ARTISTIC COPYRIGHT_Encyclopaedia Britannica, 11th Edition, "Convention" to "Copyright" Volume 7, Slice 3

19. Literary authors had protection for their literary work much earlier

than artists for their artistic productions. Pictures and illustrations,

when included in books or newspapers, are protected by the law which

applies to the latter, but that is a separate question. It was not until

the reign of George II. that the legislature in England afforded any

protection for the work of artists. The English law on artistic

included in the section _United States_ above (18), while for other

countries the details are so various that it is only possible to refer

the reader to the leading text-books.

Engravings.

The first Artists' Copyright Bill was passed in the interest of William

Hogarth, one of the greatest of English painters, who was engraver as

well as painter, and who devoted a considerable portion of his time to

engraving his own works. No sooner, however, were these published than

his market was seriously damaged by the issue of inferior copies of his

engravings by other publishers. To protect Hogarth from such piracy the

Engraving Copyright Act 1734 was passed, which provided that "every

person who should invent and design, engrave, etch, or work in

mezzotinto or chiaroscuro, any historical or other print or prints,

should have the sole right and liberty of printing and representing the

same for the term of fourteen years, to commence from the day of the

first publishing thereof, which shall be truly engraved with the name of

the proprietor on each plate, and printed on every such print or

prints." The penalty for piracy was the forfeiture of the plate and all

prints, with a fine of 5s. for every pirated print.

In 1766, in the reign of George III., a second Engraving Copyright Act

was passed "to amend and render more effectual" the first act, and "for

vesting and securing to Jane Hogarth, widow, the property in certain

prints," which extended the protection beyond the designer, who was also

engraver, to any person who, not being himself a designer, made, or

caused to be made, an engraving from any picture or other work of art.

Jane Hogarth, the widow of the painter, found herself nearing the

termination of the fourteen years' term of copyright grant by the first

act, with the probability that immediately on its expiry the engravings

of her husband then on sale, and on which her livelihood depended, would

be immediately pirated. It was mainly to save her from the loss of her

livelihood that this second Copyright Bill extended the term of the

The engravers and publishers of the day were not over-scrupulous, and

they sought to evade the penalties of the copyright acts by taking the

designs, and adding to them or taking from them, or both, and producing

fresh engravings, seeking to make it appear that they were producing new

works. These practices assumed such proportions that it became

necessary, in 1777, to call upon parliament to put through another short

measure still further to protect the engraver, by prohibiting the

copying "in whole or in part" (a clause not contained in the previous

acts), by varying, adding to, or diminishing from, the main design of an

engraving without the express consent of the proprietor or proprietors.

These three acts remain in force to the present day. In 1852, in an

international copyright act, it was declared that the Engraving

lithography or any other mechanical process.

Sculpture.

20. In May 1814 the Sculpture Copyright Act was passed to give

protection to sculptors. The term of copyright for sculptors was a

peculiar one. It was to last for fourteen years, with the proviso that,

should the author be still alive, he should enjoy a further period of

fourteen years, the copyright returning to him for the second fourteen

should he have disposed of it for the first period. It is a condition of

date upon every work before putting it forth or publishing it. A curious

and interesting point in the interpretation of this act is, that

according to the opinion of eminent jurists it is necessary to an

infringement of the copyright of a piece of sculpture that the copy of

it must take the form of another piece of sculpture; that a photograph,

drawing, or engraving of a piece of sculpture is not to be considered a

reproduction of it, and is therefore not an infringement of the

sculptor's copyright.

Painting.

