ii. Delivery up of copies,

iii. Inspection and account.[974] iv. Injunction.[975]

In addition to sections 6 and 11, where importing is treated as an infringement involving penalties and damages, section 10 contains a direct prohibition against importing copies "made contrary to the provisions of the Act," and on the declaration of the proprietor such copies may be detained by the officers of Customs.[976]

_Cause or Procure._--It is equally an offence to "cause or procure" any of the above acts.[977] It may be sometimes difficult to determine whether a person has "caused or procured" within the meaning of the section. In _Bolton_ v. _London Exhibitions_[978] the defendants ordered a poster for the advertisement of their exhibition at Earl's Court; they gave the lithographer a general idea of what was wanted, and told him to do his best. The lithographer, in preparing the poster, infringed the copyright in the plaintiff's photograph of a lion. It was held that as the defendants did not authorise the reproduction of the plaintiff's lion they had not "caused or procured" the infringement complained of; the action against them was therefore dismissed, but without costs, as they should have exercised more care in the matter.

_Innocent Agent._--If a publisher procures a printer to strike off copies of an infringement, the printer is liable even although he is entirely innocent. It was argued in _Baschet_ v. _London Illustrated_[979] that the printer was only liable if he printed for his own use, and that if another caused or procured him to print, it was only the person causing or procuring who was liable. It was held that both the employers and employees were liable for the same offence.

_Unlawful Copy._--If a copy is made in a foreign country in which the proprietor's copyright is not protected, such copy is not a copy "unlawfully made," and therefore no penalties will attach under section 6 for knowingly importing or selling such copy;[980] but under section 11 damages may be sued for, since under that section it is an offence to import or sell copies made without consent, and delivery up may be claimed under the same section, because such copies when offered for sale become unlawful copies although not unlawfully made.[981] The same distinction applies to selling or importing copies made before registration, such copies not being "unlawfully made."[982]

_Separate Offence._--Each piratical copy made or dealt with, and not only each transaction, is an offence under section 6, and involves a separate penalty.[983] Blackburn, J., says in _ex parte Beal_:[984]

"It would be a monstrous absurdity if a man might import a cargo of pirated works from France and £10 be the utmost penalty that could be imposed. Such a state of the law would render it worth a man's while to do wrong."[985]

It was held in several cases[986] that as 1/4d. was the smallest coin of the realm, the minimum penalty must be 1/4d. for each copy. This has now been overruled in the Court of Appeal in _Hildesheimer_ v. _Faulkner_,[987] and a fraction of 1/4d. can be assessed as the penalty.

_Copying for Private Use_ will probably not be actionable, since the offence is to copy, &c., for sale, hire, exhibition, or distribution.[988] Gratuitous distribution would, however, be actionable.

_Action on Breach of Contract._--Although no action may lie for infringement, either because the party aggrieved has no copyright or is not duly registered, there may be a remedy for breach of contract express or implied. Thus if A contract to make copies of B's drawing, even although B has no copyright therein, it is a breach of contract for A to make any copies other than for the use of B.[989] And again, a photographer who has been employed by a customer to take his portrait is not justified in striking off copies of such photograph for his own use, or selling or exhibiting them by way of advertisement or otherwise, without the authority of such customer express or implied, and even although the customer is not registered as proprietor of the photograph.[990]

_Fraudulent Acts._--The following acts if committed fraudulently are rendered penal by the Act:[991]

1. To affix any name, initials, or monogram on any work.[992] 2. To sell, exhibit, &c., a work bearing false name, initials, or monogram. 3. To represent a copy as the work of an original "author." 4. To sell or publish an altered work as the unaltered work of an original "author."

For any of these fraudulent acts the person aggrieved may recover by action[993]--

i. Sum not exceeding £10 or double the full value of the fraudulent works. ii. Delivery up of the fraudulent works. iii. Injunction.

But such penalties will not be incurred if the person whose name or work has been fraudulently dealt with has been dead for more than twenty years.

_Limitation of Action._--There is no special limit fixed by the Act of 1862, and therefore the remedy on an offence within the statute will not be barred for six years.[994]

_Evidence._--In any action for the infringement of copyright in a picture, it will be sufficient to produce in evidence an authenticated copy of the picture, _e. g._ a photograph with the oral evidence of the photographer.[995]

=What is a Piratical Copy.=--_No Monopoly._--There can be no monopoly of the subject-matter of a painting, drawing, or photograph. Another artist may independently represent the same scene or object as that represented in a copyright work.[996]

_What is a Copy._--A piratical copy need not necessarily be an artistic work of the same kind as the work pirated. Thus an oil painting is infringed by a photograph of it,[997] and a photograph may be infringed by a pencil sketch.[998] An infringement may consist of either a taking of the design or a taking of the method of execution, or both. Thus an infringement need not even be a kind of work which would be protected by this Act. Although there is no direct authority, it is clear from section 2, which gives the exclusive right to the design of the work protected, that an engraving would be an infringement of a painting, drawing, or photograph, and so perhaps might a piece of sculpture.[999] Then again the design may not be copyright, for instance, in the case of a photograph of a non-copyright picture, and yet it would be an infringement to take a photograph of such a photograph. That would be a taking of the method of execution.[1000]

The infringement must be an artistic work of some kind, _i. e._ such a work that would be protected if not under the Act of 1862, under the Engraving Acts or Sculpture Act. In _Hanfstaengl_ v. _Empire Palace_[1001] the Court held that the grouping of people on a stage so as to form _tableaux vivants_ was not an infringement in the copyright of a picture thus represented. Kay, L. J., in his judgment, said:

"Could it possibly have been said the _tableaux vivants_ were pictures within the sense of this Act, and does not a reproduction mean something in which, if the original author of the painting had himself produced it, he might have had copyright."

