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to be destroyed: Provided, That there shall be printed in the Catalogue of Copyright Entries from February to November, inclusive, a statement of the years of receipt of such articles and a notice to permit any author, copyright proprietor, or other lawful claimant to claim and remove before the expiration of the month of November of that year anything found which relates to any of his productions deposited or registered for copyright within the period of years stated, not reserved or disposed of as provided for in sections sixty-two and sixty-three of this act: And provided further, That no manuscript of an unpublished work shall be destroyed during the term of its copyright without specific notice to the author, copyright proprietor, or other lawful claimant, permitting him to claim or remove it.

SEC. 64. That the Register of Copyrights shall receive and the persons to whom the services designated are rendered shall pay the following fees: For the registration of any work subject to copyright deposited under the provisions of this act, one dollar, which sum is to include a certificate under seal: Provided, That in the case of photographs the fee shall be fifty cents where a certificate is not demanded. For every additional certificate of registration made, fifty cents. For recording and certifying any instrument of writing for the assignment of copyright, or for any copy of an assignment, duly certified, if not over three hundred words in length, one dollar; if more than three hundred and less than one thousand words in length, two dollars; if more than one thousand words in length, one dollar for each one thousand words and fraction thereof over three hundred words. For comparing any copy of an assignment with the record of such document in the Copyright Office and certifying the same under seal, one dollar. For recording the transfer of the proprietorship of copyrighted articles, ten cents for each title of a book or other article in addition to the fee prescribed for recording the instrument of assignment. For any requested search of Copyright Office records, indexes, or deposits, fifty cents for each full hour of time consumed in making such search: Provided, That only one registration at one fee shall be required in the case of several volumes of the same book or periodical deposited at the same time or of a numbered series of any work specified in subsections (h), (j), and (k) of section five of this act, where such series represents the same

SEC. 64. Barchfeld and Kittredge bills read "certificate of registration."

subject with variances only in pose or composition and the items composing it are deposited at the same time under one title with a view to a single registration.



SEC. 65. That in the interpretation and construction of this act "the date of publication" shall in the case of a work of which copies are reproduced for sale or distribution be held to be the earliest date when copies of the first authorized edition were placed on sale, sold, or publicly distributed by the proprietor of the copyright or under his authority; and the word "author" shall include an employer in the case of works made for hire.

SEC 66. That all laws and parts of laws in conflict with the provisions of this act are hereby repealed, but nothing herein contained shall affect causes now pending in courts of the United States, but such causes shall be prosecuted to a conclusion in the manner heretofore provided by law.

SEC. 67. That this act shall go into effect on the first day of July, nineteen hundred and eight.

SEC. 66. Barchfeld and Kittredge bills retain the Senate form of the 59th Congress bills, reading: "nothing in this act shall affect causes of action for infringement of copyright heretofore committed now pending in courts of the United States, or which may hereafter be instituted."


Mr. Chairman, I merely want to say a word in supplement of what was stated last night, to the effect that in the opinion of the publishers and a very large group of authors whom the publishers represent the terms of the copyright proposed in this bill, and various other measures for the encouragement and protection of literary property, mark a very large advance and a very substantial net gain over anything that has been done in this country under previous statutes or the statutes that are in force in other literature-producing countries.

If there was time to place it before you I think I might show you a list of thousands of American authors of the past half generation and past generation, the group of which Longfellow and Irving are the representatives, to whose families this provision, if it had been enforced twenty-five years ago, would have meant the difference between independence and poverty. It is true of Irving's nieces, of Hawthorne's family, and of thousands of families well known to you reading gentlemen. The term for the life of the author and thirty years thereafter will make, in the near future, substantial provision for literary men and their families in this country. There would be, as Mr. Johnson has pointed out, a few cases of authors whose families thirty years hence would lose a few years of protection which they might now secure under the extension, which makes in all fortytwo years under the existing statute; but I believe one could count those cases on the fingers of one hand. I should be very sorry if anybody should find cause to complain of what you gentlemen have

done, and I should be glad if even that little possible criticism. might be removed. But taking the interest of American literature as a whole, I say that the objection is infinitesimally small, and that you gentlemen should legislate for the greatest good of the greatest possible number of the people. I want to put myself on record as acknowledging my appreciation of what you are doing here.

