Copyright: Its History and Its Law

Remedies

For the infringement of a work of art the copyright proprietor is entitled (sec. 25) to an injunction, the forfeiture of infringing copies and to damages "as well as all the profits … or in lieu of actual damages and profits such damages as to the court shall appear to be just," not less than $250 nor more than $5000, except that "in the case of a newspaper reproduction of a copyrighted photograph such damages shall not exceed $200 nor be less than $50." These damages, within the limits stated, may be assessed by the court in the case of painting, statue or sculpture at ten dollars, and in the case of any other works at one dollar, "for every infringing copy made or sold by or found in the possession of the infringer or his agents or employees." Under the old law, damages were confined to copies found in possession, and the courts were constrained to apply this literally though in several recorded cases with evident injustice.

Artistic copyright term

Copyright in artistic works in the United States has always been covered under the general copyright acts, including the code of 1909 providing for copyright for twenty-eight and renewal for a second twenty-eight years, and this is true also in Canada and Newfoundland, where the term is for twenty-eight with renewal for fourteen years. The Australian code of 1905 covers artistic copyright specifically in part IV of the act, which provides for the general term of forty-two years from "the making of the work" or life and seven years, whichever the longer, but confines it to artistic work "which is made in Australia."

British practice

Artistic copyright in Great Britain, on the contrary, has been protected by several concurrent acts beginning with the engraving copyright acts of 1734 and 1767 and including the prints copyright act of 1777, the sculpture copyright act of 1814, the prints and engravings copyright (Ireland) act of 1836 and the fine arts copyright act of 1862 covering paintings, drawings and photographs, previously unprotected, – all forming part of the English law until repealed by the new code. Under these several laws, the copyright term for paintings, drawings and photographs has been the life of the author and seven years, for engravings twenty-eight years from first publication and for sculpture fourteen years from first publishing and renewal for fourteen years. Under the act of 1862 – which did not afford protection outside the United Kingdom, as was affirmed by the Privy Council in 1903, upholding a Canadian decision, in Graves v. Gorrie – copyright in artistic works began with the making of the work wherever made (except that a foreigner must be resident in England apparently at the time of making) and did not depend upon publication; but the international copyright act of 1844 nevertheless denied protection in Great Britain where a work was first published in a country outside of treaty relations. Registration at Stationers' Hall, at a cost of one shilling, has been a prerequisite to protection. The right to copyright lapsed when the original work was sold by the artist without previous registration or written reservation, a provision applied in 1909 in Hunter v. Clifford.

Sculpture provisions

An original work of sculpture was protected only if first published within the British dominions, if by a British subject or resident, provided it bore the proprietor's name and date of first publication; and renewal for a second fourteen years was possible only if the author was then alive and held the copyright. Toy soldiers, artistically modeled, were protected in England as a work of sculpture by Justice Wright in Britain v. Hanks, in 1902. Common law protected until and statute law after publication, i. e. when the public in general is first permitted to view the work.

Engraving provisions

An engraving was protected in Great Britain and Ireland, if first published (and probably also made) within the British dominions, provided it bore the proprietor's name and date of publication. Prints, as by lithography or otherwise, were included with engravings; maps, charts and plans were, however, included as books under the general copyright act. Also engravings which are part of a book enjoy the wider protection of the general copyright act. The sale of the plate of an engraving probably does not transfer the copyright, unless intention to do so is clearly evident.

The new British code

The new British code includes as an "artistic work" under the general copyright provisions, "works of painting, drawing, sculpture and artistic craftsmanship, and architectural works of art and engravings and photographs." Architectural works are protected only as regards artistic character or design as distinguished from process or methods of construction. Photographs have the exceptional term of fifty years from the making of the original negative, and the owner of such negative at the time of making is considered the author. Registration is no longer required.

