amounts to a representation of a part of a dramatic or musical composition has been held to be a question of fact for the jury, and not a question of law, in an action founded on this statute; and where the jury found the unauthorized singing of three songs of an opera to be such a representation, the court of common pleas refused to disturb the verdict, being of opinion that the statute intended to prohibit the performance altogether.'

The extent to which music may be used, by adaptation for a different kind of performance than that for which it was originally composed and published, came under consideration in a recent case, already referred to in the discussion on literary abridgments.2 The doctrine was laid down, that a piracy is com-. mitted, where the appropriated music, though adapted to a different purpose from that of the original, may still be recognized by the ear; and that the adding variations makes no difference in the principle.3

The rules which determine when the copyright of a print or engraving is infringed, are entirely analogous to those applied to literary compositions. There may be an exact reproduction, or an imitation of the main design, with alterations merely colorable. When the design is the original production of the artist- the fruit of his own imagination—no other

1 Planché v. Braham, 16 Law Jour. 25.

3 D'Almaine v. Boosey, 1 Y. & Coll. Excheq. R. 288, 302.

2

Ante, pp. 280, 281.

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person can publish it, because there is no common source to resort to; and where there is a common source, as where the subject of the engraving is an object in nature or a work of art, that common source, and not the original print, may be resorted to.' The question therefore will be in both cases, whether the defendant has copied or unlawfully imitated the plaintiff's print. A copy has been said to be that which comes so near to the original, as to give every person the idea created by the original. So, too, if there be such a similitude and conformity between the two prints, that the person who executed the one must have used the other as a model, he will be deemed a copyist of the main design.3 . But when the original design of an artist is taken from a print and appropriated and used in another form and by another vehicle than by a reprint, and without a sale, a very nice question arises, whether the statutes have given any remedy. The 17 Geo. III. c. 57, enacted, that "if any engraver, etcher, printseller, or other person shall, within the time, &c. engrave, etch, work, or cause or procure to be engraved, etched, or worked in mezzotinto or chiaro oscuro, or otherwise or in any other manner copy in the whole or in part, by varying, adding to or diminishing from

1 Blackwall v. Harper, 2 Atk. 92. Wilkins v. Aiken, 17 Ves. 422. De Berenger v. Wheble, 2 Starkie N. P. C. 548.

2 West v. Francis, 5 B. & Ald. 737, per Bayley J. Under the 17

3

the main design, or shall print, reprint or import for sale, or cause or procure to be printed, reprinted or imported for sale, or shall publish, sell or otherwise dispose of any copy or copies of any historical print or prints of any portrait, conversation, landscape or architecture, map, chart or plan, or any other print or prints whatsoever, which hath or have been or shall be engraved, etched, drawn or designed in any part of Great Britain, without the consent of the proprietor, &c., such proprietor shall and may, by special action upon the case to be brought, &c., recover such damages as a jury on the trial of such action or on the execution of a writ of inquiry thereon, shall give or assess, together with double costs of suit."1

Mr. Martin, a celebrated artist, painted from sketches, which he had designed, a picture called Belshazzar's Feast, which he subsequently sold. A few years afterwards, he engraved and published, from the sketches, a print of the same name, having previously done all necessary acts for securing to himself the copyright of the print. The defendant, having purchased one of the prints, had it copied on canvass, in colors, on a very large scale, and with dioramic effect; and he publicly exhibited the dioramic copy, for money, and described it, in advertisements as "Mr. Martin's Grand Picture of Belshazzar's Feast, painted with dioramic effect." The

1 See Appendix, p. 24.

sale of the plaintiff's print having been injured, as he alleged, by the exhibition, a bill was filed, praying that the defendant might be restrained from further exhibiting the dioramic copy, and from representing to the public that it was the production of the plaintiff; and that the defendant might account for and pay to the plaintiff the profits he had made by the exhibition.

Sir L. Shadwell, V. C. refused to grant the injunction, until the right had been established at law, thinking that the statute, 17 Geo. III. c. 57, was not intended to apply to a case where there was no intention to print, publish or sell, but only to exhibit in a certain manner; that exhibiting for profit is in no way analogous to selling a copy of a print; and that the copy exhibited being in oils and of different dimensions from the plaintiff's print, and being exhibited in a fixed place and in a given manner, made a case which the statute did not contemplate.1

Martin v. Wright, 6 Simons R. 297. His Honor observed, that if Mr. Martin had exhibited his picture as a diorama, he might have been entitled to an injunction. With great deference, I venture to suggest, that the act of 17 Geo. III. c. 57, is much more broad in its terms than the 8 Geo. II. c. 13. The words of the latter are, "shall engrave etch or work as aforesaid, or in any other manner copy and sell or cause to be engraved etched or copied and sold in the whole or in part, by varying adding to or diminishing from the main design," &c. This provision is clearly directed

against the offence of copying and selling. But the words of the more recent act are, "otherwise or in any other manner copy in the whole or in part by varying adding to or diminishing from the main design," seem to stand disjunctively in the contest, and to create a separate offence from that of selling, which is prohibited in the clause immediately following. If so, then the mere copying of a print, in mezzotinto, chiaro oscuro, or otherwise or in any other manner," gives the proprietor a right of action, without any sale, and he may show his damages to have accrued from exhibi

In the United States, the statute of 1831 provides, that if any person shall engrave, etch, or work, sell, or copy, or cause to be engraved, etched, worked or sold, or copied, either on the whole, or by varying, adding to, or diminishing the main design of a print, cut or engraving, map, chart, or musical composition, with intent to evade the law, or shall print or import for sale, or cause to be printed or imported for sale, any such map, chart, &c. without the consent of the proprietor of the copyright, first obtained in writing, signed in the presence of two credible witnesses, or knowing the same to be so printed or imported without such consent, shall publish, sell, or expose to sale, or in any manner dispose of any such map, chart, &c. without such consent, then such offender shall forfeit, &c.

tion, or injury to his reputation, or interception of profits. The preamble of the act 17 Geo. III. c. 57, declares, that the motive for further provisions is that "the former acts have not effectually answered the purposes for which they were intended," and that "it is ne cessary for the encouragement of artists and for securing to them the property of and in their works, and for the advancement and improvement of the aforesaid arts that such

further provisions should be made as are hereinafter mentioned and contained. If copying alone is not made a new substantive ground of action; the statute has added nothing but an action on the case, in the place of penalties. Yet it has manifestly described the causes of action in different terms from the former acts. See the remarks of Bailey J. in West v. Francis, 5 B. & Ald. 741. S. C. 1 Dowl. & R. 400.

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