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positively would not interfere. Mr. McAuliffe asked him if he realized what it meant to him, and he said :

Yes; I do not care what the Republic does about it.” He admitted that he was in on the “ deal," and gave Mr. McAuliffe to understand very plainly he was using Pierce to make the demand on the Republic.

Mr. McAuliffe reported the result of this interview to Mr. Cary, who on March I forwarded to Mr. Pierce the Republic's check for $250, in adjustment of the matter.

The CHAIRMAN. I will now call upon Mr. MacDonald, who represents the Photographers' Copyright League of America.



Mr. MacDONALD. Mr. Chairman and gentlemen of the committee, it was not the intention of the Photographers' Copyright League of America to say anything here except that they were much pleased with the two bills of Senator Smoot and Mr. Currier, until it came to our notice this afternoon that a statement of the American Newspaper Association had been filed.

We feel that the bill as it is written, so far as our provisions are concerned—the provisions that apply to us—is perfectly satisfactory. We wish to call attention to the fact that the provisions applying to photography are practically uniform in all of the four bills—that the provisions applying to photography are practically the same as were agreed on by the conference, and I wish to call attention to the probability that there is more or less justice in what we have asked for, in that it has not been disturbed.

We have appeared at two hearings, answering practically the same questions that we are called upon to answer in this statement of the American Newspaper Publishers’ Association's brief of to-day.

Their first and most important suggestion is that they wish an amendment to the effect that “ newspaper reproduction of a photograph shall not be considered an infringement of the copyright.” In their statement they hark back to the case of the Lithograph Company v. Sarony, of 1883, practically the first copyright case involving a photograph that was ever tried. They quote from it continually, but fail to quote from the later cases, hundreds of which have been tried and decided.

The Newspaper Publishers' Association place particular stress on Judge Miller's words in awarding a verdict in a particular case, in which he describes the picture as “ an original work of art, the product of the plaintiff's intellectual invention,” and then they proceed to the deduction that "extension of the copyright law to pro- . tect the vast number of photographs is therefore of dubious constitutionality.”

It is not necessary to call the attention of this committee to the fact that photographs as copyrightable matter have been on the statite books since 1865, and that photographs are in all probability as nearly intellectual creations as the average news record in a newspaper-infinitely more entitled to copyright, for example, than the news of to-day's weather in Paris; and as much entitled to copyright, probably, as maps and charts and the average periodical. Beyond

any kind of question you must admit that photographs contain as much intellect as a directory. In every one of these four bills and in the present statute it is admitted that all these items are proper subjects of copyright. It seems to me not open to question that there is copyright matter in a photograph.

It is easy to see why the American Newspaper Publishers’ Association might want liberty to use photographs without paying for them and why they might wish to be allowed to use our photographs without our leave, or photographs of yourselves without your leave. An item of this kind put into the bill is going to destroy absolutely a quality which, though not intended originally as a principle of copyright, is nevertheless one of the attendant features—that of privacy. There are many photographs which are copyrighted for the sole purpose of reserving them from the public of preventing the public from using them. It is something that applies to all of us, individually. There may come a time when it would be very important for some member of your family to be protected from the publication of their photograph. An item like this is going to render it impossible for you to withhold such photograph from publication.

They talk much about works of art, and mention photographs in comparison, invariably to the detriment of the photograph. But I want to call your attention to the fact that there is in the photograph, despised as it is by the newspaper people, a distinguishing recorda record of a kind that the newspaper-reading public want, and the newspaper publishers know that their public want it, and they know that they must use it, and they try to get it on the very cheapest terms possible. I have heard it suggested within a very few days that they did not expect to get what they asked for, and that it was merely a matter of cutting our protection down to the very lowest degree.

We have never asked for anything that we did not believe we were thoroughly and properly entitled to. We have not put forward any item with the idea of creating a compromise.

Representative Law. Do I understand that you think your interests are, or are not, protected by the Smoot and Currier bills?

Mr. MacDonald. We think that they are amply protected by these bills. We merely protest against an alteration in the bills by the insertion of this proposed amendment.

