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The CHAIRMAX. You may take up whatever matter you see fit, except the question of the music provisions.
Mr. LIVINGSTONE. Before I speak of the manufacturing section I want to allude to two other points which are probably taken care of. One is the matter of the minimum recovery of damages.
Representative CURRIER. We have restored that.
Mr. LIVINGSTONE. We wish to have that provision inserted, and our sole reason for alluding to it again is to call the attention of the committee to the fact that we hope nothing will occur to disturb its presence in the bill for the reasons on file.
Representative CURRIER. We have also taken care of the matter with reference to the allowance of costs.
The CHAIRMAN. No one has spoken in opposition to it, and unless some one does there is no need for you to spend any time in the discussion of the question.
Mr. LIVINGSTONE. Another point to which I desire to call attention is the matter of the extension of the existing copyright where a work has been assigned. The suggestion made last night seems to meet the case, and I merely wish to point out that you should not limit it by the term “ encyclopedic” alone, but that you should include also the term “ composite," because there are articles, such as maps, which may be the product of the work of several different persons, and still might not be embraced in the term “ encyclopedic. They would, however, be embraced under the term " composite."
Mr. Putnam. Composite is the word that we have been instructed to put in, and one of the suggestions that we have been instructed to make.
Mr. LIVINGSTONE. In the manufacturing clauses we wish to protest very strongly against any addition to the sections as they are now drawn. I am speaking, of course, of the clauses as they affect the field of the graphic arts only.
Representative CURRIER. Are you speaking now particularly with reference to lithographs?
Mr. LIVINGSTONE. Partly to that; yes, sir. The suggestion made by Mr. Walker last night, when this matter was under discussion, was that you include, after “ lithograph," the words “ or any other process.”
Now, the first effect of that would be to shut out one thing that we had hoped was closed and properly taken care of, and that is the granting of a copyright on photographic negatives taken without the limits of the country. That would, of course, exclude them immediately. We have had a number of years' experience in operation under such an exclusion, and it has had just the contrary effect in our field from what it was designed to have.
In two of the bills presented—namely, the Kittredge and Barchfeld bills—we notice the addition of the photo-engraving clause. We do not presume to say anything as to photo-engraving or any other kind of engraving of music, because it is out of our field and we do not know about it; but we strongly urge that such a provision be not added, so far as it applies to the graphic arts, for pictorial reproduction.
I wish to personally advise very strongly against that, not on the ground that I am a publisher, but on the ground that I am an American manufacturer, operating my own plant and employing my own
workmen, and also because there are other members of our association in exactly the same position.
We do not believe such provisions will be helpful. It is not because we do not wish the utmost protection for the American laborer and the American manufacturer, but we believe that this method of securing it in our field is the wrong one.
The CHAIRMAN. Do you object to the words “ for music engraving processes?"
Mr. LIVINGSTONE. No, sir.
The CHAIRMAN. Do you know of any reason why they should not be in this bill?
Mr. LIVINGSTONE. I would not presume to speak of the music section.
The Chairman. I simply ask you whether you know of any reason why they should not be in the bill?
Mr. LIVINGSTONE. I have not studied the music provision, and I would not presume to express an opinion.
The CHAIRMAN. I ask you as a manufacturer, and I thought, perhaps, in your study you had taken into consideration the whole field of music.
Mr. LIVINGSTONE. That is a very distinct field, and I did not know anything about the manufacture of it.
Representative Currier. You do not make it clear to me why, if you protect lithographers, you ought not to protect photo-engravers. What is the difference?
Mr. LivixGSTONE. I think that I have never and our association has never concealed the fact that we think this lithographic clause in including pictorial lithographs is wrong; but we accept it and will support it, and be glad to support it, as it stands now.
Representative SULZER. You say you take these foreign negatives and bring them over here and reproduce them?
Mr. LIVINGSTONE. Yes, sir.
Representative CURRIER. If we were to insert a provision which would give protection to photo-engravers, what would be your objection to it?
Mr. LIVINGSTONE. I have no objection, in so far as it applies to music, a thing of which I know nothing; but I do have an objection to it, if you are going to apply it to color engravings, to pictures, or to any kind of pictorial illustration.