Foreign countries

Works of art are protected in most foreign countries either impliedly or specifically under general copyright legislation, although sometimes by special laws. France covers artistic works "whatever may be the merit, use or destination of the work"; the Scandinavian countries include specifically drawings, etc., "not works of the fine arts"; in India copyright is extended in industrial designs to "some peculiar shape or form given an article, but not the article itself." Architectural works are protected in France, Luxemburg and Brazil, but in most countries only architectural plans, drawings, designs, figures, or models and not buildings are covered. Geographical and topographical drawings and technical drawings, maps and charts, illustrations, engravings, in some cases lithographs, photographs, and negatives are among classes specified in many countries. In some countries the term of copyright is different in the case of artistic works. Luxemburg has the peculiar provision that portraits may not be reproduced until twenty years after the death of the person portrayed. Photographs are in several countries protected for a shorter term, frequently five years from taking, publication or registration as the case may be; in Norway the copyright may not extend beyond the death of the photographer.

Berne convention, 1886

When the International Copyright Union was created at Berne in 1886, artistic works were conjoined with literary works under like protection throughout the convention and they were specified (art. IV) as covering "works of design, painting, sculpture, and engraving; lithographs, illustrations, geographical charts; plans, sketches, and plastic works relative to geography, topography, architecture, or science in general; in fact, every production whatsoever in the … artistic domain which can be published by any mode of impression or reproduction." In the final protocol it was specifically provided: "(1) As regards article IV, it is agreed that those countries of the Union where the character of artistic works is not refused to photographs, engage to admit them to the benefits of the Convention, from the date of its coming into effect. They are, however, not bound to protect the authors of such works further than is permitted by their own legislation, except in the case of international engagements already existing, or which may hereafter be entered into by them. It is understood that an authorized photograph of a protected work of art shall enjoy legal protection in all the countries of the Union, as contemplated by the said Convention, for the same period as the principal right of reproduction of the work itself subsists, and within the limits of private arrangements between those who have legal rights."

Paris declaration; 1896

In the amendatory act adopted at Paris in 1896, the final protocol of 1886 was modified respecting architectural and photographic works as follows (1, a, b): "In the countries of the Union in which protection is accorded not only to architectural designs, but to the actual works of architecture, those works are admitted to the benefit of the provisions of the Convention of Berne and of the present additional act.

"Photographic works, and those obtained by similar processes, are admitted to the benefit of the provisions of these acts, in so far as the domestic legislation allows this to be done, and according to the measure of protection which it gives to similar national works.

"It is understood that the authorized photograph of a protected work of art enjoys legal protection in all the countries of the Union, within the meaning of the Convention of Berne and the present additional act, as long as the principal right of reproduction of this work itself lasts, and within the limits of private conventions between those who have legal rights."

Berlin convention, 1908

In the Berlin convention of 1908, artistic works were defined (art. 2, par. 1) by specification as "drawings, paintings; works of architecture and sculpture; engravings and lithographs; illustrations; geographical charts; plans, sketches and plastic works relating to geography, topography, architecture, or the sciences," – thus covering architectural works under general copyright. It was further provided by the convention of 1908 (art. 2, par. 4) that "works of art applied to industry are protected so far as the domestic legislation of each country allows." And article 3 provided: "The present Convention applies to photographic works and to works obtained by any process analogous to photography. The contracting countries are pledged to guarantee protection to such works."

Exhibition not publication

By the interpretative declaration adopted at Paris in 1896, it was specifically provided (sec. 2): "By published works must be understood works actually issued to the public in one of the countries of the Union. Consequently… the exhibition of a work of art, does not constitute publication in the sense of the aforementioned Acts." In the Berlin convention of 1908 it was similarly provided (art. 4, par. 4) that "the exhibition of a work of art and the construction of a work of architecture do not constitute publication."

Pan American Union

In the Pan American Union, the Buenos Aires convention of 1910 covers artistic works on the same basis as literary works, without special provisions.

