhotographs, a modern development since the early copyright laws, were first included with negatives in the American act of 1865, in respect to which the action of Congress was upheld by the U. S. Supreme Court in 1884 in the decisive case of Burrow Giles Lith. Co. v. Sarony, and in the English fine arts copyright act of 1862. They are specifically named (sec. 5, j) in the new American code, and are included specifically or impliedly under copyright protection in most countries. The peculiar circumstance that the skill of the photographic artist is not necessarily shown in the composition of the picture taken, but more usually in the selection of subject or point of view and treatment in the process, leads to complexities as to authorship, ownership, etc. It is unneces sary and indeed undesirable to copyright separately a photograph of a copyrighted work, of which the general copyright is comprehensive of all tions, but the original copyright notice including the name of the artist must appear on each photograph or its mount. An original photograph of an uncopyrighted or uncopyrigh table subject may be copyrighted as a photograph, as was held with respect to natural scenery in 1903, in Cleland v. Thayer, in the U. S. Circuit Court of Appeals, where a colored photograph of a Colorado pass was protected. Where a photographer had posed a woman and a child characteristically. Judge Wheeler in the U. S. Circuit Court in New York held, in 1891, in Falk v. Brett Lith. Co., where defendant had merely reversed the photograph in a lithographic reprint, that the photograph was copyrightable and that the photographer was the author. And this doctrine, that the posing and treatment of a photograph subject gave justification for copyright, was also upheld in the case of a portrait of an actress in the same year in Falk v. Gast by Judge Coxe. In the English case of Bolton v. Aldin 'et al., in 1895, Justice Grantham in the Queen's Bench Division held that the photograph of a tiger was infringed by a drawing from the photograph published in the Sketch magazine. But the copyrighting of a photograph of an uncopyrighted subject cannot prevent the photographing of the same subject independently by others, nor can the use of a "general idea" be prevented. Under the new American code, the fee for registering a photograph is but fifty cents, if a certificate is not desired, and the new Copyright Ofifice Rules hold that in moving picture films only one registration is requisite, "the entire series being counted as a single photograph."
Tableaux
vivante
and moving
picturesWhether living pictures, tableaux vivants, infringe a work of art, is a difficult question, determinable only by the circumstances of each case. Moving pictures telling a dramatic story may infringe a dramatic or even literary work, as well as possibly a work of art, as was decided in the case of Harper v. Kalem Co. But the House of Lords, in 1 894, in the case of Hanf staengl v. Baines, where the proprietor of the copyright in paintings sued the proprietors of the Graphic for reproducing by sketches living pictures exhibited at a music hall, patterned after the paintings, decided that the word "design" in the English law did not cover the tableaux at the music hall. It is probable, however, that an exact reproduction, as nearly as may be, of a painting at a public place, might be held an infringement. In 1903 the Circuit Court of Appeals through Judge Bufi&ngton, in Edison v. Lubin, overruled the defense that each picture making up a moving picture series should be separately registered for copyright. But separable parts of a composite design, when used separately, must bear separate copyright notice, as was held in 1910 in De Jonge v. Breuker & Kessler by Judge McPherson in the U. S. Circuit Court.
Exclusions
and inclu-
sions con-
struedA shadow-trick perforated card, giving an outline of the picture "Ecce Homo" when held between a light and a screen, was held by Vice-Chancellor Bacon, in Cable v. Marks, in 1882, not to be subject of copyright. Playing cards have been included as prints by an English decision.
Architectural
worksArchitectural works are not protected as such under the American code, the decision of the Congressional Committees being adverse to this proposal. They are specifically included in the new British code. It is possible that they might be included under the general designation of works of art, and drawings or models for buildings might be copyrighted as "drawings or plastic works of a scientific or technical character." The question, however, is one of much doubt. In 1903, in Wright v. Eisle, the Appellate Division of the N. Y. Supreme Court, through Judge Woodward, held, where an architect had filed plans with the building department which he claimed were copied in a house of the defendant, which plans had not been copyrighted, that the filing of the plans in a public office constituted publication and as there were no copyrighted copies, there was no case at common or copyright law.
Copy of a
copyA copy of a copy is an infringement of the original work and incidentally of the direct copy, unless the latter is published without proper copyright notice by authority of the proprietor of copyright in the original. This was held in 1892, in Lucas v. Williams, by the Queen's Bench, where a photograph from an engraving was held an infringement of the original painting; and the decision of Judge McPherson in the U. S. Circuit Court in Pennsylvania non-suiting, in Champney v. Haag, in 1903, the proprietor of a copyright painting because the offending photograph infringed only the copyrighted photograph from which it was directly taken, is not considered good law. A photograph may infringe the copyright in statuary, as was held in 1907, in Bracken v. Rosenthal, in the U. S. Circuit Court.
