Chapter XV: Appendix (8)

The English laws had not mentioned mechanical reproduction up to the musical copyright act of 1906, which in section 3 expressly provided that "'pirated copies' and 'plates' shall not, for the purposes of this Act, be deemed to include perforated music rolls used for playing mechanical instruments, or records used for the reproduction of sound waves, or the matrices or other appliances by which such rolls or records respectively are made." The test case meanwhile on this question was that of Boosey v. Whight, which was finally decided in the Court of Appeal in 1900, with respect to the use of copyrighted songs on the perforated rolls of the AEolian. Justice Sterling in the lower court had decided that the perforations were not an infringement of the copyright but that the marginal directions for playing might be such; Justice Lindley, M. R., held with him that the perforated roll was not a "copy" of the sheet music, but overruled him on the second point, holding that the directions, though copied from the printed page, were neither music nor a literary composition.

{Sidenote: The new British code}

The new British measure as prepared in 1910 included as incident to copyright the sole right "in the case of a literary, dramatic or musical work, to make any record, perforated roll, cinematograph film, or other contrivance by means of which the work may be mechanically performed or delivered," thus in the simplest fashion completely covering the control of mechanical reproduction in conformity with the convention of Berlin. But in the Parliament of 1911 the bill emerged from committee stage with an elaborate proviso, based on the American precedent, excepting from the definition of infringement contrivances for the mechanical reproduction of sounds on (1) proof that the copyright owner has previously acquiesced in mechanical reproduction, (2) prescribed notice of intention, and (3) payment of royalty of 2-1/2 or 5 per cent with a minimum of a halfpenny for each record, or in the case of different works on the same record, to each copyright proprietor.

{Sidenote: The Berne situation, 1886}

When the international representatives met at Berne in 1886, the mechanical reproduction of music was confined chiefly if not wholly to Swiss music-boxes and orchestrions and to hand-organs, of comparatively little commercial importance; and, possibly with some thought of the recognition of the hospitality of Switzerland, little emphasis was placed on the protection of musical composers against mechanical reproduction of their works. In fact, the final protocol of the Berne Convention of 1886 contained, as clause 3, the following paragraph: "It is understood that the manufacture and sale of instruments for the mechanical reproduction of musical airs which are copyright, shall not be considered as constituting an infringement of musical copyright."

{Sidenote: Lack of action at Paris, 1896}

Despite strong representations at the congresses of the International Association for the protection of literary property, held at London in 1890, Neufchatel in 1891, and Milan in 1892, and a vigorous endeavor in connection with the Paris convention of 1896 to replace this clause, it was not modified until the convention of Berlin in 1908, in preparation for which a strong resolution was passed at the congress of the International Association at Vevey in 1901.

{Sidenote: The Berlin provision, 1908}

With the increasing development of the phonograph and of the mechanical player, mechanical reproductions became so important a matter to musical composers and publishers, that much of the discussion in respect to the amendatory convention of Berlin of 1908 was upon this subject. In the amended convention, the subject was fully covered by article 13:

"Authors of musical works have the exclusive right to authorize: (1) the adaptation of these works to instruments serving to reproduce them mechanically; (2) the public performance of the same works by means of these instruments.

"The limitations and conditions relative to the application of this article shall be determined by the domestic legislation of each country in its own case; but all limitations and conditions of this nature shall have an effect strictly limited to the country which shall have adopted them.

"The provisions of paragraph 1 have no retroactive effect, and therefore are not applicable in a country of the Union to works which, in that country, shall have been lawfully adapted to mechanical instruments before the going into force of the present Convention.

"The adaptations made by virtue of paragraphs 2 and 3 of this article and imported without the authorization of the parties interested into a country where they are not lawful, may be seized there."

{Sidenote: German precedents}

In Germany, under the general copyright law of 1870, the higher courts gave to musical composers control over mechanical reproductions from which, as the industry grew, the authors or publishers obtained some little return. But succeeding the adoption of the permissive clause in the Berne convention of 1886, it was proposed in the new copyright law to free mechanical reproductions from the control of the composer. A protest was at once made by musical authors and publishers, which resulted in a modification of the form proposed by the government and the addition of a clause giving control where the reproduction involved personal interpretation. In this form the "unfortunate section 22" became part of the law of 1901 relating to copyright in literary and musical works. Section 22 was in the following language:

"Reproduction is permitted when a musical composition is, after publication, transferred to such discs, plates, cylinders, bands and similar parts of instruments for the mechanical rendering of pieces of music. This provision is applicable also to interchangeable parts, provided that they are not applied to instruments by which the work can, as regards strength and duration of tone and tempo, be rendered in a manner resembling a personal performance."

{Sidenote: Law of 1910}

This had the extraordinary and contradictory effect of giving the author control over the finer reproductions of his works but denying to him any control over the cruder reproductions, as on hand-organs, orchestrions, etc. The opposition which developed against this impossible situation was largely influential in bringing about the modification at Berlin in 1908 of the Berne clause. The law of May 22, 1910, amended the previous general laws in conformity with the Berlin convention, especially by extending protection to the mechanical reproduction of music and cinematograph reproduction of artistic works. Section 22 of the law of 1901 was specifically replaced by an elaborate section, modeled on the American compulsory license provision and requiring a composer who permitted mechanical reproduction to grant similar rights on equal terms to any other manufacturers domiciled in Germany, with provisions for reciprocity and for the treatment of non-German composers through the tribunals of Leipzig. This law became effective coordinately with the Berlin convention on September 9, 1910, and in connection with it an ordinance promulgated by the Emperor July 12, 1910, defined the time during which mechanical reproductions already made of copyrighted works should still be permitted. The use of extracts from musical as from other works, as perhaps in _potpourris_, seems however still to be permitted as a result of the law of 1901.