XIV

INFRINGEMENT OF COPYRIGHT: PIRACY, "FAIR USE" AND "UNFAIR COMPETITION"

Piracy

The word "piracy," since that gentle craft has disappeared from the high seas, has come commonly into use to mean free-booting with reference to literary property. In this sense it is used as early as 1771 by Luckombe in his history of printing, in which he says: "They … would suffer by this act of piracy, since it was likely to prove a very bad edition." It was especially applied in America more or less jocularly in the days when there was no legal protection for works by English authors, to the reprinting chiefly of English novels without authority from or payment to their authors, when publishers whose imprints were chiefly on such reprints were commonly known as pirates. This secondary meaning has been accepted by the dictionary makers, and the use by English law authorities, and now in the new American code, of the phrases "pirated works" and "piratical copies," gives the word specific legal status. It is the comprehensive term now in common and legal use to mean the stealing of an author's work by reprinting it in full or in substantial part without the authority of the copyright proprietor, and is in fact an infringement at wholesale or otherwise of the author's exclusive right. This is of course prohibited by the law to the full extent of its jurisdiction and is punishable as prescribed in the law.

Test of piracy

"The true test of piracy," said Judge Shipman in the U. S. Circuit Court in 1875, in Banks v. McDivitt, is "whether the defendant has in fact used the plan, arrangements and illustrations as the model of his own book, with colorable alterations and variations, or whether his work is the result of his own labor, skill and use of common materials and common sources." Judge Story said in 1841, in Folsom v. Marsh: "If so much is taken that the value of the original is sensibly diminished, or the labours of the original author are substantially, to an injurious extent, appropriated by another, that is sufficient in point of law to constitute a piracy pro tanto. The entirety of the copyright is the property of the author and it is no defence that another person has appropriated a part and not the whole of any property."

Infringement in specific meaning

Infringement is commonly taken to mean specific invasion of the author's rights rather than wholesale piracy; and the question of what is infringement or "literary larceny" is more often a question of the interpretation of the facts than the construction of the statute. The legal cases arising under infringement constitute a very large proportion of copyright litigation, demanding as they do judicial determination as to the acts complained of in each particular case. It is therefore impossible in this volume to give citations or references for the hundreds of cases recorded in the law reports or in the various works on copyright, but it may be noted that the foot-note citations in MacGillivray's "Law of copyright" cover a very large number of American as well as English cases. No treatise on copyright can apply, however, in advance, the general principles of copyright to the infinite variety of possible cases; and only generalizations and a few illustrative cases can here be given.

Questions of fact and intent

Infringement is a question of fact rather than of intent. It is not a valid defense that the infringer is ignorant; nor, on the other hand, can any one be held for intention to infringe, where the act of infringement has not been accomplished. The new American code, nevertheless, recognizes knowledge and intent in certain cases of punishment or damages by the use of the words "willfully" and "knowingly." The letter of the law is in general that the infringer must be held responsible and must make good any damages suffered by the copyright proprietor, but proof that he had no guilty knowledge or intent may effect mitigation of punitive damages. The trend of court decisions and of judicial opinion does not seem to be evident and consistent in this development; but it may perhaps be said that while copyright law is more closely applied from the letter of the statutes, in the legal aspect, the principles of equity have been given freer play where the statute is not specific and definite. In 1899, in Green v. Irish Independent, the English Court of Appeal held that the proprietors of a newspaper who had printed an advertisement containing an illustration which the advertiser had license to use only for specified purposes, were liable for penalties, though they did not know that the illustration was copyrighted; and in 1902, in American Press Assoc. v. Daily Story Pub. Co., the U. S. Circuit Court of Appeals held the defendants liable, though they had innocently copied from a newspaper reprint which had inadvertently omitted the copyright notice. But in 1898 Justice Mathew, in Bolton v. London Exhibitions, declined to hold the defendants punishable, because they did not know that the lithographer from whom they had ordered a poster had infringed the copyright of a photograph.

"Fair use"

"Fair use" means quotation from or other use of an author's work within the evident meaning or judicial construction of the copyright statute, and is the usual answer of the defendant to a complaint that he has taken without authority some portion of the author's work or utilized in some way the result of the author's labors. The borderland between infringement and "fair use" is peculiarly and necessarily one of uncertainty, not so much because of ambiguity in the statute as of difficulty in determining the extent of use within which it is said non curat lex. No statute can be so clear or so complete as to obviate questions of this kind. In general there must be copying of a material or substantial part. What is a material or substantial part, constituting infringement, is a difficult question of fact.