AlterationsAs to altered copies and alterations, there have been many judicial decisions, the gist of which is that a copy is not less an infringement because it alters details, provided there is copying of a substantial part; that a copy in another medium not exactly reproducing the original or a copy of it, is nevertheless an infringement; that a substantial alteration, or adaptation of an existing work, may in itself be copyrightable, but that slight alterations will not justify the copyrighting of a work in the public domain; and that an artist has the right to prevent alteration of his original work by a subsequent owner, as involving Alterationsdamage to his professional reputation. Where a copyrighted portrait of Lillian Russell was combined with a portrait of another actress, the composite photograph was held to be a violation of the copyright, in Springer Lith. Co. v. Falk, in 1894, by the U. S. Circuit Court of Appeals, through Judge Lacombe. So in the English case of Bolton v. London Exhibitions Co., in 1898, where a lithographer copied the outline of a lion from a copyrighted photograph, and filled in details from natural histories in making a circus poster. Justice Mathew in the Queen's Bench Division held that there had been reproduction of the photograph and that a work of art had been "vulgarized unlawfully." Where certain etchings and engravings had been copied by the Brooklyn Photogravure Co., omitting the tints, plate mark and title, it was held in 1892, in Fishel v. Lueckel, by Judge Townsend in the U. S. Circuit Court in New York that this was an infringement; said Judge Townsend: "The appropriation of a part of the work is no less an infringement than the appropriation of the whole, provided 'the alleged infringing part contains any substantial repetitions of any material parts which are original and distinctive.'" And where a photograph of Julia Marlowe was reproduced in a lithograph, with many points of dissimilarity, some of them because of difference in process, it was held in Falk v. Donaldson Lith. Co., in 1893, by Judge Townsend in the U. S. Circuit Court in New York, that the differences did not constitute a defense. In Dr. Gaunsaulus's book, "The Man of Galilee," well-known pictures were altered substantially and artistically, as by the omission of a spinning wheel from a picture of the Nativity. Copies made from these illustrations were enjoined, though the original pictures were noncopyrighted, in Monarch Book Co. v. Neil, in 1900, by Judge Grosscup in the U. S. Circuit Court in Illinois. But a slight alteration, by the addition on the negative of a cane, thus put into the hands of a person in a photograph not copyrighted in its original form, was held not to justify copyright, in Snow v. Laird, in 1900, by Judge Woods in the U. S. Circuit Court of Appeals. In the N. Y. Supreme Court, in the common law case of Dodge v. Allied Arts Co., in 1903, where the plaintiff had painted four historical scenes on commission which the defendants proposed to have altered, an injunction pending suit was granted by Judge McCall, thus upholding the common law or equity right of an artist to be protected against such misuse of his work.
RemediesFor the infringement of a work of art the copyright proprietor is entitled (sec. 25) to an injunction, the forfeiture of infringing copies and to damages "as well as all the profits … or in lieu of actual damages and profits such damages as to the court shall appear to be just," not less than $250 nor more than $5000, except that "in the case of a newspaper reproduction of a copyrighted photograph such damages shall not exceed $200 nor be less than $50." These damages, within the limits stated, may be assessed by the court in the case of painting, statue or sculpture at ten dollars, and in the case of any other works at one dollar, "for every infringing copy made or sold by or found in the possession of the infringer or his agents or employees." Under the old law, damages were confined to copies found in possession, and the courts were constrained to apply this literally though in several recorded cases with evident injustice.
Artistic copyright termCopyright in artistic works in the United States has always been covered under the general copy right acts, including the code of 1909 providing for copyright for twenty-eight and renewal for a second twenty-eight years, and this is true also in Canada and Newfoundland, where the term is for twenty-eight with renewal for fourteen years. The Australian code of 1905 covers artistic copyright specifically in part IV of the act, which provides for the general term of forty-two years from "the making of the work" or life and seven years, whichever the longer, but confines it to artistic work "which is made in Australia."
British practiceArtistic copyright in Great Britain, on the contrary, have been protected by several concurrent acts beginning with the engraving copyright acts of 1734 and 1767 and including the prints copyright act of 1777, the sculpture copyright act of 1814, the prints and engravings copyright (Ireland) act of 1836 and the fine arts copyright act of 1862 covering paintings, drawings and photographs, previously unprotected, — all forming part of the English law until repealed by the new code. Under these several laws, the copyright term for paintings, drawings and photographs has been the life of the author and seven years, for engravings twenty-eight years from first publication and for sculpture fourteen years from first publishing and renewal for fourteen years. Under the act of 1862 — which did not afford protection outside the United Kingdom, as was affirmed by the Privy Council in 1903, upholding a Canadian decision, in Graves v. Gorrie — copyright in artistic works began with the making of the work wherever made (except that a foreigner must be resident in England apparently at the time of making) and did not depend upon publication; but the international copyright act of 1844 nevertheless denied protection in Great Britain where a work was first published in a country outside of treaty relations. Registration at Stationers' Hall, at a cost of one shilling, has been a prerequisite to protection. The right to copyright lapsed when the original work was sold by the artist without previous registration or written reservation, a provision applied in 1909 in Hunter v. Clifford.
