The prohibited Acts are1—

1. Making a pirated copy.

2. Importing a pirated copy.

3. Exposing for sale or otherwise disposing of a pirated

copy.

4. Causing any of these acts to be done.

The remedy is an action at the suit of the proprietor for 2—

i. Damages.

ii. Injunction.

iii. Costs-"a full and reasonable indemnity." 3

Guilty Knowledge.-Ignorance is no defence to an action in respect of any of the prohibited Acts, even that of selling.

Limitation of Action.-All actions under the Act must be commenced within six months of the discovery of the offence sued on.

Copying for Private Use.-Either making or importing a single copy for private use would technically be an infringement. The prohibition is not limited to making or importing for sale, hire, exhibition, or distribution, as in the case of paintings, &c., under 25 & 26 Vict. c. 68, sec. 6.

What is a Piratical Copy.-A pirated copy may be "produced by moulding or copying from or imitating in any way any of the matters or things put forth or published under the protection of the Act . . . to the detriment, damage, or loss of the proprietor." 4

The prohibition is against "imitating in any way." This prohibition does not seem so wide as that in 25 & 26 Vict. c. 68, which prohibits the multiplication of a painting or drawing or the design thereof. It is more similar to the prohibition in the Engraving Act 8 Geo. II. c. 13, viz., against engraving, &c., "or in any manner copying" a copyright print. It seems therefore to be open to question as with engravings whether a piece of sculpture can be infringed except by some work of art 1 54 Geo. III. c. 56, sec. 4.

2 Ibid.

3 The Sculpture Act gives "double costs," but 5 & 6 Vict. c. 97, sec. 2, substitutes " a full and reasonable indemnity." See p. 144, note 4. This probably means costs in the ordinary sense; but the plaintiff is entitled to them as of right and not as a matter of discretion under the Rules of the Supreme Court.

which reproduces the peculiar art of the sculptor. Would a piece of sculpture be infringed by a picture, sketch, or engraving copying the design of the work?

Licence would be a defence, and it probably does not require to be in writing. There is nothing in the Act from which the necessity for a licence to be in writing could be implied.

CHAPTER VIII

COPYRIGHT IN PAINTINGS, DRAWINGS, AND

PHOTOGRAPHS

SECTION I.-WHAT WORKS ARE PROTECTED.

THE following works are protected under the Fine Arts Copyright Act, 1862 :—

1

1. Every original painting, drawing, and photograph :
2. Not first published outside the British Dominions : 2
3. The "author" of which is a British subject, or is resi-
dent within the dominions of the crown [when the
work is made]: 3

4. Which has been registered before infringement :
5. And is innocent.5

Protection vests at the date of making, and endures for the author's life and seven years.

Protection is limited to the United Kingdom.7

Every Original Painting, Drawing, and Photograph.-There is no attempt to define what is a painting, drawing, or photograph within the meaning of the Act. The substances used in the making are no doubt immaterial, so long as the result is ejusdem generis with what is ordinarily meant by a picture, drawing, or photograph. A painting on the wall of a house would doubtless be protected, but not a design created by grouping figures in a tableau vivant.?

Originality as an essential of protection means that there must be something either in the design or execution of the work which is not merely copied from some other artistic work. The whole work need not be original. Thus the execution may be original but not the design, as in the case of a photograph of an

old picture;1 or part only of the design may be original, as in the case of the design of an old drawing added to or altered. In so far as the work is new there will be protection, but in so far as it is old there will be no protection.2

Artistic Merit.-The Court will not inquire as to whether a painting, drawing, or photograph is good, bad, or indifferent. If it consists in the representation of some object by means of light and shade or colour, it will suffice, and even the coarsest or the most commonplace, or the most mechanical representation of the commonest object would be protected so that an exact reproduction of it, such as photography, for instance, would produce, would be an infringement of copyright.3 Probably there must be a representation of some concrete object, real or imaginary. Protection, for instance, was refused to a label for Eau de Cologne, which merely bore the legend “Johanna Maria Farina gegenüber dem Julichs Platz," written in copperplate with sundry dots and flourishes. It was held that any one who had a right to sell Farina's Eau de Cologne might manufacture and use the label, since although the label was a trade mark there was no copyright in it. A label with anything in the nature of a picture on it would undoubtedly be copyright, as the use to which a work of art is put is immaterial, but it is doubtful whether a label containing merely geometrical figures and fancy dots and lines would be protected under the Act of 1862. Probably it would not.

Publication outside the British Dominions. - Copyright in works of art under the Act of 1862 begins on the making thereof, and is not dependent on publication. It is immaterial where the work is made, whether in the British dominions or elsewhere, and it would be as immaterial where it was first published, or whether it was published or not, but for the provision of the International Copyright Act, 1844. Section 19 of this Act provides that the maker of a work of art which shall be first published out of the British dominions shall not have copyright

1 Graves' case (1869), L. R., 4 Q. B., 715

2 See the cases as to new editions of books.

3 Kenrick v. Lawrence (1890), 25 Q. B. D., 99.

4 Farina v. Silverlock (1858), 4 K. and J., 650. This case is hardly an authority, as it was decided when published paintings and drawings were unprotected; but it is submitted that even under the Act of 1862 a label of this kind would not be protected.

therein otherwise than such as he may become entitled to under the International Acts; which means that where there is no treaty a work first published abroad is not protected at all. The result of this section was evidently not contemplated when the Fine Arts Act, 1862, was framed. There seems to be no doubt that the work, wherever made, will acquire copyright immediately on the making, but that that copyright may be lost if the work is published abroad before it is published in the British dominions.

Published.-A painting, drawing, or photograph is probably published when it is so exhibited as to give the public an opportunity of viewing it. The leading case on publication of works of art is Turner v. Robinson1 in the Court of Chancery in Ireland. This case was decided before 1862, and therefore before there was any statutory copyright in paintings. The subject-matter was a painting from which certain stereoscopic views had been taken without the proprietor's consent. The painting had been previously, with the consent of the proprietor, published in the form of an engraving in a magazine, and exhibited at the Royal Academy in London and in Manchester. It was then exhibited with the proprietor's consent in Dublin for the purpose of obtaining contributors to a proposed engraving, and while so exhibited the defendant, without consent, copied it and produced his stereoscopic photographs. The Master of the Rolls 2 thought that the picture had never been published, because the exhibitions to the public in the Academies and in Dublin were on the condition that no copies should be taken, and the engraving in the magazine was not a publication of the picture, but only of a rough representation of it. He therefore held that the common law right in the picture had not been lost by publication, and that the proprietor could recover against the taker of the stereoscopic views as against an infringer of common law rights. The Court of Appeal in Chancery upheld the judgment of the Master of the Rolls, but on different grounds. They said it was unnecessary to decide whether there had been publication in London and Manchester since, in their opinion, the act of the defendant in taking stereoscopic 1 (1860), Ic Ir. Ch., 121, 510. 2(1860), 10 Ir. Ch., 121.