Principle of infringement

"Copying is not confined to literal repetition," said Judge Clifford, in Lawrence v. Dana, in the U. S. Circuit Court in 1869, "but includes also the various modes in which the matter of any publication may be adopted, imitated, or transferred, with more or less colorable alterations to disguise the source from which the material was derived; nor is it necessary that the whole, or even the larger portion of the work, should be taken in order to constitute an invasion of copyright." The Chancery Division, through Lord Chief Justice Alverstone, took the extreme course in Trengrouse v. "Sol" Syndicate, in 1901, of holding a work an infringement, though less than a page was taken from the plaintiff's football guide.

Infringement by indirect copying

Infringement may be by indirect as well as by direct copying. In the case of Cate v. Devon in 1889, in the Chancery Court, the defense that the copying was not from the original copyright work but from a newspaper reprint, was rejected. Infringement may be through quite a different medium from the original; thus a shorthand reproduction of a lecture on "The dog as the friend of man," published in a text-book of shorthand, was held in the Chancery case of Nichols v. Pitman, in 1884, to be an infringement of the lecture as much as if in ordinary type.

Exceptions from infringement

The doctrine of infringement cannot be invoked to obtain monopoly of any particular subject, and the authorized biographer of President Garfield was denied relief in 1889, in Gilmore v. Anderson, when he sought to prevent the publication of a life of Garfield by another writer. Nor will mere similarity of treatment of the same subject constitute infringement. A copyright owner cannot prevent another person from publishing the matter contained in his book, if invented or collected independently, or from making "fair use" of its contents. Two map-makers, collecting at first hand the same data, would naturally make the same map, and each would equally be entitled to copyright. In this respect, copyright law differs from patent law, where a first use bars others from the same field. It has even been held that the collected material might be used by a second compiler as a guide in a second compilation, if subjected to original verification, as in the case of a street directory. But in the case of rival Boston directories in 1905, the U. S. Circuit Court of Appeals held, in Sampson & Murdock Co. v. Seaver Radford Co., that a verification by actual canvass from a list of discrepancies made up from the earlier work was beyond fair use.

Infringement by abridgment and compilation

Abridgments were construed by early English decisions not to be infringements, and this precedent was followed, reluctantly and often with protest, in later cases by English and American judges, as set forth in the chapter on subject-matter. Later copyright provisions, – as by use of the word "retranchements" in the Berne-Berlin conventions, and the specific authorization in the American code "to make any other version thereof," and for copyright of an abridgment of a work in the public domain, – directly or by implication, make abridgment an infringement and free the courts to take this view. Compilations also constitute infringement if they extract substantial parts of a copyright work, beyond the limits of "fair use," or even if they adopt the plan or arrangement or bodily transfer the material of a copyright compilation of non-copyright matter.

Abridged compilations

A curious complaint of infringement by abridgment was made in Gabriel v. McCabe, in 1896, before Judge Grosscup in the U. S. Circuit Court in Illinois, where the plaintiff had licensed the use of a copyright song, "When the roll is called up yonder," in a collection of religious poetry, "The finest of the wheat, no. 2," published by the defendant, who included the song also in an abridged edition of this collection and in a combined edition of this and another collection. Judge Grosscup held that: "Future editions of a book may contain a composition published in an earlier edition by license, even though parts of the earlier edition are omitted… To hold otherwise would practically forbid any new editions of books of compilations, for the consent of all the authors contributing could not, in many instances, be obtained." But if the collection had been so abridged as to result in the publication of the song alone as sheet music, it would have been an unfair use under the license.