Sculpture
provisionsAn original work of sculpture was protected only if first published within the British dominions, if by a British subject or resident, provided it bore the proprietor's name and date of first publication; and renewal for a second fourteen years was possible only if the author was then alive and held the copyright. Toy soldiers, artistically modeled, were protected in England as a work of sculpture by Justice Wright in Britain v. Hanks, in 1902. Common law protected until and statute law after publication, i.e. when the public in general is first permitted to view the work.
Engraving
provisionsAn engraving was protected in Great Britain and Ireland, if first published (and probably also made) within the British dominions, provided it bore the proprietor's name and date of publication. Prints, as by lithography or otherwise, were included with engravings; maps, charts and plans were, however, included as books under the general copyright act. Also engravings which are part of a book enjoy the wider protection of the general copyright act. The sale of the plate of an engraving probably does not transfer the copyright, unless intention to do so is clearly evident.
The new
British codeThe new British code includes as an "artistic work" under the general copyright provisions, "works of painting, drawing, sculpture and artistic craftsmanship, and architectural works of art and engravings and photographs." Architectural works are protected only as regards artistic character or design as distinguished from process or methods of construction. Photographs have the exceptional term of fifty years from the making of the original negative, and the owner of such negative at the time of making is considered the author. Registration is no longer required.
Foreign
countriesWorks of art are protected in most foreign countries either impliedly or specifically under general copyright legislation, although sometimes by special laws. France covers artistic works "whatever may be the merit, use or destination of the work"; the Scandinavian countries include specifically drawings, etc., "not works of the fine arts"; in India copyright is extended in industrial designs to "some peculiar shape or form given an article, but not the article itself." Architectural works are protected in France, Luxemburg and Brazil, but in most countries only architectural plans, drawings, designs, figures, or models and not buildings are covered. Geographical and topographical drawings and technical drawings, maps and charts, illustrations, engravings, in some cases lithographs, photographs, and negatives are among classes specified in many countries. In some countries the term of copyright is different in the case of artistic works. Luxemburg has the peculiar provision that portraits may not be reproduced until twenty years after the death of the person portrayed. Photographs are in several countries protected for a shorter term, frequently five years from taking, publication or registration as the case may be; in Norway the copyright may not extend beyond the death of the photographer.
Berne con-
vention, 1886When the International Copyright Union was created at Berne in 1886, artistic works were conjoined with literary works under like protection throughout the convention and they were specified (art. IV) as covering "works of design, painting, sculpture, and engraving; lithographs, illustrations, geographical charts; plans, sketches, and plastic works relative to geography, topography, architec ture, or science in general; in fact, every production whatsoever in the . . . artistic domain which can be published by any mode of impression or reproduction." In the final protocol it was specifically provided: "(1) As regards article IV, it is agreed that those countries of the Union where the character of artistic works is not refused to photographs, engage to admit them to the benefits of the Convention, from the date of its coming into effect. They are, however, not bound to protect the authors of such works further than is permitted by their own legislation, except in the case of international engagements already existing, or which may hereafter be entered into by them. It is understood that an authorized photograph of a protected work of art shall enjoy legal protection in all the countries of the Union, as contemplated by the said Convention, for the same period as the principal right of reproduction of the work itself subsists, and within the limits of private arrangements between those who have legal rights."
In the amendatory act adopted at Paris in 1896,Paris declaration; 1896 the final protocol of 1886 was modified respecting architectural and photographic works as follows (1, a, b): "In the countries of the Union in which protection is accorded not only to architectural designs, but to the actual works of architecture, those works are admitted to the benefit of the provisions of the Convention of Berne and of the present additional act.
"Photographic works, and those obtained by similar processes, are admitted to the benefit of the provisions of these acts, in so far as the domestic legislation allows this to be done, and according to the measure of protection which it gives to similar national works.
"It is understood that the authorized photograph of a protected work of art enjoys legal protection in all the countries of the Union, within the meaning of the Convention of Berne and the present additional act, as long as the principal right of reproduction of this work itself lasts, and within the limits of private conventions between those who have legal rights."
Berlin convention, 1908In the Berlin convention of 1908, artistic works were defined (art. 2, par. 1) by specification as "drawings, paintings; works of architecture and sculpture; engravings and lithographs; illustrations; geographical charts; plans, sketches and plastic works relating to geography, topography, architecture, or the sciences," — thus covering architectural works under general copyright. It was further provided by the convention of 1908 (art. 2, par. 4) that "works of art applied to industry are protected so far as the domestic legislation of each country allows." And article 3 provided: "The present Convention applies to photographic works and to works obtained by any process analogous to photography. The contracting countries are pledged to guarantee protection to such works."
Exhibition not publicationBy the interpretative declaration adopted at Paris in 1896, it was specifically provided (sec. 2): "By published works must be understood works actually issued to the public in one of the countries of the Union. Consequently, . . . the exhibition of a work of art, does not constitute publication in the sense of the aforementioned Acts." In the Berlin convention of 1908 it was similarly provided (art. 4, par. 4) that "the exhibition of a work of art and the construction of a work of architecture do not constitute publication."
Pan American UnionIn the Pan American Union, the Buenos Aires convention of 1910 covers artistic works on the same basis as literary works, without special provisions.