the Engraving Acts protect that part of an engraving only which is the result of the engraver's peculiar art; for the rest, for the design, for the invention, for the grouping of the figures, protection can only be obtained under the Act protecting drawings, or (in the case of maps) under the Literary Copyright Act, or at common law. In Roworth v. Wilkes1 Lord Ellenborough considered a copying of the design was an infringement of copyright under the Engraving Acts. The action was in respect of an alleged infringement of certain plates in a treatise on fencing. These plates had been copied in so far as the position of the figures went, but they were represented as differently dressed. His Lordship, in directing the jury, said :— "As to the prints, the question will be whether the defendant has copied the main design . . . it is still to be considered whether there be such a similitude and conformity between the prints that the person who executed the one set must have used the others as a model. In that case he is a copyist of the main design. But if the similitude can be supposed to have arisen from accident, or necessarily from the nature of the subject, or from the artist having sketched designs merely from reading the letterpress of the plaintiff's work, the defendant is not answerable. It is remarkable, however, that he has given no evidence to explain the similitude or to repel the presumption which that necessarily causes." In Martin v. Wright it was held that when an artist had from sketches of his own produced an engraving, and the defendant had it copied on canvas in colours on a very large scale, with dioramic effect, and publicly exhibited it, such a copying and exhibiting was no infringement of the engraving. The ground of this decision seems to have been partly that the merit of the new work had absorbed the merit of the old. Thus Shadwell, V.C., prefaces his judgment with the remark that "any person may copy and publish the whole of a literary composition provided he writes notes upon it, so as to present it to the public connected with matter of his own."3 Another ground of the decision seems to have been that the diorama was produced for purposes of exhibition and not of sale. The real point, whether the Acts protected more than that 1 (1807), I Camp., at p. 98. 2 (1833), 6 Sim., 297. 3 No such statement could now be accepted as sound. See p. 112. which was peculiar to the engraver's art, does not appear to have been considered either in the argument or judgment. In Dicks v. Brooks1 James, L.J., appears to have been of opinion that 8 Geo. II. c. 3, in protecting the work of an engraver where the invention and design was his own, protected not only the work peculiar to the engraver's art, but the invention and design of the pictures as well. "These words were intended to give protection for the genius exhibited in the invention of the design, and the protection was commensurate with the invention and design." 2 Bramwell, L.J., however, seems inclined towards the opposite view. He says: "I do not say that if this were an ordinary engraving with no picture, a lithograph taken from it would not be a copy. I think that a photograph taken from it would be a copy. I do not say that if this were an original engraving with no picture, and a copy were made of it and afterwards coloured there might not be some ground for saying that there was a piracy of the art and skill of the engraver. I should have very great misgiving about it, because I doubt whether the statutes were not intended to protect the artist's skill as an engraver only, and not as a draftsman." 3 It is no defence to an action for infringement that the work has been extensively added to or improved.* Striking prints from the proprietor's own plate has been held not to be an infringement, although it was clearly an unauthorised act and a breach of contract. Thus a printer who had plates in his possession would not infringe the copyright and be liable to penalties by striking copies for his own use, but he would be liable in damages for breach of contract. 6 Licence a Defence.-A licence in order to be a defence must be in writing signed by the proprietor in the presence of two or more credible witnesses, but a licensee who is also a purchaser of any plates for printing may presumably without any document in writing print from the said plates without incurring penalties" 2 15 Ch. D., at p. 34. 1 (1880), 15 Ch. D., 22. 3 15 Ch. D., at p. 37. 4 See as to literary copyright, p. 112. 5 Murray v. Heath (1831), 1 B. and Ad., 804. 7 8 Geo. II. c. 13. under 8 Geo. II. c. 13 or 7 Geo. III. c. 38, but quære whether such purchaser would not technically be liable to damages under 17 Geo. III. c. 57. A bare licensee, although a purchaser of plates, could not authorise third persons to print from the plates except as his agent and on his behalf.1 1 Cf. Cooper v. Stephens [1895], 1 Ch., 567, which is under 5 & 6 Vict. c. 45, but on a claim for damages and injunction only would seem to be analogous; Marshall v. Petty (1900), 17 T. L. R., 501. CHAPTER VII COPYRIGHT IN SCULPTURE SECTION I.-WHAT WORKS ARE PROTECTED. THE following works are protected under the Sculptures Act :— 1. Every original sculpture: 1 2. First published within the British dominions : 2 3. [The author of which is a British subject or resident within the British dominions]: 3 4. Which bears the proprietor's name and the date [of first publication] thereon: 4 5. And is innocent.5 Protection endures for fourteen years from publication, and another term of fourteen years if the author is then alive and retains the copyright. Protection is probably limited by implication to the United Kingdom." What is an Original Sculpture.-The work protected is "any new and original sculpture, or model, or copy, or cast of the human figure or human figures, or of any bust or busts or of any part or parts of the human figure clothed in drapery or otherwise, or of any subject being matter of invention in sculpture, or of any alto or basso-relievo representing any of the matters or things hereinbefore mentioned, or any cast from nature of the human figure or of any part or parts of the human figure, or of any cast from nature of any animal or of any part or parts of any animal, or of any such subject containing any of the matters or things hereinbefore mentioned, whether separate or combined." 8 In one case it was contended that the Act only applied to representations of human figures and animals. North, J., however, held that "any new and original sculpture" applied to any subject "being matter of invention in sculpture," and that casts of fruit and leaves used for instruction in drawing were protected.1 Carefully modelled toy soldiers have been protected as works of sculpture.2 The Sculpture must be First Published within the British Dominions.-The Act provides that protection shall run from the first publication of the work.3 Before 1886 it is possible that first publication within the United Kingdom was required, now first publication anywhere within the British dominions will vest the copyright; first publication outside the British dominions. will destroy it.5 Publication.-A work of sculpture is published when the "eye of the public " is allowed to rest upon it, that is to say when the sculpture itself and not merely a photographic copy or sketch is so exhibited that the general public have an opportunity of viewing it." Exhibition in any public gallery such as the Royal Academy would be publication; but a private view in the artist's studio would not be publication. Author's Nationality. It is extremely doubtful whether the author must not at the time of first publication bear some allegiance to the crown by virtue of nationality or residence. If this is so in the case of books, there seems to be no good ground for saying that the statute as to sculpture was intended to be more generous to the foreigner than that as to books.10 Proprietor's Name and Date. The protection given by the Sculpture Act is conditional on the proprietor or proprietors having caused his, her, or their name or names with the date to be put on every sculpture before the same shall be put forth. or published.11 |