{Sidenote: Germany and the United States}

As a result of the reciprocal provisions of the new German law, the President of the United States on December 8, 1910, proclaimed reciprocal relations between Germany and the United States with reference to mechanical reproductions of music. In the opinion of May 6, 1911, approved by the Attorney-General, a Presidential proclamation is required to determine "the existence of reciprocal conditions" as to the mechanical music provision (sec. 1, e) as in respect to sec. 8; but as the proclamation of December 8 did not recite that reciprocal conditions existed between September 9 and December 8, 1910, it is held that "it would not afford evidence sufficient to sustain an action for infringement between said dates."

{Sidenote: French precedents}

In France the general copyright act of 1793, as considered to cover mechanical music, was interpreted or modified by the act of 1866, which enacted that "the manufacture and sale of instruments serving to reproduce mechanically musical airs which are still in the private domain, does not constitute musical infringement." In the suit of Enoch _v. Societe des phonographes et gramophones_, the Civil Court of the Seine had decided in 1903 that phonographic instruments were excepted from the protection of the law of 1793 by the "general immunities" concerning the mechanical musical instruments in the act of 1866. But in 1905 the Court of Appeals of Paris reversed this decision, holding that the law of 1866 applied solely to musical airs, that is, those involving no words, on the ground that the law of 1793 was enunciatory of the rights of authors, applying to all modes of publication and distribution, and that the word "publication" should be understood broadly "as jurisprudence has applied it to numerous modes of publication discovered since the law of July 19 and 24, 1793, and the Code of 1810, and as nothing prevents its extension, in consequence of scientific progress"; and it therefore concluded that literary works either by themselves or associated with music were practically under the law of 1793 and not exempted by the law of 1866. A more recent case, in the Court of Commerce of the Seine in 1905, resulted, however, in the dismissal of a suit for infringement. France accepted the Berlin convention, June 28, 1910; but its provision in article 13, that "the limitations and conditions" as to mechanical music protection "shall be determined by the domestic legislation of each country in its own case," makes uncertain whether protection becomes effective in the absence of specific legislation.

{Sidenote: Belgian precedents}

In Belgium in 1904, in the suit of Massenet and Puccini _v. Compagnie Generale des phonographes, et al._, it was held by the court of first instance of Brussels that the introduction for sale of discs and cylinders reproducing the musical compositions of the plaintiffs was illegal and liable for damages and punishable as an infringement. This decision was, however, overruled by the Court of Appeals of Brussels in 1905. Belgium accepted the Berlin convention, May 23, 1910, has since protected mechanical reproduction, and was proclaimed as in reciprocal relations with the United States, June 14, 1911.

{Sidenote: Italian precedents}

In Italy the copyright law was considered in relation to mechanical instruments by several court decisions of which the latest and most important seems to be in the case of the _Societa Italiana d. Autori v._ Gramophone Co. of London, in which, in 1906, the Royal Court of Milan held that reproductions of music by gramophone constituted infringement. This decision held that article three of the Berne convention of 1886 could not derogate from or modify the domestic private law of 1882, and as the Italian law specifically covers publication and reproduction "by any method," it includes gramophone discs. "Publication means a process by which the intellectual concept of the artist is revealed, and brought to the knowledge of others." "What the legislature wanted has been this: that the author be the exclusive owner of the external form in which the creation of the mind has been fixed, and, so to speak, materialized; and that the right be reserved to him to get from his studies and his exertions all the economic benefits which he could derive therefrom."

{Sidenote: Other countries}

In the laws of Switzerland of 1883, and Monaco and Tunis of 1889, the fabrication and sale of mechanical instruments or devices for reproducing musical airs were excepted from the definition of piracy. But all these countries have ratified the Berlin convention "without reservation." Luxemburg and Norway have applied the Berlin provision and were proclaimed as in reciprocal relation with the United States on June 14, 1911. Russia has followed American precedent in the new law of 1911, but has no reciprocal relations with the United States.

{Sidenote: Argument for inclusion}

As the opposition to the control by musical composers of mechanical reproductions of their works is still strong in the United States and in several countries, notwithstanding recent conventions and legislation, and is based largely upon restrictive definitions of the words "writings" and "copies" or their equivalent in other languages, it may be well to include here the argument made by the writer as Vice-president of the American (Authors) Copyright League, at the Congressional hearings on the new American code, of which the essential portions are as follows:

"The American Copyright League stands, as it has stood for a quarter of a century, simply and solely for the protection of authors' rights to the fullest extent, and it asserts that a musical composer is as fully entitled as is the author of any other creative work to the exclusive and full benefits of his compositions, in whatever manner reproduced. The opponents of the bill base their objections largely on a restrictive definition of the word 'writings,' and criticise the bill because this word 'writings' is interpreted throughout the bill by the word 'works,' although this accurately reflects the understanding of Congress and the interpretation of the courts. They would, in fact, confine copyright protection specifically, it may be said, to e-y-e-deas, that is, visible records, and exclude as not visible or legible by the eye, copies of musical compositions mechanically made and interpreted.

