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XXXIV.—COPYRIGHT IN THE FINE ARTS.-Br WALKER MARSHALL, Esq., BARRISTER-AT-Law.

(Read on the 20th April, 1563)

THE subject of the Copyright in Works of the Fine Arts, has been before the legislature for several sessions, and will again, I understand, be submitted to their consideration during the session now current. The nature of the right, the principles upon which it ought to be established, the means by which it may be secured, the mode by which the interests of the artist, the patron, and the public may be harmonised, are so little settled or understood that scarcely any legislative measure upon the subject has been brought to the test of legal criticism without its infirmity being grossly apparent. It may, therefore, be not unworthy the attention of this society, nor foreign to the objects to which it applies itself, to consider what are the principles (if any) upon which copyright in works of art may be based.

By the fine arts, I understand the arts of painting, sculp ture, and engraving: By copyright, the property in the composition and design of an original work in the fine arts; or, the right of reproducing or multiplying copies.

Until the last session of Parliament, there was no copyright in a picture. Copyright had been conferred in original works of sculpture, and in engravings, although not original, by statutes of the reign of George III.; but, until the Act of the 24 and 25 Victoria, a painter had no more right in the composition of his picture than the merest stranger; it was common property, any person might copy it, any person might engrave it, any person might photograph it: neither he nor the proprietor of the picture, in case he had parted with his property in it, had any ground of complaint, or any means of interdicting such reproduction, if the picture were once pub

lished-an indefinite expression, meaning I know not what. See Prince Albert v. Strange, 1 M'N. & G. 25; Turner v. Robinson, 10 Ir. Ch. R. 121.

I cannot help thinking that it was a singular anomaly in our law, that, notwithstanding the refinements to which it had attained, in the recognition of the rights of property, there should have been no recognised property in the design and composition of a picture. It conveys, indeed, a sort of stigma on the national character. Although the legislature had, with the utmost care, and with an anxious desire to encourage all branches of industrial production, given to the inventor of every description of design, whether useful or ornamental, applicable to the objects of manufacture, a copyright in such design; yet, where the design was of a work of pure art, no such right was extended to the inventor. Upon what ground should the privilege be granted in the one case, and denied in the other? If the concession is to the merit of the inventor, surely the invention of a pleasing picture-it may be of a work of immortal genius-is greater than that of a pattern for a chintz, or the design of a door-knocker. If it be for the advantage derived by the public, surely the advantage, the public good, the happiness of the community, or however it may be expressed, which is derived from a painting by Wilkie or Landseer, is greater than that conferred by a novel pattern for a ribbon, or a new design for a cruet-frame.

If the fine arts are deserving of encouragement, and if the securing to the artist the same property in the invention of his genius which is conceded to the discoverer of useful appliances, has the effect of encouraging the fine arts, then such right ought to be conferred in a tangible shape, and secured by adequate means. No laboured argument, I should think, would be necessary to prove that the cultivation of the fine arts is beneficial to the public weal. Nor should I desire for this purpose to rest it on a higher ground than the pleasure which arises from the contemplation of excellent works of art.

I will, therefore, assume that it is conceded there ought to be a copyright in works of art. The next inquiry would be whether there is any effectual copyright existing. It appears to me that the statutes do not effectually secure it; and that the most advisable proceeding would be for the legislature to sweep away all the existing statutes upon the subject, to treat the matter as if it were new, and rest the right upon some broad well-defined principle.