21. Strange as it may seem, painting was the last branch of the arts to

receive copyright protection. The cause of the painters was taken up by

the Society of Arts, who endeavoured, in the first instance, to pass an

amendment and consolidation bill dealing with engraving, sculpture and

painting; but, failing in their first effort, they limited their second

to an attempt to pass a bill in favour of painting, drawing and

photography. It was in the year 1862 that this act, having passed

through parliament, came into force. The absence of any antecedent

protection for the painter is clearly stated in its preamble, which

reads as follows: "Whereas by law as now established, the authors of

paintings, drawings, and photographs have no copyright in such their

works, and it is expectant that the law should in that respect be

amended. Be it, therefore, enacted," &c. This preamble makes it clear

that there is no copyright in any paintings, drawings, or photographs

executed and dealt with before the year 1862--to be exact, 29th July of

that year. The duration of the term of copyright in this act of 1862

differs from its predecessors, by being made dependent on the life of

the author, to which life seven years were added. In the Literary

years, or forty-two years, whichever may prove the longer. In taking a

fixed term like forty-two years it is necessary to have something to

start from, and with a literary work it was easy to start from the date

of publication. But pictures are not published. They may pass from the

studio to the wall of the purchaser without being made public in any

way. The difficulty was evidently before the author of this act, and the

artist's term was made his life and seven years after his death without

any alternative. This term applies equally to photographers. Perhaps no

bill which ever passed through parliament ostensibly for the purpose of

benefiting a certain set of people has failed so completely as has this

bill to accomplish its end. It started by proposing to give copyright to

authors of paintings, drawings and photographs, and it would seem that

no difficulty ought to have arisen as to whom such copyright should

rightly belong; but the following clause of the act has introduced

confusion into the question of ownership:--

Provided that when any painting, or drawing, or the negative of any

photograph, shall for the first time after the passing of this act be

sold or disposed of, or shall be made or executed for or on behalf of

any other person for a good or valuable consideration, the person so

selling or disposing of, or making or executing the same, shall not

retain the copyright thereof unless it be expressly reserved to him by

agreement in writing, signed at or before the time of such sale or

disposition, by the vendee or assignee of such painting or drawing, or

such negative of a photograph, or by the person on whose behalf the

same shall be so made or executed; but the copyright shall belong to

the vendee or assignee of such painting or drawing, or such negative

of a photograph, or to the person for or on whose behalf the same

shall have been made or executed; nor shall the vendee or assignee

thereof be entitled to such copyright unless at or before the time of

such sale or disposition an agreement in writing, signed by the person

so selling or disposing of the same, or by his agent duly authorized,

shall have been made to that effect.

That is to say, after promising the author copyright in his work for

life and seven years, the act stipulates that in order to get it the

author must, at the time of the first sale or disposition of his

picture, obtain a document in writing from the purchaser of the picture,

reserving the copyright to the author, and the act goes on to say that

if he does not take this step the copyright becomes the property of the

purchaser of the picture, but with the proviso, in order to secure it to

him, he must have a document signed by the artist assigning the

document is signed, the copyright does not belong to either the artist

who sells or the client who buys, and the act is silent as to whom it

does belong to. It has disappeared and belongs to no one. There is no

public domain, and any one who can get access to the work may reproduce

it. Now, as most purchases are made from the walls of exhibitions, in

ninety-nine cases out of a hundred the copyright is absolutely lost. And

where the sale is arranged directly between the artist and his client,

the difficulty experienced by the artist in raising the question as to

whom the copyright shall belong to is so great, owing to the dread lest

the mere mention of the signing of a document should cause the selling

of the picture to fall through, that in numerous such cases the

affected by this clause, because they do not as a rule sell the

negatives they produce, and with them the copyright lies in the

negative. They carry on their trade in prints without the question of

the negative arising. The picture-dealer, also, who buys a picture and

picture-dealer can sell a picture without saying a word to his client as

to the copyright, which he, nevertheless, retains intact; the provision

is applicable only to the _first_ sale of the work, which, therefore,

throws the whole of the disability upon the painter.

The act gives the copyright of every work executed on commission to the

person by whom it is commissioned. It makes it compulsory upon every

owner of a copyright that he should register it at Stationers' Hall

before he can take any action at law to protect it. The copyright does

not lapse if unregistered, but so long as it remains unregistered no

action at law can be taken on account of any infringement. A copyright

can be registered at any time, even after an infringement, but the owner

of the copyright cannot recover for any infringement before

registration. The act provides for both penalties and damages in the

following cases:--(1) For infringing copyright in the ordinary way by

issuing unlawful copies. (2) For fraudulently signing or affixing a

fraudulent signature to a work of art. (3) For fraudulently dealing with

a work so signed. (4) For fraudulently putting forth a copy of a work of

art, whether there be copyright in it or no, as the original work of the

artist. (5) For altering, adding to, or taking away from a work during

the lifetime of the author if it is signed, and putting it forth as the

unaltered work of the author. (6) For importing pirated works.

The incongruities of this act were so apparent that its promoters

desired to stop it, feeling that it would be better to have no bill at

all than one which conferred so little upon the people it was intended

to benefit; but Lord Westbury, the lord chancellor, who had charge of

the bill in the House of Lords, advised them to let it go through with

all its imperfections, that they might get the right of the painter to

protection recognized. This advice was followed, and the bill had no

sooner become law than a fresh effort was started to have it amended.

Year by year the agitation went on, with the exception only of a

period when Irish affairs took up all the attention of parliament, and

domestic legislation was rendered impossible. But in 1898 the

introduced into the House of Lords by Lord Herschell. It was a measure

designed to deal with all forms of copyright--literary, musical,

dramatic and artistic--and was remitted by the House of Lords for

consideration to a committee, which, having sat for three sessions,

decided not to proceed with Lord Herschell's measure, but to treat

literature and art in separate bills. It had under its consideration

an artistic bill, drafted for and presented by the Royal Academy, and

a literary bill and an artistic bill drafted by the committee itself.

