Copyright: Its History and Its Law Part 21

The new Copyright Office Rules and Regulations schedule (17) among unpublished works that may be registered "(_c_) photographic prints; (_d_) works of art (paintings, drawings, and sculpture), and (_e_) plastic works," and states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As deposit in the case of an unpublished work takes the place of publication and deposit in the case of works reproduced for sale, there can be no claim for statutory protection of an unpublished work of art without the deposit of the identifying copy, and the general provision (sec. 13) for fine and for voiding of copyright in the case of non-deposit, has, of course, no bearing on unpublished works. Any action or proceeding in respect to an unpublished work not registered by deposit must therefore be under common law and not under statutory provision.

{Sidenote: Summary of requirements}

To 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 a.s.sure 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 circle 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 as 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.

{Sidenote: Material and immaterial properties distinct}

It is specifically provided (sec. 41) that copyright is distinct from the property in the material object, which accomplishes 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 pa.s.s 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 const.i.tute a transfer of the copyright, nor shall the a.s.signment of the copyright const.i.tute a transfer of the t.i.tle 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.

{Sidenote: Manufacturing clause covers lithographs and photo-engravings}

{Sidenote: Foreign subjects excepted}

The copyright in certain cla.s.ses 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," "ill.u.s.trations within a book consisting of printed text and ill.u.s.trations produced by lithographic process, or photo-engraving process, and also to separate lithographs or photo-engravings, except where in either case the subjects represented are located in a foreign country and ill.u.s.trate 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 photo-engraving process ... the copies so deposited shall be accompanied by an affidavit ... 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, 1911, 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.

{Sidenote: German post cards}

It was held by the Attorney-General January 27, 1910, that lithographic reproductions of original paintings in the form of ill.u.s.trated post cards made in Germany, are subject to registration, provided the original paintings may properly be cla.s.sified as works of art; and thus importation of such post cards would be permissible.

{Sidenote: Artistic merit unimportant}

While 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.

{Sidenote: Application forms}

{Sidenote: Certificates}

The Copyright Office furnishes without charge application forms, lettered as indicated, for the following cla.s.ses 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 ill.u.s.tration. 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. Certificates 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.

{Sidenote: Term in unpublished work}

When 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.

{Sidenote: Date not required}

{Sidenote: Re-copyright objectionable}

The 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 copyright 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.

{Sidenote: Exhibition right transfer}

In case of the sale of the original work of art, the right to exhibit, of course, pa.s.ses with the original, although 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 const.i.tutes 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.

{Sidenote: Early English decision}

The 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 pa.s.sage 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 pa.s.s 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.

{Sidenote: The Werckmeister leading case}

The latest and leading case as to exhibition is that of Werckmeister _v._ American Lithograph Co., American 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 const.i.tuted dedication to the public, the Supreme Court's decision quoted from Slater on "The law relating to copyright and trade-marks."

{Sidenote: U. S. Supreme Court opinion}

"It is a fundamental rule that to const.i.tute 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."

{Sidenote: Unrestricted exhibition hazardous}

In fact, in Pierce & Bushnell Co. _v._ Werckmeister, in 1896, the U. S.

Circuit Court of Appeals, through Judge Colt, had held that the exhibition of Naujok's painting of St. Cecilia, in Berlin and Munich, without copyright notice on the original work, const.i.tuted publication and dedication, and therefore denied protection to photographic copies thereafter copyrighted and published.

{Sidenote: Reservation on sale}

That 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 Ma.s.sachusetts 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 const.i.tuting the contract, did not clearly reserve to the artist the right to copyright and prevent copying,--though this decision may be questioned.

{Sidenote: Publication construed}

The courts are disposed to limit the definition of publication to insure the fullest protection of an author's right. In Werckmeister _v._ 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 const.i.tuted a publication and forfeited copyright, but the court held that the replica was not a copy but was made beforehand to a.s.sist 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 const.i.tute 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 ill.u.s.tration, that the copyright law was not violated because the ill.u.s.tration had not been printed or published.

{Sidenote: Danger of forfeiture}

The artist-author or the proprietor of an artistic copyright 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 c.o.xe in Falk _v._ Gast 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, non-suited the complainant because he had not deposited a written description, in addition to filing identifying copies, both formalities being required under the old law.

{Sidenote: Limited use and license}

The 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 ill.u.s.trations 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 ill.u.s.trations 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 ill.u.s.tration sent to it as an advertis.e.m.e.nt 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 ill.u.s.tration 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.

{Sidenote: Character, not method of use}

Copyright in a work of art is dependent upon character rather than use.

"A picture is none the less a picture and none the less a subject of copyright that it is used for an advertis.e.m.e.nt," 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 ill.u.s.trations, in this instance of bathtubs in a trade catalogue, which "are mere advertis.e.m.e.nts," are not ent.i.tled 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.

{Sidenote: Ill.u.s.tration}