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have reasonable security of leaving enough behind him to take care of his children if he dies, and to take care of them to the point of where his grandchildren make their appearance, which, as a rough figure, may be said to be thirty years. One of the bills says (sec. 24):
In the case of any work not specified in subsections (a) and (b) of this section, but including a contribution to a periodical, when such contribution has been separately registered under the provisions of section 12 of this act for forty-two years from the date of first publication or for the remainder of the lifetime of the author after first publication and for thirty years after his death (or if a work by joint authors until thirty years after the death of the last survivor of them) whichever shall prove the longer period.
I think that that should go, because if you say simply" for the lifetime of an author after the first publication and for thirty years after his death " you may be reducing the period of copyright.
The CHAIRMAN. In one case in a hundred thousand.
Representative CURRIER. We had that alternative term in this bill at one time, and we were urged by the men having an affirmative interest in the matter to eliminate it. They asked us to eliminate this, and we did it at their request.
Doctor Van Dyke. I do not know who they were, but let me say this. The normal author begins writing, perhaps, at 15, though probably not publishing. There are, however, many writers who begin early but do not do their best work until toward the end of their lives. Suppose Mr. Stockton had had a family of six little children.
Representative CURRIER. They would not be six little children at the end of thirty years.
Doctor Van Dyke. That is true, but he would not get as fair a show with that provision as he would under the other provision.
The CHAIRMAN. I do not know to what age he lived, but if he had written only one book and that had been in his old age, perhaps written two years before his death, then he would have lost a few years under this bill, but if twenty years before his death, he would gain eight years under the provisions of this bill.
Doctor Van Dyke. But you do not want him to lose anything. Representative Currier. What do you say about the lengthening of the term of a monopoly?
Doctor Van DYKE. I do not think it is a monopoly.
Representative CURRIER. This committee will try to formulate a bill that there will be some hope of getting through the House.
Doctor Van Dyke. Very true; but I think that the House is perfectly well prepared to recognize copyright as it ought to stand in this country, as in the other most civilized countries in the world.
The CHAIRMAN. You think the authors would like a stipulated period rather than an uncertain period ?
Doctor VAN DYKE. This is an uncertain period, for it is for the remainder of his life.
The CHAIRMAN. We are trying to get as perfect a bill as we possibly can and comply with the wishes of the American author and also have a chance of receiving the support of Congress.
Doctor Van DYKE. I wish to say that a period of forty-two years and thirty years after his death would be a period that would cover more justly the idea of proper reward to a man. This is the only form of property recognized which is terminated at the end of a fixed period of years, and therefore it seems to me that that period should be extended to a length that should be entirely just.
The CHAIRMAN. If there is no objection on the part of the committee I would like to insert in the record at this time a statement by the American Newspaper Publishers' Association proposing certain amendments to the pending copyright bill. Instead of making a statement here by their representatives, this evening, their suggestions are contained in this statement that I now submit to be placed in the record, if there be no objection.
(The statement is as follows:)
STATEMENT OF COPYRIGHT COMMITTEE OF AMERICAN NEWSPAPER
(Theodore W. Noyes, Washington Star; L. M. Duvall, Baltimore News; J. S. Bryan,
Unauthorized newspaper “reproductions” or crude imitations of copyrighted photographs should not be treated as punishable infringements of copyright law.
(1) To secure constitutional copyright protection a photograph must be the "writing” of an "author;" that is (Sarony case, 111 U. S., 53), it must represent an original intellectual conception of its author.
Lithographic Co. v. Sarony, 111 U. S., 53 (1883). Opinion of court by Justice Miller:
The eighth section of the first article of the Constitution is the great repository of the powers of Congress, and by the eighth clause of that section Congress is authorized:
• To promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.
“ The argument here is that a photograph is not a writing nor the production of an author.
It is insisted in argument that a photograph, being a reproduction on paper of the exact features of some natural object or of some person, is not a writing of which the producer is the author.
