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Privilege and Property

 | 
Ronan Deazley
, 
Martin Kretschmer
, 
Lionel Bently

11. Breaking the Mould? The Radical Nature of the Fine Arts Copyright Bill 1862

Ronan Deazley

Texte intégral

  • 1 This paper is based upon material developed for the AHRC-funded project: Primary Sources on Copyri (...)

1Note portant sur l’auteur1

Introduction

2Throughout the mid to late nineteenth century the issue that came to dominate the concerns of the national copyright regime was that of international copyright relations. From the 1830s onwards, a network of bilateral copyright treaties began to mushroom throughout Europe. In 1838, Britain passed the International Copyright Act which was designed to facilitate the negotiation of such bilateral arrangements, although efforts under the 1838 legislation came to nothing as no agreements were ever concluded under the Act. After the enactment of a second International Copyright Act in 1844, however, the British government enjoyed more success in negotiating a series of bilateral treaties providing arrangements for reciprocal copyright protection. Within three years agreements had been reached with Prussia, Saxony, Brunswick, the Thuringian Union, Hanover and Oldenburg. Britain had taken its first substantive steps towards participation in a regime of international copyright protection, which regime was significantly realised with the ratification of the Berne Convention in September 1887.

  • 2 International Copyright Act 1844, 7 & 8 Vict., c.12, ss 2, 5.
  • 3 International Copyright Act 1844, ss 3-5.

3Part of the reason for the government’s relative success in negotiating copyright treaties after 1844, lay in the differences between the two legislative regimes designed to facilitate the same. Whereas the 1838 Act promised only protection for books published in foreign jurisdictions, the 1844 Act proffered reciprocal copyright protection for ’Books, Prints, Articles of Sculpture, and other Works of Art’ as well as a performance right for ’Dramatic Pieces and Musical Compositions’.2 Moreover, under the 1844 Act the nature of the protection that foreign works would enjoy was explicitly linked to the domestic copyright regime. So for example, the protection for foreign books was to be governed by the Copyright Amendment Act 1842, the protection for works of foreign sculpture by the Sculpture Acts, and the performance of dramatic works by the Dramatic Copyright Act 1833, and so on.3 Thus, the range of protections available under the 1844 Act was much broader than under the 1838 regime and, in drawing explicit structural links between international protection and the domestic legislation, the later Act also ensured substantive parity as regards the protection enjoyed by both British and foreign works.

  • 4 Engravers’ Act 1735, 8 Geo. II, c.13; Engravers’ Act 1766, 7 Geo. III, c.38; Engravers’Act 1777, 1 (...)

4The 1844 Act however did not readily map onto existing domestic copyright law at that time. Other than prints and certain works of sculpture,4 no other works of art currently enjoyed statutory copyright protection within the UK. In holding out the promise of reciprocal protection, not just for prints and articles of sculpture, but for ’other Works of Art’ as well, the legislation clearly misrepresented the state of the domestic copyright regime. About this disjuncture between the international norm and the domestic reality, Sherman and Bently write as follows:

  • 5 B. Sherman and L. Bently, The Making of Modern Intellectual Property Law (Cambridge: Cambridge Uni (...)

[T]he image of copyright used in bilateral agreements played an important role in the development of domestic law. In particular, if we suspend our realist assumptions we see that the [international] model anticipated, possibly created, the legal reality. That is, the image of copyright law was a model for rather than a model of what it purported to represent. In effect, the laws presented during the bilateral agreements as accurate descriptions of domestic law (which they were clearly not) became real laws, real fictions.5

  • 6 Sherman and Bently, p. 127. In a Report prepared by the Artistic Copyright Committee for the Socie (...)
  • 7 I. Pears, The Discovery of Painting. The Growth of the Interest in Arts in England 1680-1768 (New (...)
  • 8 Engravers’ Act 1735, 8 Geo. II, c.13; the Act provided anyone ’who shall invent and design, engrav (...)
  • 9 Models and Busts Act 1798, 38 Geo. III, c.71.

5They continue that this gap between domestic and international law ’played an important role [...] in ensuring the enactment of the 1862 Fine Art Copyright Act’.6 That is, no doubt, true. However, it is equally true that this legislative gap was not successfully addressed for nearly twenty years. How then do we account for this hiatus, and what in particular proved to be the catalyst for the move towards securing the 1862 legislation? The 1862 Act introduced copyright protection for three types of artistic work – original drawings, paintings, and photographs. By the time the Act was passed, the English market for drawings and paintings had been well-established for over one hundred years;7 photography by contrast was a medium (and an art-form) still in its infancy, and its inclusion within the 1862 statute proved controversial, as we shall see. In relation to the former two categories however, we might equally well ask, why it was that engravings first received copyright protection in 1735,8 why certain works of sculpture were protected in 1798,9 and yet drawings and paintings had to wait until the mid-nineteenth century for protection at all, whether in 1844 or in 1862?

The Working Life of an Artist

  • 10 See: G. Reitlinger, The Economics of Taste, The Rise and Fall of Picture Prices 1760-1960 (London: (...)
  • 11 See: Lippincott, Selling Art; and M. Pointon, ’Portrait Painting as a Business Enterprise in Londo (...)
  • 12 Lippincott, p. 78.
  • 13 Reitlinger, p. 68.

