ever, been held not to be within the above statutes, and must therefore be registered at the Patent Office (Act of June 18th, 1874; Coffeen v. Brunton, 4 McLean, 516). The substantial identity test of piracy is applied in America on principles analogous to those practised in England, and in this respect the law of the two countries is the same, so much so in fact that the decisions of one country are frequently quoted in the other (see Turner v. Robinson, 10 Ir. Ch. 121, 510; Gambart v. Bull, 14 C. B. (N. S.) 306; Graves v. Ashford, L. R. 2 C. P. 410; Blunt v. Putten, 2 Paine (Amer.) 397; Richardson v. Miller, 3 L. & Eq. Rep. 614). Cards of congratulation, such as Christmas, Easter, and Christmas birthday cards may be prints within the Engravings Acts, or they may be designs (46 & 47 Vict. c. 57), or paintings, drawings, or photographs (25 & 26 Vict. c. 68), according to circumstances, and in every case they must either be properly marked, or registered under the appropriate Act, or they will not be entitled to protection. cards. Previous to the statute 25 & 26 Vict. c. 68, the author Paintings, drawings, of an original painting, drawing, or photograph, had not and photosuch an exclusive right of property in his production graphs. as to enable him to bring an action to restrain the infringement of it. Where an engraving was made from an original picture, the engraver was protected under the Engravings Acts, and no one might reproduce or colourably imitate such engraving, but it was no piracy for another artist to make a fresh engraving from the original picture (De Berenger v. Wheble, 2 Stark. 548). The same remarks applied to drawings of all kinds, and in later times to photographs also. Comanon At common law the author of any painting, drawing, or Right at photograph, or his assignee, had and now has, a right to Law. prevent any person from copying his production; and even What is tion. the publication of a mere catalogue, containing a description of any works of art in which a common law right of copy subsists, is an infringement of such right, and will be restrained (Prince Albert v. Strange, 2 De G. & Sm. 652; 1 Mac. & G. 25). After publication, however, the author bases his right to protection solely on the provisions of the statute 25 & 26 Vict. c. 68. First, to consider what amounts to such a publication of a work of art as will destroy the author's common law right of copy. It is a fundamental rule that to constitute publication there must be such a dissemination of the work of art itself among the public, as to justify the belief that it took place with the intention of rendering such work common property. It follows, therefore, and it is submitted, that if an artist permits a wood engraving of a painting to be made and published in a periodical, this is not a publication of the painting (see Turner v. Robinson, 10 Ir. Ch. (N. S.) 133); and so, where a plaster cast taken from a bust is published, this is no publication of the bust itself. The sale of a work of art cannot be said to amount to a publication, nor can the exhibition of a similar work at a public exhibition, where there are bye-laws against copying, or where it is tacitly understood that no copying shall take place; for in this instance the public are primâ facie admitted to view the picture on the implied understanding that no improper advantage will be taken of the privilege. For similar reasons the exhibition of a picture, with the object of obtaining subscriptions for engravings to be made from it, does not amount to a publication, if it be intimated, either expressly or impliedly, that no copying will be permitted. To constitute publication, therefore, it must appear that the object with which the exhibition or dissemination takes place, amounts to, or includes a deliberate intention to endow the public at large with the perpetual right to reproduce the work of art in question (see the judgment of the Court, Turner v. Robinson, 10 Ir. Ch. 132). copy in drawings, statute. By 25 & 26 Vict. c. 68, s. 1, it is provided that the Right of "author," being a British subject or resident within the paintings, dominions of the Crown, of every original painting, drawing, and photoand photograph, whether made in the British dominions graphs by or elsewhere, and his assigns, shall have the sole and exclusive right of copying, engraving, reproducing, and multiplying such painting or drawing, and the design thereof, or such photograph, and the negative thereof, for the term of his natural life and seven years after his death; provided that on sale or disposition of the original, or where the same has been made or executed for any other person for a valuable consideration, the person so selling or disposing of or making or executing the same, shall not retain the copyright thereof, unless it is expressly reserved to him by agreement in writing signed by the vendee or assignee or the person for whom the picture, &c., was made, at or before the time of such sale or disposition, but the copyright shall belong to the vendee or assignee or to the person on whose behalf the same shall have been made or executed. It is, however, by the same section further provided, that the vendee or assignee shall not be entitled to the 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 authorised, shall have been made to that effect. Nothing, however, is to prejudice the right of any person to copy or use any work in which there shall be no copyright, or to represent any scene or object, notwithstanding that there may be copyright in some representation of such scene or object (sect. 2). By the 4th section a register of proprietors is to Who are the "au be kept at Stationers' Hall, and provisions are made for the inspection of the register and the delivery of certified copies thereof, production in evidence of such copies, application to the Courts by parties aggrieved, the expunging and varying of entries, and other similar provisions, as in the case of books registered under 5 & 6 Vict. c. 45, s. 5. All the provisions of the International Copyright Act (7 & 8 Vict. c. 12) are extended to paintings, drawings and photographs (sect. 12). Under this statute (25 & 26 Vict. c. 68), it has been judicially determined that a photograph of an engraving of a painting, is within the Act, and that in the case of an assignment of the copyright in a picture, it is sufficient to register the assignment (sect. 4), and that it is under these circumstances immaterial that the original copyright of the author has not been registered (Graves' Case, L. R. 4 Q. B. 715; Beal's Case, L. R. 3 Q. B. 387). Where an assignee neglects to register his assignment under the Act, he cannot of course sue in respect of any infringement, but a licensee to reproduce, is in a different position from the assignee of the whole copyright, for a mere license need not be registered (Tuck v. Canton, 51 L. J. (N. S.) Q. B. 363). It is of course clearly unlawful to copy a photograph, or a negative thereof entitled to protection under the Act, but this will not prevent any person from copying the object from which the photograph was taken, assuming of course that it be common property (Graves' Case, supra, per Blackburn, J., 723) for an "original photograph" within the meaning of the Act can mean nothing else than a direct reproduction of a particular object by means of photography; any one can reproduce the same object, but he cannot copy the photograph without permission, for the copy would not then be original (ibid.). It has very recently been decided that where a firm of Nottage v. Jackson. photographers registered themselves under 25 & 26 Vict. thors" of a photoc. 68, ss. 1 and 4, as the authors of a photograph, the graph. negative of which, as it turned out, had been taken by an employé, they were properly speaking proprietors, but certainly not "authors," and consequently that they were precluded from bringing an action (Nottage v. Jackson, 52 L. J. Q. B. (N. S.) 760, on appeal, ibid. 766). The term "author" involves originating, making, producing, as the inventor or master mind, the thing which is to be protected, whether it be a drawing, or a painting, or a photograph (ibid. per Cotton, L. J., 768). This decision, which would seem at first sight to operate with peculiar harshness, turns entirely on the meaning of the word "author," the person on whose life the duration of the copyright depends, and the most likely person to be the "author" of a photograph would appear to be he who effectively is as near as he can be the cause of the picture which is produced—that is, the person who has superintended the arrangement, who has actually formed the picture by putting the objects into position and arranging the place in which such objects are to be (ibid. 767). From this view of the meaning of the word, the decision is founded upon a substantial basis, although it may well be doubted whether the general principles involved do not stand greatly in need of revision. The "author" of a picture is doubtless the person who paints it, and none other, but between an original picture and a photograph there is a wide difference; the one is the result of personal skill solely, the other of personal skill-though of a much inferior order-combined with a mechanical process in which many persons may take part. The word "author" would therefore appear to be inappropriate when used in connection with photography. In those cases in which an artist wishes to reserve to Right to reproduce himself a right of reproduction, he must take care to painting |