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Mr. Osborne. No. Those are purely statutory damages. Under the same section 16, you will find on page 13, line 17:
“If any person shall infringe the copyright in any work protected under the copyright laws of the United States, such person shall be liable."
Mr. LANHAM. Yes. Now I recall a gentleman came to see me with reference to copies of works of art, either desiring an amendment to this measure or speaking with reference to the phraseology already included in the bill, and I was just looking for the words. That provision was with reference to near imitations, or colorable imitations. Is that language in here?
Mr. OSBORNE. No, that is not in here. That is Miss Hester Hunt's proposed amendment, and that is what we are trying to do, to see what we can do for the artists and these art organizations. That is the point to which you are referring?
Mr. LANHAM. That is it.
Mr. OSBORNE. It will either come up before this committee as a request, or we will compromise it in some way or other
one of the two. Our general attitude up to date is that the act is sufficient without the words “colorable imitation"; but that matter is not going to be side-stepped and will be brought to the attention of the committee.
Mr. LANHAM. I wanted to ask, in that connection, whether there had been such a judicial construction and interpretation of the word “colorable," as to make it mean just what is intended ?
Mr. OSBORNE. It is an English phrase, found in the English act. The English act describes an infringement as an intentional colorable imitation.
Mr. LANHAM. And has it there been judicially construed so that it would be a precedent to prevent imitations in this country? It may be a difference of a mere matter of detail.
Mr. OSBORNE. Miss Hunt's claim is that to so define “infringement is a dangerous mistake, just to define “author"; but it is a matter we are going to face squarely, because it is an important question.
Mr. LANHAM. In other words, there is no difference of opinion, as far as the desired result to be obtained is concerned ?
Mr. OSBORNE. No.
Mr. Bloom. Do you say the first on page 14, line 17, would apply to the exceptions that are on page 15, line 12—the first paragraph? These are exceptions.
Mr. OSBORNE. In the first place, on page 13, at line 17, you will find that any person who infringes may be enjoined and must pay damages and profits.
Mr. Bloom. Yes.
Mr. OSBORNE. But if I, whose right is infringed on page 14, at line 4, at my option prefer statutory damages to actual damages and profits, then the court, at its discretion, may allow these certain amounts.
Mr. Bloom. With the exceptions on page 15, paragraph 1; those are the exceptions?
Mr. OSBORNE. Yes, that is true; those are the exceptions.
Mr. Bloom. And now, with the exception of what you have on page 15, paragraph 1, you only have the exception to apply to copyrighted photographs. Do you not think that ought to apply to the works of this gentlemán, the same as to copyrighted photographs?
Mr. OSBORNE. I will tell you, frankly, that is taken from the present act. I am not averse to anything that gives the artist more than he gets there on page 14, line 17, where he gets for every infringing copy $10. Suppose in line 12, on page 15, there were many infringements, many copies, and so forth and so on, it could not exceed the sum of $200 nor be less than the sum of $50.
Mr. Bloom. If you are satisfied, I am.
Mr. LANHAM. I knew that question had been raised and, since you were discussing art, I brought it up for the reason I thought you might be familiar with it.
Mr. MURPHY. I have nothing to do with the legal part of it. You can readily see, from the questions that have been raised, how our interests would be stimulated in this bill; because a bill of this nature is not alone to cover only peculiar creative expressions; it is to cover, as far as we can, every creative aspect. We are asking the opportunity to have it considered as quickly as possible and to give us this protection as quickly as you can; because it means an added courage to the men who find it very difficult, anyway. Understand, I am speaking purely of the commercial aspect; it has nothing to do with the esthetic end. The commercial aspect needs immediate and heavy tightening up with us in the country. You may ask why. I think you will agree with me that advertising in the country would rank about, say, the fourth greatest business interest. The conception of 95 per cent of all advertising agencies in the country is that it is art that sells the copy; in other words, it is one of the four biggest businesses in the country. I am not quite sure of the position, but I think it is about that. Anyway, it is a most important one. One of the most important business activities in the Nation draws is life from the artist. In other words, your greatest advertising energy in the community can not exist with the selling, as it were, of copy that your advertising agent is trying to sell.