6For the professional artist working in late eighteenth century Britain, there were a number of ways by which to earn a living.10 For those painters who favoured a relatively secure (if often modest) living, commissions for portraits provided an obvious source of income.11 For those, however, with a desire for the public notoriety and fame that sometimes came with the production of larger scale works, such as history paintings, securing commissions or individual patronage was often much more difficult.12 Aside from commissions and sales, however, there were other ways for such artists to generate income. For instance, the successful public exhibition of a work might bring considerable reward. John Singleton Copley was a particularly adept exponent of this commercial strategy. In 1781 his Death of Chatham was said to have made £5000 in ticket sales alone; ten years later, when he exhibited Floating Batteries at Gibraltar in St James’s Park he reportedly made a further £3000.13

  • 14 When the Royal Academy drafted the rules pertaining to its first exhibition in 1769, it addressed (...)
  • 15 R. Wendorf, Sir Joshua Reynolds, The Painter in Society (Cambridge, MA: Harvard University Press, (...)
  • 16 Reitlinger, pp. 57, 70.
  • 17 R.C. Alberts, Benjamin West: A Biography (Boston: Houghton Mifflin, 1978), p. 109.
  • 18 Ibid. See also: H. von Erffa and A. Staley, The Paintings of Benjamin West (London: Yale Universit (...)

7In addition to the possibility of individual sales, public exhibition, and working on commission, there was also a market for reproductions of paintings and drawings that could often prove to be extremely lucrative. Reproductions of paintings generally came in one of two forms: painted replicas or prints. As regards the former, the painter himself would often produce multiple versions of a painting (often in smaller scale) depending on the success of, and demand for, the work.14 Wendorf, for example, relates a tale about Joshua Reynolds, the first president of the Royal Academy, reproducing a painting (Venus) for his patron the Duke of Rutland, a similar version of which he had previously sold to the Duke of Dorset.15 Similarly, Benjamin West, the most commercially successful artist of his generation,16 often produced replicas. When he exhibited The Death of General Wolfe at the Royal Academy exhibition in 1771 the painting proved to be an instant sensation.17 Lord Grosvenor purchased the work for £400, after which West made at least five copies, one of which he sold to the German Prince of Waldeck for £250, while another was acquired by George III for £350.18

  • 19 In general see: S.H.A. Bruntjen, John Boydell, 1719-1804: A study of Art Patronage and Publishing (...)
  • 20 Alberts, p. 110.
  • 21 Ibid.
  • 22 Friedman, pp. 39-40.
  • 23 Alberts, p. 110.

8The money that West received for replica paintings however was nothing by comparison with that which he received from the reproduction of his works as engravings. The engraved version of Wolfe, for example, was negotiated and managed by John Boydell who, by the end of the eighteenth century, had established himself as one of the leading figures in both the British and the European print market.19 Boydell commissioned William Woollett to engrave the work and, when first published in 1777, ’it broke all records in sales and was copied by the best engravers in Paris and Vienna’.20 Woollett earned £7 000 from the Wolfe engraving, whereas Boydell is said to have realised over £15,000,21 which figure accounted for only a one-third share of the profits;22 West himself received a sum in royalties the amount of which, as Alberts notes, ’has never been revealed’.23 With this print, Alberts continues:

  • 24 Ibid. See also von Effra and Staley, p. 62.

The three men created a new popularity and demand for history paintings and a vastly broadened market for prints taken from those pictures. They gave the artist and the engraver a new source of income and in some measure freed them from the sole dependence on the private patron.24

  • 25 About West in particular, von Erffa and Staley write that, after Wolfe: ’Throughout the rest of th (...)
  • 26 Reitlinger, p. 70.
  • 27 See: von Erffa and Staley, p. 63; and Reitlinger, p. 68.
  • 28 Blaine records that whereas Landseer’s painting Peace and War sold for £1260, the copyright for en (...)
  • 29 See W.G. Rawlinson, The Engraved Work of J.M.W. Turner, vol. 1 (London: Macmillan and Co, 1908).
  • 30 Reitlinger, p. 98; see also Bently, pp. 337-8.

9It certainly seems to have been the case that an artist at this time could use what we might refer to as ’engraving rights’ to establish his reputation and develop a wider audience,25 while at the same time earning considerable sums of money. When the British Institution paid the unprecedented figure of £3 150 for West’s Christ Healing the Sick in 1811, they more than recouped their original investment, as well as a substantial engravers’ fee, by the sale of engravings of the painting.26 Copley made an estimated £1 200 from the engravings of his Death of Nelson in 1806.27 The price paid to engrave Edwin Landseer’s paintings in the mid-nineteenth century outstripped the price paid for the actual paintings themselves.28 Moreover, some artists, such as J.M.W. Turner and John Martin, rather than work in collaboration with established engravers, often took control of engraving their own works.29 Indeed, between 1826 and 1840 Martin claimed to have made in excess of £21,000 either from royalties or in direct sales of prints of his paintings.30

Paintings, Drawings, and the Engravers’Acts

  • 31 Sayre v. Moore (1785) 1 East 362. About Mansfield’s dictum, Blaine, writing in 1853, commented: ’N (...)
  • 32 Sayre v. Moore, 362; Lord Mansfield observed: ’[W]hoever has it in his intention to publish a char (...)

