Chapter VIII — Copyright in Paintings, Drawings, and Photographs
Section I What Works Are Protected
The following works are protected under the Fine Arts Copyright Act, 1862:
1. Every original painting, drawing, and photograph:910
2. Not first published outside the British Dominions:911
3. The “author” of which is a British subject, or is resident within the dominions of the crown [when the work is made]:912
4. Which has been registered before infringement:913
5. And is innocent.914
Protection vests at the date of making, and endures for the author’s life and seven years.915
Protection is limited to the United Kingdom.916
Every Original Painting, Drawing, and Photograph.—There is no attempt to define what is a painting, drawing, or photograph within the meaning of the Act.917 The substances used in the making are no doubt immaterial, so long as the result is ejusdem generis with what is ordinarily meant by a picture, drawing, or photograph. A painting on the wall of a house would doubtless be protected, but not a design created by grouping figures in a tableau vivant.918
Originality as an essential of protection means that there must be something either in the design or execution of the work which is not merely copied from some other artistic work. The whole work need not be original. Thus the execution may be original but not the design, as in the case of a photograph of an old picture;919 or part only of the design may be original, as in the case of the design of an old drawing added to or altered. In so far as the work is new there will be protection, but in so far as it is old there will be no protection.920
Artistic Merit.—The Court will not inquire as to whether a painting, drawing, or photograph is good, bad, or indifferent. If it consists in the representation of some object by means of light and shade or colour, it will suffice, and even the coarsest or the most commonplace, or the most mechanical representation of the commonest object would be protected so that an exact reproduction of it, such as photography, for instance, would produce, would be an infringement of copyright.921 Probably there must be a representation of some concrete object, real or imaginary. Protection, for instance, was refused to a label for Eau de Cologne,922 which merely bore the legend “Johanna Maria Farina gegenüber dem Julichs Platz,” written in copperplate with sundry dots and flourishes. It was held that any one who had a right to sell Farina’s Eau de Cologne might manufacture and use the label, since although the label was a trade mark there was no copyright in it. A label with anything in the nature of a picture on it would undoubtedly be copyright, as the use to which a work of art is put is immaterial, but it is doubtful whether a label containing merely geometrical figures and fancy dots and lines would be protected under the Act of 1862. Probably it would not.
Publication outside the British Dominions.—Copyright in works of art under the Act of 1862 begins on the making thereof, and is not dependent on publication. It is immaterial where the work is made, whether in the British dominions or elsewhere, and it would be as immaterial where it was first published, or whether it was published or not, but for the provision of the International Copyright Act, 1844. Section 19 of this Act provides that the maker of a work of art which shall be first published out of the British dominions shall not have copyright therein otherwise than such as he may become entitled to under the International Acts; which means that where there is no treaty a work first published abroad is not protected at all. The result of this section was evidently not contemplated when the Fine Arts Act, 1862, was framed. There seems to be no doubt that the work, wherever made, will acquire copyright immediately on the making, but that that copyright may be lost if the work is published abroad before it is published in the British dominions.
Published.—A painting, drawing, or photograph is probably published when it is so exhibited as to give the public an opportunity of viewing it. The leading case on publication of works of art is Turner v. Robinson923 in the Court of Chancery in Ireland. This case was decided before 1862, and therefore before there was any statutory copyright in paintings. The subject-matter was a painting from which certain stereoscopic views had been taken without the proprietor’s consent. The painting had been previously, with the consent of the proprietor, published in the form of an engraving in a magazine, and exhibited at the Royal Academy in London and in Manchester. It was then exhibited with the proprietor’s consent in Dublin for the purpose of obtaining contributors to a proposed engraving, and while so exhibited the defendant, without consent, copied it and produced his stereoscopic photographs. The Master of the Rolls924 thought that the picture had never been published, because the exhibitions to the public in the Academies and in Dublin were on the condition that no copies should be taken, and the engraving in the magazine was not a publication of the picture, but only of a rough representation of it. He therefore held that the common law right in the picture had not been lost by publication, and that the proprietor could recover against the taker of the stereoscopic views as against an infringer of common law rights. The Court of Appeal in Chancery upheld the judgment of the Master of the Rolls, but on different grounds. They said it was unnecessary to decide whether there had been publication in London and Manchester since, in their opinion, the act of the defendant in taking stereoscopic views from the painting was a breach of faith. He was admitted to the view in Dublin for one purpose only, i. e. to become if he wished a subscriber to an engraving; but he abused his privilege by taking a copy of the painting which might well compete with the plaintiff’s proposed engraving. The defendant was, therefore, restrained on the ground of breach of faith or implied contract. In his judgment the Lord Chancellor disapproved of the view of the Master of the Rolls that there had been no publication in London or Manchester. He thought exhibition in the Academy, even although to a certain extent conditional, would be sufficient publication to vest the copyright, e. g. in a work of sculpture under the statutes applicable to such works. Exhibition in a public gallery, therefore, would be publication, but not a private view in the artist’s studio to which only a small and selected portion of the public are invited. Whether the publication of a print would be publication of the picture from which it was taken, quære; the Master of the Rolls thought not, and on this point the Court of Appeal neither approved nor disapproved.