The CHAIRMAN. If it is in the bill at all, it would apply to both.
Representative SULZER. After you bring those negatives over from foreign countries into the United States, the reproduction is done entirely by American workmen, is it not?
Mr. LIVINGSTONE. It is.
Mr. LIVINGSTONE. Yes; but I will also explain that the bill, as it is now drawn, will give foreign photographers copyright protection, if they see fit to avail themselves of it, on condition that there are reciprocal relations between the countries. The CHAIRMAX. That work will have to be done in this country.
Mr. LIVINGSTONE. Not in the case of photographs, as you have drawn the bill. If it is reproduced by photoengraving, it is a different thing. I understand Mr. Sulzer to be asking simply about the production of photographs.
Representative SULZER. Yes; the production from these negatives taken in foreign countries—they are produced here in this country?
Mr. LIVINGSTONE. That is the intention.
Representative SULZER. And that work is done entirely by American workmen ?
Mr. LIVINGSTONE. Yes, sir.
Representative SULZER. So far as you know, the American workmen have no objection to that?
Mr. LIVINGSTONE. We want it very badly, and the photographers are on record as stating that they want it.
Representative SULZER. Regardless of the manufacturers and the photographers, the Americans want it, because it gives them greater work, do they not?
Mr. LIVINGSTONE. It gives the American Photograph Printing house work, which they are now debarred from getting under the existing law: With reference to the matter of photoengraving which you are talking about, I wish to point out that which not only applies to photoengraving, in the way of the reproduction of pictures, but also applies to any other graphic process for the reproduction of pictures, and to call your attention to the fact that there is a very essential difference between the reproduction of the thought of an author by book and the reproduction of the thought of an author by pictorial illustration.
You may print a literary work by the type of any country you please, and the thought is the same. It is not modified by the type from which it is printed, whether printed in England or in the United States.
But when you come to the pictorial expression of an author's thought there is a physical difference. The method employed for translating the author's thought may be very distinctly qualified by the process. That is to say, a delicate water color may be successfully translated in one process, and it may virtually fail of adequate translation in another graphical process. That leads to the selection of processes for special work. Some of those processes are best operated in this country and some are best operated abroad. It all depends upon the particular work you want done and the kind of representation you want.
For example, there is a process popularly known as the Goupil process upon the Continent, a secret process, which is not used in this country at all. That is specially suited for one kind of reproduction, and anybody who wants that reproduction must go there to get it. It is not done anywhere else. The company with which I am connected has a special secret process, which is only performed in our plant, and anybody who wants that particular expression has to come to us for it. You must, therefore, distinguish between the case of translating a literary author's thought through the types and the translating of an author's thought through the method of pictorial reproduction.
Another point involved, which is rather technical, relates to the term photo-engraving, and it is this: The general term, "photoengraving," when applied to art, with which I am of course more conversant than anything else, has a very indefinite meaning and is a very uncertain term. I would not undertake to say what should be the interpretation, but we would be very much afraid of it unless it is very precisely defined in some way.
Representative CURRIER. Would the section as now drawn prevent the bringing into this country of pictures such as you have mentioned, which are produced by the secret process of Goupil & Co.?
Mr. LIVINGSTONE. No, sir; and I am not objecting to the section as now drawn. It is this amendment, " or other process,” that may be added, to which I am objecting.
Representative CURRIER. I do not think you need take up very much time in the consideration of any amendment which would involve words of that kind; but you may confine your discussion to the paragraph referring to the case where the subjects represented are located in a foreign country and to the amendment by the insertion of the words“ produced by photo-engraving.”.
Mr. LIVINGSTONE. Before I go further in the matter of photoengraving I will present a letter I received this morning, which is from one of the members of our association, Mr. Edmund B. Osborne, president of the American Colortype Company, of New York and Chicago. To give it point I will say that the American Colortype Company is the largest pictorial engraving company on this continent.
In this letter, which is addressed to W. A. Livingstone, president of the Print Publishers' Association, Washington, D. C., and is dated March 6, 1908, Mr. Osborne says:
I am informed that the Kittredge copyright bill, now under consideration, proposes to exclude from the benefits of the copyright act the publication of the works of foreign artists or authors, except as the mechanical work of publication shall be done in the United States.
