PART L. or chiaro oscuro, sets of historical and other prints, in hopes to have reaped the sole benefit of their labours, printsellers CHAPTER IX. and other persons have of late, without the consent of the inventors, designers, and proprietors of such prints, frequently taken the liberty of copying, engraving, and publishing, or causing to be copied, engraved, and published, base (a) copies of such works, designs and prints, to the very great prejudice and detriment of the inventors, designers, and proprietors thereof." To prevent this for the future, the statute enacted (sect. 1) that from and after the 24th June, 1735, every person who should invent and design, engrave, etch, or work in mezzotinto or chiaro oscuro, or from his own works and inventions should cause to be designed and engraved, &c., any historical or other print or prints, should have the sole right and liberty of printing and reprinting the same for the term of fourteen years [since extended to twenty-eight (b)] "to commence from the day of first pub- Date of publishlishing thereof, which should be truly engraved with the tor's name to be name of the proprietor, on each plate, and printed on every print such print or prints." The section then inflicts a penalty on printsellers or other persons guilty of piracy.(c) Sect. 2 exempts from the penalties any person or persons who should, after the passing of the Act, purchase any plate or plates, for printing, from the original proprietors thereof. This Act vested the property in prints only in those who should "invent and design, engrave, &c.," or who, "from his own works and inventions," should cause to be designed and engraved, &c., such prints. No provision was made for the protection of the property in prints which were not designed by the person who engraved them. ing and proprie affixed to each This defect was, however, supplied by 7 Geo. 3, c. 38, the 7 Geo. 3, c. 38. first section of which enacted that the benefit and protection of the preceding Act of Geo. 2 should be extended to all "base copy." (a) The meaning of the expression "base copy" in this statute is Meaning of "anything which is not the genuine work of the author:" (Per Kelly, C.B., delivering the judgment of the Court of Exchequer Chamber in Graves v. Ashford, L. Rep. 2 C. P. 419; 16 L. T. N. S. 98; 36 L. J. 139, C. P.) In that case it had been suggested in argument that a thing would not be a "base copy" which was avowed to be a copy, and did not profess to be the original from which it was taken. "It seems to us," said the Chief Baron, "that to put that construction upon the word 'base' would be cutting down the meaning of the legislature to a most mischievous extent, and working great injustice to the author." (b) By 7 Geo. 3, c. 38, s. 7, post, p. 108. (c) See the chapters on "Piracy" and the "Remedies for Infringement," post. PART I CHAPTER IX. Duration of copyright. 17 Geo. 3 c. 57. ireland. Lithographs, &c. and every person who should "engrave, etch, or work in mezzotinto or chiaro oscuro, or cause to be engraved, etched, or worked, any print taken from any picture, drawing, model or sculpture, either ancient or modern . . . . in like manner as if such print had been graved or drawn from the original design of such graver, etcher, or draftsman." This Act also enlarged the term of enjoyment of the right from fourteen to twenty-eight years. Sect. 7 enacts, "that the sole right and liberty of printing and reprinting, intended to be secured and protected by the said former Act [8 Geo. 2, c. 13] and this Act, shall be extended, continued, and be vested in the respective proprietors, for the space of twentyeight years, to commence from the day of the first publishing of any of the works respectively hereinbefore and in the said former Act mentioned.” The last Act on the subject, 17 Geo. 3, c. 57, was passed, as the title indicates, "for more effectually securing the property of prints to inventors and engravers by enabling them to sue for and recover penalties in certain cases." It recites the two former Acts and proceeds: "Whereas the said Acts have not effectually answered the purposes for which they were intended, and it is necessary for the encouragement of artists, and for securing to them the property of and in their works, and for the advancement and improvement of the aforesaid arts, that such further provisions should be made as are hereinafter mentioned and contained." It then gives to the proprietor of prints an action on the case against any offender by piracy, in which damages and double costs may be obtained. (a) The provisions of 17 Geo. 3, c. 57, were extended to Ireland by 6 & 7 Will. 4, c. 59; sect. 2 of which refers to engravings or prints "of any description whatever published in any part of Great Britain or Ireland." The action on the case may be brought against the person offending "in any court of law in Great Britain or Ireland." Doubts having been entertained whether the provisions of the preceding statutes extended to lithographs and other impressions taken by mechanical processes, sect. 14 of 15 & 16 Vict. c. 12, declares "that the provisions of the said Acts are intended to include prints taken by lithography or any other process by which prints or impressions of drawings or designs are capable of being multiplied indefinitely, and the said Acts shall be construed accordingly." The protection given by the statutes has been applied to panying letter- the case of prints not published alone, but appearing along (a) See the chapter on "Remedies for Infringement," post. Prints accom press. PART L with letter-press which they illustrate. (a) Lord Ellenborough, however, was of opinion that if an artist should, CHAPTER IX. merely from reading the letter-press of another's work, sketch designs similar to illustrations appearing in that work, this would not be a piracy of such illustrations. (b) Maps, charts, and plans are now brought expressly within Maps, Charts, the protection of the statutes. (c) Where the subject from which an engraving is taken is common and open to all, the first engraver of a print of it is not entitled to restrain any one else from making an engraving of the same subject, provided it be made from the original subject and is not a copy of the first engraving; but he is entitled to prevent another from copying his own engraving. Thus before the Act 25 & 26 Vict. c. 68, gave a copyright in paintings, drawings, and photographs, the engraver of a print of any such painting, drawing, or photograph, though he could not claim a monopoly of the use of the picture, &c., from which the engraving was made, was entitled to say to any other