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Sections 18 to 22 profess to rehearse the librarian's arguments. As, however, you have been for a half hour listening to them direct, they need not here be repeated. Whether they are considerations merely of convenience, and whether those who present them stand alone, I cheerfully leave now to the committee to decide.
There is one other outstanding difference between these two bills upon which the Register's critic is discreetly silent. It can be stated frankly, but without asperity. The Perkins bill repeals the manufacturing clause outright, the Vestal bill for foreigners only. That is to say, we shall continue to make the American author's title to his work contingent upon his engaging a certain workman to make it. Otherwise, it is to be thrown open to piracy. We would not endure such an invasion of any other kind of property. The thief of your Swiss watch will be as quickly punished as if it were homemade. The American author ought to print in his own country. It should be difficult for him to do otherwise, but the way to prevent his printing abroad is to make it too costly at the customhouse, rather than open his property to invasion. It is a purely tariff, not a copyright question. The present discriminatory rate against American works as compared with bona fide English works, which was proposed by the American Library Association, points the right way. No other should be followed. The committee may think it impolitic to do so, and certainly it is better to go into the Union with this ugly mark upon us than not to go in at all, yet it can not lie in the mouth of the critic to say that the Register has here violated the principles of copyright and run counter to the world's legislation. Thank you.
The CHAIRMAN. I think really the hearings were practically closed so far as the proponents of this bill were concerned at the last meeting, and we are starting this morning to hear those in opposition to the bill. I understand Mr. Newman, of the Maxwell Parrish folks, is here this morning and wants to be heard. Mr. Newman, we will hear you now. Give your full name to the reporter and your business, etc., before you begin.
STATEMENT OF STEPHEN L. NEWMAN
Mr. NEWMAN. Mr. Chairman and gentlemen, I am not a lawyer nor a legislator, nor an orator; just an art publisher, and I am going to place before you briefly what is a plea for a separate fine arts section in Mr. Vestal's bill. There is such a separate fine arts section in the British copyright law and in the copyright law of every country that is a member of the Berne convention.
I do not doubt but that you have heard a great deal about the laws of England, and that is probably on account of the language; but whether it is in the German or English or Scandinavian language it is all the same, the general phraseology as applied to the fine arts is identical.
Mr. BLOOM. Whom do you represent-just yourself, or do you represent an association?
Mr. NEWMAN. Several national organizations.
Mr. BLOOM. Do you not think you had better get them in the record? Mr. Chairman, I would suggest that Mr. Newman, who
says he represents several associations, should put the names of them in the record.
The CHAIRMAN. I was going to ask him to do so.
Mr. NEWMAN. The Association of Picture Publishers, the American Art Bureau, and the Associations of Artists and Art Dealers. I am a director in each of these organizations and cooperating with the American Federation of Art, Washington; American Homes Bureau, Chicago.
The ramifications are endless as the influence of these organizations is felt in the schools and homes of the Nation through which unnumbered millions are reached. Every magazine and newspaper carries our articles on art and home and school and institution decoration. It is gratifying to be able to truthfully state that there is an honest effort being made to build up an appreciation for real art, the interest in the subject being quite general.
Under the existing copyright laws, a reputable art publisher, art dealer, artist, or sculptor is deprived of the protection which a citizen of any other country in the international copyright union is afforded by his own government. Our manufacturing clauses excluded us from the Berne convention.
As far as it is in my power, I wish to take you over the practical side of the matter and after all that, not mere expedience, is the phase which counts for most.
With more than 20 years in back of me as an American art publisher in America, I may say that I have witnessed more copyright disasters than any one in the same calling to-day.
Permit me to point out that a group including artists, sculptors, art dealers, and art publishers, is a separate entity, and this must always be borne in mind throughout the consideration of sections such as the proposed new fine arts section and the substitute for lines 17 to 24, inclusive, section 16, page 14. The proof of this is indicated by the fact that during the past 20 years I have been in close touch with scores of infringement cases, not one of which, however, involved a newspaper, magazine, book, or music publisher, nor a theatrical, radio, or film production-there have always been other sections provided for all those other interests-to put it more briefly, the offenses have always been charged against art dealers and so-called art publishers, persons who published imitations for the purpose of distributing through the art trade, taking advantage of the lack of appreciation for quality as against the strong appeal of cut prices.