The main proposals in the latter were to give copyright to the author

of any artistic work or photograph for a period of life and thirty

years, unless the work be commissioned, in which case the copyright

was to be the property of the employer, except in the case of

sculpture intended to be placed in a street or public place. The bill

provided summary remedies for dealing with pirated works. It omitted

altogether any reference to registration, and it provided for

international copyright.

22. To sum up the position of artistic copyright in 1909, we find five

British acts, three dealing with engraving, one with sculpture, and one

with painting, drawing and photography, and between them very little

relation. We have three terms of duration of copyright--28 years for

engraving, 14 for sculpture, with a second 14 if the artist be alive at

the end of the first, life and 7 years for painting, drawing or

photography. There are two different relations of the artist to his

The painter's copyright is made to depend upon the signing of a document

by the purchaser of his work. The engraver and the sculptor are not

required to register; but the author's name, and the date of putting

forth or publishing, must appear on his work. The painter cannot protect

his copyright without registration, but this registration as it is now

required is merely a pitfall for the unwary. Designed to give the public

information as to the ownership and duration of copyrights, the

uncertainty of its operation results in the prevention of information on

these very points.

The Berlin Convention of 1908 led to the appointment of a British

committee to deal with its recommendations, and their report in 1909

foreshadowed important changes in the law both of literary and of

artistic copyright, whenever Parliament should give its attention

seriously to the subject.

Practical difficulties.

Difficult and complicated as is the whole subject of artistic copyright,

it is perhaps not to be wondered at that ignorance of the law on the

subject is very widespread, even amongst those who are most interested

in its action. One of the commonest beliefs amongst artists is, that all

they have to do to secure copyright is to register a picture at

Stationers' Hall; but the authorities at Stationers' Hall ask no

questions, and simply enter any particulars submitted to them on their

printed form. Some artists make a practice, when they send a picture

away to exhibition, to fill up one of these forms, reserving the

accompanied by the fee required by the Hall, its entry will reserve the

reserve the copyright to them is the possession of a document assigning

the copyright to them by the purchaser of the picture. Another useless

method of attempting to reserve artists' copyrights is that adopted by

the promoters of public exhibitions, with whom it is an almost constant

practice to print on some portion of the catalogue of the exhibition a

statement that "copyrights of all pictures are reserved," the impression

apparently prevailing that a notice of this kind effectively reserves

the copyright for the artist while selling his picture from the walls.

It, of course, does no such thing, and the copyright of any picture sold

in these circumstances, without the necessary document from the

purchaser, must be lost to the artist, and pass irrevocably into the

public domain.

In a work of art the work itself and the copyright are two totally

distinct properties, and may be held by different persons. The

conditions differ materially from those of a work of literature, in

which as a rule there is no value apart from publication. There is a

value in a work of art for its private enjoyment quite apart from its

commercial value in the form of reproductions; but when the two

properties exist in different hands, the person holding the copyright

has no power to force the owner of the work of art to give him access to

it for purposes of reproduction; this can only be effected by private

arrangement. It has been argued that, as the two properties are so

distinct, the owner of the copyright ought to have the right of access

to the picture for the purpose of exercising his right to reproduce it.

But it is easy to see that it would destroy the value of art property if

proprietors knew that at any moment they might be forced to surrender

their work for the purpose of reproduction, though for a time only.

There is often a strong sympathy between the artist and the person who

buys his picture, and it is not at all unusual, when application is made

to the owner of the picture for access to it, for him to submit the

question of reproduction to the artist. Although the latter may really

have no right in it, it is felt, as a practical matter, that he is

largely interested in the character of the reproduction it is proposed

to make. Hence the courtesy which is usually extended to him.

Owing also to the increased facilities of reproduction, the practice has

become very common of splitting up copyrights and granting licences in

what may be described as very minute forms. It would, of course, be

impossible for a publisher to pay an artist the sum at which he values

his entire copyright, simply that he might reproduce his picture in the

form of a black-and-white block in a magazine, and it has consequently

become quite common for the artist to grant a licence for any and every

particular form of reproduction as it may be required, so that he may

grant the right of reproduction in one particular form in one particular

publication, and even for a particular period of time, reserving to

himself thus the right to grant similar licences to other publishers.

This is apparently not to the injury of the artist; it is probably to

his advantage, and it certainly promotes business.

Photographs.