10All of this begs the question, of course, as to the legal status of the ’engraving rights’ which artists seemed to be able to capitalise upon in relation to their paintings and drawings. When painters purported to realise payment on the right to engrave their works, upon what basis did they do so? Did it turn upon negotiating physical access to a painting to ensure a faithful reproduction of the same? Was it simply a recognised and accepted commercial convention of the printsellers’ market? Or did the status of an engraving right rest upon some other legally significant construct that pre-dated (and perhaps rendered redundant) the need for statutory protection in 1862? The situation is not entirely clear. In Sayre v. Moore (1785) for example Lord Mansfield remarked that ’in the case of prints, no doubt different men may take engravings from the same picture, but one cannot copy the engravings of another’.31 Sayre concerned an action alleging the unauthorised reproduction of sea charts, the resolution of which Lord Mansfield considered to be ’a matter of great consequence to the country’. Within the context of a seafaring, mercantilist nation, the implications of the decision were obvious: ’If an erroneous chart be made, God forbid it should not be corrected even in a small degree, if it thereby become more serviceable and useful for the purposes to which it is applied’. In holding for the defendant, he continued: ’This chart of the plaintiffs’ is wrong in principle, inapplicable to navigation. The defendant therefore has been correcting errors, and not servilely copying’.32

  • 33 De Berenger v. Wheble (1819) 2 Stark 548.
  • 34 Ibid., pp. 548-9.

11A case more directly concerned with the operation of the art market was that of De Berenger v. Wheble (1819).33 In De Berenger the plaintiff had purchased ’the privilege of engraving the prints’ of two pictures by Philip Reinagle from the artist himself. The engraver who executed the prints for De Berenger also made sketches of the works ’for his own study’, sketches which ’were taken from the original pictures, and had not been in any part copied from the plaintiff’s engravings’. From these sketches the engraver made two further prints for the defendant who published them in his Sporting Magazine, upon which basis the plaintiff alleged copyright infringement in the original engravings. It was argued for the defendant that the legislation protecting engravings ’did not give any monopoly in the picture to the engraver, but left the use of it free and unrestrained to the painter who might make as many copies of it as he thought fit’. Abbott CJ agreed: ’It would destroy all competition in art to extend the monopoly to the painting itself [...] [and] in this case the defendant’s engraving was made from the original picture, and not from the plaintiff’s print’.34 As with Lord Mansfield’s obiter comment in Sayre, the decision in De Berenger seemed to suggest that anyone might produce copies of existing paintings and drawings without fear of reprisal from someone who had actually paid the artist for the privilege of making reproductions thereof.

12And yet, painters did command substantial reproduction fees in relation to their works. One possible explanation underpinning the reality that artists regularly sold the right to engrave their paintings lay in the fact that the ’invention’ and ’design’ of a painting, as opposed to the painting itself, could be understood to fall within the protection of the Engravers’Act 1735. The 1735 legislation provided that every one:

  • 35 Engravers’ Act 1735, s. 1.

[W]ho 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, shall have the sole right and liberty of printing and reprinting the same for the term of fourteen years, to commence from the day of first publishing the same.35

13Although the 1735 Act had been secured by and on behalf of a group of engravers, there was nothing in principle to prevent the substance of the legislation protecting the work of other artistic communities as well. When the Engravers’Act 1766 was passed, it essentially restated the protection set out within the earlier legislation, but continued with the additional provision that:

  • 36 Engravers’ Act 1766, 7 Geo. III, c.38, s. 2.

[A]ll and every person and persons 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, shall have, and are hereby declared to have, the benefit and protection of [the 1735 Act], and this act, for the term herein after-mentioned, in like manner, as if such print had been graved or drawn from the original design of such graver, etcher, or draftsman.36

  • 37 Newton v. Cowie (1822) 4 Bing 234 (pp. 245-6). See also Moon v. Broker (1840) The Times, 27 June 1 (...)

14Strictly speaking, this new provision did not mean that an artist could prevent an engraver from reproducing his work without prior authorisation; it simply provided that engravings produced from existing works of art (drawings, paintings, and sculptures) were to be protected as if the design of those works originated with the engraver.37 Nevertheless, the provision implicitly lent credence to the fact that the ’invention’ and ’design’ of a work protected under the 1735 Act might take the form of a pre-existing painting, drawing or sketch. Roberton Blaine, writing about the ’laws of artistic copyright’ in 1853 certainly considered this to be the case:

The Engraving Acts were passed with the express object of encouraging the art of designing for the purposes of engraving, and if the original design be not made public before the engraving from it be published, in accordance with the conditions imposed by the Engraving Acts, it would seem to have been the intention of the Legislature to protect the invention of the design, as well as the authorised engraving from that design.

  • 38 Blaine, On the Laws of Artistic Copyright, p. 26.

