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and profits. Newspaper "reproduction," whether authorized or unauthorized, has no tendency to reduce sales of the original photographs; rather to increase them. The injury, if any, done to the copyright proprietor is the unjust withholding from him of the small sum customarily paid by the newspapers for consent to use a copyrighted photograph. This injury is not increased or diminished in accordance with the number of copies issued by the offending newspaper. The damages in the two cases are on an entirely dif ferent basis, and the measure of damages which is appropriate in one should not even in the nature of a suggestion to the court in the exercise of its discretion be applied in the other. For this reason there should in the committee's opinion be added to section 19 (b) Fourth of the copyright bill an amendment providing in substance that the measure of damages, herein suggested, shall not be applied in the assessment of damages for infringements by newspapers through the reproduction or imitation in their columns of copyrighted photographs.'
Discussion of these penalties shows their inapplicability to newspaper reproduction or imitations of photographs or other works of art, which do not substitute themselves in sales for the originals, but the tendency of which is on the contrary to increase sales of the originals by advertising them.
Considerable word manipulation is necessary to construe writings of an author to cover any kind of photograph. Photographs that are works of art, original intellectual conceptions of the photographer, have been thus classified and protected under the copyright law against exact reproduction and sales of the unauthorized copies in substitution for originals and to the damage of the photographic author. Can penalties framed to punish such damage-working infringements of works of art be extended to the nondamaging though unauthorized reproduction or imitation of a copyright photograph in a newspaper? The illogical, absurd, and unjust results are obvious of taking the penalties framed to punish a photographer who steals another photographer's brain work and sells his fraudulent copies in substitution for originals, with the result of cheating the author in every such sale, and of applying these penalties to the newspaper, which does not reproduce the photograph to sell in kind in competition with the author, and whose reproductions as an advertisement increase instead of diminishing sales of the original photograph as a photograph.
The effort is to take this dubious subject of copyright under the Constitution, to extend protection given to it beyond protection against exact reproduction as a photograph, and losses of sales by substitution of unlawful copies for originals, so that it will cover the crude reproduction or imitation of the photograph in the daily newspapers, and the still cruder imitation or reproduction of the newspaper imitation of the copyrighted photographs.
The successive steps of this stretching process are as follows: Photographs, so far as they represent intellectual conceptions, are "writings of author, protected by court."
Photographs, whether mechanical and routine (as kodak snapshots) or intellectual conceptions, are "writings of author, protected by court."
The reproduction of photographs by photography, which damages photographer, by substituting in sales the copies for original photogra is, is an infringement of copyright law, since photographs as writings of author are protected by court."
The crude imitation of a photograph by inferior processes in a newspaper, and the cruder reproduction of this crude imitation by another newspaper copying from the first newspaper infringer, are infringements of the copyright law, since photographs as "writings of author are protected by court."
Thus by successive stretchings the constitutional protection which is given to the writings of an author against those who would steal the product of his brain and cheat him of fair compensation for his intellectual labor is extended to punish the crude newspaper reproduction of a crude newspaper imitation of a kodak snapshot photograph, involving no intellectual labor on the part of the photographer, and the infringement itself involving no damage in the sense that the theft of the right to reproduce the writings of an author involves such damage. Newspaper reproduction means advertising of and benefit to sale of photographs as photographs.
MISFIT PROSECUTION PROVISIONS.
(c) All the pains and penalties of the law evoked under the constitutional protection provided for the author in respect to his writings are to be applied in misfit, illogical, and unjust fashion to the nondamaging newspaper imitations of copyrighted photographs. Under the provisions of both the House and the Senate bills the newspaper infringer may be prosecuted, fined, and imprisoned. On this point the American Newspaper Publishers' Association copyright committee report says:
"The provision of the copyright bills making a misdemeanor of willful copyright infringement for profit may be reasonably criticised as too drastic, at least in its application to dubious infringements through the newspaper reproduction of photographs. The Senate bill provides as punishment for this new misdemeanor imprisonment for not exceeding one year, or a fine of not less than $100 nor more than $1,000 and committal to jail until the fine is paid. A minority of the Senate committee on patents reports against this provision, asking why the infringer of a copyright should be subject to a criminal prosecution, with the possible infliction of a penalty that will attach to him the badge of infamy, while the infringer of a patent right is subject to no criminal prosecution or penalty. The minority considers that the copyright proprietor is amply protected by the numerous remedies afforded by the bill and that there is no occasion for this drastic deterrent.