Our present laws are so inadequate that a satisfactory, clean-cut decision based upon the intent and not the mere reading of the law did not result in a single case and the judges and jurists were not to blame.
Mr. BLOOM. Would you not be protected by the new design copyright bill?
Mr. NEWMAN. No, sir.
Mr. BLOOM. You do not come within that bill at all?
Mr. NEWMAN. There is nothing in the design copyright bill that we can find.
Mr. BLOOM. No; I am talking about the Vestal bill on design copyright.
Mr. NEWMAN. Yes, sir.
Mr. BLOOM. Have you read that and studied it?
Mr. NEWMAN. Yes. It is H. R. 6249.
Mr. BLOOM. There is no protection in there for the people you represent?
Mr. NEWMAN. No. I will explain that a little later on. I have seen legitimate art publishers, the kind that make good competitors, that inject virtility into business life, come and go, leaving in disgust for other branches where creative genius is encouraged, supported, and above all protected. I was in that same mood, had been fighting if off for years, when the possibility of a revision of the copyright laws loomed upon the horizon-what had I planned to do, you may well ask; here is the answer-every American picture was going to be a British publication. We have maintained a branch in London since 1907; yes, we kept that branch open through the entire period of the war and at a tremendous sacrifice; every subject was to be reproduced only by lithography or gelatine printing processes (the latter when not in monotone is known as collotype printing). Also on such printing the customs duty is 92 cents per pound by weight and not 25 per cent ad valorem.
An explanation of this may impart some knowledge to copyright lawyers; nevertheless, foreign printed lithographs, gelatine and collotype reproductions of works of art, the originals of which are in a foreign country, are copyrightable matter in the United States in spite of the manufacturing clauses therefore, an American publisher of American art could, under these conditions, enjoy a protection for his so-called British or French or German or Dutch publications which he could not have under any circumstances here. In other words, we are, as Americans, practically forced out of our own country to get elsewhere protection for the publication of American
This conclusion is arrived at after traveling everywhere, and yet I have never been out to our own Pacific coast-too many infringers out there-though they may all have come to New York.
Mr. BLOOM. Why do you single out New York?
Mr. NEWMAN. Because I am a New Yorker myself, and I know more who have gone from New York than from other cities.
I stand absolutely neutral on the Volstead Act. I'll go either way that the majority of the gang goes, but you may as well try to enforce the eighteenth amendment by next Sunday as to enforce the intent of the present fine art section of the copyright law. It's a great pity, but it can't be done, because this is the way it works out: An artist submits a creation to a publisher, frequently to many, many publishers, before one accepts in these days of high cost of producing. The publisher encourages and also pays the artist and the publication proves very successful, under our policy the artist receiving royalty. Suddenly there spring forth others who have their piratical tentacles out, and they employ a mediocre artist to make a picture as near to the successful publication as possible, which in turn is reproduced in the same process and in the same sizes but at lower prices, and as it can not be proven to be a "copy," we are going to have a jolly time trying fruitlessly to keep the others. from killing the sale of the original production. And just because we never have defined infringement or imitation as it is done in
other countries and because the infringers are invariably burglar, bomb, and judgment proof wretches who know the weaknesses of our laws. Miss Esther Hunt has ably demonstrated by exhibiting colorable imitations before this committee exactly what I have endeavored to describe, therefore I need not take your time to duplicate that demonstration, but just because the infringement was not actually copied photographically or otherwise from the copyrighted object, even when the infringer's artist or sculptor will admit that he had the copyrighted object before him when at work, because it is not actually copied, we can not win out. Infringement and imitation must be defined in the act, and I beg of you to do so and keep in mind that our section applies only to the fine arts.
It is cowardly to be afraid to have infringement and imitation clearly defined, and I do not care what legal advisers may recommend as to laws that leave it to the courts to define in each instance. It keeps everybody up in the air. It is in the copyright statutes of other first-class nations and has proven highly successful; why not here?
