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The photographic news
- Bandzählung
- 27.1883
- Erscheinungsdatum
- 1883
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- Englisch
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- F 135
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- Hochschule für Grafik und Buchkunst Leipzig
- Digitalisat
- Hochschule für Grafik und Buchkunst Leipzig
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- Bandzählung
- No. 1308, September 28, 1883
- Digitalisat
- SLUB Dresden
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Zeitschrift
The photographic news
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Band
Band 27.1883
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- Titelblatt Titelblatt I
- Register Index III
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Band
Band 27.1883
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- The photographic news
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carries the copyright; in the second, if no agreement is made, the copyright is lost. Practically this has been a pitfail for the unwary, and this operation of the law has inflicted a wrong on the painter and on the purchaser of his work alike. If no agree ment at all is entered into, which has been of the most common occurrence, the copyright is lost I After-thoughts are of no use; no remedy is possible. Copyright accrues to the author of every original negative, and in this privilege he is classed with the artist who creates a work of genius. This distinction has proved disadvantageous ; for in the growth of important photographic industries the legal bearing of this individual authorship has escaped notice. In the ordinary business of life, work done to the order of an employer is the property of that employer, and a successful photographer who finds the capital, trains the assistants, and personally conducts and creates a large business, may well stand excused for supposing himself the legal author of negatives produced under his direction, with his own materials, and for his sole use and employment. If in a partnership, he would credit the authorship to his firm. Common sense, however, is not always a reliable guide through the mazes of an Act of Parliament. There has been a rude awakening to this fact, through the decision on appeal in the recent case of the Stereoscopic Company, plaintiffs. The writer of these notes is, however, bound to acknowledge that the judicial decision considered in relation to the terms of the Act appears a reasonable interpretation, and consonant to its meaning and intention. It leads also to the conclusion that the present Copyright Act is very imperfect ; that the need of amendment is urgent; and that, pending such amendment, photographers must scrupulously conform to the existing conditions in registering copyright. What, therefore, are the means of acquiring secure title to photographic copyright ? is the question to be answered. 1. Copyright accrues to the author of an original negative (or a painting) by virtue of authorship. The primary title is personal; it cannot be originated by a Company. But this inherent title of authorship is inoperative till the copyright is registered. Before registration, no action for infringement can be maintained. Registration is not essential till an artist sells his picture, or a photographer publishes his photograph; but, as a matter of prudence, registration should be effected when the work is produced. A photographer, of his own choice and with his own hands, produces a negative of a view, building, or of any object in which no copyright exists, and is unquestionably the author of such photograph. If before or at the time of dispos ing of the negative, he procures for a penny at Stationers’ Hall, a printed form, and enters in the proper columns a sufficient description of the photograph to secure its identification, enters his name and place of abode, both as the owner of the copyright and the author of the work, fills up and signs the rest of the form duly, and hands it in at Stationers’ Hall with one shilling fee, the particulars will be entered in the book provided for the pur pose, a receipt will be given, and he may depart with a sense of having secured an unimpeachable title to the copyright for the term of his life and seven years beyond. He will have found in the registration form a couple of columns, headed, “ Date of Agreement or Assignment ” and “ Names of Parties to Agree ment ; ” but these do not concern him at present. 2. An original negative of a group of persons, or a portrait study done at his own cost, does not earn the privilege of copy right by authorship alone, for by the common law every man has a property in his own likeness, and the only safe method of pro cedure is to have a written agreement from the sitter, reserving the copyright to the photographer. It is for such an agreement, and for formal assignments of copyright to purchasers of the same, that the two columns referred to above relate. 3. If a negative be produced for a valuable consideration, the copyright can belong to the photographer, if the customer so agrees in writing; if no agreement is made, the copyright, it is believed, accrues to the person commissioning the work ; but in registering the photograph it is essential the name and address of the actual author of the negative is given. Conversely, sup posing a photographer has produced of his own impulsion some splendid negative of “ Sea and Cloud,” and wishes to dispose of the same, unless a written agreement passes as to copyright, and it be reversed either to vendor or vendee, the copyright will be lost. Caveat emptor ! 4. If a work of art in which copyright exists be photographed copyright in the original covers or conveys copyright in the resulting photograph. In all probability it so completely con veys protection, that the photograph need not be registered, but as a matter of extra caution it is advisable that the photograph should also be duly registered. In registering there is no need to refer to the previous registration of the original work ; but there is special need when the photograph is done by a firm, that the individual author be correctly referred to, and not the firm itself. 5. It follows from what has been already said, that persons employing assistants have no need to enter into any agreement by which copyright accruing in their work is reserved to the em ployer. They are commissioned and paid by the employer. If there is any copyright in a negative produced by an assistant, it belongs to the employer. The unfortunate defeat of the Stereo scopic Company was not caused by the want of any such agree ment, it was only a question of informal registration as to author ship. The defeat was sustained entirely on this point. 6. Finally comes the question of assignments of copyright An artist, after painting a picture and registering the copyright can sell such copyright. He formally assigns it for an agreed sum; such assignment must be registered, aud it must be stamped, and ad valorem duly paid, The purchaser of the copyright can publish copies by any method ; if by photography, he must take care to remember in registering the photograph the importance of its author. Copy right in a photograph can in the same way be assigned. Sup posing a photographer sells his business, the purchaser must receive a written assignment of each copyright, and register such assignment at Stationers’ Hall, or the copyright will be lost; and the assignment must be executed “at or before” the time of sale. Copyright in a great many negatives has vanished from ignorance of these conditions. To complete this exposition of the Act as a whole requires three or four more short paragraphs. Works of art, on which no copyright exists, can be copied by any number of photographers, and each can register his particu lar view of the subject; but copying registered copies infringes the Act. Copyright is made personal estate; so that on the death of the proprietor it can be dealt with by his representatives like any other personal property. The penalties on infringement of the copyright are sufficiently severe. To unlawfully copy or multiply for sale, to import for sale, to exhibit for sale, and to sell, are offences that may be visited with a fine of ten pounds for every individual copy pro duced, imported, or sold, with forfeiture of all negatives and copies to the proprietor of the copyright. Heavy penalties are also prescribed for persons forging an artist’s name, initial, or monogram, of much more interest to painters than to photographers. The penalties would, however, apply to any person who should follow a Bedford or a Frith in search of the picturesque, and publish his landscape views with the imprint of their names instead of his own. The penal clauses carry the additional weight of action for damages. The protection is evidently sufficient if the title to copyright is unimpeachable; but there is enough obscurity in the Act to have allowed business men for years past to register insufficiently, leading to a nonsuit with heavy expenses in an action where all the moral right was on the side of the plaintiffs, and placing within the reach of pirates property fondly believed to be under the protection of a special law. Nevertheless the weak points in the law have been long apparent to legists and others. So long ago as 1869 Lord West bury drafted a Bill to amend the law, which, if passed at that time, would have prevented the present mischief. It struck at the anomaly of the servant’s authorship, made copyright belong to the person ordering and paying for the work, unless otherwise agreed at the time, and proposed thirty years for the duration of copyright, which rendered it independent of an individual life. Thus the two weakest points would have been remedied. The draft of a new Bill to amend the law of copyright has for a long time been prepared. It is endorsed with the names of Mr. Hastings, Mr. Hanbury-Tracey, Sir Gabriel Goldney, and Mr. Agnew, and adopts most of the improvements suggested by Lord Westbury, and suggests others ; but as there is little chance of its early consideration by Parliament, we may reserve for a future occasion examination of its details.
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