{Sidenote: Inscribed writings}

{Sidenote: Direct sound-writing}

"The earliest _writing_ which remains to us is in the Assyrian wedge-shaped inscriptions, made by pressing the end of a squared stick into a soft clay cylinder; the phonograph point inscribes its record in exactly the same manner upon the 'wax' or composition of the cylinder or disc, for the mechanism only revolves the roll, and the point is actuated by the sound vibrations. The words 'phonograph,' 'graphophone' and 'gramophone' literally mean 'sound-writing,' for the Greek form _graph-_, the Latin form _scrib-_, and the Saxon form _write_, equally parts of our language, denote exactly the same meaning. It is even probable that a future development of phonograph impressions (the third dimension being translated into breadth of stroke as can be mechanically done) will give ultimately a visual phonograph alphabet even more natural and logical than Professor Bell's remarkable system of 'visible speech,' which, of course, like all alphabets, can be read only when the reader has mastered the significance of the symbols. Mr. Edison has himself made some experiments in this direction, though the confusion from the overtones, which give _quality_ of speech, has so far prevented result. A large share of literary productivity to-day is by voice-dictation recorded mechanically by a stenographer on the typewriter or directly on the phonograph disc, and I may instance from personal experience a further step. As one of the committee for the Edison birthday dinner, commemorating the twenty-fifth anniversary of his invention of the incandescent lamp, I was asked to supply some original verse, and it occurred to me to put this in shape by help of Mr. Edison's inventions, without direct or indirect hand- or typewriting. Accordingly I completed the verses mentally without use of paper and voiced them into an Edison phonograph, verifying this through the telephone, and the lines were set in type by the printer from the sound-record, and thus printed on the _menu_ for the dinner. Thus my formulated ideas were recorded through the nerves and other mechanism of the vocal organs, instead of through the nerves and other mechanism of the hand, directly by the phonograph point on the phonograph cylinder; and it seems a common-sense inference that if I had caused copies of the phonograph cylinder, though not legible in the ordinary sense, to be published instead of the secondary copies in print, I should be as much entitled to copyright protection in the one case as in the other. The 'telegraphone' directly records on a steel tape the sounds of the human voice as sent through the telephone, and by an absolutely invisible re-arrangement of the magnetized particles of steel, makes a writing in which there is no possibility of visual legibility.

{Sidenote: Music transmissal}

"Moreover, invention is now developing a series of reproducing mechanisms such as Dr. Cahill's 'telharmonicon' or 'dynamophone,' in which musical compositions will be translated to the ear without the interposition even of a cylinder or disc sound-record; and it seems a common-sense inference that the musical composer should have as full rights in this as in other forms of copying or reproducing his thought. Buda-Pesth is said to have not only a telephone 'newspaper,' but a system of reading novels and other works of literature to telephone subscribers, and if this should reach such proportions as substantially to reduce the sale of the printed copies of a new novel from which the author would receive benefit, it would also seem a common-sense inference that the same or an equivalent royalty should be paid him.

{Sidenote: Music notation}

"In music writing or notation there are two and only two essentials: relative vertical position, showing pitch, and relative horizontal position, showing duration of notes. The earliest form of our present music writing is the system of the 'large,' 'long,' 'breve' and 'semi-breve' notes, in which the pitch was shown by the vertical relations of the notes, and the length of the note by the length of the black mark, the 'large' mark being twice the length of the 'long' mark. This corresponds closely to the perforated music roll of to-day, which could be read by a practiced eye with and probably without staff lines, to the extent that if every other form of reproduction were destroyed, the melody and harmony of a musical work could be reproduced into the ordinary notation of music writing. I speak from personal knowledge of these music rolls, having had a mechanical instrument for some years. The different kinds of rolls differ in the relative spacing and in distance from the edge of the roll, which gives the standard, but a foreshortened photograph of any, bringing them to the same scale, would pattern closely the early form of music writing above cited. The London postal telegraph system dispatches newspaper material from St. Martin's le Grand throughout the kingdom from continuous perforated ribbons made somewhat in the same way, visible and legible only to an expert, and reproductions by the medium of this device would certainly not vitiate copyright.

{Sidenote: The law prior to 1909}

"It may be observed that the existing law gives to the author or proprietor of a musical composition the sole liberty not only of printing, but of publishing, copying, vending, performing, or representing a musical composition; that the statute does not restrict 'copying' either to a copy of 'staff notation' or from or in any particular form, but prohibits in general any copy of a musical composition; that there is no suggestion in the statute that the copy must be one to be read, _e. g._, a copy of a sculpture; that any sound-record is in the wide sense as truly a copy of a musical composition as a printed sheet, which is not a copy, in fact, of the author's manuscript writing; and that as the roll has for its sole purpose the performing by the aid of a mechanism useless without it, of a musical composition, just as a printed sheet of music has the sole purpose of the performing by the aid of the voice, the piano, or the orchestra, of a musical composition, the maker and vendor of the roll is in exactly the same position as the maker or vendor of a printed sheet of music.