I want to say a further word, supplementary of what was said here last evening, with regard to the proposed affidavits. I want to state that if any citizen is desirous of breaking the law, one affidavit more or less is to him a small matter, while it was my belief and is my belief that for the large mass of law-abiding citizens it would be a continual tax and annoyance: but, nevertheless, if you gentlemen are of the belief that the publishers, and the publishers alone in this country, must swear that they have kept the law, we shall accept your judgment as law-abiding citizens.

The CHAIRMAN. I would like to ask whether there is anybody here representing the photographers?

Mr. LIVINGSTONE. I do not represent them; but they were here last evening.

The CHAIRMAN. Are there any gentlemen here representing the lithographers of the country?

Mr. LIVINGSTONE. Mr. Chairman, I desire to be heard on that subject.

The CHAIRMAN. Before we take that up I would like to ask if there is anyone here who desires to speak further on the question of notice?

Mr. LIVINGSTONE. Yes, Mr. Chairman, I desire to be heard on that subject.


Mr. Chairman, I speak for the Print Publishers' Association, and represent a number of firms. I wish to say, at the outset, that all of my remarks will pertain to our special field-that is, to the field of the fine arts and graphic reproductions, so far as the pictorial field is concerned.

We are very strongly in favor of the provisions of the bill as a whole affecting our field. Present sections Nos. 10 and 12, covering the matter of notice, are immeasurably superior to the existing law, and will give us a very great relief. We like them so well and they are so great an advance over the existing law that we hesitate to make any further suggestions, and in making them we hope that you will not think we are ungrateful for what you have already provided. Should you decide to keep those sections as they are, we will consider that we received a great deal of help and will be very grateful for it.

But since these bills were introduced the Supreme Court of the United States has handed down a final decision in what is known as the Werckmeister case. One of the points of that decision is that original works of art, such as paintings and sculptures, need not have the notice of copyright affixed to them. If you can, therefore, see your way clear to change these sections and provide that the notice of copyright upon publications of a work of art need not be affixed

to the original, leaving the notice requirement as to copies just as you have provided under those sections, we would like it very much. If you do that, it would make the notice requirements, so far as original works of art are concerned, exactly the same as they are in other countries except Canada.

Representative CURRIER. When was that case decided?

Mr. LIVINGSTONE. I have a copy of it, and I will put it in the record if you desire.

Řepresentative CURRIER. Very well; we will be very glad to have it. (The opinion referred to was, by direction of the committee, made a part of the record, and is as follows:)


(No. 28.-October Term, 1907.)

American Tobacco Company, plaintiff in error, v. Emil Werckmeister, defendant in error-In error to the United States circuit court of appeals for the second circuit. (December 2, 1907.)

This is a writ of error to the circuit court of appeals for the second circuit, seeking reversal of a judgment affirming the judgment of the United States circuit court for the southern district of New York in favor of the defendant in error, adjudging him to be entitled to the possession of 1,196 sheets, each containing a copy of a certain picture called "Chorus," the same representing a company of gentlemen with filled glasses singing in chorus. The painting was the work of an English artist, W. Dendy Sadler. The defendant in error claimed to be the owner of a copyright taken out under the law of the United States.

The judgment was rendered under authority of section 4965, as amended March 2, 1905. (U. S. Comp. Stat., v. 3, p. 3414.)

In January, 1894, by agreement between the artist and Werckmeister, the defendant in error, it was agreed that the painting should be finished by March 1 and then sent to Werckmeister to be photographed and returned to Sadler in time to exhibit at the Royal Academy in 1894. The painting was sent to Werckmeister at Berlin, where it was received on March 8, 1894, and was returned to Sadler in London on March 22, 1894. On April 2, 1894, the artist Sadler executed and delivered the following instrument:

"I hereby transfer the copyright in my picture Chorus' to the Photographische Gesellschaft, Berlin (The Berlin Photographic Company), for the sum of £200. London, April 2, 1894. (Signed) W. Dendy Sadler."

Werckmeister was a citizen of the German Empire, doing business in Berlin, Germany, under the trade name of "Photographische Gesellschaft," and did business in New York City under the name of the "Berlin Photographic Company."