15He continued: ’The copyright in a picture, as such, is not protected. It is merely the design of the picture when coupled with engraving, which is entitled to copyright’.38

16In reading the legislation in this manner, Blaine was careful to stress that a work, whether a painting or otherwise, should be first engraved, and the engravings published, in accordance with the legislation, before the work itself was publicly exhibited; otherwise, he suggested, what protection was available in accordance with the engravers’ statutes would be lost. It was dangerous, he asserted, to exhibit pictures ’before they are engraved’:

  • 39 Ibid., p. 27. See also Blaine’s comment in the Appendix to the Report prepared for the Society of (...)

[I]f [...] as is usually the case at the present day, the picture or design be privately or publicly exhibited or otherwise published before it has been engraved, and the prints from the engraving are published, then it would seem that the design is public property; and that the work of the engraver, exclusive of the design, is alone entitled to copyright; in other words, that any one may engrave the subject provided they do not copy it from the engraving.39

  • 40 Bailey v. Harrison (1849) The Times, 28 February 1849.

17Whether exhibition of a work might compromise the protection of the design of the work in accordance with the engravers’ legislation was an issue that was never brought before the courts; however, that artists considered it important to adhere to this sequence of events is borne out to some degree by the account of Bailey v. Harrison (1849) in The Times in which the plaintiff complained that his painting ’after being engraved was duly published’, was reproduced without authorisation upon pocket handkerchiefs sold by the defendants.40

  • 41 Blaine wrote about the ’practice amongst Artists as to their claims to Copyright’ as follows: ’Whe (...)
  • 42 Journal of the Society of Arts, 6 (1857-8), 297.
  • 43 Martin v. Wright (1833) 6 Sim 297 (pp. 298-9).

18That painters, such as West, were able to command substantial fees to reproduce their works may well explain why, before the mid-nineteenth century, they felt no real need for bespoke legal protection for their craft. That is, regardless of Sayre and De Berenger, and in accordance with the established practice of the trade, painters were able to ’licence’ or sell the ’right’ to reproduce their work by relying upon their control over the physical access to the painting (or drawing) in conjunction with the indirect protections offered by the existing engravers’ legislation. And yet, whatever protection the Engravers’ Acts provided paintings and drawings in this regard, whether de jure or de facto,41 the problem remained that this protection was tied to specific types of reproduction protected by the Engravers’ Acts rather than to the original work itself. As Blaine observed in 1858, the Engravers’ Acts ’give artists no copyright in their pictures, as such, but only for the purposes of engraving’.42 It was clear that certain types of unauthorised use were not prohibited by the existing copyright regime. In 1833, for example, John Martin sought to prevent the public exhibition of an unauthorised large scale diorama of his picture and print, Belshazzar’s Feast. Before Shadwell VC, it was argued for Martin that ’there was no difference between selling a copy of a print, and exhibiting it for money; as, in both cases, profit was made of that which was appropriated to another’. Before even hearing the counsel for the defendant, Shadwell VC intervened: ’Exhibiting for profit is in no way analogous to selling a copy of the Plaintiff’s print, but is dealing with it in a very different manner’. The engravers’ legislation, he continued, ’never was intended to apply to a case where there was no intention to print, sell or publish, but to exhibit in a certain manner’; as a consequence, he concluded, ’I ought not to grant the injunction until the right has been established at law’.43

The Society of Arts, the International Exhibition, and the Catalyst for the Act

  • 44 Report of the Artistic Copyright Committee to the Council (London: Bell and Daldy, 1858). It seems (...)
  • 45 Journal of the Society of Arts, 6 (1857-8), 91.
  • 46 Ibid., p. 294.
  • 47 Blaine, Suggestions on the Copyright Bill, p. 6 (n. 1).

19The initiative which ultimately resulted in the passing of the Fine Arts Copyright Act 1862 was taken by the Society for the Encouragement of Arts, Manufactures and Commerce (the Society of Arts), when on 2 December 1857 they appointed an Artistic Copyright Committee to look into ’the subject of Copyright in Works of the Fine Arts’.44 Sir Charles Eastlake, the President of the Royal Academy, was appointed Chair; John Frederick Lewis, the President of the Society of Painters in Water Colours was appointed Deputy Chair; and Blaine, who four years previously had published his treatise On the Laws of Artistic Copyright and their Defects, was appointed Reporter of the Committee.45 Reporting early in 1858, the Committee recommended that the current laws concerning copyright in artistic works should be revised and expanded. In particular the Committee suggested that the original works of painters, designers, sculptors, engravers and architects should be protected for ’the author’s life, and thirty years after’, and that ’works of Art of a more imitative character, and not necessarily embodying original design’, such as those produced by engravers, photographers and cast makers, should also be protected for ’a like period’.46 This copyright term was, according to Blaine, chosen ’in accordance with the law of Prussia and all the States included in the Germanic Confederation’.47

  • 48 Journal of the Society of Arts, 6 (1857-8), 455-6.

20On 4 June the official Journal of the Society of Arts reported that two petitions were about to be placed in the hands of Lord Lyndhurst, John Singleton Copley’s eldest son. The first was from the Society itself, while the second was signed by the members of the Artistic Copyright Committee as well as ’a large number of gentlemen interested in the production of works of Fine Art’; both asked that the House of Lords might ’consider the grievances in question, and [...] afford such relief as [...] shall seem just and advisable’.48 Lyndhurst, presented the petitions to the House on 26 July, and a select committee was appointed to consider the subject, but to no immediate effect.

