The Solicitors' Journal and Reporter - February 8, 1862

ARTISTIC COPYRIGHT.

The law of artistic copyright is in a condition which gives general dissatisfaction, and as the Bill which was presented to Parliament last year is not unlikely to be brought forward again this session, it is desirable to consider its provisions in relation to existing law. It is not long since it was definitively settled—after many conflicting decisions—that there is no copyright at common law in works of art. There are several statutes, however, which deal with the subject; but they are confined to engravings and sculptures, and have the fault not only of excluding many works of art, but also of proceeding upon a principle which sometimes has the effect of working practical injustice. The copyright in any work of art within the provisions of these statutes belongs to the artist unless he has done the work upon a commission, and then it belongs to the artist for whom the work was undertaken.

It has long been objected by artists that it is unjust thus to confer a copyright upon the purchase of their works merely—without any contract for the purchase of the copyright in them. On the other hand, many of those who give commissions to sculptors and engravers object to any measure which would invest them with a copyright in these commissioned works. We have already mentioned that these existing statutes relate only to engravings and sculptures. Painters are without protection as to the copyright in their pictures. The Bill of last session proposed to give to the author for his life, and thirty years after his death, a copyright in pictures and works of sculpture and engravings made, or for the first time disposed of, after the passing of the Bill. The only condition of copyright was that the name or monogram of the author should be legibly placed upon some conspicuous part of the work.

Some persons, however, advocate a system of registration in connection with copyright in such works—similar to that now in force under the Registration of Designs Act. We must expect for some time to come that in every attempted amendment of any important branch of our law somebody will propose the universal panacea of registration. It has been strongly urged in connection with proposed amendments in the law of trade marks, the transfer of land, and many other branches of law besides; but we have found from time to time so fully discussed the merits of this nostrum that we shall only now say that in reference to the present subject we are unable to see any good that could possibly be effected by establishing an office for the registration of works of fine art or their designs. In this respect, therefore, we prefer the provision contained in the Bill of last session for the identification of works of art. We have also seen that the Bill proposed to invest the artist with the copyright of all his works, whether executed upon commission or not.

It has been suggested that it would be at once more convenient and just that the copyright should become the property of the purchaser—leaving it open of course to the parties to make any arrangement they please by a special contract. In answer to this suggestion, it may be observed that wherever an Act of Parliament may place the copyright—whether in the artist or the purchaser—it is equally open to them to deal with it by contracting for its transfer from one to another. The only real desideratum is that the right should be based upon a true principle and be intelligible to common sense. It is agreed on all hands that what alone ought to be protected in any work of art is its design. The question is, whether the property not only in the work of art but in its design should, without any express agreement as to the latter, pass to a purchaser?

Artists, of course, would answer in the negative. They contend that when they agree for the sale of the work they do not necessarily give up all claim to make further use of its design, and that it would be hard to treat them as guilty of piracy in such a case if they embodied the design more or less in a subsequent work; and we agree with them in this contention. Purchasers, no doubt, regret to find the value of their purchases reduced by such repetition. But it is natural to most authors, whether of works of the intellect or the imagination, to repeat themselves to some extent—and there is no reason why a purchaser of a work of art should be relieved from whatever stipulations in this respect they may think their interests require. After all, the question is to be determined by considerations of convenience, and these appear greatly to preponderate in favour of the artists.

Upon the whole, therefore, we are in favour of the provisions of the bill of last session which has the merit of extending protection to painters, of abolishing the present embarrassing distinction between works which have been executed upon commission and those which have not, and of eschewing the establishment of a new registration office which would be both at once entirely useless and very costly. SJ