PART L this was held not to be within the mischief intended to be remedied by 17 Geo. 3, c. 57. "Exhibiting for profit," said CHAPTER XVL the Vice-Chancellor (Shadwell), "is in no way analogous to selling a copy of the plaintiff's print, but is dealing with it in a very different manner. It appears to me that 17 Geo. 3, c. 57, never was intended to apply to a case where there was no intention to print, sell, or publish, but to exhibit in a certain manner; and therefore I ought not to grant the injunction until the right has been established at law. Then with respect to the defendant representing his copy as the plaintiff's picture. It must be either better or worse; if it is better the plaintiff has the benefit of it; if worse, then the misrepresentation is only a sort of libel, and this court will not prevent the publication of a libel." (a) The prints prohibited by the Acts to be engraved, etched, Prints unlawor sold, or otherwise disposed of, are prints struck off from from original engravings pirated from other engravings. Hence the sale plate. of prints unlawfully struck off from the original plate does not amount to piracy. Thus where an engraver, being employed by the owner of certain drawings to engrave plates of those drawings, took off from the plates so engraved a number of proof impressions, which he kept. for himself, and which on his bankruptcy were advertised by his assignees to be sold, it was held that an action for piracy would not lie against him or them. (b) It was contended in support of the action that the words "without the express consent of the proprietor or proprietors" in sect. 1 of 17 Geo. 3, c. 57, refer to all the antecedent clauses of that section, and so apply to the sale of copies. But the Court of King's Bench did not adopt this view. The court considered that the Acts of Parliament did not apply to prints taken from the original plate, but only to those taken from engravings which had been pirated from other engravings; only with respect to them did 8 Geo. 2, c. 13, and 7 Geo. 3, c. 38, impose a forfeiture, and 17 Geo. 3, c. 57, give an action on the case. "The injury complained of in this case," said Lord Tenterden, C.J., "required no Act of Parliament to put an end to it, for the engraver having contracted to engrave the plate, and to appropriate the prints taken from it to the use of another, an action at common law would lie against him for the breach of that contract;"(c) but an action under 17 Geo. 3, c. 59, would not lie. As to prints forming part of a book, see the case of Bogue v. Houlston, referred to ante, p. 196. (a) Martin v. Wright (6 Sim. 297). See also per Best, C. J. (4 Bing. 245). (b) Murray v. Heath (1 Bar. & Ad. 804). (c) Ib. 811. PART L CHAPTER XVI. consists. PAINTINGS, DRAWINGS, AND PHOTOGRAPHS. Piracy in the case of a painting, drawing, or photograph In what piracy consists in the infringement of " the sole and exclusive right of copying, engraving, reproducing, and multiplying such painting or drawing and the design thereof, or such photograph and the negative thereof by any means and of any size." Sect. 6 of 25 & 26 Vict. c. 68, enacts that "if the author of any painting, drawing, or photograph in which there shall be subsisting copyright, after having sold or disposed of such copyright, or if any other person, not being the proprietor for the time being of copyright in any painting, drawing, or photograph, shall, without the consent of such proprietor, repeat, copy, colourably imitate, or otherwise multiply for sale, hire, exhibition, or distribution, or cause or procure to be repeated, copied, colourably imitated, or otherwise multiplied for sale, hire, exhibition, or distribution, any such work or the design thereof, or, knowing that any such repetition, copy, or other imitation has been unlawfully made, shall import into any part of the United Kingdom, or sell, publish, let to hire, exhibit, or distribute, or offer for sale, hire, exhibition, or distribution, or cause or procure to be imported, sold, published, let to hire, distributed, or offered for sale, hire, exhibition, or distribution, any repetition, copy, or imitation of the said work, or of the design thereof, made without such consent as aforesaid, such person for every such offence shall forfeit to the proprietor of the copyright for the time being a sum not exceeding ten pounds; and all such repetitions, copies, and imitations made without such consent as aforesaid, and all negatives of photographs made for the purpose of obtaining such copies, shall be forfeited to the proprietor of the copyright." Acts forbidden by 25 & 26 Vict. c. 68, s. 7. Sect. 7 of the Act forbids, under a penalty, the following acts: (1.) Fraudulently signing or otherwise affixing, or fraudulently causing to be signed or otherwise affixed, to or upon any painting, drawing, or photograph, or the negative thereof, any name, initials, or monogram: (a) (2.) Fraudulently selling, publishing, exhibiting, or disposing of or offering for sale, exhibition, or distribution, any painting, drawing, or photograph, or negative of a (a) It was held in Reg. v. Closs (7 Cox Cr. Cas. 494; 27 L. J. 54, M. C.) that the putting of the name of a painter upon the copy of one of his pictures, in order that it may be passed off as the original, is not a forgery at common law; but such passing off of the copy of the picture as the original and obtaining money by means of such false representation, is a cheat at common law. photograph, having thereon the name, initials, or monogram of a person who did not execute or make such work: (3.) Fraudulently uttering, disposing of, or putting off, or causing to be uttered or disposed of, any copy or colourable imitation of any printing, drawing, or photograph, or negative of a photograph, whether there shall be subsisting copyright therein or not, as having been made or executed by the author or maker of the original work from which such copy or imitation shall have been taken : (4.) Making or knowingly selling or publishing or offering for sale during the life of the author or maker without his consent any painting, drawing, or photograph made either before or after the passing of the Act, which the author or maker shall have sold, or of which he has parted with the possession, and in which any alteration has afterwards been made by any other person by addition or otherwise, or making or knowingly selling, or publishing, or offering for sale any copies of such work so altered as aforesaid, or any part