  • 49 Journal of the Society of Arts, 7 (1858-9), 747.
  • 50 Journal of the Society of Arts, 8 (1859-60), 432.
  • 51 Journal of the Society of the Arts, 9 (1860-1), 136.
  • 52 Journal of the House of Commons, 116 (1861), 146; see also Hansard, 3rd ser., 162 (1861), 543.

21Undeterred by the lack of success in the Lords, the Council of the Society of Arts reported in October 1859 that it would once again direct its attention to the question of artistic copyright,49 and in May 1860, the Society’s Journal informed its readers that the Artistic Copyright Committee, acting under the advice and guidance of Spencer Walpole, had had a meeting on 28 April with the Prime Minister, Lord Palmerston, to discuss the state of the law as regards artistic copyright.50 No further progress was made however until 17 January 1861, when the Committee met with Sir Richard Bethell, the Attorney-General, as a result of which Bethell ’expressed his willingness to assist the Committee in settling the Bill and to take charge of it in the House of Commons and promised to urge upon Lord Palmerston the propriety of its being introduced into Parliament as a Government measure’.51 Three months later, on 15 April, leave was given in the House of Commons to prepare and bring in a Copyright (Works of Art) Bill.52 When Bethell introduced the Bill to the Commons, he made clear that, while the need for legislation of this kind had long been acknowledged, the plans for the forthcoming International Exhibition provided the compelling reason for Parliament to act upon the matter sooner rather than later:

  • 53 Quoted in Blaine, Suggestions on the Copyright Bill, p. 5.

[S]ome legislation of this kind is absolutely necessary. That necessity has, I believe, for a long time been admitted by this House, and by the other House of Parliament [...] Perhaps however the House will think it necessary that even now I should state a few facts, showing the necessity that exists at present for some legislative enactment for the protection of Copyright in works of fine art. We are about to invite, within a few months, the artists of all nations to send their works of art to our approaching Exhibition; but although many nations have made great exertions to secure an International Copyright, we have not as yet, in this country, any law which would give protection to their works, which above all others are entitled to it.53

  • 54 Journal of the Society of the Arts, 9 (1860-1), 576, 583-4.
  • 55 Not everyone was convinced however that the forthcoming International Exhibition provided sufficie (...)

22When a deputation from the Society met, once again, with the Prime Minister on 14 June, to impress upon him the ’justice’ of the Bill, and the ’special importance of its being speedily passed’, they too drew attention to both the interests of British artists as well as to those of the ’Foreign Exhibitors of Works of Fine Arts’ who would be invited to the International Exhibition.54 There is little doubt that legislation securing the interests of artists would have been introduced by the British legislature at some point throughout the late nineteenth century, if for no other reason than compliance with the Berne Convention would have mandated such protection. It is equally true, however, that the plans for the International Exhibition provided the imperative catalyst for its introduction in 1862.55

The 1861 Bill, the Prevention of Fraud, and the Moral Rights of the Artist

  • 56 Journal of the Society of Arts, 8 (1859-60), 432.
  • 57 Indeed, when the Committee met with Bethell on 17 January 1861, it was resolved that sub-committee (...)
  • 58 In general see Journal of the Society of Arts, 6 (1857-8), 294-5.
  • 59 1861 Bill, clause 3; in relation to works of architecture, the protection was of a limited nature, (...)
  • 60 Ibid.
  • 61 1861 Bill, clause 6; this also included the work of artists who had died within ten years before t (...)
  • 62 1861 Bill, clause 5.

23Given that the Society’s Artistic Copyright Committee had produced a draft version of a Bill in May 1860, in accordance with their earlier recommendations,56 there is every reason to believe that the Bill presented by Bethell to the Commons in April 1861 was, by and large, the work of the Copyright Committee.57 Certainly the Bill that Bethell presented addressed the various substantive recommendations which the Committee had set out in March 1858.58 It proposed to repeal all existing legislation pertaining to works of ’fine art’, and instead provide protection for new and original works of art (drawings, paintings, photographs, sculptures, engravings, and works of architecture) for the life of the author with a thirty year post mortem term;59 moreover, anyone producing a lawful copy of any such work (for example, an authorised engraving of a work of sculpture) would also enjoy copyright in their reproduction for the same term of protection.60 The protection provided by the Bill extended to both new and existing work,61 and no copyright would be enjoyed in any work unless the name or monogram of the author had been in some fashion appended thereto.62

  • 63 Rv. Closs (1858) Dears & Bell 460; see also W.A. Copinger, The Law of Copyright in Works of Litera (...)
  • 64 The original painting had been sold by Linnell for £180; Closs sold the forgery for £130. See Jour (...)
  • 65 Rv. Closs, p. 466.
  • 66 Journal for the Society of Arts, 6 (1857-8), 298.
  • 67 Ibid., pp. 294-5.
  • 68 Compare the 1861 Bill, clauses 13, 14, with the 1862 Act, s. 7.