The Photographische Gesellschaft of Berlin, by letter dated March 31, 1894, received on April 16, 1894, deposited the title and description of the painting and a photograph of the same in the office of the Librarian of Congress, the intention being to obtain a copyright under the act of Congress. (U. S. Comp. Stat., v. 3, p. 3407.) After the painting was returned to London it was exhibited by Sadler at the exposition of the Royal Academy at London, and was there on exhibition for about three months; the exhibition opening the first Monday of May and closing the first Monday of August, 1894. The exhibition was opened to the public on week days from 8 a. m. to 7 p. m., upon the payment of the admission fee of 1 shilling, and during the last week was open evenings, the entrance charge being 6 pence. There was a private view for the press on May 2 and on May 3 up to 1 o'clock, and the remainder of the day was for the Royal private view. There was also a general private view on May 4. The members and the associate members of the Royal Academy and the artists exhibiting at the exhibition and their families were entitled at all times to free admission, and they as well as the public visited the exhbition in large numbers.

During the time that the painting was shown at the exhibition it was not inscribed as a copyright, nor were any words thereon indicating a copyright,

nor on the substance on which it was mounted, nor on the frame, as required by the copyright act (U. S. Compiled Stat., v. 3, p. 3411), if the original painting is within the requirements of the law in this respect.

The painting while on exhibition was for sale at the Royal Academy, but with the copyright reserved, which reservation was entered in the gallery sale book. The by-laws of the Royal Academy provided "that no permission to copy works on exhibition shall on any account be granted." The reasons for the by-laws, as it appears upon minutes of the Academy, are as follows:

"That so much property in copyright being entrusted to the guardianship of the Royal Academy, the council feel themselves compelled to disallow, in future, all copying within their walls from pictures sent for exhibition."

The photogravures of the painting were placed on sale in June, 1894, or in the autumn of 1894; those photogravures were inscribed with the notice of copyright.

Mr. Sadler, the artist, afterwards, in October, 1899, sold the painting to a Mr. Cotterel, residing in London, England, since which time, so far as has been shown, it has been hanging in the dining room of the house of that gentleman.

On June 20, 1902, Werckmeister commenced an action, by the service of a summons, against the American Tobacco Company, plaintiff in error, and on the same day a writ of replevin was issued out of the circuit court of the United States for the southern district of New York, directed to the marshal of the same district, requiring him to replevin the chattels described in an annexed affidavit. Under the writ the marshal seized, upon the premises of the American Tobacco Company, 203 pictures. On July 23, 1902, Werckmeister caused another writ of replevin to issue out of the same court, directed to the marshal of the western district of New York, under which writ the marshal seized 993 pictures.

An amendment to the complaint set forth the seizure of the pictures. The copies seized were adjudged to be forfeited to the plaintiff Werckmeister and to be of the value of $1,010.

The judgment rendered in the circuit court was taken upon error to the United States circuit court of appeals and there affirmed. (146 Fed., 373.) The present writ of error is prosecuted to reverse the judgment of the court of appeals.

Mr. Justice Day delivered the opinion of the court.

This case involves important questions under the copyright laws of the United States, upon which there has been diversity of view in the Federal courts.

Before taking up the errors assigned it may aid in the elucidation of the questions involved to briefly consider the nature of the property in copyright which it is the object of the statutes of the United States to secure and protect. A copyright, as the term imports, involves the right of publication and reproduction of works of art or literature. A copyright, as defined by Bouvier's Law Dictionary, Rawles's edition, volume 1, page 436, is "The exclusive privilege, secured according to certain legal forms, of printing, or otherwise multiplying, publishing, and vending copies of certain literary or artistic productions." And further, says the same author, "The foundation of all rights of this description is the natural dominion which every one has over his own ideas, the enjoyment of which, although they are embodied in visible forms or character, he may, if he chooses, confine to himself or impart to others." That is, the law recognizes the artistic or literary productions of intellect or genius, not only to the extent which is involved in dominion over and ownership of the thing created, but also the intangible estate in such property which arises from the privilege of publishing and selling to others copies of the thing produced.

There was much contention in England as to whether the common law recognized this property in copyright before the Statute of Anne; the controversy resulting in the decision in the House of Lords in the case of Donelson v. Beckett (4 Burr, 2408), the result of the decision being that a majority of the judges, while in favor of the common-law right, held the same had been taken away by the statute. (See Wheaton v. Peters, 8 Pet., 591-656; Holmes v. Hurst, 174 U. S., 82.)

In this country it is well settled that property in copyright is the creation of the Federal statute passed in the exercise of the power vested in Congress by the Federal Constitution in Article I, section 8, "to promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." (See Wheaton

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