thereof, as and for the unaltered work of such author or maker. The section provides that "every offender under" it "shall, upon conviction, forfeit to the person aggrieved a sum not exceeding 101., or not exceeding double the full price, if any, at which all such copies, engravings, imitations, or altered works shall have been sold or offered for sale; and all such copies, engravings, imitations, or altered works shall be forfeited to the person, or the assigns or legal representatives of the person whose name, initials or monogram shall be so frandulently signed or affixed thereto, or to whom such spurious or altered work shall be so fraudulently or falsely ascribed as aforesaid; provided always that the penalties imposed by this section shall not be incurred unless the person whose name, initials, or monogram shall be so fraudulently signed or affixed, or to whom such spurious or altered work shall be so fraudulently or falsely ascribed as aforesaid, shall have been living at or within twenty years next before the time when the offence may have been committed." The Act also contains an absolute prohibition against the unauthorised importation of pirated works, made in any foreign state or in any part of the British dominions. (a) In Ex parte Beal, (b) a doubt was suggested whether taking the words "the author of any painting, drawing, or photograph," reddendo singula singulis, they might (a) Sect. 10. See the chapter on "Remedies for Infringement," post. (b) 9 B. & S. 395; L. Rep. 3 Q. B. 387; 18 L. T. N. S. 285; 37 L. J. 161, Q. B. P PART L. CHAPTER XVI. PART I. not "mean where a painting is made which is the copy CHAPTER XVI of another painting, a drawing which is the copy of another drawing, or a photograph which is the copy of another photograph;" but the Court, looking at the very extensive terms in which the copyright is given in sect. 1, on the infringement of which the penalty followed, considered it plain that the photograph of a painting, or the photograph of a drawing of a painting, or the photograph of a photograph, all equally come within the Act, and are infringements of the copyright. Separate penalty for each copy sold. Sculpture, models, and busts. Right of representation and performance of dramatic and musical compositions. Making an unauthorised photograph of the engraving of a picture is a photographing or copying the picture itself. If the design is copied, it is immaterial whether it is done directly from the original or indirectly through the medium of a copy. (a) It would be otherwise if the owner had parted with the right to multiply engravings. (b) The penalty inflicted for selling, &c., "any repetition, copy, or imitation," is a separate penalty for every copy sold even where a number are sold at the same time. "Look at the nature of the thing," said Blackburn, J. “It would be a monstrous absurdity if a man might import a cargo of pirated works from France and 101. be the utmost penalty that could be imposed. Such a state of the law would render it worth a man's while to do wrong. The Legislature, however, were dealing with an offence which they knew was likely to be committed in a wholesale way. If a man sells ten pirated copies at once that makes ten offences, as much as a man who utters ten bad shillings at one time is guilty of ten utterings of false coin."(c) The copyright in sculpture, models, and busts, may be infringed by making or importing, or causing to be made or imported, or exposed to sale, or otherwise disposed of, any pirated copy, or pirated cast of any subject within the Sculpture Copyright Acts, (d) whether such pirated copy, or pirated cast be produced by moulding or copying from, or imitating in any way any such subject, to the detriment, damage, or loss of the original or respective proprietor or proprietors of any such work so pirated. (e) There are no decided cases on this kind of piracy. RIGHT OF DRAMATIC AND MUSICAL REPRESENTATION. (a) Ex parte Beal (9 B. & S. 395, 401). (b) Ib. (c) lb. (e) 54 Geo. 3, c. 56, s. 3. representation and performance of dramatic and musical compositions are explained, ante pp. 114-118. Infringement of the right, in the case of dramas, consists in representing or causing to be represented, contrary to the intent of the Act or right of the author or his assignee, without the consent in writing of the author or other proprietor first had and obtained, at any place or places of dramatic entertainment within the United Kingdom of Great Britain and Ireland, in the Isles of Man, Jersey, and Guernsey, or in any part of the British dominions, any production in which the right exists, or any part thereof.(a) The right which may be infringed in the case of musical compositions, is "the sole liberty of representing or performing, or causing, or permitting to be represented or performed" any musical composition. (b) It will be perceived that the words "at any place or places of dramatic entertainment" contained in 3 & 4 Will. 4, c. 15, are omitted from the enactment relating to musical compositions. (c) On this account Vice-Chancellor Shadwell, was of opinion, in Russell v. Smith, (d) that the authors of musical compositions were more extensively protected than the authors of dramatic pieces. PART I. CHAPTER XVI. The consent in writing required by sect. 2 of 3 & 4 Consent may be Will. 4, c. 15, need not be in the author's own hand- by agent. writing; it may be given in that of an agent having due authority. Thus, where a society, called the Dramatic Authors' Society, allowed the dramas composed by its members to be represented by others, on the fulfilment of certain conditions, a written permission given by the secretary to the defendant "to play dramas belonging to the authors forming the Dramatic Authors' Society "" was held sufficient to bind the plaintiff, a member of the society, and to disentitle him to recover penalties for the performance of certain of his dramas by the defendant. (e) The court pointed out that the Act requires only the "consent in writing of the author or proprietor," but does not say that the consent shall be written by the author, or signed by him, or indeed by anybody; and in the case before them there was a consent in writing, and they considered it that of the author, who, by remaining a member of the society, authorised the secretary to do what he had done. (a) 3 & 4 Will. 4, c. 15, ss. 1, 2. (c) 5 & 6 Vict. c. 45, s. 20. (b) 5 & 6 Vict. c. 45, s. 20. (e) Morton v. Copeland (16 C. B. 517; 24 L. J. C. P. 169). |