24In addition to the various provisions dealing with copyright, however, the Bill also included a number of clauses concerning the fraudulent production and sale of works of art, designed in part to redress the decision of the court in Rv. Closs (1857) which had been handed down on 30 November 1857,63 just two days before the Society of Arts established the Artistic Copyright Committee. Thomas Closs, a dealer in paintings, had sold a copy of a painting by John Linnell as an original ’by means of having the name “J Linnell” painted in the corner of the picture’, for which, upon indictment, he had been convicted of forgery.64 Quashing the conviction, however, Cockburn LJ explained that ’[a] forgery must be of some document or writing’, and continued that this case ’was merely in the nature of a mark put upon the painting with a view of identifying it, and was no more than if the painter put any other arbitrary mark as a recognition of the picture being his’.65 In effect, Cockburn CJ decided that the offence of forgery at common law did not extend to painting an artist’s name on a picture so as to pass it off as one by the original artist. Blaine, in his report to the Copyright Committee, simply remarked that ’[t]he consequences of this decision, as respects the interests of artists, of the purchasers of works of Art, and the public morality, are too apparent to need any comment’.66 The Committee recommended that various measures be adopted to protect the public against such frauds,67 all of which were incorporated within the draft Bill, and a number of which were included in the final version of the 1862 Act.68

  • 69 1861 Bill, clause 14.
  • 70 Ibid. This provision was included in s. 7 of the 1862 Act which provided that ’where the Author of (...)

25The Bill, for example, provided that no one was to fraudulently sign or affix any ’name, initials, or monogram’ upon a work, nor sell, publish, or dispose of the same; moreover, no one was to ’utter, dispose of, or put off’ any copy of a work (whether copyright protected or not) as having been executed by the original artist.69 Finally, a provision was included which prevented anyone (other than the original artist) who altered an existing work in their possession from selling or publishing that work (or copies thereof) during the artist’s lifetime without his or her consent.70 The inclusion of this offence, a mid-nineteenth century forerunner to the contemporary moral right concerning the derogatory treatment of an author’s work, was designed with the explicit purpose of safeguarding the reputation of an artist while he was still alive. As Bethell explained, in his capacity as Lord Chancellor Westbury, in the Lords on 22 May 1862, it was often the case that paintings by ’artists of celebrity’ were dealt with in such a way that ’without being actuated by petty feelings, [those artists] might naturally manifest some sensitiveness on the score of their reputation at being so treated’. He provided one such example:

  • 71 Hansard, 3rd ser., 166 (1862), 2019.

One remarkable instance was stated by Mr. Charles Landseer, the painter of a picture in which he had introduced two dogs, which had been touched up by Sir Edwin Landseer, and, as the artist himself admitted, greatly improved. This picture was sold to a dealer, who cut out the figures of the dogs, and sold them as the work of Sir Edwin Landseer; and then he filled up the hole in the original picture with two dogs painted by an inferior artist, and sold the whole picture as the work of Mr. Charles Landseer.71

Photography: Fine Art or Mechanical Process?

  • 72 See the Journal of the House of Commons, 116 (1861), 146, 167, 173, 181, 191, 217, 229, 235, 242, (...)
  • 73 Hansard, 3rd ser., 165 (1862), 843; and Hansard, 3rd ser., 166 (1862), 324.
  • 74 Hansard, 3rd ser., 165 (1862), 843.
  • 75 Draft Bill, 27 February 1862, clause 1.

26The 1861 Bill received a second reading in the Commons however the committee stage was constantly deferred such that it failed to carry in that parliamentary session.72 In the next session, on 27 February 1862, at the request of ’a committee of artists [...] to place copyright in works of art on the same footing as that in literary works, sculptures, and engravings’,73 Roundell Palmer, the Solicitor-General, rose in the Commons and, suggesting that the law was at present ’in a very imperfect and anomalous condition’, moved for leave to bring in a Bill to amend the Law relating to Copyright in Works of Fine Art.74 This Bill differed from its predecessor in a number of respects. The most basic alteration was that the legislation was no longer framed to extend to all works of art. Instead, the existing legislation concerning engravings and works of sculpture was to be left on the statute book, and works of architecture were not to be included at all; the new Bill only proposed to provide protection for ’the author of every painting, drawing and photograph’.75

  • 76 For an argument as to the influence of the emergence of commercial photography on the timing of th (...)
  • 77 Hansard, 3rd ser., 165 (1862), 1890-1.

27This Bill would of course eventually result in the 1862 Act. However, that photography was to be included within the remit of the legislation gave rise to considerable parliamentary debate.76 In the Commons, an objection was raised as to whether ’it would be dangerous at present to include photographs’ in an Act of this kind given that ’[p]hotography was not a fine art, but a mechanical process’.77 Palmer responded that while ’strictly and technically, a photograph was not in one sense to be treated as a work of fine art’, nevertheless, ’very considerable expense was frequently incurred in obtaining good photographs’. He continued:

  • 78 Ibid., p. 1891.

Persons had gone to foreign countries – to the Crimea, Syria and Egypt – for the purpose of obtaining a valuable series of photographs, and had thus entailed upon themselves a large expenditure of time, labour and money. Was it just that the moment they returned home other persons should be allowed, by obtaining negatives from their positives, to enrich themselves at their expense?78

  • 79 G. Clarke, The Photograph (Oxford: Oxford University Press, 1997), p. 48.
  • 80 In 1855, for example, Agnew’s, the art dealers, commissioned Roger Fenton to travel to and take ph (...)
  • 81 The Dictionary of Art, ed. by J. Turner, 34 vols (London: MacMillan Publishers Ltd., 1996), XI, pp (...)
  • 82 Hansard, 3rd ser., 165 (1862), 1891.

