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 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 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 was a peculiar one. It was to last for fourteen years, with the proviso that, should the author be still alive, Sculpture. 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 painters was taken up by the Society of Arts, who endeavoured, in the first instance, to pass an amendment Painting. 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 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 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 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