Now I started to say while our guilds are being formed, it was simply and solely for the reason of protecting our business interests, so that we might be able to give greater time to make advertising, as it were, a success. You are helping us to do that. We are open to tremendous abuses, so many, as I say, that was the reason for the forming of this guild, which not only takes our time, but it takes our money. It has a fund to take care of our artists being subjected to these abuses, so that you can readily understand our enthusiasm for something that will take care of this sort of thing.
That is all I wish to say, gentlemen, except you have the thanks for such a good bill from the men whom I am here to represent.
The CHAIRMAN. Mr. Osborne, did you say that would be all the witnesses you desired to call at this time?
Mr. OSBORNE. Those are all the representatives of the Authors' League. Now, Mr. Melcher represents the Publishers; Mr. Buck is here to represent the composers; the motion-picture people are here;
Mr. Kirchway is here representing the music and motion-picture interests. Mr. Carl Kirchway represents the Hearst interests; he is here.
The CHAIRMAN. I think, gentlemen, at this point, I will ask Miss Esther Hunt to speak, because of the question raised by Mr. Lanham, on which she desires to be heard, and it is just as well that she be heard at this time.
STATEMENT OF MISS ESTHER HUNT
Miss Hunt. Mr. Chairman and gentlemen, I think it is a good time to get in our section for consideration. It really has not been printed in the bill simply because we could not agree on phraseology and the authors and the motion-picture people were afraid that what we asked for might bother or damage their sections. I do not think it will; it does not in the English law.
What we want is what the English artists have and we want it fitted into our law. They have had it for years, and it has done no damage to anyone else and it has done them a tremendous amount of good. They are protected in a very much better way than we are.
In the art business, I am a painter and a sculptor, and I publish my own pictures; I deal through art dealers, through wholesale art dealers, who distribute my work to the retail art dealers, so that I know the art business; and, as a painter, sculptor, and exhibitor, I know the art profession. Therefore, I am heading this committee of the American Federation of Arts, the American Art Bureau, which is an educational association for educating the American picture-dealing business, and also the American public in pictures for the home and other places, and also I represent the art dealers and the art publishers and picture publishers' associations. We all suffer and suffer very much indeed, from abuses which the present copyright law does not protect us from.
We suffer from two things; we are asking for protection for the artists who create and for all those concerned in presenting their work to the public or placing it in the homes of our country.
First, please realize that we need a slightly different sort of protection from that given to writers or motion-picture producers. For that reason we want a more definite law which will include plausible imitations as infringements. The English law does this, for it reads, “infringing copies and imitations or colorable imitations.” “Colorable" is used in copyright legislation and means an imitation put forth with the intention of stealing the market of the original.
Now infringing copies to our judges and juries mean almost exact copies. They have refused, over and over again, to recognize imitations; but when we can get them on the subject of plagiarism, then they understand. For instance, the Spark Plug cartoon was taken and made into a little statuette, and they said at once that was an infringement; but we have taken imitations of one picture closely imitating another into court, and we have lost such cases over and over again, because our law does not, like the English, recognize colorable imitations as an infringement; it has got to be a very close infringement. Therefore the infringer simply thrives all through the art business and is very successful in watching for the popular pictures.
Take Maxfield Parrish's work in America; for years that has been one of the best money producers of the art business, almost. About two years ago, Mr. Maxfield Parrish sold his picture of DaybreakI do not know the price of that picture, but I understand the publisher paid $25,000 for it, but Maxfield Parrish has been working for years, as you know, to do this beautiful work, and an unscrupulous publisher can get an imitation made for about $200. If he paid $250, he would think he was robbed. He can publish that in a cheaper form and sell it to the art dealers at a much larger percentage, and that sort of thing is done constantly. That is the first thing we want corrected.