I wish to express very emphatically my conviction that this is wrong in principle. The business of this company, viz., the reproduction, printing, and publishing of works of art, is just the sort that is designed to be protected by this measure, and we would be among the largest beneficiaries of such an act. I do not believe, however, that it is just or wise to attempt to secure the protection of American labor, engaged in the printing and publishing interests, in this way. I believe that the United States ought to afford the protection of its copyright law to foreign artists and authors on exactly the same basis it affords protection to American artists and authors, provided that the countries of which such artists or authors are citizens extend similar privilege to American artists and authors.
I believe in protecting American labor and in recognizing the difference between the cost of American labor and the cost of foreign labor, but I do not believe that this should be mixed up in the copyright act. I think that the protection of American labor employed in these industries should be accomplished as we do it for other kinds of labor, viz, by our protective tariff:
It seems to me that we have two separate issues here, and that they ought not to be confused. First we ought, in cooperation with the other nations, to secure for artists and authors the undisputed control of the products of their genius, and full rights to the fruits of them, and that can be done by our copyright law.
On the other hand, we owe it to ourselves to protect our own labor and not to permit the cheap workingmen of Europe to compete on even terms with our higher-priced workingmen in this country; this we can accomplish by a wisely devised protective tariff'.
I hope you will succeed in convincing the committee of the unwisdom of trying to combine these two issues in one bill.
To speak for a moment on the cutting out of the exception or proviso, which permits foreign-made lithographs to enjoy copyright protection in this country, when the subjects are scenes which are located abroad. The company with which I am connected is in the business of reproducing paintings and technical work, and consequently I claim to be fully informed both as to the business and the practical end of this matter.
It has been suggested here that in the case of a painting located abroad, if a sketch is made of that painting and brought into this country, the lithographer may take that sketch and reproduce the original.
That is possible, but that is not the way it is done in practice if good work is desired. Not only that, but that particular method makes it impossible to get the best work. The only way it can be done, where really good reproduction is demanded, is as follows:
If possible the painting is taken to the factory itself. I have had hundreds of paintings in our factory for that purpose which were transported over considerable distances. I have not only had paintings, but I have had expensive textiles, costly rugs and things of that kind, which were taken out of museums, if you please, and which it was very difficult to have transported to the factory.
Certainly we would not put ourselves to all of that trouble and the owners of the property would not submit to that inconvenience if there was not a grave disability without it. There are cases constantly arising where it can not be done. I will give you, as an illustration, a typical case with which we were recently confronted in reproducing a painting in the Metropolitan Museum of Art.
We could not have the painting sent to the factory, and so we had very careful chromatic negatives made, and then we printed from those negatives. We had a very careful color sketch made on top of the print from those negatives, which of course faithfully reproduced the drawing, and we then sent the workman, who was going to translate that work, to the Metropolitan Museum. He did not go once only, but went four separate times from Detroit. After that the superintendent of the factory was compelled to go to check up the final work.
Of course I am now speaking of work where accuracy and truthfulness is desired, which of course is necessary in art reproduction or in work regarding a technical science.
If we were subjected to all of that trouble in this case, what kind of a result do you suppose we would have gotten if we had been compelled to make that reproduction from a subject in a gallery in St. Petersburg or in the Vatican or in any other foreign gallery?
I might multiply instances of that kind, but instead of doing that I will simply say that if the committee desires it I will furnish them written copies covering actual cases.
I will say further that if you take that clause out of this section you will surely prohibit certain kinds of American publishers from doing work of that character. You can not find in America now more than a very few art publishing houses. Why is it? One of the reasons, of course, is the youth of the nation, and another reason is the lack of art education in this country, which is being very rapidly corrected; but one of the greatest reasons is that the foreign art publishing house gets protection in every continental country for its work. It does not make any difference whether its photogravure is made in England or in Germany or in Austria or in France. It gets protection in all of those countries. If we are limited to protection in this country only, I want to state positively that we never can develop art publishing of magnitude as it is abroad. Our very existence depends on the protection it may get from a copyright, and without it we have to get out of business.