Separation of infringing parts

The general principles as to quotation beyond "fair use" were well laid down by Lord Chancellor Eldon, in the early English case of Mawman v. Tegg, in 1826: "If the parts which have been copied cannot be separated from those which are original, without destroying the use and value of the original matter, he who has made an improper use of that which did not belong to him must suffer the consequences of so doing. If a man mixes what belongs to him with what belongs to me, and the mixture be forbidden by law, he must again separate them, and he must bear all the mischief and loss which the separation may occasion. If an individual chooses in any work to mix my literary matter with his own, he must be restrained from publishing the literary matter which belongs to me; and if the parts of the work cannot be separated, and if by that means the injunction, which restrained the publication of my literary matter, prevents also the publication of his own literary matter, he has only himself to blame."

Law digests

The difficult question of the extent to which a compiler may utilize the materials of another has come especially to the front in the American courts with reference to law digests and reports, within recent years. In 1896, in Mead v. West Pub. Co., concerning rival annotated editions of "Stephen on pleading," then out of copyright, where the defendant's editor admitted having clipped the text from the complainant's edition and having obtained some ideas or suggestions from it, Judge Lochren, in the U. S. Circuit Court in Minnesota, held that there was no infringement because non-copyright matter could not be protected in a copyright work from such clipping, because the defendant's notes were original even though suggested from the other, and because the few errors and citations in common were immaterial since there were many new citations and the work was on the whole the result of original research. That bodily transfer of citations is beyond "fair use" was emphasized by Judge Ray in White v. Bender, in 1911.

Proof from common errors

As to proof from common errors, it had been held in 1895, in the case of Chicago Dollar Directory Co. v. Chicago Directory Co., that the later work, containing sixty-seven errors found in the other, was evidently an infringement of the earlier compilation. In Bisel v. Welsh, Re Brightly Pennsylvania reports, in 1904, the U. S. Circuit Court held that repetitions of errors in citations were evidence of infringement by the author of his own reports published under an earlier contract by the plaintiffs; and in 1911, in Shepard v. Taylor, Judge Hazel held that common errors were prima facie proof of infringement.

Infringement in part

No infringement of piracies or frauds

In the important case of West Pub. Co. v. Lawyers' Pub. Co., where a collection of selected cases and a general digest were alleged to be infringements of the plaintiff's reports and monthly digests, Judge Coxe in the U. S. Circuit Court enjoined 303 proved "instances of piracy" but not the remaining portions of the digest, but in 1897 the U. S. Circuit Court of Appeals, through Judge Lacombe, held that under such circumstances the burden of proof must be on the unfair user and broadened the decision by issuing an injunction against the work as a whole, excepting those parts which were public property. In 1910, in Park & Pollard v. Kellerstrass, Judge Philips enjoined the whole work because the infringing parts were not separable. In 1903, in Thompson Co. v. American Law Book Co., where the editor of the defendant's law encyclopædia had made a list of cases cited in complainant's work, which included material "pirated" by the complainant from copyright works, the Circuit Court of Appeals, reversing the lower court, held through Judge Coxe that there was no infringement, because the only use made of the list was to guide the defendant to the reports and because the complainant had no standing in equity. "If the defendant was guilty of piracy, so was the complainant; and equity will not protect a pirate from infringements of his piratical work." To like effect in Slingsby v. Bradford Co., in 1905, Justice Warrington, in the Chancery Division, held that the plaintiff could not recover against an evident copying because his own catalogue was fraudulent in advertising as patented articles not so protected, and a fraud will not be protected. In the later case of West Pub. Co. v. Thompson Co., where the publishers of the original reports and digests sought to restrain the Thompson encyclopædias, the Circuit Court of Appeals held that while a compiler may use a copyright digest by making lists from which to run down cases, which is "fair use," extensive copying or paraphrasing of the language of the digest, whether to save literary work or mechanical labor, constitutes an infringement. The case was sent back to the lower court for rehearing and assessment of damages and was settled in 1911 by an agreement involving transfer of the encyclopædia to the plaintiff. Reference to a copyright work giving pagination is not an infringement, as was decided in 1909, in Banks Law Pub. Co. v. Lawyers Co-operative Pub. Co., in the U. S. Circuit Court of Appeals.