person wishing to copy the picture, "Take the trouble of going to the picture yourself, but do not avail yourself of my labour, who have been to the picture, and have executed the engraving." (d) In Wyatt v. Barnard, (e) Lord Eldon said, with reference to specifications of patents, that a person who chose to go to the office, copy a specification and publish it, could not by so doing acquire a right to restrain another from copying it. It is not clear from the meagre report whether Lord Eldon intended merely to assert the right of every one to copy the original specification, or to deny altogether the existence of copyright in productions copied from specifications. The reporters, judging from their marginal note, seem to have understood him in the latter sense, but the former was most probably what he intended. At any rate, if an engraving is made from a drawing taken from the specification of a patent, the engraver has a right to prevent any other person from pirating his engraving. "The engraver," said Best, C.J., in Newton v. Cowie, (f) "although a copyist, produces the resemblance by means very different from those employed by the painter or draftsman from whom he copies-means which require great labour and talent. The engraver produces his effects by (a) Roworth v. Wilkes (1 Camp. N. P. 94); Wilkins v. Aikin (17 Ves. 422). (b) See Roworth v. Wilkes (1 Camp. 99). (c) See 7 Geo. 3, c. 38, s. 1, and 17 Geo. 3, c. 57. (d) See per Best, C.J., in Newton v. Cowie (4 Bing. 246). and Plans. where subject is common. PART L .... express the management of light and shade, or as the term of his art CHAPTER IX. expresses it, the chiaro oscuro. The due degrees of light and shade are produced by different lines and dots: he who is the engraver must decide on the choice of the different lines or dots for himself, and on his choice depends the success of his print. If he copies from another engraving, he may see how the person who engraved that has produced the desired effect, and so without skill or attention, become a successful rival. . . . . Without the introduction of words, I should have thought, therefore, that a case of this kind fell within the spirit of the Act. But the 7 Geo. 3, c. 38, extends the protection of the first statute to any print of any map, chart, or plan, or any other print or prints whatsoever. The same words are used in 17 Geo. 3, c. 57, and nothing is said as to the place in which the original is to be found." In this case the engraving had been executed from a drawing made by an apprentice of the engraver's, from a patent specification. Requisites to copyright in engravings. The words in sect. 1 of 8 Geo. 2, c. 13, requiring the proprietor's name to be affixed to each print, have given rise to considerable discussion, and to some diversity of opinion, amongst the judges. That Act confers a copyright, and inflicts a penalty for the infringement of it, in historical and other prints-to commence from the day of the first publishing thereof-which shall be truly engraved with the name of the proprietor on each plate, and printed on every such print or prints." This would seem to confer a copyright property only in prints so marked with the proprietor's name, and since the decision of Donaldson v. Beckett [in the year 1774] put an end to the notion of a copyright at common law, independent of statutory enactment, it should seem that no property can now exist in published engravings other than what springs from a strict compliance with the requisites of the statute. A different opinion, indeed, appears to have been entertained by Lord Hardwicke in the case of Blackwell v. Harper. (a) That eminent judge expressed an opinion, but somewhat doubtfully, that the words of the Act requiring the insertion of the date of publication on prints were directory only, and not descriptive; and, therefore, that the day was necessary to be inserted on prints only where the penalty of the Act was intended to be taken advantage of. The injunction prayed for by the plaintiff in that case was granted, though the date of publication did not appear on the engravings. And Lord Ellenborough, in Roworth v. (a) 2 Atk. 95; Barn. Chanc. Rep. 210. PART I Wilkes, (a) was of opinion that a plaintiff could recover for piracy of his prints, though his name was not engraved CHAPTER IX. upon them; that the interest being vested, the common law gave the remedy. His lordship, however, reserved the point for the consideration of the full court, but it was not brought before them. Lord Alvanley was of a contrary opinion in Harrison v. Hogg.(b) He considered it "essential to the plaintiff's right to insert the date, &c., many good reasons requiring that the date should be upon the plate." The reason for requiring the name and the date to appear on the print is, according to Lord Kenyon, "that they might convey some useful intelligence to the public. The date is of importance, that the public may know the period of the monopoly. The name of the proprietor should appear, in order that those who wish to copy it might know to whom to apply for consent. It seems, therefore, necessary that the date should remain, but that the name of the proprietor should be altered as often as the property is changed." (c) The view taken by Lord Alvanley, in Harrison v. Hogg, was adopted by the Court of Common Pleas in Newton v. Cowie, (d) after a review of all the cases. They held that in order to maintain an action for pirating prints, the proprietor's name and the date of publication must both appear on the original print, pursuant to 8 Geo. 2, c. 13. Speaking of the statutes 7 Geo. 3, c. 38, and 17 Geo. 3, c. 57, Best, C.J., delivering the judgment of the court, said, "Neither of these two Acts repeats the qualifications of name and date [contained in 8 Geo. 2, c. 7], and the last has, after enumerating different sorts of prints, the words 'any print or prints whatsoever.' But these Acts are in pari materiâ, and must be taken together, and it was not necessary to repeat in the last the qualifications contained in the first. The right of action given in 17 Geo. 3 is for the piracy of plates, the monopoly of which is secured by the 8 Geo. 2. It is impossible to suppose the legislature intended that the public should not have the protection afforded them by the first Act against a fraudulent continuance of the monopoly beyond the term prescribed by that Act." This case was followed by the Court of King's Bench in Brooks v. Cock, (e) Littledale, J., remarking, that the words "which shall be truly engraved (a) 1 Camp. N. P. 97. (b) 2 Ves. 327. See also Bonner v. Field (cited 5 T. R. 44). (e) 3 Ad. & El. 138. |