* We entertain no doubt that the Constitution is broad enough to cover an act authorizing copyright of photographs, so far as they are representatives of original intellectual conceptions of the author. But it is said that an engraving, a painting, a print, does embody the intellectual conception of its author in which there is novelty, invention, originality, and therefore comes within the purpose of the Constitution in securing its exclusive use or sale to its author, while the photograph is the mere mechanical reproduction of the physical features or outlines of some object animate or inanimate, and involves no originality of thought or any novelty in the intellectual operation connected with its visible reproduction in shape of a picture.
This may be true in regard to the ordinary production of a photograph, and further that in such case a copyright is no protection. On the question as thus stated we decide nothing.
It is therefore much more important that when the supposed author sues for a violation of his copyright, the existence of
those facts of originality, of intellectual production, of thought and conception on the part of the author should be proved than in the case of a patent right. In the case before us we think this has been done.
These findings, we think, show this photograph to be an original work of art, the product of plaintiff's intellectual invention, of which the plaintiff is the author, and of a class of inventions for which the Constitution intended that Congress should secure to him the exclusive right to use, publish, and sell, as it has done by section 4952 of the Revised Statutes."
In the Sarony case the Supreme Court held that the constitutional question whether any, photograph was the subject of copyright was not without difficulty. It conceded that the ordinary production of a photograph might involve no novelty, invention, or originality of ihought, and that in such case a copyright might be no protection; that it was important for the supposed author suing for a violation of copyright to prove the existence of the facts of originality, of intellectual production, of thought and conception on the part of the author; and that the proof concerning the photograph involved in the pending case showed it to be, not a mere mechanical production, but • an original work of art, the product of plaintiff's intellectual invention,” and that its author was therefore protected by the Constitution and copyright law in the exclusive right to use, publish, and sell it. By implication all other kinds of photographs (as mechanical snapshots or routine “ look pleasant” photographs) are not subject to copyright. Extension of the copyright law to protect the vast bulk of photographs used for newspaper reproduction is therefore of dubious constitutionality.
(2) In line with the Supreme Court decision that a photograph to be protected under the copyright provision of the Constitution must be " an original work of art
, the product of the plaintiff's intellectual invention, Congress in legislating concerning photographs has classed them among works of art in respect to notice of copyright, and has made the infringement penalties fit the offense of one who reproduces with exactness such a work of art and sells the copy in substitution for copies of the original. The copyright law, protecting the kind of photographs constitutionally subject to copyright, treats as punishable infringements the exact reproduction of the photograph as a photograph by some superior process which causes the product of the infringer to substitute itself for the original and to cut down the sales of the original.
MISFIT NOTICE OF COPYRIGHT.
(A) Conspicuous notice of copyright is a disfigurement upon the photograph as a work of art and is not necessary to warn against infringements by unscrupulous photographers who reproduce and sell copies of photographs in place of originals. It is difficult for one to commit this offense unintentionally.
On the other hand, conspicuous notice of copyright on the face of the photograph is necessary for the protection of the newspaper against becoming an unintentional infringer, since it reproduces hastily from day to day a vast number of photographs copyrighted and uncopyrighted, and is also necessary for the benefit of the photographer, since the credit given to him by attaching his name as maker of the photograph is, through the advertising which he secures - thereby, part of this reasonable and just compensation for the newspaper use of his work.
The photograph, copyrightable as a work of art and to be protected against exact reproduction as such, may well have the conspicuousness of its notice of copyright reduced to a minimum as suggested by the proposed law; but the photograph to be crudely reproduced in a newspaper, if copyrightable at all in this aspect, must give a maximum of conspicuousness to its notice of copyright.
If the crude newspaper reproduction of a photograph is an infringement, the printing of the name of the photographer is a confession of the infringement, and an unscrupulous newspaper will omit this name, and, reproducing by inferior processes, can avoid proof of use of original photograph. If such newspaper reproduction is not an infringement, then the way is clear for the newspaper to give to the photographer with other compensation the deserved credit for his work with the advertising incidental thereto.
