CHAPTER VI

COPYRIGHT IN ENGRAVINGS

SECTION I.--WHAT WORKS ARE PROTECTED.

The following works are protected under the Engraving Acts:

1. Every original engraving or print:[785] 2. [Made within the British dominions:][786] 3. First published within the British dominions:[787] 4. Which bears the date of first publication and the proprietor's name thereon:[788] 5. And is innocent.[789]

The protection endures for twenty-eight years from publication.[790]

The protection is limited to the United Kingdom.[791]

=What is an Original Engraving.=--By 8 Geo. II. c. 13 (1734) copyright is given to "every person who shall invent and design, engrave, etch, or work in mezzotinto or chiaro oscuro, or from his own works and invention shall cause to be designed and engraved, etched, or worked in mezzotinto or chiaro oscuro any historical or other print or prints."

In _Blackwell_ v. _Harper_[792] (1740) it was decided that the above Act was not limited to works of invention such as an historical group, but extended to the "designing or engraving anything that is already in nature."

In _Jefferys_ v. _Baldwin_[793] (1753) it was held that prints of herring fishing-boats were not within the protection of the Act.

By 7 Geo. III. c. 38 (1766), which was passed in consequence probably of the doubt thrown upon the earlier Act by the above and other decisions, the copyright in engravings is given to "all and every person or persons who shall invent or design, engrave, etch, or work in mezzotinto or chiaro oscuro, or from his own work, design, or invention shall cause or procure to be designed, engraved, etched, or worked in mezzotinto or chiaro oscuro any historical print or prints, or any print or prints of any portrait, conversation, landscape, or architecture, map, chart, or plan, or any other print or prints whatsoever," and "to all and every person who shall engrave, etch, or work in mezzotinto or chiaro oscuro, or cause to be engraved, etched, or worked any print taken from any picture, drawing, model, or sculpture either ancient or modern."

Notwithstanding this widely worded protection, doubts arose as to whether lithographs and certain new processes of reproducing prints came within the Acts, and in consequence a clause was inserted in the Copyright Act of 1852[794] whereby it was declared that the provisions of the Engraving Acts were intended to include prints taken by lithography or any other mechanical process by which prints or impressions of drawings or designs are capable of being multiplied indefinitely.

Prints of every description, therefore, are protected under the Engraving Acts, and it is immaterial whether the design produced is:

1. The imaginative invention of the maker, 2. Taken from some object in nature, or 3. Taken from some other work of art, such as a picture or model.

_Originality._--The only originality required is an originality in execution, _i. e._ the work must not be taken from some other print and reproduce from that other print those characteristics of execution wherein the peculiar merit of the engraver's art lies.

"The engraver produces his effects by the management of light and shade, or as the term of his art expresses it, the _chiaro oscuro_. The due degrees of light and shade are produced by different lines and dots; he who is the engraver must decide on the choice of the different lines or dots for himself, and on his choice depends the success of his print. If he copies from another engraving he may see how the person who engraved that has produced the desired effect, and so without skill or attention become a successful rival."[795]

_Map, Chart, or Plan._--It will be remembered that maps, charts, and plans are included under the definition of books in the Copyright Act, 1842,[796] and receive protection as such. Doubt has consequently been raised as to whether a map must comply with both the Engraving Acts and the Literary Act in order to obtain protection, or whether it will be sufficient to comply with the requirements of one only, and if so, which. The decided cases are unsatisfactory. In _Stannard_ v. _Lee_[797] protection was claimed for a "Panoramic Bird's-eye view of France and Prussia," with the railway and strategic positions illustrating the Franco-Prussian War of 1870. This was not registered as a book under the Copyright Act, 1842, and the objection was held to be fatal. The judges in the Court of Appeal seemed to be of opinion that the Act of 1842 had taken maps, charts, and plans out of the protection of the Engraving Acts and placed them under the protection of the Literary Act, consequently that the requirements of the latter and not of the Engraving Acts must be observed. James, L. J., said:

"It was reasonable and proper to take a map out of the class of artistic copyrights and to give to it the better and more complete copyright which is intended to be given to literary works. And there would be, as I have pointed out clearly, great inconvenience in having two laws of copyright as to two sets of maps or as to the same set of maps."[798]

Mellish, L. J., said:

"I think it is a perfectly rational enactment that maps shall no longer be included among works of art but be classed in future with literary works."[799]

After this case had been decided a petition was brought to the Court praying that another case, _Stannard_ v. _Harrison_,[800] in which the same map had been copied, and to which the defendants had consented to a decree for injunction and damages, should be reheard. Bacon, V. C., refused the petition, and indicated in the course of his judgment that a map not registered as a book might be protected as an engraving if the claim was properly stated. The judgment in _Stannard_ v. _Lee_,[801] he said, had gone on a question of pleading, the plaintiffs having voluntarily brought their map under the category of books. This is by no means a satisfactory explanation of the decision in the Court of Appeal, as it is abundantly clear from the judgments as reported that in the view of the Lords Justices the Copyright Act, 1842, took maps, charts, and plans out of the category of artistic works and placed them in the category of literary works. Whether this is a correct view is another matter, but at present it would seem to be law. It is submitted that the true view probably is that a map may be protected under either Act if the requisite formalities are observed. The Literary will probably give a wider protection than the Engraving Acts. The Engraving Acts will protect a map from infringement of the method of execution, that is to say, the work which is the peculiar work of the engraver; while the Literary Act will protect it not only from that, but from a piratical taking of information imparted. Thus suppose a map of India giving battles and dates and, say, the principal products of the various districts marked with printed letters on the surface. It is difficult to see how the taking of all these dates and products and placing them perhaps printed in different letters on the new map could be an infringement of the engraving copyright in the map; there is nothing in the nature of a design or drawing taken; and yet it is quite clear it will be an infringement under the protection afforded by a literary copyright, because there is a taking of the particular expression by which information is imparted.

_Engravings in a book_ are protected by the Copyright Act, 1842, as part of the book, and, as such, do not require to comply with the requirements of the Engraving Acts.[802] The protection of a print forming part of a book is probably a double one, and if it had the name and date inscribed would be protected without registration or notwithstanding faulty registration of the book.

=Must the Engraving be made within the British Dominions.=--The Act 17 Geo. III. c. 57 giving a remedy by action for damages is expressly confined to works made in Great Britain. The other two Acts, 8 Geo. II. c. 13 and 7 Geo. III. c. 38, are not expressly limited to works there made, but it has been held that the limitation is to be supplied in them.[803]

"It is plain that the object of the legislature was to protect those works which were designed, engraved, etched, or worked in Great Britain, and not those which were designed, engraved, etched, or worked abroad, and only published in Great Britain."[804]

The Act 6 & 7 Will. IV. c. 59 extends the application of the Engraving Acts to Ireland, and in section 2 there is a general proviso protecting "any engraving or print of any description whatever ... which may have been or which shall hereafter be published in any part of Great Britain or Ireland." It is quite arguable that this extends the protection to engravings wherever made if published in the United Kingdom; but probably it would be held to be only applicable to engravings made in the United Kingdom, and is merely a proviso that there will be no copyright until publication in the United Kingdom. The point, however, is one of great uncertainty.

Under the International Copyright Act, 1886,[805] works first produced anywhere within the British dominions are protected equally with those first produced in the United Kingdom. The doubt still remains whether the engraving must not be made as well as first published within the British dominions.

=The Engraving must be first Published within the British Dominions.=--There is no protection until publication[806] except at common law. Publication is an act which gives to the public an opportunity on payment or otherwise of viewing the print. There may probably be publication without offering copies for sale or distribution. See as to publication of books[807] and pictures;[808] but the analogy is not complete with either. There seems to be no direct authority as to what constitutes publication of an engraving.

Before 1886 the work had to be published in the United Kingdom.[809] Now first publication anywhere within the British dominions will be sufficient to secure the copyright.[810]

=Date of First Publication and Proprietor's Name.=--It is a condition precedent to protection that there must be truly engraved on each plate, and printed on every print or prints[811]--