If the proposed punishment is too severe for the infringer of the constitutionally protected rights of an author in his writings, it becomes more grossly excessive and unjust when applied to the newspaper nondamaging infringer of rights, which the Constitution may not have intended to protect. The copyright bills strive to systematize the law on the subject, to lay down general principles applicable to as many as possible of the subjects of copyright, and to reduce to a minimum the exceptions from these general principles. The more successful these efforts the greater the hardships inflicted upon the
infringers of the doubtful subjects of copyright. When major offenders, minor offenders, and accused who may not under the Constitution be offenders are all subjected to the same rules of conduct and to the same criminal prosecution for alleged misconduct, gross inequities are sure to develop. The United States Supreme Court, through Justice Miller, in the Sarony case, said: "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." How many of the photographs utilized as the basis of newspaper illustrations represent original intellectual conceptions of the author," and how many are purely mechanical and unintellectual? Assuming for the moment, however, that all photographs are subject to copyright, it is clear that crude newspaper reproductions of them, if infringements at all, are not the direct, injury-working infringements which the law seeks to prevent or punish by severe penalties. Why should the doubtful infringement of a dubious subject of copyright be punished as a criminal act, when unmistakable infringements of constitutionally protected patents are not criminally punished at all? Either photographs should be differentiated in this provision from other subjects of copyright, or newspaper reproductions of photographs should be differentiated from other infringements of photographic copyright, or there should be no criminal prosecution of any infringer of copyright. Unless there can be excepted from its application those to whom it does not justly apply, the whole section in respect to criminal prosecution should be eliminated.
SUGGESTIONS OF AMENDMENT.
3. Since only a fraction of the photographs reproduced in newspapers are subjects of copyright under the constitutional provision, and since the copyright law concerning notice, penalties, and prosecution is evidently not framed to include such newspaper reproductions among the infringements to which its provisions apply, either the newspaper reproduction or imitation of a copyrighted photograph should be declared not a punishable infringement at all, or it should be scrupulously discriminated from other infringements of photographic copyright and special provision be made in respect to it as affects (1) notice of copyright, (2) penalties, and (3) criminal prosecution.
It is better that newspaper reproductions of photographs should be taken outright from the list of punishable infringements, and that the photographer should be required to find other protection than the copyright law against the newspaper which utilizes his work without paying the usual slight compensation, than that the newspapers should be left exposed to the possible attacks of unscrupulous photographic copyright proprietors in semi-blackmailing operations under the sweeping and drastic and misfit provisions of the proposed copyright laws. In this choice of evils the one to be suffered by the photographer is insignificant in comparison.
The first proposition of the publishers is consequently that Congress except such newspaper reproductions of photographs from classification as substantial and punishable infringements of the copyright law by inserting at the end of section 5 of Senate bill 2900-H. Ř.
11794 (p. 4, line 5) and H. R. 243-S. 2499 (p. 4, line 2) the following words:
Provided also that the reproduction or imitation of a photograph in a newspaper shall not be construed as an infringement of the copyright of such photograph."
If newspaper reproductions of photographs are not thus exempted from the operation of the copyright law the alternative proposition of the publishers takes the following shape:
1. Insert in H. R. 243-S. 2499 (p. 10, line 22), sec. 19, and in S. 2900-H. R. 11794, sec. 18 (p. 11, line 4), after the word " appear the following words: "To protect a photograph against newspaper reproduction the notice of copyright shall consist of the word 'copyright, accompanied by the name of the copyright proprietor, printed conspicuously on the face of the photograph.'
2. Insert in H. R. 243-S. 2499 (p. 16, line 4), sec. 28, and in S. 2900-H. R. 11794 (p. 17, line 12), sec. 27, subsection second, after the word "sculpture" the following words, "or the reproduction of a photograph in a newspaper "; and in the same section at end of the same subsection, after the word "employees," insert the following words: "In the case of a newspaper reproduction of a copyrighted photograph only actual damages or such damages as to the court shall appear to be just, shall be assessed, and such damages shall in neither case exceed the sum of $50."
3. Insert in H. R. 243-S. 2499 (p. 17, line 13), at end of sec. 31 and after word "paid," and in S. 2900-H. R. 11794 (p. 18, line 24), at end of sec. 30, after word "court " the following words: "Provided that newspaper reproduction of photographs shall not constitute an infringement punishable as a misdemeanor under this section."
EASY MONEY FOR PHOTOGRAPHER-EDITORS WERE FROM MISSOURI," BUT BOSTONIAN SHOWED THEM-REPUBLIC GAVE UP $250 FOR INFRINGEMENT OF COPYRIGHT ON SECOND PUBLICATION OF A CUT, ALTHOUGH FULL CREDIT HAD BEEN GIVEN IN FIRST INSTANCE-WARNING TO OTHER EDITORS AND THOSE IN CHARGE OF FILING ROOMS.
Henry Havelock Pierce, a photographer at 729 Boylston street, Boston, addressed a letter to the St. Louis Republic, under date of January 27, 1908, stating that in its issue of January 23 had appeared a picture of Hon. Henry Gassaway Davis, which was made by Pierce and copyrighted jointly by Pierce and J. C. Strauss, a St. Louis photographer. Pierce called attention to the fact that he had not given permission to publish this picture without credit line and copyright mark, and inquired "what the Republic was going to do about it."