The American Newspaper Publishers' Association copyright committee in its report adopted by the American Newspaper Publishers' Association at its last annual convention says on this point: “ The American newspapers using in regular course of business hundreds of illustrations every day, and for this purpose crudely reproducing or hastily modifying and adapting many photographs, uncopyrighted as well as copyrighted, are especially liable to be led into unintentional infringements. It is urged that in justice to the newspapers notice of the fact of copyright in the case of a photograph should be made even more conspicuous than the existing law provides, and that such notice to be effective should extend to authorized reproductions of copyrighted photographs in newspapers and elsewhere. The copyright bills, however, reduce instead of enlarging the publicity requirement of this notice, classing photographs in this connection with works of art upon which the copyright notice is viewed as an objectionable disfigurement. The existing law requires that 'Copyright (date) by A B’shall be inscribed upon some visible portion' of the photograph or “of the substance on which the same shall be mounted. The proposed law requires, in the case of a photographer, only the letter C within a circle accompanied by the initials, monogram, mark, or symbol of the copyright proprietor, 'provided that on some accessible portion of such copies or of the margin, back,
or of the substance on which such copies shall be mounted, his name shall appear. To cause the newspaper reproduction of a photograph to be classed as an infringement, and to reduce to a minimum unintentional infringements, the fullest warning of the fact of copyright should be given to the newspapers. If a photograph is to be protected against such reproduction it should not be classed among works of art upon the margin or back or mount of which a simplified notice of copyright may be hidden, but should bear the copyright warning conspicuously on the photographic print itself and upon every authorized reproduction of it."
(B) The penalties provided for exact reproduction of copyrightable photographs as works of art and their sale in substitution for the originals are absurd misfits, involving the harshest injustice when applied to newspaper reproductions or imitations which are not exact, which are not works of art, and which do not substitute themselves in sales for the originals.
1. Existing law. Any person who shall print or sell or expose for sale any copy of such copyrighted article “ shall forfeit to the proprietor all the plates on which the same shall be copied and shall further forfeit one dollar for every sheet of the same found in his possession, either printing, printed, copied, published, imported, or exposed for sale.
2. Proposed law. The infringer of copyright is to pay to the copyright proprietor such damages as the latter may have suffered due to the infringement, as well as all the profits which the infringer shall have made from such infringement, and in proving profits the plaintiff shall be required to prove sales only and defendant shall bė required to prove every element of cost which he claims. In assessing damages “the court may in its discretion allow one dollar for every infringing copy made or sold by or found in the possession of the infringer or his agents or employees."
The proposed law provides that the infringer shall pay to the copyright proprietor the damages which the latter has suffered from the infringement, as well as all the profits which the infringer shall have made from such infringement, and in proving profits the plaintiff shall be required to prove sales only and defendant shall be required to prove every element of cost which he claims. These provisions are readily applied to an infringing photographer; but how do they apply to an infringing newspaper? No provable damage is done to the photographer by the imitation of his photograph; rather benefit, if due credit is given him. What profits can be proved as made by a newspaper through using the reproduction of a photograph on one of its pages? Is the copyright proprietor to prove sales of the newspaper containing the photograph, and then is the newspaper to show cost of production with the difference treated as profit? The reproduction of this particular photograph may have been particularly atrocious and may have discouraged rather than encouraged sales. Only a small percentage of sales, if any, can fairly be attributed to any one reproduction of a photograph. At the present cost of white paper and of labor, a loss instead of a profit will be figured out in the transaction of making and selling a newspaper if the advertiser be eliminated from the equation, as he would naturally be in this case.
Then in estimating damages in the discretion of the court there is the suggestion of $1 per infringing copy as a measure of damage. On this point the American Newspaper Publishers’ Association copyright committee report declares:
* It is unjust, however, even to permit the court in its discretion to treat every copy of a newspaper reproducing by inferior processes a copyrighted photograph as an infringing copy of that photograph upon which to base an assessment of damages of $1, if the count wills, subject to the $5,000 maximum limit of recovery. The purpose of the provision is to provide liquidated damages when photographic copies of copyrighted photographs are sold in substitution for the latter, thus directly reducing the copyright proprietor's sales