One other point: “ To protect a photograph against newspaper reproduction, the word copyrighted should be printed conspicuously on the face of the photograph. This is clearly desirable to protect the photograph--even from private use."

In order to protect your picture from publication it is necessary to print conspicuously on its face a legend which will make it and its publication undesirable. We think that the provisions of the Smoot and Currier bills will fully answer this purpose. The Newspaper Publishers' Association admit that a “C” inclosed in a circle is a warning. Having admitted that fact, it constitutes, it seems to me, as ample a warning as if it were printed across the face, not of the photograph, but of the subject.

We think we should not be legislated against in a matter of this kind. Our works are works that must be capable of going into homes, even though they are copyrighted.

In New York we say, “ If you see it in the Sun, it's so." In yesterday morning's Sun I saw an editorial which, on the subject of the President and the wood-pulp tariff, went on to say: “We can not for the life of us see any reason why there should be any special legislation on the part of Congress in behalf of newspapers. There can not be and shall not be any privileged class. We desire no pecuniary benefits nor advantages that are not common to the whole people. We consider the proposition immoral."

Of course, because “ It's in the Sun, it's so.”

The Sun thinks that is so, and we are sincerely happy in the belief that other newspapers think that it is so, and that this brief that they have put in they have not quite intended, or perhaps have not quite understood.

There is one other item which I wish to call to your attention. We particularly desire that this bill as it is written shall stand. There was a suggestion on the part of Mr. Walker yesterday in which a change was proposed in the manufacturing clause. The proposition was that you insert, after the word " lithograph” the words " or other process.” We wish most emphatically to protest against words that are so loose as these, if their looseness would comprehend photography. We very strongly feel the necessity for what is practically international copyright in photography. We are as American in our sentiments as Mr. Sullivan and his people: We represent 30,000 studios in the United States, each owned and operated by an American. We represent, all told, approximately 200,000 employees. We feel that the interests of the 30,000 proprietors and th 200,000 employees are going to be served by our being capable of getting copyright in Great Britain.

Vlr. Currier questioned Mr. Livingstone this morning on a matter arising from something that Mr. Livingstone said, "that we are not being treated in the same way that we treat other people," and Mr. Currier was right. It is possible for an Englishman to obtain in the United States a copyright on a photograph made in England to-day by complying with a set of conditions that the law never originally intended him to comply with. It is not possible, however, for an American to get copyright in England, and we feel that if we are sufficiently liberal to permit the Englishman to straightforwardly get a copyright here, we can apply to the one man who is capable of extending the treaty and ask him to withdraw it if we don't get full reciprocity. The President of the United States, as I understand, is capable of withdrawing the treaty. We think it would be distinctly to our advantage to exclude photography from the manufacturing provision and permit the r tration of negatives which are not made in America, both by Americans, to our distinct advantage, and to foreigners for the effect which is bound to

You need not fear for an instant, if this privilege is extended to photographers, but that photographers will get copyright protection in Great Britain.

Representative CURRIER. I should like to put into the record in this matter the decision of the court in Oliver Ditson against Lit. tleton and others, which holds that a musical composition is not within the clause in reference to the manufacture in the United States.



The CHAIRMAN. Without objection, that will go

in. Decision on appeal in the case of Ditson 1. Littleton, that the manufacturing

clause in the act of March 3, 1891, does not include musical compositions that are published in book form, or made by lithographic process.


(Circuit court of appeals, first circuit. April 25, 1895. No. 111.)

Copyright-Musical compositions - Manufacture in United States.

The proviso in section 3 of the copyright act of March 3, 1891, that " in the case of a book, photograph, chromo, or lithograph," the two copies required to be delivered to the Librarian of Congress shall be manufactured in this country, does not include mere musical compositions though published in book form, or made by lithographic process. (62 Fed., 597, atlirmed.)

Appeal from the circuit court of the United States for the district of Massachusetts.

This was a suit in equity by Alfred H. Littleton and others against the Oliver Ditson Company for infringement of the copyright on three musical compositions, two of which are in the form of sheet music, and one (a cantata ) consists of some 90 pages of music bound together in book form, and with a paper cover. Two of these pieces were printed from electrotype plates and one from stone, by the lithographic process. An injunction was granted by the circuit court, after delivering an opinion, which is reported in 62 Fed., 597. The defendant appeals.