On looking up the matter Managing Editor McAuliffe found that in the city edition of the Republic of January 23 there was printed a picture of Mr. Davis on page 1. The cut did not, however, appear in the fast-mail edition, which goes out of town, and this gave rise to the thought that perhaps Mr. Strauss had called Mr. Pierce's attention to the matter.
In connection with a news item the Republic wanted to use a picture of Mr. Davis and one was located in the files. It was inclosed in an envelope which bore the imprint of the cut, but there was nothing to indicate that the picture from which it had been made was copyrighted. The cut had been on file in the office since September 6, 1904, when it was used in the fast-mail edition of the Republic with the following line beneath it: "Copyright 1904 by J. C. Strauss and H. H. Pierce.”
Had the cut been filed in the usual way the clipping would have been attached to the envelope, but in this case only the imprint of the cut was on the envelope, and hence the man who looked it up in the files had no idea that it was made from a copyrighted picture.
A day or two after the receipt of Mr. Pierce's letter Mr. McAuliffe called on Mr. Strauss and showed him the letter from Pierce. He did not seem at all surprised. He said that the matter was in Pierce's hands and any settlement made by Pierce would be satisfactory to him and in full settlement of any claim he and Pierce might have jointly or individually.
At Mr. McAuliffe's request Mr. Strauss wrote a letter to Charles W. Knapp, president of the Republic, to this effect. As a matter of fact it was simply a communication saying that Strauss would assign his claim to Pierce.
While at the Strauss studio Mr. Goodlove, Mr. Strauss's assistant, admitted that he probably had given the Republic the Davis picture in 1904 to use with credit to Strauss and Pierce, which the Republic did. Search was made, but the picture itself could not be located in the office. It was evidently received, however, and permission given to publish it with credit. If not, doubtless a complaint would have been made at that time.
On February 1 Mr. McAuliffe wrote Mr. Pierce explaining the circumstances under which the Republic happened to use the cut on January 23 without the credit line. Mr. McAuliffe told him also that he had called on Mr. Strauss about the matter and that Mr. Goodlove remembered giving the Republic several years ago the original picture, which was published with full credit.
Mr. McAuliffe added that it was quite likely that Mr. Davis would figure in the news again; and if it was desired the Republic would use the same picture of him with full credit, or would use a new picture, giving full credit to the photographers. Mr. McAuliffe called his attention to the fact that the picture had not been filed in the usual way and therefore the mistake of the man who got it out for use on January 23 was excusable.
Under date of February 17 Mr. Pierce replied, stating that "photographers had been asked to accept similar explanations so frequently from editors that this sort of an excuse did not appeal with much force." He added, “If the same consideration were given photographers who accommodate the newspapers as is given by the photographers to the newspapers these frequent explanations from the editors would never be necessary."
Mr. Pierce said that he had received from Mr. Strauss a copy of a letter which he addressed to Mr. Knapp, showing that Strauss and Pierce were working together on the demand for compensation from the Republic. Mr. Pierce said that Strauss merely permitted him (Pierce) to represent Strauss in the adjustment of the matter.
After telling what trouble and expense he went to in obtaining the picture of Mr. Davis, Mr. Pierce made a demand for $250. He closed his letter with the statement that his criticisms were "a result of the treatment accorded photographers in a general way by the daily press of the country."
PHOTOGRAPHER DEMANDS $250.
After the receipt of this letter Mr. McAuliffe again called on Mr. Strauss and asked him if he did not think it unwise to persist in such a demand and if he had not better suggest to Mr. Pierce that the Republic had aimed to treat him fairly and stood willing to print the picture over again with full credit, and Mr. Strauss replied that he would not interfere.
On February 28, General Manager Henry N. Cary, addressed a note to Mr. Pierce further explaining the accident by which the Republic happened to use the cut and stating that he was prepared to carry out the proposition made to him, namely, to give full credit for the cut when used next time.
The next the Republic heard from Mr. Pierce was in a letter to Mr. Strauss, dated February 29. In this Mr. Pierce told Mr. Strauss that he had written to Mr. McAuliffe making a reasonable demand on him for $250, and continued:
DAMAGE SUIT THREATENED.
"Not knowing whether he has notified you or not, I wish to call your attention to the matter. As I have had no word from him and as I am now leaving town and can not bother with the matter, unless I hear something definite from him in ten days, I propose to bring suit.”
Mr. Strauss sent this letter to Mr. Cary to read, and Mr. McAuliffe returned it to Mr. Strauss the following day,
While at the Strauss studio for the last time Mr. McAuliffe asked Mr. Strauss if he intended to push the demand for $250. Mr. Strauss said that he