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ARTISTIC

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Originally appearing in Volume V07, Page 128 of the 1911 Encyclopedia Britannica.
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ARTISTIC COPYRIGHT 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 copyright is alone considered in this account, the American having been included in the section United States above (x8), while for other countries the details are so various that it is only possible to refer the reader to the leading text-books. 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 Engsgrave. la 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 copyright to twenty-eight years. The engravers and publishers of the day were not over-scrupulous, and they sought to' evade the penalties of the copy-right 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 17771 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 Copyright Acts collectively were intended to include prints taken by lithography or any other mechanical process. 20. In May 1814 the Sculpture Copyright Act was passed to give protection to sculptors. The term of copyright for sculptors sculpture. 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 copyright with the sculptor that the author must put his name with the 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. 21. Strange as it may seem, painting was the last branch of the arts to receive copyright protection. The cause of the painting. 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, 2gth 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. Inthe Literary Copyright Act there are two terms—the life of the author and seven 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 considera. Lion, 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 copyright to him; but if neither of these things is done, and no 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 copyright existing in the work for any one. It has passed into the 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 copyright lapses and becomes public property. Photographers are not 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 copyright is not subjected to the same disability as the painter. The 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 Copyright Association of Great Britain promoted a bill, which was 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 commissidned, 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 copyright. The sculptor's right to sell his work and retain his copyright has never been questioned so long as he signs and dates it. 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. 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 Practical amongst those who are most interested in its action. col clalies, 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 copyright by their entry to themselves, inthe belief that, if accompanied by the fee required by the Hall; its entry will reserve the copyright to them, oblivious of the fact that the only thing which can 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 workof 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. 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 gra Photophs. 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 copyright was denied to both painters and photographers. 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 Nottage 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. Photo-graphic 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 with-out 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 copyright in him. 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. 26. Copyright in Designs.—An act of 1787 first gave protection to printed designs on linen and cotton fabrics; and in 1839 Destgna. 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 1 883 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.
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