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who you were. You know you have appeared before this committee and we have always announced your name and given you very courteous consideration, haven't we, Mr. Solberg?
Mr. SOLBERG. Absolutely; and that has continued for half a century.
The CHAIRMAN. What has?
Mr. SOLBERG. The same courtesy and the same deference to hear the opinions of a man who is especially interested in copyrights.
This is a petition from Mr. Stephen Lang Newman on behalf of some amendment to the copyright law to provide against infringements by colorable imitation, or at least for some remedy.
The CHAIRMAN. By whom is that article?
Mr. SOLBERG. It is by Stephen Lang Newman, 33 West Thirtyfourth Street, New York City.
The CHAIRMAN. Is that an article that appeared in the New York Times this Sunday?
Mr. SOLBERG. I do not think so, sir. It is addressed to this committee. Mr. Newman represents the Association of Picture Publishers, the American Art Bureau, the Association of Artists and Art Dealers, and the American Federation of Art. I think you may be willing to put his petition into the record. If I may be permitted to read just two brief paragraphs of the text which he proposes for a possible new copyright bill which he believes, or the people whom he represents believe, will cover his case. They are as follows:
The proprietor of a copyright of a work of art (drawing, painting, or sculpture) and of a reproduction of a work of art shall be entitled to the exclusive right to copy or reproduce the whole or any essential part of the copyright work as provided by this act, and also the right to restrain any simulation or imitation of subject and appearance of such work, and to obtain damages under the provisions of this act from the person, firm, or corporation producing or publishing such simulation or imitation and from any person who, after notice, shall produce or sell or exhibit or publish any such simulation or imitation.
Second. In the case of a reproduction, simulation, or imitation of a print, etching, engraving, photograph, or other pictoral illustration or decorative or educational picture, $1 for every copy made or sold or exhibited by or found in the possession of any person, firm, or corporation.
The CHAIRMAN. I want to thank you for your kindness in appearing before this committee, Mr. Solberg.
STATEMENT OF STEPHEN L. NEWMAN, NEW YORK CITY
Mr. NEWMAN. I desire to place before you briefly what is a plea for a separate fine-arts section. There is such a separate fine-arts section in the British copyright law and in the copyright law of every country that is a member of the Berne convention. Whether it is in the German or English or Scandinavian language, it is all the same; the general phraseology as applied to the fine arts is identical.
Representing the Association of Picture Publishers, the American Art Bureau, and the Association of Artists and Art Dealers, and cooperating with the American Federation of Art, Washington; American Homes Bureau, Chicago.
The ramifications are endless as the influence of these organizations is felt in the schools and homes of the Nation through which unnumbered millions are reached. Every magazine and newspaper carries our articles on art and home and school and institutional decoration. It is gratifying to be able to truthfully state that there
is an honest effort being made to build up an appreciation for real art, the interest in the subject being quite general.
Under the existing copyright laws, a reputable art publisher, art dealer, artist, or sculptor is deprived of the protection which a citizen of any other country in the International Copyright Union is afforded by his own government. Our manufacturing clauses excluded us from the Berne convention.
Permit me to point out that a group including artists, sculptors, art dealers, and art publishers, is a separate entity, and this must always be borne in mind throughout the consideration of sections such as the proposed new fine arts section. The proof of this is indicated by the fact that during the past 20 years I have been in close touch with scores of infringement cases, not one of which, however, involved a newspaper, magazine, book or music publisher, nor a theatrical, radio, or film production—there have always been other sections provided for all those other interests to put it more briefly, the offenses have always been charged against art dealers and so-called art publishers, persons who published imitations for the purpose of distributing through the art trade, taking advantage of the lack of appreciation for quality as against the strong appeal of cut prices.
Our present laws are so inadequate that a satisfactory, clean-cut decision based upon the intent and not the mere reading of the law did not result in a single case and the judges and jurists were not to blame.
I have seen legitimate art publishers, the kind that make good competition, that inject virility into business life, come and go, leaving in disgust for other branches where creative genius is encouraged, supported, and above all protected. I was in that same mood, had been fighting it off for years, when the possibility of a revision of the copyright laws loomed upon the horizon—what had I planned to do? You may well ask; here is the answer-every American picture was going to be a British publication. We have maintained a branch in London since 1907; yes, and we kept that branch open through the entire period of the war and at a tremendous sacrifice; every subject was to be reproduced only by lithography or gelatin printing processes (the latter when not in monotone is known as collotype printing). Also on such printing the customs duty is 12 cents per pound by weight and not 25 per cent ad valorem.