{Sidenote: Manuscript and copies}

"But even if phonograph and perforated records should not be considered, as is sculpture, to be 'writings,' the arguments of the opponents of this bill do not fit the case. The Constitution explicitly provides that authors shall have _exclusive rights_ to their writings. This cannot mean exclusive rights to their written manuscripts, for these are protected by common law and no constitutional provision was necessary. It meant and means evidently that authors shall have exclusive rights to the benefits of their writings, the usufruct of the property they have created, and that means practically a monopoly control over all copies or reproductions from such writings, whether the copies are in handwriting, printing, or any other form. A musical score is definitely a writing, for it is even more than a literary manuscript, originally in the personal handwriting of the composer himself, without the intervention of a stenographer or a typewriting machine. Therefore, if the narrowest meaning of the word 'writings' should be interpreted into the Constitution such as would exclude sculptures and other works which are admittedly proper and legal subjects of copyright, it would still specifically include musical and dramatic as well as literary manuscripts. There is no specification in the Constitution confining the exclusive rights over writings to copies in handwriting or print or any other stated process of reproduction; in fact, the Constitution does not use the word 'copyright' or in any way limit by specification the comprehensiveness of the exclusive rights Congress is thus authorized to secure. Indeed, Congress in the copyright laws has interpreted the Constitution to cover the several artistic or reproductive processes from time to time developed or invented; thus in the law of 1865 the provisions of the copyright laws were extended to include 'photographs,' which did not exist at the time of the adoption of the Constitution--which word specifically means 'light-writings' as phonograph records specifically mean 'sound-writings.'

{Sidenote: Protection of the inventor}

{Sidenote: The counter argument}

"The position taken by the American Copyright League is that an author is literally entitled to the exclusive right, that is, the exclusive _benefit_, in his writings, in whatever form the writings, that is, his recorded thoughts, can be reproduced for sale or gain. If Mark Twain writes a book or Bronson Howard a play or Sousa or Victor Herbert a musical composition or Millet makes a painting or French a statue, each is equally entitled to whatever benefit inures from his creative genius. Mr. Sousa has stated clearly that although Caruso has been paid $3000--and the fact widely advertised--for singing into a phonograph record, and his own band (not under his leadership) has also been paid for playing his compositions and those of others into the phonograph horn, he has never received as a musical composer one cent for such use of his creations, though from twenty to a hundred of his compositions are to be found on the catalogues of the several manufacturers of mechanical instruments. Mr. J. Howlett Davis, who properly appeared as an inventor in defense of his own inventions in mechanical instruments, which he mistakenly believes would be rendered useless if the copyright protection were extended to sound-records, really asked that Congress should protect the thing which he had invented, and compel users to pay for it, but should permit him to use the thought which the musical composer had invented and expressed, without paying for it. His argument analyzed presents an even stronger argument for the proposed copyright bill than for the protection of patented inventions. When Mr. Sousa buys a patented cornet he has paid for the use of it, but Mr. Sousa makes no claim either to make another cornet like it or to play copyrighted musical compositions for profit without payment or permission. A piano, a pianola, a music roll or new form of mechanism, is patentable; a musical composition as played on a piano by hand or by mechanism, whether reproduced on a printed sheet or a mechanical roll, is copyrightable; but each should have like protection. I speak from specific knowledge as one who has taken out patents as well as copyrights and as the active head for some years of the Edison Illuminating Company of New York and a participant in successfully defending the Edison lamp patents. Mr. Edison, both as an inventor and as a manufacturer of his own inventions, has profited much more than a million dollars from his patents, and would naturally be expected to be foremost in upholding the right of authors to payment for their brains."

{Sidenote: Complete protection}

The acceptance by most countries within the International Copyright Union of the Berlin convention, without reservation on this question of mechanical music, sets an example of complete protection of the musical composer which it is hoped may be ultimately adopted by the United States as well as by other countries.

XIII

ARTISTIC COPYRIGHT

{Sidenote: Threefold value in art works}

The artist-author, by the labor of his brain and hand, produces three classes of property right or a threefold value: he receives recompense from the sale of the original work made by his hand, or from the exhibition of it, or from the reproduction and sale of copies. The new American code is perhaps in advance of legislation in any other country in the protection of the artist, for it assures to him separate values in the right to sell his work and the right to reproduce and sell copies, neither one of which rights is necessarily transferred with the other; it enables him to copyright his original work before the reproduction of copies, though it does not make absolutely clear whether the exhibition without restriction of an uncopyrighted work results in dedication; and it protects his right to control and profit from reproductions, with the simplest possible copyright notice, not including date, though as to lithographic and photo-engraving reproductions it requires manufacture in this country. The literary, dramatic or musical author produces no value in the original work itself, except as his fame may ultimately make his manuscript valuable as an autograph, and in this respect the artist-author has an advantage of practical importance in the general provision separating the copyright from the right in the material object. On the other hand, show-right or right of exhibition is not as specifically treated or as clearly defined and protected as is playright or right of performance in the case of drama or music.

{Sidenote: American provisions}

The copyright of works of the fine arts and cognate works is specifically provided for in the code of 1909 by including as subject-matter of copyright (sec. 5) the following divisions: "(f) Maps; (g) Works of art; models or designs for works of art; (h) Reproductions of a work of art; (i) Drawings or plastic works of a scientific or technical character; (j) Photographs; (k) Prints and pictorial illustrations." It is not intended to include under subsection (k) labels or prints of advertising or commercial character which may be registered as trade-marks under the Trade-Mark law in the Patent Office. The proprietor of a work of art is given in addition to the general rights (sec. 1, a) the specific rights (sec. 1, b) "to complete, execute, and finish it if it be a model or design for a work of art."

