Chap. XII. performance of the same, shall print or cause to be printed on Printed notice the title-page of every published copy of such musical composirestraining tion a notice to the effect that the right of public representation public performance. or performance is reserved.

Provision

where right of performance and copyright

vested in different owners.

Penalty on

owner of copy right for noncompliance with notice

from owner of right of performance.

Copyright in paintings,

S. 2 enacts in case after the passing of the Act, the right of public representation or performance of, and the copyright in, any musical composition shall be or become vested before publication of any copy thereof in different owners, then, if the owner of the right of public representation or performance shall desire to retain the same, he shall, before any such publication of any copy of such musical composition, give to the owner of the copyright therein notice in writing requiring him to print upon every copy of such musical composition a notice to the effect that the right of public representation or performance is reserved; but in case the right of public representation or performance of, and the copyright in, any musical composition shall, after the publication of any copy thereof subsequently to the passing of the Act first become vested in different owners, and such notice as aforesaid shall have been duly printed on all copies published after the passing of the Act previously to such vesting, then if the owner of the right of performance and representation shall desire to retain the same, he shall before the publication of any further copies of such musical composition, give notice in writing to the person in whom the copyright shall be then vested, requiring him to print such notice as aforesaid on every copy of such musical composition to be thereafter published.

S. 3 enacts if the owner for the time being of the copyright in any musical composition shall, after due notice being given to him or his predecessor in title at the time, and generally in accordance with the last preceding section, neglect or fail to print legibly and conspicuously upon every copy of such composition published by him or by his authority, or by any person lawfully claiming through or under him, a note or memorandum stating that the right of public representation or performance is reserved, then and in such case the owner of the copyright at the time of the happening of such neglect or default, shall forfeit and pay to the owner of the right of public representation or performance of such composition the sum of £20, to be recovered in any court of competent jurisdiction.

By an Act, 25 & 26 Vict. c. 68, passed for amending the law relating to copyright in works of the Fine Arts, and for repressing

25 & 26 Vict.

c. 68.

Copyright in

works made or

sold to vest in the author for

his life, and

the Commission of Fraud in the production and sale of such Chap. XII. works, it is enacted (s. 1), that the author, being a British drawing, and subject or resident within the dominions of the Crown, of every photographs. original painting, drawing, and photograph which shall be or shall have been made either in the British dominions or elsewhere, and which shall not have been sold or disposed of before the commencement of the Act (g), and his assigns, shall have the sole and exclusive right of copying, engraving, reproducing, and multiplying such painting or drawing, and the design thereof of such photograph, and the negative thereof, by any means and of for seven years any size, for the term of the natural life of such author, and after his death. seven years after his death; provided that when any painting or drawing, or the negative of any photograph, shall for the first time after the passing of this Act be sold or disposed of, or shall be made or executed for, or on behalf of any other person for a good or valuable consideration, the person so selling or disposing of or making or executing the same, shall not retain the copyright thereof, unless it be expressly reserved to him by agreement in writing signed, at or before the time of such sale or disposition, by the vendee or assignee of such painting or drawing, or of such negative of a photograph, or by the person for or on whose behalf the same shall be so made or executed, but the copyright shall belong to the vendee or assignee of such painting or drawing, or of such negative of a photograph, or to the person for or on whose behalf the same shall have been made or executed; nor shall the vendee or assignee thereof be entitled to any such copyright, unless, at or before the time of such sale or disposition, an agreement in writing, signed by the person so selling or disposing of the same, or by his agent duly authorized, shall have been made to that effect.

By s. 2, copyright is not to prevent the representation of the same subjects in other works.

By s. 3, all copyright under the Act is to be deemed personalty, and every assignment or licence must be in writing.

By s. 4, a registry of the proprietors and assignees is to be kept at Stationers' Hall, and no proprietor is to be entitled to the benefit of the Act without such registration.

By s. 5, certain enactments of 5 & 6 Vict. c. 45, are to apply to the books to be kept under this Act.

(9) July 29, 1862.

Chap. XII.

By s. 6, a penalty not exceeding £10 is imposed upon any person infringing the copyright, by committing any one of the offences enumerated in the section.

By s. 7, no person shall do or cause to be done any of the following acts; that is to say:

1st. No person shall fraudulently sign any name or initials upon any painting, drawing, or photograph.

2ndly. No person shall fraudulently sell, publish, or exhibit, &c., any such work, having thereon the name of a person who did not execute such work.

3rdly. No person shall fraudulently dispose of any copy or colourable imitation of any such work.

4thly. Where the author of any such work made either before or after the passing of the Act, shall have sold or otherwise parted with the possession of it, if any alteration shall afterwards be made therein by any other person, by addition or otherwise, no person shall be at liberty during the life of the author, without his consent to sell or publish such work, or any copies of such work so altered, as the unaltered work of such author.

Every offender under this section shall upon conviction, forfeit to the person aggrieved, a sum not exceeding £10, or not exceeding double the full price, if any, at which such copies, engravings, imitations, or altered works shall have been sold or offered for sale; and such copies shall be forfeited, provided that the penalties imposed under this section shall not be incurred unless the person whose name or initials shall be so fraudulently signed, or to whom such spurious or altered work shall be so fraudulently or falsely ascribed, shall have been living within twenty years next before the time the offence was committed.

Sect. 10 prohibits the importation of pirated works.