23. The great obstacle in the way of securing a really good Artistic

Bill has been the introduction into it of photography. It was by a sort

of accident that the photographer was given the same privileges as the

painter in the bill of 1862. The promoters of the bill thought that the

photographer would be protected by the Engraving Acts which covered

prints; but since the photographers feared that, as their prints were of

a different character from the prints from a plate, the Engraving Acts

might not protect them, it was at the last moment decided to put

photography into the Art Bill. The result of this was that the painter

lost his chance of copyright on all works executed on commission.

Legislators feared that if photographers held copyright in all their

works the public would have no protection from the annoyance of seeing

the photographs of their wives and daughters exhibited and sold in shop

windows by the side of "professional beauties" and other people, and

made articles of commerce. So in the case of commissioned works the

The royal commission which reported on the subject in 1878 proposed two

distinct terms of copyright for painting and photography. The term for

the painter was dependent on his life; that for the photographer was a

definitely fixed term of years from the date of publication of his

photographs; and there can be little doubt that this is the right way to

deal with the two branches of copyright. The artist who paints a picture

signs it, and there is no difficulty in knowing who is the author of a

painting and in whom the term of copyright is vested. In a very large

number of cases a photograph is taken by an employee, who is here to-day

and gone to-morrow, and even his employer knows nothing of his

existence. Of course, it may suit an employer to be able to maintain

secrecy as to the authorship of his negative, inasmuch as it enables him

to go on claiming copyright fees indefinitely; but it is not to the

public interest. In most countries on the continent of Europe a

photographer has the fixed term of five years' copyright in an original

photograph dating from its publication, which date, together with the

name and address of the photographer, has to be stamped on every copy

issued. In the public interest this is a good method of dealing with

photographs.

24. The "authorship" of a photograph has been much debated in the law

courts; and "author" was defined in _Nollage_ v. _Jackson_ (1883) as

"the man who really represents or creates, or gives to ideas, or fancy,

or imagination, true local habitation--the man in fact who is most

nearly the effective cause of the representation" (_per_ Lord Justice

Bowen). He is not necessarily the owner of the camera, or the proprietor

of the business; it depends on the circumstances. He is essentially the

person who groups and effectively superintends the picture. When a

photographer takes a portrait without fee, the copyright vests in him

and not in the sitter, who cannot prevent its publication; but if the

photograph is commissioned and paid for by the sitter the copyright--in

the absence of contrary stipulations--vests in him, and he can restrain

exhibition or multiplication of copies; "the bargain includes, by

implication, an agreement that the prints taken from the negative are to

be appropriated to the use of the customer only" (Mr Justice North in

_Pollard_ v. _Photographic Co._, 1888). And this applies even when the

sitter is not the actual purchaser of the negative (_Boucas_ v. _Cooke_,

1903). But in several cases the "celebrity" who has _sat_ to a

photographer at his request and without payment has not been allowed to

distribute his photograph to newspapers for reproduction without the

photographer's consent. The fact that a sitter pays the photographer for

prints, though he has not commissioned the sitting, would not vest the

25. The "Living Pictures" case in 1894 (_Hanfstangel_ v. _Empire

Palace_) was a curious one. The Empire music-hall in London produced

some _tableaux vivants_, representing certain pictures, of which Messrs

Hanfstangel owned the copyright, and an action was brought by them for

an injunction. The courts of chancery and of appeal decided against the

plaintiffs, on the ground that a reproduction of a painting must be by a

painting or something cognate; but in an action for infringement, though

the view already given was confirmed, the plaintiffs succeeded so far as

the backgrounds to the grouping were concerned. Meanwhile two newspapers

had published sketches of the same _tableaux vivants_, and Messrs

Hanfstangel brought actions for infringement (_Hanfstangel_ v. _Newnes_,

and v. _Baines_, 1894). Mr Justice Stirling found for the plaintiffs,

but on appeal, and finally in the House of Lords, this decision was

reversed.

Designs.

26. _Copyright in Designs._--An act of 1787 first gave protection to

printed designs on linen and cotton fabrics; and in 1839 a further act

included designs on animal fabrics, or mixed animal and vegetable

fabrics; while in the same year another act protected designs for

manufactured articles. These acts had been preceded in France by laws of

1737 and 1744 creating a property by law in manufacturers' designs. The

British law, which in various acts established a copyright (a) in

ornamental and (b) useful designs, was in 1883 consolidated in the

Patents, Designs and Trade Marks Act, with amending acts up to 1888; and

these acts were further consolidated and amended by an act of 1905. See

TRADE-MARKS and PATENTS.

Encyclopaedia Britannica, 11th Edition, "Convention" to "Copyright" Volume 7, Slice 3 · 第 19 / 21 题