Nationality or Residence of Artist.—The protection of the Act is expressly limited to the works of British subjects and of such foreigners as are resident within the dominions of the Crown.925 There is no direction in the statute as to the time when the author must possess the requisite nationality or residence. Must it be at the time of making or at the time of publishing, or both? It is submitted that it must be at the time of making, since copyright in the work vests at that time, and there may never be publication at all. There seems to be no reason for suggesting that the date to be looked at is the date of publication, except that the next words in the section provide that the work may be made anywhere, and the proviso as to the residence of the author, if applied at the date of making, means that—
1. A work by a British subject may be made anywhere; but,
2. A work by an alien must be made within the dominions of the Crown.
There does not seem to be anything absurdly contradictory in this, and there is, on the other hand, a patent absurdity in not being able to determine whether the author is an author within the Act until long after the right has begun to run.
Registration.—A condition precedent to protection is registration in the book kept at the Hall of the Stationers’ Company.
The Requisite Entry.—There must be registered:
1. Name and place of abode of the “author.”
2. Name and place of abode of the proprietor.
3. Short description of the nature and subject of the work.
And if desired,
4. A sketch outline or photograph of the work.
The wording of section 4 of the Act of 1862 providing for compulsory registration is very confused, the requirements on first registration being unaccountably mixed up with the requirements on subsequent assignment.
On first registration whenever it takes place it is submitted that the particulars entered should be as above.926 The author and proprietor may very likely be the same individual, in which case the one name will be entered twice, once under each description. It would probably not be sufficient merely to enter the author’s name once as author and leave it to be implied that he is the owner. Even if the author and proprietor are different persons, either because the author has been employed for valuable consideration or because he has granted an assignment, the particulars to be entered on first registration are the same, no entry of the terms of employment or assignment being necessary.927 The real proprietor must be on the register, and if the wrong person is registered as proprietor it will not give a cause of action to join such person as co-plaintiff with the real proprietor who is not on the register.928
As in the Literary Copyright Act, copyright in the work exists before registration, but no action is maintainable without registration, and under this Act even after registration there is no remedy in respect of infringement committed before registration.929
It need hardly be said that the necessity of registration only applies to an action on copyright proper, and an action will without registration lie on breach of contract, express or implied,930 and probably on the common law right of an author and his assigns in unpublished work.931
If an unauthorised copy is made before the proprietor is registered but sold afterwards, an action for damages will lie for the offence of selling such copies, but no action for penalties.932 No action at all will lie for making.933
If an action is brought by an assignee, such assignee must be on the register as proprietor,934 and it will not avail to join as co-plaintiff an unregistered assignee with the assignor who although registered has parted with the copyright.935 An assignee taking from a registered assignor probably cannot sue in respect of acts of infringement committed before the registration of the assignment.936 It is not necessary that the original proprietor, whether author or employer, should have been registered,937 but once registration has been effected it would seem that all future assignments must be entered on the register.938
The registration by an assignee under an assignment, subsequent to first registration, must contain the following particulars:939
1. Date of assignment.
2. Names of parties to the assignment.
3. Name and place of abode of the assignee.
4. Name and place of abode of the author.
5. Short description of nature and subject of the work.
And if desired,
6. A sketch outline or photograph of the work.
The enactments of 5 & 6 Vict. c. 45 (the Literary Copyright Act) as to
1. Keeping the Register Book;
2. Searches and certified copies therefrom;
3. False entries;
4. Application to expunge,
apply mutatis mutandis to registration of paintings, drawings, and photographs.
The charge for making an entry is one shilling.
Name.—The trading style of a firm is a sufficient registration of the name of a proprietor.
Place of Abode.—The place where a man can readily be found on inquiry is sufficient. A business address is a “place of abode” within the statute.
Short Description of the Nature and Subject of the Work.—The title of the work will sometimes be a sufficient description. The following were held sufficient descriptions of Sir John Millais’ well-known pictures, viz.: “Painting in oil, ‘Ordered on Foreign Service’”; “Painting in oil, ‘My First Sermon’”; “Photograph, ‘My Second Sermon.’”940 Blackburn, J., said:
“It is the object of the legislature that enough be stated to identify the production, and that the registration must be bonâ fide, that a man shall not first claim one thing and then sue for another. The description must be such as shall earmark the subject.... The picture ‘Ordered on Foreign Service’ represents an officer who is ordered abroad taking leave of a lady, and no one can doubt that is the picture intended.... There may be a few instances in which the mere registration of the name of the picture is not sufficient: for instance, Sir Edwin Landseer’s picture of a Newfoundland dog might possibly be insufficiently registered under the description of ‘A Distinguished Member of the Humane Society.’ So also of a bullfinch and a couple of squirrels described as ‘Piper and a Pair of Nut-crackers.’... It would be advisable for a person proposing to register to add a sketch or outline of the work.”941
In the learned judge’s opinion deficient description although it would not be sufficient in itself, may be made sufficient by the addition of a photograph, sketch, or outline. It would seem, however, that there must be a description of some kind, and that a photograph or sketch would not by itself be sufficient.
Immoral Works.—There will be no copyright in profane, libellous, or indecent942 works of art.
Duration of Protection.—The copyright under the Fine Arts Act endures for the term of the natural life of the “author” and seven years after his death.943
Copyright will cease if and when any painting or drawing or the negative of any photograph is sold by the first owner thereof without either the express reservation in writing of such copyright to the vendor signed by the vendee or his agent, or the express assignment in writing of such copyright to the vendee signed by the vendor or his agent.944
The copyright will also cease (probably) if the work is published out of the British dominions before publication within the dominions.945