Arguments before the Committee on Patents of the House of Representatives Part 21

Mr. BETHUNE. Yes.

The CHAIRMAN. And the lack of uniformity of the decisions relative to publication. Is not that fact due to the conditions which you now describe, and which have been suggested by different members of the committee--because what may be publication in one copyrightable article may not be publication in another?

Mr. BETHUNE. Yes, sir. For that reason----

The CHAIRMAN. Now, then, if the courts, with this attempt to define publication, have found difficulty and have differed, is it not because of the different character of the articles that have been involved in the litigation before the courts?

Mr. BETHUNE. No; it is the same article that I have in mind. There is one Ma.s.sachusetts case, a Federal case, where, in the case of a public exhibition of a painting, the circuit court of appeals in the first district held that that was a publication of the painting.

Mr. CAMPBELL. Was the exhibition given for hire, for profit?

Mr. BETHUNE. Yes; my recollection is that it was a public exhibition for hire. Subsequently another case----

Senator MALLORY. It held that that const.i.tuted publication?

Mr. BETHUNE. That that const.i.tuted publication.

Senator MALLORY. It did not define what publication was any more than that?

Mr. BETHUNE. No; it simply decided that that particular public exhibition was a publication of the work.

The CHAIRMAN. In other words, it decided that in that case special acts const.i.tuted a publication?

Mr. BETHUNE. Yes, sir. Now, the Federal courts in New York State have held the contrary view in respect of a public exhibition of a painting for hire (in the Workmeister cases). Those cases will probably go up to the Supreme Court, but they may not.

The CHAIRMAN. What was the argument or the reasoning of the court in the latter decision?

Mr. BETHUNE. The Ma.s.sachusetts case was distinguished, if my memory is correct, on the fine point that in one case there was a reservation--in the one case the artist made some reservation in respect of the use of the painting when he loaned it to the exhibition, and in the other case he did not; but it is just those fine points which we want to eliminate.

Senator MALLORY. From what you say, I think it would be well for us to avoid the word "publication" and state just what we want without using the word "publication" at all, if we are going to give rise to diverse decisions and litigation. I think we had better express it, perhaps, in the language which you have--"after sale or exhibition for hire"

and "public exhibition."

Mr. BETHUNE. Well, there you do limit it.

Senator MALLORY. Just express it in those words.

Mr. BETHUNE. There you do limit distinctly what would be, in effect, publication, though you do not call it so, and that we do not want.

The CHAIRMAN. We would be very glad if you would submit your proposed amendment to the committee later.

Mr. PUTNAM. Mr. Chairman, I understand that Mr. W. A. Livingstone, representing certain reproducing interests, and Mr. McDonald, representing the National Photographers' Copyright League, wish to have a note recorded--not to argue a point, but simply to have a note recorded in the minutes.

STATEMENT OF WILLIAM A. LIVINGSTONE, ESQ., OF DETROIT, MICH.

Mr. LIVINGSTONE. Mr. Chairman, I simply wish to state two things in contradiction of the last speaker. I stand here for a large reproductive interest, and consequently we are speaking also from the standpoint of the reproducer. We dissent very strongly from his opinion and we support the bill in respect to notice as it now is.

That is all we wish to say now.

Mr. WEBB. You want the word "accessible" kept in just as it is now?

Mr. LIVINGSTONE. Yes, sir.

Mr. WEBB. What do you understand that to mean?

Mr. LIVINGSTONE. I understand that to imply that that notice must be easily get-at-able in the painting or other object.

Mr. WEBB. Well, "accessible" means "get-at-able."

Mr. LIVINGSTONE. Yes, sir.

Mr. WEBB. But you have not got "easily accessible" in here. You have got "accessible," simply, whether with difficulty or whether with ease.

Mr. LIVINGSTONE. In the case of a painting or work of art it is very easy--you can hardly conceive of a case where, if the notice is accessible at all, it can not be obtained.

Mr. WEBB. Well, why should you object to the word "uncovered"--"accessible and uncovered?"

Mr. LIVINGSTONE. Because if you include the word "uncovered" you then impose some other conditions which are the result of that term, as, for example, you may compel the notice to be on the face. I will give a concrete ill.u.s.tration that is easily understood. Suppose you have a very small miniature which is very delicately painted. You can not put that notice across the face of the miniature, and yet you can take the miniature in your hands and turn it over and find the notice in an accessible place with ease.

Mr. WEBB. Do you think, though, that "accessible and uncovered" means putting it on the front of the painting or photograph? Could it not be on the back and be still uncovered on the back?

Mr. LIVINGSTONE. The painting may be hanging on the wall.

Mr. WEBB. It would still be uncovered.

Mr. LIVINGSTONE. Oh, not necessarily; no, sir.

Mr. WEBB. As far as the painting itself is concerned, I do not know why you all quibble between "accessible" and "uncovered," and I did not know what was the real difficulty between you on this word "accessible." The word "visible" has been suggested.

Mr. LIVINGSTONE. Another case would be this: In certain kinds of sculptures you could not possibly put that notice upon the face of the sculpture without a serious marring of it, without a serious impairment of its commercial value. The law even now takes cognizance of this, and permits you, in those cases, to put it on the bottom or on the back. It may not necessarily be uncovered, but it is accessible.

STATEMENT OF PIRIE MACDONALD, ESQ., OF THE PHOTOGRAPHERS' COPYRIGHT LEAGUE.

Mr. PIRIE MACDONALD. We wish to stand for the word "accessible" as it has been evolved by the Librarian, and we would wish that in case the word "uncovered" is used it be very strictly defined; that it be defined as to when this picture should be uncovered. If, for example--and remember, please, that I am speaking merely for photographers, and not as a reproductionist--suppose I were to make a photograph of someone, and were to properly and duly mark it with the notice as prescribed by law (for example, a photograph of yourself), and you were to decide that you objected to the notice as being a defacement, and you were to take it on yourself not to take the notice from the picture (because that would be prevented by the proposed law) but to cover it up. It is your property, unquestionably; and it gets to the hand of a reproducer and he says, "This is not uncovered."

Therefore I suggest that in case by any chance the word "uncovered" is used, it be very strictly defined.

Mr. PUTNAM. Mr. Chairman, there are a great many people here who are interested in behalf of the provisions in the bill proposing protection against the mechanical devices for the reproduction of music to the ear. There are many here who are opposed to the provisions of the bill, and those who are its proponents are in favor of them. They are, of course, very desirous to near the arguments advanced by those who are against them, and, if it be your pleasure, I would suggest that it would be only fair to hear from the opponents of those provisions as soon as possible. I have called as many as I knew of the partic.i.p.ants in the conference who cared to say anything at this stage in favor of the bill. One additional partic.i.p.ant to those who have spoken, representing the directory publishers--I think that a.s.sociation is not here--states, in a letter:

I take this opportunity to say that our a.s.sociation fully indorses the bill as presented to Congress, with the single exception of the final paragraph of section 13.

That is the paragraph requiring that in the affidavit as to manufacture the place in which the work was done and the establishment shall be specified. I simply ask that that go into the record as coming from the American Directory Publishers.

The CHAIRMAN. What reason is given for that request?

Mr. PUTNAM. I understand the reason to be that it would be an undue burden upon the publishers.

The CHAIRMAN. In what respect?