ARTISTIC COPYRIGHT.
IN dealing with Copyright in Books, the Commissioners had their work pretty plainly marked out for them. With the exception of Sir Louis Mallet, none of them seem to havebeen tempted to adopt the extreme view that there is no right of pro- perty in ideas, and they had consequently only to consider under what limitations this right should be enjoyed, and by what means it should be enforced. As regards Copyright in Works of Art, the difficulty was very much greater ; but strangely enough, none of the Commissioners, with the exception of Sir James Stephen, seem to have clearly seen the difference that exists between the two parts of the subject. When a book has once been published, or rather, as soon as a single copy of it has been sold, the physical power alike of the author and of the publisher over it is at an end. It may be the property of one or other of them in the eye of the law, but it is no longer exclusively in the possession of either of them. Every one .who buys a copy can, legal prohibitions apart, have any num- ber of copies printed off from the one which he possesses. As regards the essentials of the book, each of these copies will be as valuable as the copies printed for the author or publisher. Consequently, if any right of property in the matter of a book is to be recognised, some legal steps mutt be taken to protect it. It is utterly without protection in the nature of things. The case of a picture is altogether different. So long as it remains in the artist's studio, or in the gallery of the purchaser, it cannot be copied without the permission of one or the other of them. To copy a picture is a work of time, and even if any one were bold enough to commit a trespass in order to do it, it is impossible that he should commit it long enough and often enough for his purpose without being de- tected. The case of an engraving varies somewhat from that of a picture. As regards impressions of the engraving itself, the same rule holds good, because none can be taken without the plate, and the plate itself remains in the hands of the engraver or publisher, and can be kept under lock and key. But another plate may be engraved from a copy of the original plate, and in this way the property in the original engraving may be depreciated in value. The case of sculpture differs, again, from both these. A statue is quite as well secured against copying as a painting, with the exception that casts can be taken from it ; and though the pleasure derived from a cast is very inferior to that derived from the statue, it is still sufficiently of the same kind to make the sale of casts without the sculptor's consent a possible injury to his property in the original. It is conceivable, at all events, that the pos- sessor of a pirated cast might be so far satisfied with it as not to give the price he otherwise might have given for the statue. When we come to photographs, another distinction must be drawn. The production of a negative gives the artist or the purchaser the same control over it that the production of an engraving has over the plate, but there is this serious .practical difference, that a copy taken from the photograph may be as good as a copy taken from the negative, so that, sup- posing the possessor of the negative to have any rights at all in connection with it, they are rights that can only be protected by law. He may sit up all night to watch over his negative, and find that the shop-windows are full of copies equal to his own in the morning.
When people speak of copyright in works of art, they con- stantly have in view a right, or a supposed right, distinct from any of these. A painter wishes to ensure that no en- gravings or photographs of his pictures shall be sold without his consent. A sculptor has the same desire, and an engraver wishes to prevent the unauthorised sale of photographs of his engravings. Now all these demands seem to involve wholly different considerations from those which apply to copyright in books. No sale, however large, of photographs taken from a picture, can in the least affect the sale of the picture. The pleasure derived from the two forms of art are different alike in kind and degree. Supposing that the possessor of a photograph greatly admires the picture from which it was taken, and has bought the photograph in consequence of that admiration, he will be none the less anxious to possess the picture if it comes into the market, and if he has the money to buy it. He derives enjoyment, no doubt, from the faint repro- duction of it which he can obtain in a photograph, but it is an enjoyment which can do no possible harm to the painter of the picture. It is a simple tribute to his merit as an artist. In the case of an engraving from a picture, the same rule holds good. The best engraved work gives a plea- sure quite unlike that conveyed by the pictures from which the engravings were taken. If there were no other difference, the disparity in price and the power of multiplication would be enough to constitute a most important difference. A proof engraving of a picture worth £1,000 may be had for £10, and a couple of hundred impressions of it may be sold at that price. The bargain at £1,000 is not in the slightest degree affected by the possi- bility of making other bargains at £10. There is, indeed, a further consideration which applies to all these forms of re- production, except perhaps photography. There are good and bad copies, good and bad casts, and good and bad engravings, -and it is quite conceivable that an artist's reputation may suffer from bad reproductions of his work being spread about among the public. Sir James Stephen is of opinion that "artistic reputation is too delicate a matter to be made the subject of legal protection." He approves of copyright in books, "because every copy is of equal value, so that unless a -copyright law existed, the author of the most valuable book would have no money reward for writing it," and he also ap- proves of copyright in engravings and photographs, because they are "capable of being mechanically reproduced in large numbers, each copy being of the same or nearly the same value as the origi- nal." But he does not approve of copyright in pictures and statues, S' because a picture or statue has a value of its own, which is not affected by its being copied Such productions are sufficiently protected by the ordinary law of property. No copy or cast of a picture or statue can be made without the consent of the owner both of the picture and of the place in which it is kept." Except that Sir James Stephen does not make sufficient distinction between engravings, the multiplica- tion of which is in the majority of cases practically under the control of the owner of the plate, and photographs, over which no control is possible, these conclusions seem to give the common-sense view of the subject. The demand for a law of copyright which shall prevent engravings or photographs of pictures or statues being taken without the consent of the artists, is prompted more by a desire to make money in a subsidiary way than by any need to be protected against the loss of money. At the same time, there can be no object in favouring engravers or photographers at the expense of painters or sculptors, or in favouring the possessors of pictures or statues at the expense of the artists. It would seem to be a fair compromise that in cases where the owner of a picture or statue gave permission to have it engraved or photographed, a royalty on the sale of the engrav- ings or photographs should be paid to the artist. When the artist is himself the owner of the picture or statue, no diffi- culty can arise. If he takes reasonable care, it cannot be seen without his knowledge and consent, and there is no reason why the law should interfere to save him from the conse- quences of his carelessness. If this consent is dishonestly obtained, and the photograph of a picture is taken when the owner of the place where the picture is kept merely meant to allow it to be looked at, that ought to be a punishable offence, because it implies a permis- sion to enter into the owner's house gained by false pre- tences. The owner of the plates of engravings would have a claim to be protected against the sale of impressions made from plates which have themselves been engraved, not from the original picture, but from their engraving ; but the cases in which this occurs are probably too few to make it necessary to provide against it by statute. Of course, in all cases where the owner of a picture had sold a right to engrave or photo- graph it, he should be forbidden to sell a similar right with- out the consent of the first purchaser, unless he had expressly reserved to himself the liberty to do so. Treated in this way, the law of Copyright in Works of Art would become exceed- ingly concise and simple ; while, at the same time, no right of property which at once deserves protection, and can only be protected by special statute, would be left unprovided for. The question of the sale of copies of pictures, or altogether spurious pictures, professing to be originals has really nothing to do with the law of Copyright. It is clearly a case of fraud, and should be dealt with as any other fraudulent act. Yet, strange to say, recent instances seem to show that it is a kind of fraud which may be com- mitted with practical impunity. Artists find that pictures, not of their painting, are being sold with their names affixed to them, and yet they have no power to stop the sale. It is not so easy as it may seem at first sight to suggest a thoroughly satisfactory remedy for this state of things, but a remedy is plainly needed ; and at all events, it is clear enough that any one forging an artist's signature should be punished as a forger of a bill or cheque would be punished. Though the abuse has really no connection with the question of Copy- right, the introduction of a Copyright Bill might be taken as an occasion for making the law on the subject more effectual.
Previous page