An explanation of this may impart some knowledge to copyright lawyers; nevertheless, foreign printed lithographs, gelatin and collotype reproductions of works of art, the originals of which are in a foreign country, are copyrightable matter in the United States in spite of the manufacturing clauses; therefore an American publisher of American art could, under these conditions, enjoy a protection for his so-called British or French or German or Dutch publications which he could not have under any circumstances here. In other words, we are, as Americans, practically forced out of our own country to get elsewhere protection for the publication of American art.
An artist submits a creation to a publisher, frequently to many, many publishers, before one accepts in these days of high cost of producing. The publisher encourages and also pays the artist and the publication proves very successful, under our policy the artist
receiving royalty. Suddenly there spring forth others who have their piratical tentacles out, and they employ a mediocre artist to make a picture as near to the successful publication as possible, which in turn is reproduced in the same process and in the same sizes but at lower prices, and as it can not be proven to be a copy," we are going to have a jolly time trying fruitlessly to keep the others from killing the sale of the original production. Just because we never have defined infringement or imitation as it is done in other countries and because the infringers are invariably burglar, bomb and judgment proof wretches who know the weaknesses of our laws. Because the infringement was not actually copied photographically or otherwise from the copyrighted object, even when the infringer's artist or sculptor will admit that he had the copyrighted object before him when at work, because it is not actually copied, we can not win out. Infringement and imitation must be defined in the act, and I beg of you to do so and keep in mind that our section applies only to the fine arts.
It is cowardly not to have infringement and imitation clearly defined, and I do not care what legal advisers may recommend as to laws that leave it to the courts to define in each instance. It keeps everybody up in the air. It is in the copyright statutes of other first-class nations and has proven highly successful; why not here?
An American publisher is a boob abroad. His country's copyright laws are not reciprocal; he can take and take but gives nothing because he has the same protection that he has in his own country in every country that is in the copyright union, but the United States does not give the foreign artist or publisher that same protection in the United States.
We legislate here with the best of intentions but we do not observe the suffering among our own subjects in the working out of what we get ourselves into, unless a great glamour is created and not always then—perhaps we do not quite understand-perhaps it is as a New York columnist put it, “An old master is a picture painted 300 to 700 years ago and still looks terrible."
No one can anticipate all the intricacies that may arise, but we can profit by the experience of others and need not feel that we are being cheated if we model our laws after those which have proven a boon.
PROTECTION FOR THE FINE ARTS UNDER
PROTECTION UNDER THE BRITISH FINE
EXISTING UNITED STATES LAWS
Now we turn to Bulletin No. 16, printed by the Government Printing Office, 1914, under the title, right in England.”
Page 11. Acts which infringe copyright.
Page 32. A definition which reads, “ Infringing," when applied to a copy of a work, means any copy, including any colorable imitation. “ Colorable": Deceptive, plausible, having a false
appearance of right. Here is a comment on the British fine arts copyright act:
Definition is clearly drawn and infringement or imitation prosecutions can be conducted in a criminal court or in a civil court. In the criminal court the magistrate can order the offender fined or imprisoned and all known copies and imitations seized and destroyed. Criminal court is used when proceeding against those having no money or for quick action, as the stipendiary magistrates sit daily and a successful prosecution can nip the issue of infringement and imitations almost the day after they have been discovered and have an order issued to destroy all; as a rule, these infringements are published by men who have no capital. As regards those against whom owners of infringed or imitated copyrights proceed, they include everyone showing, offering, or dealing in such works and were they not include the fine arts act would be useless The result, we have very few infringements, and the few we do have are quickly nipped in the bud.
For instance, the Maxfield Parrish publications and their imitations in which ihere has been litigation and no satisfactory results were attained later under the unfair competition act.
In England there was an imitation of a Parrish print and that was discovered. The publisher of that got into it quite innocently by some artist presenting a painting. He was notified of this being a colorable imitation. It was not nearly as much like a Parrish picture as some others and yet the day that he received this notice, he immediately expressed his regret, he made recompense, all the copies which were in existence were withdrawn and that were in the hands of dealers were recalled, every dealer made an apology for having handled the publication, and the offender published an apology in the newspapers and trade journals.
