$ 184. Effect of sale on Commis sioned works. The next question of difficulty as to the nature of artistic property arises as to the effect on copyright of copyright. the making on commission, or the first sale, of a picture or photograph. Artists generally, though inclined to recognise exceptions in the cases of portraits and works painted on commission, express a wish to retain the copyright in themselves, if no express agreement on the subject is come to. But it is very difficult to distinguish where the portrait or commissioned picture begins, and the ordinary painting leaves off. The present English law, which provides that if no agreement in writing is made on the sale with respect to the copyright, that right is destroyed, is indefensible. Artists urge that if they retain the copyright, they will be able to secure that any engraving or reproduction of the picture which may be made is a good one; while there will be no security for this if the private purchaser alone may regulate reproductions. The advantages of their proposal cannot be put higher than this, for their copyright is of no positive value, unless the owner of the picture gives them leave and ample opportunity to have the picture reproduced, good engravings being a work of great time and labour; on the other hand, though purchasers of pictures generally object to buying a picture without the copyright, if such a suggestion is made to them, and though they would object to reproduction by others, yet private purchasers rarely use the copyright themselves. The Copyright Commission, after (r) giving up in despair the attempt to define a "portrait" or a "commission," came (s) finally to the conclusion that in the absence of express stipulation the copyright should belong to the purchaser. (r) C. C. Rep. §§ 109, 110. § 184. Effect of sale on Commis The Copyright Bill, on the other hand, puts forward the artists' view of the question by proposing, though not in express words, that the copyright shall, in the copyright. absence of express agreement, remain in the painter, sioned except that, in the case of portraits executed on commis- works. sion, the painter shall not be entitled to make any reproduction whatever without the consent of the owner; and similarly apparently the owner is not to be entitled to make any copy without the consent of the painter, which in the case of family portraits seems a rather unfortunate proviso. In other words, the proposal is this: In the case of all verbal sales of pictures, the artist will retain the right to publish, and receive the profits from, engravings, photographs, and other reproductions of such picture (except copies in the same material); the new proprietor or buyer will, except in the case of portraits, have no check on the circulation of copies, and no share in the profits resulting from reproductions. This would of course be a very satisfactory position for the artistic world; but it is unfortunate that it would frequently arise from the ignorance of the purchaser, who would imagine he was buying what really, for the want of express stipulation, did not pass to him. I incline, Result. therefore, on the whole to the opinion that the solution proposed by the Copyright Commission is the best one for the interests of the public. Then it would require an express stipulation in writing, which must be distinctly brought to the notice of the purchaser, to retain a copyright in the artist, which would otherwise pass to the buyer of his picture. With regard to the copyright in photographs, the § 185. Copyright Bill proposes the same rule as for paintings, Photographs. with the exception that in the case of portraits executed $ 185. Photographs. ments. on commission, it shall be unlawful for anyone, even the owner of the copyright, to sell or exhibit in public copies of such portrait without the consent of the person who gave the commission. The Commissioners recommend that the copyright shall vest in the "proprietor of the negative," instead of, as in the Bill, the "author or maker of the negative; they insert, however, the same proviso as to the necessity of the consent of the sitter to the exhibition or sale of his portrait. The proposal of the Bill seems clear, and, with its safeguarding proviso, satisfactory (t). The proposal of the Commission errs a little, in my opinion, in its failure to define who is the "proprietor of the negative." Some proviso is surely needed to the effect that where the negative is made as the result of a commission or order, it shall belong to the person giving such order. $186. As to infringements, the English rule seems a satisInfringe- factory one. Any unauthorized reproduction, which may diminish the artist's reputation by being taken for his original work, or for a representation of his work, or which may diminish the commercial value of his artistic productions by interfering with their sale, should be treated as an infringement. But such a result will not take place unless there is either exposure for sale, or public exhibition, a limitation which prevents interference with private copies made for amusement or purposes of artistic education. § 187. Search and seizure. The only other point that calls for notice is the special importance in dealing with piratical copies, of full powers (t) The recent case of Nottage v. Jackson (Weekly Notes, Aug. 11, 1883) shews the necessity however of a clearer definition of the "author or maker" of a negative or of a photograph. § 187. Search and of search and seizure. The piratical publisher spreads his wares through travelling pedlars, who have no money seizure. to pay penalties, and whom imprisonment does not deter, while the real offender remains behind unknown. Ample power of prompt seizure of piratical copies will in some degree counteract this evil. § 188. tion. Finally, the Law of Artistic Copyright may be based on, at the most, two sets of principles, and dealt with Codificavery shortly. Paintings, drawings, sculptures, and works where the original is of the greatest value, fall under one head; engravings, photographs, and other mechanical reproductions, all of nearly equal value, from a common original, rank beneath the other. There is clearly no need for the separate and accidental legislation at present applied in England to each variety of artistic work, and codification and unification of the law on this head should be effected as quickly as possible. CHAPTER IX. ENGLISH LAW OF ARTISTIC COPYRIGHT. § 189. English statutes. English Statutes. SECTION I. Unpublished Works SECTION II. Engravings, Prints, &c. SECTION III. Paintings, Drawings, and Photographs. § 189 §§ 190-198 §§ 199-210 §§ 211-218 §§ 219-224 SECTION V. § 225. Recommendations of the Copyright Commission.— § 226. Proposals of the Artistic Copyright Bill of 1883.-§ 227. Laws of other countries. THE English Law as to Copyright in Works of Fine Art is even more complicated than the law which establishes literary property. Three separate sets of statutes deal with copyright in prints and engravings, sculptures, and paintings drawings and photographs, respectively, and deal with them in a very confusing way. The law as to engravings is to be found in 8 Geo. II. c. 13, amended by 7 Geo. III. c. 38, and 17 Geo. III. c. 57, and in 6 & 7 Will. IV. c. 59, and 15 & 16 Vict. c. 12, s. 14. Sculptures are regulated by 54 Geo. III. c. 56, and paintings, drawings, and photographs by 25 & 26 Vict. c. 68. During the present session a codifying and amending Bill, having been prepared by a committee of the Law Amendment Society appointed for the purpose, was brought into the House by Mr. G. W. Hastings. It passed its second reading but was then persistently blocked, and succumbed in the "Massacre of the Innocents" in July. NOTE. The six Acts, which formerly regulated Copyright in Designs have been repealed by the Patents Act, 1883 (46 & 47 Vict. c. 57); which provides new law on the subject, see §§ 47–61. |