Linus M. Child and Causten Browne, for appellant.

Lauriston L. Scaife, for appellees.
Before Putnam, circuit judge, and Webb and Aldrich, district judges;

PER CURIAM. We are satisfied with the conclusion of the circuit court in this case, and adopt the opinion of the learned judge of that court, except that we do not deem it necessary to investigate the history of the bill which resulted in the copyright statute of March 3, 1891 (26 Stat., 1106), in question, or to determine how far that history is pertinent to the construction of the act. The case deals with copyrighted matters alone, which are only the musical parts, or notations, of complainant's publications. We are not called on to consider a case in which more than the notation is covered by a copyright. That musical compositions, as such, differ, in the view of the copyright law, from books, as such, necessarily follows from the fact that when musical compositions were first made copyrightable the penalty for infringing was made expressly and distinctively other than that for infringing the copyrighted book. (Act Feb. 3, 1831, 4 Stat., 437, 438, secs. 6, 7.) And so it stands in the present statute. (Act Mar. 3, 1891, 26 Stat., 1109, secs. 7, 8.) There are other particulars in which the statutes make the same distinction, but in this one the result is unavoidable. What were copyrighted here were clearly musical compositions, and nothing else, and the distinction thus made by these penal provisions can not be maintained unless the result reached by the circuit court is accepted. The word " lithograph,” found in the proviso in section 3 of the statute under consideration, represents only a subdivision of the matters embraced in the word "print,” in the same section, which gets its meaning and limitation, for the purposes of this statute, from its immediate association with the words “engraving, cut." This is emphasized by the third section of the act of June 18, 1874 (18 Stat., 78), which expressly limits the word to pictorial illustrations, or works connected with the fine arts. Moreover, the introduction of the proviso by the words “in the case" constitutes a legislative selection from what precedes it, and shows that the qualifying effect of the proviso was intended to be limited to a part only of the things named in the body of the section. These words necessarily make the whole section in pari materia. It is true that in some parts of the statutes the words “ book," "print," and “musical composition," refer to the intellectual conception as the essential element, and in other parts may refer more particularly to the material form in which it is expressed; but nowhere does either element exclusively exist, because no intellectual conception is copyrightable until it has taken material shape. Therefore, there is no reason for holding that the use of the words

" book, photograph, chromo, or lithograph," in the proviso, involves a departure from the distinctive idea appertaining to either in other parts of the statutes touching the subject-matter of copyright. If the statutes were of doubtful meaning, the history of the bill, the omission of the words “dramatic composition" from some of the provisions of the statutes, the contemporaneous construction by the departments or officers of the United States, and perhaps other propositions urged upon either side, might have weight; but, in a case so clear as the one at bar, we do not deem it necessary to invoke such aids, or to note the conditions or limitations under which such considerations should weigh in the interpretation of doubtful statutory provisions. The decree of the circuit court is affirmed. (67 Fed. Rep., p. 905.)



The LIBRARIAN OF CONGRESS. As to the effect of the proposed term of copyright as compared with the existing term, I have a compilation here covering the cases of 486 deceased American authors of prominence. They comprise writers on all subjects—beginning with compilers and going all the way up to poets and dramatists. Of these, 155, or about 32 per cent, would have lost by the term consisting of the remainder of their lives and thirty years after death, as against the existing term. Two hundred and forty would gain, and in the cases of about 90 the result would have been indifferent. They would have gained on certain books and lost on others.

The average age of these authors at death-the general averagewas about 66 years. Of course, the results as tabulated here are devoid of the interest that would result from examining particular cases. I understood Chairman Currier to say that he thought that even these figures would be of interest in the record.

The CHAIRMAN. It will be put in, without objection.

The LIBRARIAN OF CONGRESS. The living anthor always expects to produce his magna opera within the last twelve years of his life.

The table presented by the Librarian of Congress is as follows:

Term of copyright.

[Effect of proposed as compared with existing term upon 486 deceased American authors

of vogue or prominence.]

[blocks in formation]





General average...


Posthumous: Only 38 works of 27 authors.

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