{Sidenote: Copyright Office classification definitions}

The new Copyright Office Rules and Regulations, promulgated 1910, define these classifications in the following language:

"11. _(f) Maps._--This term includes all cartographical works, such as terrestrial maps, plats, marine charts, star maps, but not diagrams, astrological charts, landscapes, or drawings of imaginary regions which do not have a real existence.

"12. _(g) Works of art._--This term includes all works belonging fairly to the so-called fine arts. (Paintings, drawings, and sculpture.)

"Productions of the industrial arts utilitarian in purpose and character are not subject to copyright registration, even if artistically made or ornamented.

"No copyright exists in toys, games, dolls, advertising novelties, instruments or tools of any kind, glassware, embroideries, garments, laces, woven fabrics, or any similar articles.

"13. _(h) Reproductions of works of art._--This term refers to such reproductions (engravings, woodcuts, etchings, casts, etc.) as contain in themselves an artistic element distinct from that of the original work of art which has been reproduced.

"14. _(i) Drawings or plastic works of a scientific or technical character._--This term includes diagrams or models illustrating scientific or technical works, architects' plans, designs for engineering work, etc.

"15. _(j) Photographs._--This term covers all positive prints from photographic negatives, including those from moving picture films (the entire series being counted as a single photograph), but not photogravures, half tones, and other photo-engravings.

"16. _(k) Prints and pictorial illustrations._--This term comprises all printed pictures not included in the various other classes enumerated above.

"Articles of utilitarian purpose do not become capable of copyright registration because they consist in part of pictures which in themselves are copyrightable, e. g., puzzles, games, rebuses, badges, buttons, buckles, pins, novelties of every description, or similar articles.

"Postal cards cannot be copyrighted as such. The pictures thereon may be registered as 'prints or pictorial illustrations' or as 'photographs.' Text matter on a postal card may be of such a character that it may be registered as a 'book.'

"Mere ornamental scrolls, combinations of lines and colors, decorative borders, and similar designs, or ornamental letters or forms of type are not included in the designation 'prints and pictorial illustrations.' Trademarks cannot be copyrighted nor registered in the Copyright Office."

{Sidenote: The question of exhibition}

The new law does not specifically make clear the relation between the exhibition of works of art and publication, or define whether or not exhibition may constitute dedication to the public and thus prevent the protection of the copyright thereafter. But in making copyright a sequent to publication (sec. 9) and providing (sec. 2) "that nothing in this Act shall be construed to annul or limit the right of the author or proprietor of an unpublished work, at common law or in equity, to prevent the copying, publication, or use of such unpublished work," it makes it at least probable that the author of an artistic or cognate work who simply exhibits, does not surrender the right to copyright. The trend of the courts in recent decisions has been, as in the Werkmeister case, cited below, to protect exhibited works, at least where any reservation of rights could be construed into the circumstances of the exhibition; but it is still uncertain whether the exhibition of a work of art at a public museum where there is no regulation against copying or reservation by the artist, might not constitute a dedication and thus prevent later copyright.

{Sidenote: Protection of unpublished work}

In providing however (sec. 11) specifically "that copyright may also be had of the works of an author of which copies are not reproduced for sale, by the deposit, with claim of copyright ... of a photographic print if the work be a photograph; or of a photograph or other identifying reproduction thereof if it be a work of art or a plastic work or drawing," it gives to the artist or the author of a cognate work an easy means of protecting his production beyond question; and he is not wise who neglects the simple precaution provided in the law.

{Sidenote: Copyright notice}

It is not made absolutely clear in the new law whether the copyright notice must be attached to the original of a work of art; but again the provision for protection is so simple that it is wise to take advantage of the method of the law, by placing the copyright notice on the original. The copyright notice may be in the form (sec. 18) "'Copyright' or the abbreviation 'Copr.' accompanied by the name of the copyright proprietor," the year of publication not being required in the case of an artistic work. It is further provided that "in the case of copies of works specified in subsections (f) to (k), inclusive, of section five of this Act, the notice may consist of the letter C inclosed within a circle, thus: (C), accompanied by the initials, monogram, mark, or symbol of the copyright proprietor: _Provided_, That on some accessible portion of such copies or of the margin, back, permanent base, or pedestal, or of the substance on which such copies shall be mounted, his name shall appear."

If the copyright notice is attached to the original, it is not made clear whether it should be on the face of the work and visible to the casual spectator; but again the wise artist will take an easy precaution.

{Sidenote: Deposit}

It is further required (sec. 12) that "if the work is not reproduced in copies for sale, there shall be deposited the copy, print, photograph, or other identifying reproduction" required as above stated, "accompanied in each case by a claim of copyright."

The new Copyright Office Rules and Regulations schedule (17) among unpublished works that may be registered "(_c_) photographic prints; (_d_) works of art (paintings, drawings, and sculpture), and (_e_) plastic works," and states specifically as to the deposit in such cases:

"19. (2) In the case of photographs, deposit one copy of a positive print of the work. (Photo-engravings or photogravures are not photographs within the meaning of this provision.)

"20. (3) In the case of works of art, models or designs for works of art, or drawings or plastic works of a scientific or technical character, deposit a photographic reproduction."

