CAP. XII. because it contains prints or designs, or other illustrations of the letter-press. A book must include every part of the book; it must include every print, design, or engraving which forms part of the book, as well as the letterpress therein, which is another part of it. A plaintiff published a book containing letter-press, illustrated by wood engravings, printed on the same paper at the same time. The defendants published a similar book with different letter-press, but containing pirated copies of the wood engravings. The plaintiff, upon motion for an injunction, proved that he had complied with the requisitions of the Copyright Act, 1842, but had not complied with the Act for the protection of engravings (8 Geo. 2, c. 13), by printing the date of publication and the name of the proprietor on each copy. Vice-Chancellor Parker considered the plaintiff entitled to an injunction, for upon the construction of the 5 & 6 Vict. c. 45, where there are designs forming part of a book in which a person has copyright, such copyright extends to the illustrations and designs of the book, equally as to the letter-press (a).

Ignorance no

excuse.

It matters not whether the person selling the pirated engravings is aware of their being spurious or genuine ; for though the & Geo. 2, c. 13 (b), imposed, first, a penalty upon any person who should engrave, copy, or sell, or cause to be copied or sold, in the whole or in part, by varying, adding to, or diminishing from the main design; and, secondly, upon persons selling the same, "knowing the same to be so printed or reprinted;" yet in the 17 Geo. 3, c. 57 (c), the words "knowing the same to be so printed or reprinted" are omitted; and it may, therefore, fairly be inferred that the legislature intended to comprehend even those who were not aware that they were selling base copies (d).

The former part of the 17 Geo. 3, c. 57, s. 1, applies

(a) Bogue v. Houlston, 5 De G. & Sm. 267; Woods v. Highley, 1866, before Vice-Chancellor Wood. (b) App. i. (c) App. x. (d) West v. Francis, 5 Barn. & Ald. 737; 1 D. & R. 400; Gambart v. Sumner, 1 L. T. (N.S.) 13; Clement v. Maddick, 1 Giff. 98; 5 Jur. (N.S.)

to persons who actually make the copy, and who therefore CAP. XII. must know it to be a piracy. But the latter branch

applies to all persons who import for sale, or sell, any copy

of a piratical print.

What is an infringement is, in many cases, a difficult As to what is matter to solve. There can be no reason why a person ment. an infringeshould not be liable where he sells a copy with a mere 4 collusive variation, for a copy is defined to be that which comes so near to the original as to give to every person seeing it the idea created by the original (a).

Great solicitude is requisite to guard against two extremes equally prejudicial: the one, that men of ability, who have employed their energies for the service of the community, may not be deprived of their just merits, and the reward of their ingenuity and labour; the other, that the community may not be deprived of improvements, nor the progress of the arts retarded. The Act which secures copyright to authors, guards against the piracy of the words and sentiments, but it does not prohibit writing on the same subject. As in the case of histories and dictionaries in the first, a man may give a relation of the same facts, and in the same order of time; in the latter, an interpretation is given of the identical words. In all these cases the question of fact to come before a jury is, whether the alteration be colourable or not? There must be such a similitude as to make it probable and reasonable to suppose that one is a transcript of the other, and nothing more than a mere transcript. So in the case of prints, no doubt different men may take engravings from the same picture. There is no monopoly of the subject here any more than in the other instances, but upon any question of this nature, the jury will decide whether it be a servile imitation or not (b).

The first engraver does not claim the monopoly of the use of the picture from which the engraving is made; he says, Take the trouble of going to the picture yourself, but

(a) West v. Francis, supra. See Roworth v. Wilkes, 1 Camp. 94; Moore v. Clark, 9 M. & W. 692. (b) Sayre v. Moore, 1 East, 361, n.

CAP. XII. do not avail yourself of my labour, who have been to the picture and have executed the engraving (a).

Engraving Acts extended to Ireland.

An engraver is invariably a copyist, and if engravings from drawings were not to be deemed within the intention. of the legislature these Acts would afford no protection to that most useful body of men, the engravers. The engraver, although a copyist, produces the resemblance he is desirous of obtaining 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 the management of light and shade, or, as the term of his art 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 (b).