Without entering in detail into the statutes, which were passed originally to meet individual cases, and which, although artistic in their object, are most inartistically drawn, it will be sufficient for our present purpose, taking them chronologically, to say that the statutes relating to engravings are three in number, namely, 8 Geo. 2, c. 13, 7 Geo. 3, c. 38, and 17 Geo. 3, c. 57 (the two latter being passed to remedy defects in the earlier), and that these profess to give for a term of twenty-eight years, the sole right of multiplying copies of any engraving, whether it be of the engraver's own design or of the picture of another. These acts only protect the plate and not the picture from which the design was taken (see Murray v. Heath, 1 B and Ad. 804); and it would seem that they do not protect the engraving from being multiplied by that simplest, easiest, cheapest, and most perfect mode of copying afforded by photography. Second in point of time are the statutes relating to sculpture, two in number, the 38 Geo. 3, c. 71, and the 54 Geo. 3, c. 56, which profess to confer a copyright for the term of fourteen years certain, and another term of fourteen years contingent on the author of the work surviving the first term. The first statute was so badly framed that it did not provide for the grossest of all imitations, namely, a literal copy (see Cahagan v. Cooper, 3 Camp. 111). The second, with an extreme desire to avoid the defective statements of the earlier statute, is so minute in its description that it is next to impossible to extract any meaning at all out of its perplexed sentences. I think it extremely probable that

if this statute were brought to the test of a practical application it would be found equally ineffective with that it was intended to amend. The latest statute is that of last session, 25 and 26 Vict. c. 68, relating to paintings and drawings, and also to photographs, which, although not strictly speaking works of art, have been included in the same statute, and no doubt may be without any inconvenience. This statute professes to give a copyright to the author of the work or the proprietor for the life of the artist, and seven years after his death; dependent on certain conditions, namely, that on the picture being transferred from the artist, there shall be an agreement in writing relating to the copyright, which shall provide whether it shall be transmitted to the purchaser or shall remain in the artist; and provided further that such agreement shall be registered within a period of three months. This measure appears to me to be defective in one or two respects. These will more fully appear when we come to consider what the nature of copyright in a picture is, and what are the rights respectively of the artist who produced, and the purchaser who has acquired the property in the picture; and these when examined are not so irreconcilable as at first sight they may appear. Copyright being the right of reproduction, the modes of reproduction are divisible into twonamely, by the means of engraving the picture on a plate, and the taking of impressions from that plate, by which copies may be produced almost without limit. The other mode is by copying the picture as a picture. There is also a means of copying by photography; but this is not applicable to all but only to some pictures, and is so peculiar that the consideration of it may be postponed for the moment. Now, it appears to me that every consideration of what is fair and just as between these parties-the artist on the one hand and the purchaser of the picture on the other-would allot the one right to this and the other right to that. A just lawgiver would thus, I conceive, address the artist: "You, by your genius,

industry, and skill, have conceived and given form to the conception of this design; - you are entitled to the fruits thereof, so far as it is capable of bearing fruit; therefore, that value which belongs to it in its capacity of being multiplied is rightfully yours. To you, therefore, belongs the profit of publishing an engraving of the picture." To the purchaser of the picture he might say "You have bought the picture, and it is yours; its value may be diminished if other copies of it are produced: therefore, neither the author of it, nor any other person, shall be at liberty to copy it without your sanction; it is your property and you may do with it whatever you please, neither are you under any obligation to lend it for the purpose of engraving or for any other purpose."

Any statute, therefore, giving a copyright in pictures, ought, it seems to me, to discriminate between these modes of reproduction, and ought to confer it on such terms, that, in the absence of any stipulation upon the transfer, the right of engraving should be reserved to the artist, and he should be in the same situation as if he were under an implied covenant not to repeat the picture. All other rights should go to the purchaser.

I may observe that this appears to be very much the effect of the French law upon the subject. A French Jurist, Mons. Blanc (Traité de la Contrefaçon, p. 277, 4th ed.,) thus expresses his conclusion upon this subject:-"It must not," he says, "be inferred from the reservation to the artist of the right of re-production after the sale of his picture, that he may copy the pictures so sold, or produce a similar picture of a different size, for sale like the first. By the reservation to the author of the right of re-production, is to be understood re-production only by the ordinary means of engraving or lithography. Should he, on the other hand, re-produce his composition by another like composition, or his picture by a picture, he will derogate from the property of the purchaser. It is a fundamental principle that contracts ought to be observed in