_General Idea may be Taken._--It is not an infringement to take merely the general idea of subject-matter and treatment from a copyright work of art. In _Hanfstaengl_ v. _Baines_,[1002] the _tableaux vivants_ which were the subject of the last case cited were sketched and reproduced in the _Daily Graphic_. It was contended that these sketches infringed the copyright in the pictures from which the _tableaux vivants_ were taken. The House of Lords, affirming the judgment of the Court of Appeal, held that they did not. Lord Herschell, L. C., in giving judgment, pointed out that the essence of the design varied according to the nature of the picture. Sometimes it might be principally in the grouping of the figures, sometimes in the pose and countenances. Referring to one of the sketches complained of, he said:

"There is no doubt a resemblance between the sketch and the photograph from the painting. In each case a young man and a young woman are standing beside one another close to a stile or fence. In each case the woman is shading her head by a parasol, and the dress of the man is somewhat similar in the two, but the idea of a young man courting a young woman at a country stile is of great antiquity. It has often formed the subject of pictorial representation. This cannot be said to be the design of the plaintiff's painting within the meaning of the Act. Much more must be comprehended than this. There can only be a copy of such design if the treatment of the subject be the same. Now, comparing the sketch of the photograph from the painting, I do not think this can be said to be the case. The faces are different, the dress especially in the case of the woman is different, the pose is different, the attitudes are different, the backgrounds are different, and in the case of the sketch the foreground is wanting. In the artistic design all these things play a part, although I do not say that a variation in one or even more of these respects would prevent the sketch being a copy of the design. Yet, comparing the two and considering the design of the painting as a whole, I cannot avoid the conclusion that the sketch is not a copy of the painting or of the design thereof, and therefore there has been no infringement."

His lordship concluded by saying that such questions really depended on the effect produced on the mind by a study of the picture and of that which is alleged to be a copy of it. In _Guggenheim_ v. _Leng_[1003] the plaintiff was the owner of the copyright in a photograph of a football team. The defendant, without authority, made from the photograph rough sketches of the various individual portraits, and published them in his newspaper. It was held not to be an infringement.

_Material Part._--There is no piracy of an artistic work unless a material part of the work is taken. What amounts to a material part must be a question of fact in each case, and it is impossible to lay down any definite rule. In _Moore_ v. _Clarke_[1004] a horse was taken from a copyright print and inserted in another print among different surroundings. In the second print the horse appeared to be going in a different direction, and the jockey on his back was differently dressed. The judge directed the jury to consider whether the defendant's engraving was substantially a copy of the plaintiff's, and the jury came to the conclusion that it was not. In _Brooks_ v. _Religious Tract Society_[1005] a collie dog, identical in expression, attitude, and position, was, together with a wall in the background and a table, taken from a copyright picture and inserted in a woodcut. The woodcut differed from the picture in that the figure of a child was omitted, and in its place two cats and a tortoise and other details were inserted. Romer, J., held that there was a piracy:

"It was not only the dog that was taken, but also the feeling and artistic character of the plaintiff's work.... If a person were to take an historical picture, and take out of it the principal figure, and reproduce that figure without the other surroundings, that would be an infringement. The present case was a stronger case, because the defendants had not only taken the principal figure of a dog, but copied as well the sentiment of the picture."

_Indirect Taking._--It is equally an infringement, although the copying is indirect.[1006] Thus, for instance, the photograph of an engraving may infringe the copyright of the picture from which it is taken.[1007]

_Guilty Knowledge._--It is no defence to say that the taking was an innocent one and unintentional.[1008] In the case of a claim for penalties in respect of importing or selling piratical copies, knowledge of infringement must necessarily be proved, but in no other case. But the question of intention cannot always be wholly disregarded, as it may guide the Court in determining whether the alleged infringement is a copy or not.[1009]

_Replicas._--It is an infringement of the proprietor's right for an author who has parted with his copyright to make a replica of the work; but if he has made replicas before selling his copyright it would be no infringement to sell these replicas. _Quære_ whether it would be an infringement after selling his copyright in the original work to take photographs or engravings of the replicas; probably it would.

_Licence a Defence._--Licence must be in writing, signed by the proprietor of copyright or by his agent authorised in writing;[1010] but probably an oral consent would be a good defence.[1011]

An assignee is not bound by a licence granted by the assignor before the assignment, unless he has notice of it.[1012]

The licensee will be kept strictly within the limits of his licence. When a licence was granted to reproduce a photograph in one magazine, it was held an infringement of copyright to reproduce it in another, and the contention that there was a custom in the publishing trade allowing this to be done on tender of payment was characterised as ridiculous.[1013]