As deposit in the case of an unpublished work takes the place of publication and deposit in the case of works reproduced for sale, there can be no claim for statutory protection of an unpublished work of art without the deposit of the identifying copy, and the general provision (sec. 13) for fine and for voiding of copyright in the case of non-deposit, has, of course, no bearing on unpublished works. Any action or proceeding in respect to an unpublished work not registered by deposit must therefore be under common law and not under statutory provision.

{Sidenote: Summary of requirements}

To sum up, the author of a work of art, who is exhibiting his painting or statue or other work and not multiplying copies for sale, will assure himself of full protection if before such exhibition he places on the original work, in some visible but not obtrusive fashion, the letter C inclosed in a circle with his name or mark, and deposits a photograph of such work with the Librarian of Congress or in the mails addressed to him, accompanied by a claim of copyright,--for which an application form (J2, "photograph not reproduced for sale") is furnished on request, by the Copyright Office from Washington,--with inclosure of one dollar.

As soon as the artist multiplies copies for sale, or permits reproduction of his work, as in a newspaper report of an exhibition, for instance, he must then take the precaution of depositing two copies of such reproduction as provided in general by the act, and it is further provided (sec. 18) "that on some accessible portion of such copies or of the margin, back, permanent base, or pedestal, or of the substance on which such copies shall be mounted, his name shall appear." In case two copies are not so deposited, it is probable that a fine and forfeiture of copyright would ultimately ensue, as indicated in section 13.

{Sidenote: Material and immaterial properties distinct}

It is specifically provided (sec. 41) that copyright is distinct from the property in the material object, which accomplishes for the artist the important result that when he sells his painting he does not transfer the copyright, but retains that for himself unless he specifically contracts with the buyer to include in the sale the copyright or the right to copyright. This adopts into the law the decision of the courts that copyright does not pass with a painting unless distinctly included in the transfer. The provision (sec. 41) is specific that the copyright "is distinct from the property in the material object copyrighted, and the sale or conveyance, by gift or otherwise, of the material object shall not of itself constitute a transfer of the copyright, nor shall the assignment of the copyright constitute a transfer of the title to the material object." Thus the author of a work of art has two separate properties, the painting, statue or other work in itself, on the one hand, and the copyright or the right to copyright on the other, neither of which is transferred by the transfer of the other unless both are specifically included in the transfer.

{Sidenote: Manufacturing clause covers lithographs and photo-engravings}

{Sidenote: Foreign subjects excepted}

The copyright in certain classes of reproductions of works of art is dependent however on manufacture in this country, as in the case of books. This provision no longer includes photographs as in the preceding law, but is confined specifically (sec. 15) to "text produced by lithographic process, or photo-engraving process," "illustrations within a book consisting of printed text and illustrations produced by lithographic process, or photo-engraving process, and also to separate lithographs or photo-engravings, except where in either case the subjects represented are located in a foreign country and illustrate a scientific work or reproduce a work of art." It is further provided that "in the case of the book ... if the text be produced by lithographic process, or photo-engraving process ... the copies so deposited shall be accompanied by an affidavit ... that such process was wholly performed within the limits of the United States." This affidavit, therefore, is not required in the case of separate lithographs or photo-engravings. The manufacturing provisions chiefly concern the publishers of books, but they imply that artists cannot send works abroad to have reproductions made. But by the opinion of January 9, 1911, approved by the Attorney-General, a design, drawing, or painting made and located abroad intended as "the first step" for lithographic reproduction, may be registered, if a "work of art"--which question of fact is to be determined by the Register of Copyrights; and such lithographic reproductions of it may be imported.

{Sidenote: German post cards}

It was held by the Attorney-General January 27, 1910, that lithographic reproductions of original paintings in the form of illustrated post cards made in Germany, are subject to registration, provided the original paintings may properly be classified as works of art; and thus importation of such post cards would be permissible.

{Sidenote: Artistic merit unimportant}

While there must be originality in a work of art, especially under English law, this means little more than a prohibition of actual copying, and as in the case of literary and dramatic works, artistic merit is of little importance.

{Sidenote: Application forms}

{Sidenote: Certificates}

The Copyright Office furnishes without charge application forms, lettered as indicated, for the following classes of art works: (F) published map; (G) work of art (painting, drawing, or sculpture); or model or design for a work of art; (H) reproduction of a work of art; (I) drawing or plastic work of a scientific or technical character; (J1) photograph published for sale, (J2) photograph not reproduced for sale; (K) print or pictorial illustration. Thus the applicant should send for application blank (G), if for an original work of art, (H), if for a reproduction, or the proper blank in the other specified cases. But it should be noted that it is both unnecessary and undesirable to apply separately under different blanks as (G) and (H), since the single copyright on the original work covers reproductions. Certificates are returned by the Copyright Office on receipt of the application form and of the statutory fee of one dollar, covering the same specified subjects.

{Sidenote: Term in unpublished work}

When an original work of art is copyrighted, but is not published by reproduction of copies for sale or distribution, it is uncertain under the law, as in the case of dramatic and musical compositions, from what date the copyright protection runs and whether the sole right of reproducing copies for sale terminates at the end of a statutory term beginning with the registration of the original work or with its publication by the reproduction of copies for sale. The Copyright Office issues a certificate of the registration of the original work as covering a period of twenty-eight years and will doubtless base a renewal on the termination of this term; and only a court decision will determine whether the copyright of the original unpublished work exists in perpetuity until publication or whether the right to reproduce copies for sale lapses with the termination of twenty-eight or fifty-six years from the registration of the original work.