28Behind these comments lay the interests of photographers like Francis Frith, John Thomson, Samuel Bourne, and others who had contributed, throughout the nineteenth century, to the successful establishment of a tradition of travel photography,79 and of the art dealers who often provided these photographers with the necessary financial backing to support their work.80 Frith, one of the founding members of the Liverpool Photographic Society, was noted for his studies of the Middle East as well as for establishing the largest photographic publishing firm in nineteenth-century Britain. During 1856 and 1860 he embarked upon three extensive expeditions, taking in Egypt and the Nile, as well as Palestine, Jerusalem and Damascus, culminating in the publication of his influential 1860 work Egypt and Palestine Photographed and Described by Francis Frith.81 Having posed his rhetorical question, Palmer continued that he would not consent to exclude photographs from the Bill.82

  • 83 This operated to extend the protection of literary copyright from a bifurcated twenty-eight year t (...)

29That was not the only objection to the inclusion of photography within the remit of the proposed legislation. When the Bill was read for the second time before the Lords, Earl Stanhope (previously Lord Mahon), who had been instrumental in securing the passage of the Copyright Act 1842,83 voiced further misgivings. While he supported the current Bill upon the principle that ’a man should be protected in the enjoyment of his intellectual productions’ whether literary or artistic, nevertheless, Stanhope considered, it exhibited ’one or two points of difficulty’ especially in relation to photographs. In particular he observed that:

It was quite possible for two or more persons to take photographs of the same scene, building, or work of art from the same spot, and under the same circumstances, and of course producing similar results; and to give a copyright in such cases [was] very likely to occasion dispute and litigation. A person, for instance, might make a photograph copy of a photograph – say of the Colisæum – originally taken by another; who could say that the copy was not the original photograph?

  • 84 Hansard, 3rd ser., 165 (1862), 2016-7.
  • 85 Ibid., p. 2019.
  • 86 Section 1 set out that: ’The Author […] of every original Painting, Drawing, and Photograph […] sh (...)

30Under such circumstances, he continued, he could not envisage how it was practicable ’to enforce such a copyright’.84 Bethell, now the Lord Chancellor, sought to assuage Stanhope’s concerns commenting that ’the copy of a photograph might be sufficiently detected, as it would hardly be possible for two persons to produce representations of the same object under exactly the same conditions of light, position and other circumstances’.85 As with the earlier objection, the point was ultimately conceded. When the Bill received the Royal Assent, on 29 July 1862, paintings, drawings, and photographs all enjoyed equal status under the new legislation.86

Publication and Registration: The Radical Nature of the 1862 Bill

31Aside from the labelling of photography as a ’fine art’, there were a number of other aspects to the 1862 Bill that proved to be controversial. Indeed, the Bill, as it was first introduced into the Commons, represented a radical challenge to existing copyright doctrine and theory. On 8 March, a commentator in the influential literary magazine, the Athenæum, summed up the elements of that challenge as follows:

[T]he most remarkable feature is that it disregards those three great principles upon which Parliament has legislated with respect to copyright:-

  • That it shall commence from the time a work is first published.
  • And, during the last twenty years, that no copyright shall be acquired by the author of a work except upon condition of its being registered.
  • Also that the work to be so registered shall be new and original.87
  • 88 That the duration of the copyright term should be the same as that for works protected under the 1 (...)
  • 89 Copyright Act 1842, s. 3.
  • 90 See: Copyright Act 1842, s. 3; Sculpture Copyright Act 1814, s. 2; Models and Busts Act 1798, s. 1 (...)
  • 91 Fine Arts Copyright Act 1862, s. 1.

32The question of when copyright protection was to commence was, in the Bill, bound up with the duration of the copyright term. Copyright was to last for the life of the author and seven years after his or her death, a period that was clearly modelled on the statutory term provided by the 1842 Act (and not that originally set out within the 1861 Bill).88 The 1862 Bill differed from the 1842 Act however in that the earlier legislation also provided for a forty-two year protection from the point of first publication if that term proved longer than the seven year post-mortem period;89 by contrast, the 1862 Bill included no such default term. In this way, the Bill represented a significant conceptual departure from the existing copyright regime. Whereas all of the existing legislation, in one way or another, specifically linked the duration of the copyright term to the moment of publication,90 the 1862 Bill abandoned this formula; the copyright term was now to be calculated only by reference to the life and death of the author. Moreover, this aspect of the Bill would be retained in the final version of the 1862 Act.91

33The other two points raised by the Athenæum would however be addressed as the Bill passed through Parliament. The issue of whether works should be registered under the new legislation was one that had commanded much attention amongst the Society’s Artistic Copyright Committee. When they first issued their Report on the state of the law in early 1858, it noted that ’[v]ery considerable discussion took place upon the point whether the registration of works of Art ought or ought not to be made a condition precedent to the acquisition of any Copyright therein’. The Committee decided, in the end, to recommend that no registration ought to be required, a decision which was reflected in both the 1861 Bill and the first draft of the 1862 Act. The former provided that:

  • 92 Draft Bill, 15 April 1861, clause 5.