Some 14 years ago I came to Washington to confer on our international copyright relations and was given the report of the register of copyrights for the fiscal year 1916–17. On page 17:
The copyright relations between the United States and Great Britain, which have now existed for more than a quarter of a century, have never been either complete or satisfactory. They have never been nor are they now in any exact sense “reciprocal.” The protection accorded American authors has been incomplete and inadequate. On the other hand, the authors of Great Britain and her dominions have found their copyright protection in the United States heavily handicapped by the requirement of remanufacture in the United States. The privileges conferred have also been burdened with compulsory registration and the obligation to deposit copies.
And on page 18: Unpublished works of American authors are now protected in Great Britain without any formalities exactly as if the authors of such works were British subjects or were resident within Great Britain.
And on page 21 :
The summary of our established international relations indicates the need for amendment. Literary and artistic property protection in this country should be uniform and equal, with no difference or distinction based upon the nationality of the author and should be free from inequality in the conditions or formalities imposed upon the author or his publisher.
Are we going to go along another 40 or 50 years in the same way? Are we going to tolerate the continuance of " inequalities” by not having, “ colorable imitation," or other phraseology meaning the same thing, included in our laws exactly as it is in the fine arts copyright acts of every leading country of the world? Are we going to permit the fine arts in this country to be debased, driven from the field by inferior and obvious imitations and infringements, and the minds of our people dwarfed instead of uplifted ?
If the United States, through this bill, does join the International Copyright Union without a fine-arts section being included and clearly drawn as before mentioned, then one of two things must be undertaken-endeavor to tack it on as a rider at the last minutes or publish in a foreign country where none are so spineless as to fear to define imitation and infringement and where practice has proven that such a fine-arts section does not affect any other interests.
The following is the section suggested after having been approved by all to whom submitted :
(Irrespective of anything in this act contained) The proprietor of a copyright of a work of art (drawing, painting, or sculpture) and of a reproduction of a work of art shall be entitled to the exclusive right to copy or reproduce the whole or any essential part of the copyright work as provided by this act, and also the right to restrain any simulation or imitation of subject and appearance of such work, and to obtain damages under the provisions of this act, from the person, firm, or corporation producing or publishing such simulation or imitation and from any person who, after notice, shall produce or sell or exhibit or publish any such simulation or imitation.
The Century Dictionary definition of " simulation” reads as follows:
Simulation: Act of simulating, or feigning, or counterfeiting; the false assumption of a certain appearance or character; pretense, usually for the purpose of deceiving.
Later on the following is substituted for the present section:
First. In the case of a painting, statue, or sculpture, $10 for every infringing copy made or sold or exhibited by or found in the possession of any person, firm, or corporation.
Second. In the case of a reproduction, simulation, or imitation of a print, etching, engraving, photograph, or other pictorial illustration or decorative or educational picture, $1 for every copy made or sold or exhibited by or found in the possession of any person, firm, or corporation.
The CHAIRMAN. I will now call on Mr. George C. Lucas, executive secretary of the National Publishers Association.
STATEMENT OF GEORGE C. LUCAS, EXECUTIVE SECRETARY OF
THE NATIONAL PUBLISHERS ASSOCIATION, NEW YORK CITY
Mr. Lucas. Mr. Chairman and members of the committee, I want to first give you an idea of what our association is. It is a voluntary association of the leading periodicals of the United States.
The CHAIRMAN. Will you mention some of them?
Mr. Lucas. It includes the general magazines in the women's field and in the general field, as the Curtis publications (the Saturday Evening Post, the Ladies' Home Journal, Country Gentleman), McCall publications (Butterick), Crowell publications, the Hearst publications, Good Housekeeping, Harper's Bazaar, Cosmopolitan; in fact, all of the leading periodicals.
During the last 10 years, while there has been considerable agitation about adjustment of your copyright legislation, we have been very much interested, particularly from the business standpoint. Our association is composed of the publications but represented by the business executives of these publications. During the last 10 years we have had copyright contests on, we have been in very close touch with possible legislation, cooperating with those who are interested in changing the copyright law, such as the Authors' League and others, and throughout all this it has been merely a matter of developing what is a fair and reasonable basis for those interested in it.
Our interest, of course, is that we have spent a great deal of money buying copyright material. That does not refer only to the literary