{Sidenote: Date not required}

{Sidenote: Re-copyright objectionable}

The omission of the requirement of date in the copyright notice in the case of a work of art is significant and important, although it has the disadvantage that knowledge of the expiration of the term of copyright can be had only by specific inquiry from the Copyright Office. It has been the mistaken practice of more than one artist, under the old law, to enter copyright on his original sketch or on his original work under date of its beginning, again on the finished original under date of its completion, and possibly again on reproductions under the date of the first publication of copies; and when also the artist changed the name of his work under these progressions, confusion became worse confounded. From this superfluous zeal and mistaken carefulness, serious results have come, as in Caliga _v. Inter-Ocean_ Newspaper Co., decided in 1909 by the U. S. Supreme Court through Justice Day, wherein an artist failed to protect himself against an infringing reproduction, because he brought suit under a second copyright which he had entered on finishing his picture, instead of under the original and lawful copyright, under which he had originally entered his work. The fact that by this second copyrighting he laid claim to a longer term than the law allowed, made the second copyright void and a suit under it of no avail. Under the new law the author of a work of art is not only given specifically the exclusive right "to complete, execute, and finish it if it be a model or design for a work of art" as in the previous law, so that an artistic work is protected by one copyright from design to completion and reproduction; but he may also protect his original work during its progress or exhibition before publication and thus safeguard his future right to control and benefit from the multiplication of copies.

{Sidenote: Exhibition right transfer}

In case of the sale of the original work of art, the right to exhibit, of course, passes with the original, although the right to copyright and reproduce copies is expressly reserved to the artist. In view of the uncertainty whether the unrestricted public exhibition of a work of art constitutes dedication and prevents copyright thereof, the carelessness of the purchaser of the original might raise question as to the validity of later copyright of reproductions by the artist. It is therefore unwise for an artist to sell the original of a work of art without affixing to it the required copyright notice and depositing one copy of an identifying photograph or print.

{Sidenote: Early English decision}

The leading case under English law as to exhibition is that of Turner _v._ Robinson in the Irish Court of Chancery in 1860, previous to the passage of the act of 1862 which first provided statutory copyright for paintings, and interpretative therefore of common law. Turner's "Death of Chatterton" had been reproduced in a magazine and exhibited at the Royal Academy and in Manchester, and was thereafter exhibited for the purpose of obtaining subscriptions for an engraving, in Dublin, where a photographer copied it and published a stereoscopic reproduction. The Master of the Rolls held that the painting had never been published because the exhibitions were on condition that no copies should be made, and the engraving in the magazine was only a rough representation and not a publication of the picture. The Court of Appeal also held against the defendant, but because of his breach of contract, and declined to decide whether there had been publication in London or Manchester. The Lord Chancellor, however, expressed the opinion that exhibition at the Academy, though conditioned, was publication, though a private view in a studio rather than a picture gallery would not be. The Court of Appeal did not pass on the further opinion of the Master of the Rolls that the publication of a print was not publication of the picture. These confusing opinions left the question in very misty shape and the most important interpretation of English practice has come from an American court.

{Sidenote: The Werckmeister leading case}

The latest and leading case as to exhibition is that of Werckmeister _v._ American Lithograph Co., American Tobacco Co., _et al._, which was decided by the U. S. Supreme Court in 1907, in an opinion written by Justice Day. The English artist Sadler had sold, in 1894, to Werckmeister of the Berlin Photographic Co. the copyright in his picture "Chorus," which he exhibited at the Royal Academy Exhibition of 1894, and the design had been reproduced by the American Lithograph Co. for use on an American Tobacco Co. label, though the photograph had been given protection by copyright. In reply to the claim of the infringers that such exhibition constituted dedication to the public, the Supreme Court's decision quoted from Slater on "The law relating to copyright and trade-marks."

{Sidenote: U. S. Supreme Court opinion}

"It is a fundamental rule that to constitute publication there must be such a dissemination of the work of art itself among the public as to justify the belief that it took place with the intention of rendering such work common property," the court adding, "and that author instances as one of the occasions that does not amount to a general publication the exhibition of a work of art at a public exhibition where there are by-laws against copies or where it is tacitly understood that no copying shall take place, and the public are admitted to view the painting on the implied understanding that no improper advantage will be taken of the privilege. We think this doctrine is sound and the result of the best considered cases." The court said further: "We do not mean to say that the public exhibition of a painting or statue where all might see and freely copy it might not amount to publication within the statute, regardless of the artist's purpose or notice of reservation of rights which he takes no measure to protect."

{Sidenote: Unrestricted exhibition hazardous}

In fact, in Pierce & Bushnell Co. _v._ Werckmeister, in 1896, the U. S. Circuit Court of Appeals, through Judge Colt, had held that the exhibition of Naujok's painting of St. Cecilia, in Berlin and Munich, without copyright notice on the original work, constituted publication and dedication, and therefore denied protection to photographic copies thereafter copyrighted and published.

