Copyright: Its History and Its Law Part 22

That an ill.u.s.tration 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 ill.u.s.trations may be protected as part of a book without reference to the 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 const.i.tuted infringement.

{Sidenote: Description of artistic work}

Likewise, 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 But this does not hold good in the case of an unpublished or privately exhibited work, as was held in 1849 in the case of Prince Albert _v._ Strange, where a descriptive catalogue of unpublished etchings by Queen Victoria and the Prince Consort was enjoined, as well as the exhibition of prints therefrom unlawfully obtained.

{Sidenote: Portraits}

In the case of portraits, whether by painting, sculpture or photography, an important question as to owners.h.i.+p 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 ent.i.tled 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.

{Sidenote: Right of employer}

The 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 ent.i.tled 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.

{Sidenote: Photographs}

Photographs, 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 circ.u.mstance 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 authors.h.i.+p, owners.h.i.+p, etc. It is unnecessary and indeed undesirable to copyright separately a photograph of a copyrighted work, of which the general copyright is comprehensive of all reproductions, 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 uncopyrightable 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 pa.s.s 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 c.o.xe. 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 Office Rules hold that in moving picture films only one registration is requisite, "the entire series being counted as a single photograph."

{Sidenote: Tableaux vivants and moving pictures}

Whether living pictures, _tableaux vivants_, infringe a work of art, is a difficult question, determinable only by the circ.u.mstances 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 1894, in the case of Hanfstaengl _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 Buffington, 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.

{Sidenote: Exclusions and inclusions construed}

A shadow-trick perforated card, giving an outline of the picture "Ecce h.o.m.o" 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.

{Sidenote: Architectural works}

Architectural 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 const.i.tuted publication and as there were no copyrighted copies, there was no case at common or copyright law.

{Sidenote: Copy of a copy}

A 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.

{Sidenote: Alterations}

As 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 damage 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 t.i.tle, 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 repet.i.tions 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 const.i.tute 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 ill.u.s.trations were enjoined, though the original pictures were non-copyrighted, 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.

{Sidenote: Remedies}

For the infringement of a work of art the copyright proprietor is ent.i.tled (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 a.s.sessed 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.

{Sidenote: Artistic copyright term}

Copyright in artistic works in the United States has always been covered under the general copyright 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."

{Sidenote: British practice}

Artistic copyright in Great Britain, on the contrary, has 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 publis.h.i.+ng 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 s.h.i.+lling, 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.

{Sidenote: Sculpture provisions}

An 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.

{Sidenote: Engraving provisions}

An 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.

{Sidenote: The new British code}

The new British code includes as an "artistic work" under the general copyright provisions, "works of painting, drawing, sculpture and artistic craftsmans.h.i.+p, 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.

{Sidenote: Foreign countries}

Works 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, ill.u.s.trations, engravings, in some cases lithographs, photographs, and negatives are among cla.s.ses 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.

{Sidenote: Berne convention, 1886}

When 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, ill.u.s.trations, geographical charts; plans, sketches, and plastic works relative to geography, topography, architecture, 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 princ.i.p.al right of reproduction of the work itself subsists, and within the limits of private arrangements between those who have legal rights."

{Sidenote: Paris declaration; 1896}

In the amendatory act adopted at Paris in 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 princ.i.p.al right of reproduction of this work itself lasts, and within the limits of private conventions between those who have legal rights."

{Sidenote: Berlin convention, 1908}

In 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; ill.u.s.trations; 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 a.n.a.logous to photography. The contracting countries are pledged to guarantee protection to such works."

{Sidenote: Exhibition not publication}

By 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 const.i.tute 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 const.i.tute publication."

{Sidenote: Pan American Union}

In the Pan American Union, the Buenos Aires convention of 1910 covers artistic works on the same basis as literary works, without special provisions.