An American publisher is a boob abroad. His country's copyright laws are not reciprocal; he can take and take but gives nothing because he has the same protection that he has in his own country in every country that is in the copyright union, but the United States does not give the foreign artist or publisher that same protection in the United States.
We legislate here with the best of intentions but we do not observe the suffering among our own subjects in the working out of what we get ourselves into, unless a great glamour is created and not always then-perhaps we do not quite understand—perhaps it is as a New York columnist put it, "An old master is a picture painted 300 to 700 years ago and still looks terrible." "Any millionaire could buy a modern painting that he could understand for $90, but unless a picture is too deep for him he thinks he has been cheated."
No one can anticipate all the intricacies that may arise but we can profit by the experience of others and need not feel that we are being cheated if we model our laws after those which have proven a boon.
PROTECTION FOR THE FINE ARTS UNDER
PROTECTION UNDER THE BRITISH FINE
Now we turn to Bulletin No. 16, printed by the Government Printing Office, 1914, under the title "Copyright in England."
Page 11. Acts which infringe copyright.
Page 32. A definition which reads "Infringing" when applied to a copy of a work, means any copy, including any colorable imitation.
Colorable "-deceptive, plausible, having a false appearance of right.
Here is a comment on the British fine arts copyright act:
Definition is clearly drawn and infringement or imitation prosecutions can be conducted in a criminal court or in a civil court. In the criminal court the magistrate can order the offender fined or imprisoned and all known copies and imitations seized and destroyed. Criminal court is used when proceeding
against those having no money or for quick action, as the stipendiary magistrates sit daily and a successful prosecution can nip the issue of infringement and imitations almost the day after they have been discovered and have an order issued to destroy all; as a rule, these infringements are published by men who have no capital. As regards those against whom owners of infringed or imitated copyrights proceed, they include everyone showing, offering, or dealing in such works, and were they not included the fine art act would be useless. The result, we have very few infringements, and the few we do have are quickly nipped in the bud.
In fine art cases of infringement the evidence is concrete, it is clearly visible, it is not dependent upon punctuation, phraseology, or anything vague, nor mere suspicion. This was indicated by the Maxfield Parrish publications and the imitations which were placed before you for the purpose of visualizing the impossibility of protecting in instances in which there has been litigation and where no satisfactory results were attained later even under the unfair competition act.
In England there was recently an imitation of a Parrish print, and that was discovered. The publisher of that got into it quite innocently by some artist presenting a painting. He was notified of this being a colorable imitation. It was not nearly as much like a Parrish picture as some of these others you have seen, and yet the day that he received this notice he immediately expressed his regret, he made recompense, all the copies which were in existence were withdrawn, and that were in the hands of dealers were recalled, every dealer made an apology for having handled the publication, and the offender published an apology in the newspapers and trade journals.
Seven or eight years I came to Washington to confer on our international copyright relations and was given the report of the register of copyrights for the fiscal year 1916-17. On page 17:
The copyright relations between the United States and Great Britain which have now existed for more than a quarter of a century, have never been either complete or satisfactory. They have never been nor are they now in any exact sense "reciprocal." The protection accorded American authors has been incomplete and inadequate. On the other hand, the authors of Great Britain and her dominions have found their copyright protection in the United States heavily handicapped by the requirement of remanufacture in the United States. The privileges conferred have also been burdened with compulsory registration and the obligation to deposit copies.
And on page 18:
Unpublished works of American authors are now protected in Great Britain without any formalities exactly as if the authors of such works were British subjects or were resident within Great Britain.
On page 21:
The summary of our established international relations indicates the need for amendment. Literary and artistic property protection in this country should be uniform and equal, with no difference or distinction based upon the nationality of the author and should be free from inequality in the conditions or formalities imposed upon the author or his publisher.
Therefore, I come right back to the question, Are we going to go along another 40 or 50 years in the same way? I think not. Mr. BLOOM. Do you mean this hearing?
Mr. NEWMAN. No; I mean this useless wrangling among lawyers. Are we going to tolerate the continuance of inequalities" by not having colorable imitation" or other phraseology meaning the