Sect. 11 saves the right to bring an action for damages. If the design of a picture is made in violation of the statute, it is immaterial whether this is done directly from the original, or indirectly through the medium of a copy (h); thus, a photograph Photograph of of an engraving from a picture is a photograph in which copyright engraving. is given by 25 & 26 Vict. c. 68, s. 1 (i).

"Author" of photograph

The "author" of a photograph is the person who takes the

(h) Ex parte Beal, L. R. 3 Q. B. 387; 37 L. J. Q. B. 131; see Turner v. Robinson, 10 Ir. Ch. Rep. 510 (C. A.).

(i) In re Graves, L. R. 4 Q. B. 715; in re Walker, 39 L. J. Q. B. 31.

negative, and it is his name which should appear on the register Chap. XII under the Statute. Thus A. and B. carried on business in within the partnership as photographers under the style of the London statute. Stereoscopic Company. They did not take the photographs themselves, but employed managers and a large staff of photographic artists and assistants. One of their managers, thinking that the photograph of the Australian Cricketers would sell well, arranged for the photographs to be taken, without any payment being made for taking them, and sent one of the artists in the employ of the firm to take the negative. From this negative the photograph was in the usual way produced and sold by the firm in the ordinary course of business; and A. and B. registered themselves, under the Copyright Act, 1862, in their individual names as proprietors and authors of the photograph. In an action by the firm to restrain the pirating of their copyright in the photograph, it was held that they were wrongly described as the authors, and that, therefore, the registration was bad, and no copyright existed; and semble that the person who took the negative was the author (k).

purpose of

Where the owner of the copyright of a painting assigns the Assignment for copyright for the purpose of producing an engraving of one size, copying in one the right of producing copies of the painting in other ways, or by way. engravings of other sizes, remains in him, and can be assigned by him to any other person. If the assignee of the right of copying a painting in a particular way alleges that some other publication is an infringement of his copyright, the onus is on him to show that the publication has been taken from his copy, and not from the original painting (1).

The assignees, duly registered, of the copyright in a picture sold to the plaintiff the sole right to reproduce it in chromo for two years. This agreement of sale was not registered. While it was in force the defendant published the same subject by chromolithography, independently, not directly copying plaintiff's chromo-lithograph. The plaintiff's chromo-lithograph plate was not engraved with the name of the proprietor or date of publication, as required by 15 & 16 Vict. c. 12, s. 14. It was objected that the plaintiff could not recover damages from the defendant for piracy of his copyright, because first, the plaintiff's

(k) Nottage v. Jackson, 11 Q. B. D. 627 (C. A.).

(1) Lucas v. Cooke, 13 Ch. D. 872; 42 L. T. 180.

Chap. XII. chromo was not duly engraved; and, secondly, there was no registration of the assignment to the plaintiff within 25 & 26 Vict. c. 68. It was held on the first point that the copyright in the original picture had been violated by the production of the defendant's chromo-lithograph, which was not simply an imitation of the plaintiff's chromo-lithograph; and on the second point that the plaintiff was not an assignee of the copyright within the meaning of the 25 & 26 Vict. c. 68, but a licensee to reproduce an imitation of the picture, as to whose licence no registration was required (m).

Assignment

may be good

A person to whom the copyright in a picture has been assigned though original by the author, of which assignment a memorandum has been duly copyright not registered, has a good title under 25 & 26 Vict. c. 68, s. 1, registered. although the original copyright of the author has not been registered (n).

No benefit can

be taken under

of proprietor

By s. 4 of 25 & 26 Vict. c. 68 no proprietor is entitled to the the act if name benefit of the Act unless his name is duly entered on the register, therefore a registered proprietor cannot sue for offences under the Act committed when an earlier proprietor was register (o).

not on the register.

Penalties.

Copyright in engravings and prints.

8 Geo. 2, c. 13.

7 Geo. 3, c. 38. 17 Geo. 3, c. 57.

on the

The sale of every photographic copy made in violation of the 25 & 26 Vict. c. 68 is the subject of a distinct penalty, although there is only one sale (p). It may be the ground for the infliction of only a nominal penalty, where the defence is that the copy was made or sold under a bona fide belief that the consent of the proprietor of the copyright had been obtained (q).

The copyright in engravings and prints (r) is secured, under certain penalties, to their authors or designers by the statutes 8 Geo. 2, c. 13, 7 Geo. 3, c. 38, and 17 Geo. 3, c. 57, for a period of twenty-eight years (s) from the day of publication (t).

The piracy of engraving by means of the process of photography or by any other process, mechanical or otherwise, whereby copies may be indefinitely multiplied, is within the above statutes (u).

(m) Tuck v. Canton, 51 L. J. Q. B. 363.

(n) Notlage v. Jackson, supra.

(0) Dupuy v. Dilkes, 48 L. J. Ch. 682.

(p) Ex parte Beal, L. R. 3 Q. B. 387; 37 L. J. Q. B. 161.

(1) Ex parte Beal, supra.

() Extended by 15 & 16 Vict. c. 12,

s. 14, to lithographs.

(s) 7 Geo. 3, c. 38, s. 7; 8 Geo. 2, c. 13, s. 1.

(t) Graves v. Ashford, L. R. 2 C. P. 410 (Ex. Ch.), affirming Gambart v. Ball, 14 C. B. N. S. 306; 32 L. J. C. P. 166.

(u) Brooks v. Cock, 3 A. & E. 138.