{Sidenote: Reservation on sale}

That the sale of the original work of art as a material object does not involve the transfer of the copyright is a direct application in the new American code of previous judicial decisions. In Werckmeister _v._ Springer Lith. Co., in 1894, where the defense contended that the purchaser of a painting was the person authorized to become the copyright proprietor, this contention was absolutely overruled, in the U. S. Circuit Court in New York, by Judge Townsend. But it may nevertheless be desirable to include in any contract of sale a specific reservation of copyright, especially in the case of works executed for public authorities or to be exhibited in a public place. In Dielman v. White, in 1900, Judge Lowell in the U. S. Circuit Court in Massachusetts declined to enjoin a photograph of certain mosaics by Dielman in the Library of Congress, the original cartoon for which as sent to Venice, as well as the mosaic work itself, bore copyright notice, on the ground that the correspondence with the government constituting the contract, did not clearly reserve to the artist the right to copyright and prevent copying,--though this decision may be questioned.

{Sidenote: Publication construed}

The courts are disposed to limit the definition of publication to insure the fullest protection of an author's right. In Werckmeister _v._ Springer Lith. Co. it was further held by Judge Townsend that the printing in an exhibition catalogue of a cut of a painting was for the information of patrons and was not publication. In the same case the defense contended that the sale of an earlier replica of the plaintiff's painting constituted a publication and forfeited copyright, but the court held that the replica was not a copy but was made beforehand to assist in the preparation of the painting afterward copyrighted, and that there was no publication.

In Falk _v._ Gast, in 1893, where the defense claimed that the copyright notice was omitted from published copies, referring to a sample sheet of miniature reproductions sent to dealers for their information and convenience, the U. S. Circuit Court of Appeals, through Judge Shipman, held that this issue of sample sheets did not constitute publication. This doctrine of limitation had a curious application in Harper _v._ Shoppell, in 1886, in which Judge Wallace, in the U. S. District Court, held, where an electrotyper had sold to a third party an unauthorized electrotype of a copyrighted illustration, that the copyright law was not violated because the illustration had not been printed or published.

{Sidenote: Danger of forfeiture}

The artist-author or the proprietor of an artistic copyright should be most careful to comply with the statutory requirements as to notice and other formalities, as otherwise copyright may be forfeited. Several court decisions indicate that the copyright notice should be placed on the original when exhibited, even if copies are not then reproduced for sale; and as the question is not made quite clear in the new code, it is wise to follow this indication. In the original trial in 1902 of the Werckmeister case, Judge Thomas in the U. S. Circuit Court held that the omission of copyright notice from the exhibited original waived the copyright, but his decision of the case was reversed by the U. S. Supreme Court on other grounds as previously stated, and this particular point remains unsettled.

Copyright is not forfeited where a notice properly affixed has been omitted in later use beyond the control of the copyright proprietor. "If copied afterwards or put upon a new mount the complainant should not suffer," said Judge Coxe in Falk _v._ Gast in reference to copies from which the notice had been separated. In Bennett _v._ Carr, in 1899, the U. S. Circuit Court of Appeals, through Judge Thomas, non-suited the complainant because he had not deposited a written description, in addition to filing identifying copies, both formalities being required under the old law.

{Sidenote: Limited use and license}

The principle is especially important regarding works of art that a copyright proprietor may grant specific license for the limited use of his work; and this has many times been upheld by judicial decisions. In the American courts, such cases have usually been settled by preliminary injunction, without further trial, so that most of the cases are unreported in the law digests, as in that of Miles _v._ American News Co., in 1898, where General Miles obtained a preliminary injunction restraining the distribution by the defendants of "Remington's frontier sketches," including illustrations made for and copyrighted in General Miles' "Personal recollections." In the English case of Nicholls _v._ Parker, in 1901, it was held that a license to print illustrations in the _Graphic_ did not permit their use in another periodical of the defendant despite the defense of "custom of the trade," which the judge characterized as "ridiculous." In the important case of Green _v. Irish Independent_, the Court of Appeal held that the newspaper, though acting "in good faith and without knowledge," was guilty of infringement in printing an illustration sent to it as an advertisement which the proprietor had not licensed for such use. Where, in Guggenheim _v._ Leng, in 1896, the periodical _Sports_ printed and sold as a separate sheet an illustration licensed for use in the periodical, it was held in the Queen's Bench Division that publication and sale of the supplement separately from the paper was beyond the terms of the license and therefore an infringement.

{Sidenote: Character, not method of use}

Copyright in a work of art is dependent upon character rather than use. "A picture is none the less a picture and none the less a subject of copyright that it is used for an advertisement," said Justice Holmes in the U. S. Supreme Court, in Bleistein _v._ Donaldson Lith. Co., in 1903, the leading case on this subject, in which three lithographs designed for a circus poster were protected. In Mott _v._ Clow, in 1896, Judge Grosscup in the U. S. Circuit Court in Illinois had held that illustrations, in this instance of bathtubs in a trade catalogue, which "are mere advertisements," are not entitled to copyright; and in Schumacher _v._ Wogram, in 1888, it had been held by Judge Wallace that a picture of a young woman holding a bouquet intended for a cigar label could not be protected as copyright, but should be registered as a trade-mark. "The distinction here," said Judge Wallace, "seems to be that a picture expressly intended as a label should be considered a trade-mark, though a picture which may be used for a label is not for this reason excluded from copyright." An artistic design for paper-box covers was held copyrightable in 1910 in De Jonge _v._ Breuker & Kessler, in the U. S. Circuit Court, by Judge McPherson, who also held that the same subject could not be protected both under copyright and as trade-mark.

{Sidenote: Illustration}