The Engraving Acts were extended to Ireland in 1837. By the 6 & 7 Will. 4, c. 59 (c), it was enacted that, from and after the passing of that Act, if any engraver, etcher, printseller, or other person should, within the period limited for the protection of copyright in engravings, engrave, etch, or publish, or cause to be engraved, etched, or published, any engraving or print of any description whatsoever, either in whole or in part, which might have been or which should thereafter be published in any part of Great Britain or Ireland, without the express consent of the proprietor or proprietors thereof first had and obtained in writing signed by him, her, or them respectively with his, her, or their own hand or hands in the presence of and attested by two or more credible witnesses, then every such proprietor should and might, by and in a separate

(a) De Berenger v. Wheble, 2 Stark. N. P. C. 548.

(b) Newton v. Cowie, per Best, C.J., 4 Bing. 246; Martin v. Wright, 6 Sim. 297. (c) App. xx.

action upon the case, to be brought against the person so offending in any court of law in Great Britain or Ireland, recover such damages as a jury on the trial of such action, or on the execution of a writ of inquiry thereon, should give or assess.

CAP. XII.

Acts to

The 15 & 16 Vict. c. 12, s. 14, declares that the pro- Engraving visions of this Act and the engraving Acts collectively are include intended to include prints taken by lithography or any other lithographs. mechanical process by which prints or impressions of drawings or designs are capable of being multiplied indefinitely, and the said Acts shall be construed accordingly (a).

may be

It is therefore an infringement of the copyright given The right in engravings by the Engraving Acts to copy by photography, or sell a photographic copy of a print in which a copyright has infringed by photography. been acquired under these Acts (b). The question arose not long since.

It was in an action for the infringement by the defendant of the plaintiff's copyright in two engravings, the one from Rosa Bonheur's 'Horse Fair,' the other from Holman Hunt's 'Light of the World.' It was proved that the plaintiff was the proprietor of these two engravings, and that the defendant had copied them on a very reduced. scale by means of photography, and sold a great number of copies. The point was argued before the Court of Common Pleas, and it was unanimously decided that all processes for the indefinite multiplication of copies, whether mechanical or otherwise, were within the Acts for the protection of artists and engravers; and that when they declare mechanical processes of multiplying copies to be within them, no doubt they would have also thus declared the multiplication by means of photography, if the art of photography had then been known. If the object of the Acts of Parliament on the subject were, not simply to protect the reputation of the artist or the engraver, but to protect him against the invasion of his substantial (a) App. 1xxx.

(b) Gambart v. Ball, 14 C. B. (N.S.) 306; 11 W. R. 699; 32 L. J. (C.P.) 166; Graves v. Ashford, 15 W. R. 495; L. R. 2 C. P. 410; 16 L. T. (N.S.) 98; 36 L. J. (C.P.) 139.

CAP. XII. commercial property in the work of his genius or of his industry, it is plain that he sustains an injury by another offering a photographic copy which is capable of exciting in the mind of the beholder the same or somewhat similar pleasurable emotions as would be communicated by a copy of the engraving itself. The value of the artist's property would be sensibly diminished were the multiplication of copies by means of photography held to be lawful. In the case above referred to, Chief Justice Erle, in passing judgment, said: "In the representation of 'The Horse Fair,' we feel the same degree of pleasure in looking at the forms and attitudes of the beautiful animals there portrayed, whether we see them in the size in which they are drawn in the original picture, or in the reduced size of the engraving, or in the still more diminished form in which they appear in the photograph.. . . The object of the statute, to my mind, was, not merely to prevent the reputation of the artist from being lessened in the eyes of the world, but to secure to him the commercial value of his property, to encourage the arts, by securing to the artist a monopoly in the sale of an object of attraction. . . . It seems to me that the making of copies in that way and selling them is within the words as well as the meaning of the Act” (a).

What not an infringement.

Though the language of the statute includes, as we have seen, copies made by mechanical or chemical process, and capable of being multiplied indefinitely, yet it would seem not to include copies made by hand or designs transferred to an article of manufacture.

Nor where the print or engraving differs materially from the original in character, and is dealt with in a different manner, can the former be considered a piracy of the latter within these Acts. Thus in 1821, plaintiff, a celebrated artist, composed and painted from sketches he had designed a picture called 'Belshazzar's Feast,' which he shortly afterwards sold. In 1826 he engraved and published from the sketches a print of the same name,

(a) This judgment was confirmed on appeal by the Court of Exchequer Chamber.