The art business is degraded and crippled by the flood of imitations which are made of every successful picture or statue put on the market. These imitations undersell and are generally crude and cheap in effect, thereby disgusting the public with the original long before its normal run of sales is finished. Often these pictures do not sell very well, because the public do not care about them, because the creating, producing, or publishing the beautiful and fine things of art takes time and intense personal endeavor on the part of all concerned. Imitations of fine things can be produced with comparative ease, as an inferior artist can copy though not originate, and the manifold methods of cheap reproduction make cheaper products, which look somewhat like the original, easy for the unscrupulous publisher and dealer. None of the near imitations of which the artist whose letters we have submitted to you complain and which the reputable dealers and publishers continually struggle against would be possible or profitable under a law similar to the English law. The French have a libel law which affords protection.
Our second necessity is a provision by which the dealers, publishers, or exhibitors of infringements or imitations can be proceeded against directly without establishing the identity of bringing suit against the direct infringer if necessary-that is the English law—because the infringer usually conceals himself if the infringement is close enough to make his safety doubtful. By the time he is located, his products are so well distributed on the market that the damage is done and he can proceed safely, knowing the proprietor of the original copyright will not bring a suit, which would profit him little, even if won.
The law reads that so much may be obtained for every infringing copy made or sold by or found in the possession of the infringer or his agents or employees. This limits action and damages to the infringer. The dealer is not directly responsible, though he may be obliged to give up his copies for destruction. In case of doubt, the dealer carries infringements on consignment, so he loses nothing if obliged to give them up. In fact, the present law is an invitation to copyists and infringers; also, to advertisers who wish to make near copies of paintings, etc. The artist who makes the near copy is the responsible party and, as he has nothing, as a rule he is judgment proof. I have never known a suit for copyright infringement which did the artist who brought suit for protection any good; whereas, the English law is a definite protection to the English artists, and the French law is quite as effective, I understand.
Our section does not represent the financial volume of other sections of this bill, and really opposes no other interest. We have been told over and over again that we can bring suit against the dealers carrying infringements. You can bring suit against almost anything you want to. I can bring a suit, but I can not get anything out of it. They simply throw us out. You see, the law reads we can get damages from the infringer for anything the infringer puts out, or found in the possession of his agents or employees, and the infringer has to pay. It is the easiest thing in the world for the art infringer to conceal his identity.
There is an infringement of one of my small statues, a little bust which I put on the market in San Francisco, in 1916. In about 1923 or 1924, there came out a very close infringement. It had been very successful and had sold very well, and was very well known, and there came out a very obvious infringement in a cheap way. Mine sold for $20 and this sold for from $3 to $5. I took a detective and went around, and we called at every place where that was sold and we could not find out. They said, “It is just simply sold us by an agent who comes by; we do not know his address; it is just sold as an imitation of the Esther Hunt heads.” I could not find out who it was. There was no name, no sign of a name; it was simply sold to those dealers and they are not responsible. They said, “ If you bring suit and prove it, we will gladly give it up; but why give it up antil you prove it is an infringement." I said, “You can see it is an infringement." “Well, I am not so sure about that.” When they had been on the market over a year and I had taken up my residence in New York, they came out boldly with an advertisement showing the firm. The artist knows very well he can not do anything, because they are all over the country by that time, and why should I spend a thousand dollars on a suit when it had already done the damage? It was simply too late to do anything, especially as in this case it was an Italian artist, without a cent to his name. You can get nothing; you can not get blood out of a turnip, as I have learned in law. That is one of the first great principles of applying the law; that is one of the great principles of law as applied to art. The second great principle is if the artist uses up all of her profits in lawsuits, she winds up in the poorhouse. I have had friends who did that. I started 12 suits, and I know, and when I went to the dealers and they looked up the law, they said, “We are carrying along as we like.” We know our needs and the difficulties under which we labor.
Now, we have had some discussions lasting for about a year, off and on, with the Authors League and also with the motion-picture people more or less directly, who think that our definition of infringement as the English have it would damage their interests, in that that definition might be used for them; but I do not think that this is so, because art is a slightly different thing. You see, we have a thing; we sell the picture; we are not selling ideas. We might bring suit for plagiarism, but, as in the case of the artist Gibson, who, a few years ago, was simply plagiarized off of the markethe was one of the leading artists in America, one you might say the people of America were proud of, and he was plagiarized off of the market by people producing drawings like Gibson's. Now,