No Copyright shall be acquired in any Work of Fine Art, or in the Design thereof, until the Name or Monogram of the Author or Maker thereof shall have been legibly signed, painted, engraved, printed, stamped, or otherwise marked upon the Face or some conspicuous Part of such Work.92

  • 93 Draft Bill, 27 February 1862, clause 1.

34Under the latter, even this requirement was abandoned, the Bill simply allowing for copyright protection from the point of the author’s creation of the work.93

  • 94 Journal of the Society of Arts, 6 (1857-8), 296.

35There were, however, a number of Committee members that considered registration to be an essential aspect of the statutory regime, and, when the Committee issued its Report in early 1858, an objection to the principle of non-registration prepared by Blaine was attached thereto. Registration, he maintained, was an established principle and practice within the existing copyright regime, both domestic and international. It provided certainty not only for the artist, but also for the purchaser of the work as well as for the public, in terms of ascertaining who owned the copyright in a work (regardless of who owned the work itself). In addition, he argued, the ’publicity of registration’ assisted in providing a check on the fraudulent production and sale of works of misattributed art.94

  • 95 By this time, Blaine had resigned from his position as the Reporter of the Society. In his 1861 pa (...)
  • 96 Ibid., p. 8. He continued: ’As much of the value of a work of art depends upon its being unique, c (...)
  • 97 Athenæum, 8 March 1862, p. 334.
  • 98 Athenæum, 29 March 1862, p. 429.

36Blaine reiterated and developed his thoughts on the need for registration in a pamphlet that he published after the 1861 Bill was brought before the Commons.95 Part of the reason for the artists’ reluctance to incorporate a system of registration within the statutory regime, he suggested, lay in the fact that registration would prevent the artists ’making repetitions’ of their own work after they had sold the work on. To this end, he maintained, legislation should not only protect the authors of original works but it should also prevent the ’wrongs committed by authors of original works’.96 This theme was also taken up by the Athenæum. One of ’[t]he prominent mischiefs which render legislative redress essential’, it suggested, was ’the misconduct of a few eminent artists, who have brought disgrace upon a noble profession’;97 it was artists of this kind, the Athenæum continued, who were going to ’great efforts’ to ’obtain the proposed copyright without any condition for registration’.98 On the issue of registration, it considered, the interests of the purchaser should come to the fore:

  • 99 Athenæum, 1 February 1862, p. 154.

Surely the purchasers of such valuable property are entitled to have it protected from piracy by the artist, or any other person, and especially when notorious instances have occurred where eminent English artists have sold numerous “repetitions” of their finest works without deeming it requisite to obtain any consent whatever for that purpose from the owners of the original pictures, whose property therein must necessarily have been lessened in value each time they were thus repeated.99

  • 100 Athenæum, 31 May 1862, p. 735.

37Any legislation, it argued, must make sure to protect ’all parties interested under it [...] the artists, the purchaser of their works either when commissioned or otherwise, and the public’.100

  • 101 Draft Bill, 20 March 1862, clause 4.
  • 102 Hansard, 3rd ser., 166 (1862), 324.

38When the Bill was discussed in committee in the Commons, provision was made for the registration of ’every Agreement for the Acquisition or Reservation of Copyright made upon or before the Sale of any Work of Art under this Act, and also of every subsequent Assignment of any such Copyright’. These transactions, unless registered at Stationers’ Hall within twelve months of execution, were to be rendered null and void.101 This arrangement, Palmer explained, had been introduced primarily ’to afford absolute protection to every purchaser of a work of art after it had left the artist’s hand’.102 When the Bill reached the House of Lords, however, this amendment was not considered sufficient.

  • 103 ’Lord Overstone and Art’, The Times, 29 November 1883.
  • 104 The Correspondence of Lord Overstone, ed. by D.P. O’Brien, 3 vols (Cambridge: Cambridge University (...)
  • 105 ’Lord Overstone and Art’, The Times, 29 November 1883.

39As the Bill passed through the Lords, one of its most strident critics was Lord Overstone, an eminent and successful banker, as well as a patron of the arts whose personal collection was said to be ’distinguished above all private galleries for the finest masterpieces of the Dutch School and those works of Murillo and Claude which gave it a European reputation’.103 In 1850, the same year in which Overstone first took his seat in the upper chamber, he was also elected a Trustee to the National Gallery. As O’Brien notes, he became, in effect, the National Gallery’s spokesman in the Lords,104 exerting an influence upon the gallery’s affairs that was, in the words of one obituarist, ’always esteemed of the highest value and importance’.105

  • 106 Hansard, 3rd ser., 166 (1862), 2015.
  • 107 Ibid., p. 2094.
  • 108 Ibid., p. 2015.
  • 109 Fine Arts Copyright Act 1862, s. 4. It should be noted that this provision differed somewhat from (...)
  • 110 Hansard, 3rd ser., 168 (1862), 781.
  • 111 Journal of the House of Commons, 117 (1862), 379.

40In relation to the registration provisions proposed in the Commons, Overstone objected on the basis that, as a result of the potential twelve-month hiatus between the sale of the copyright in a work and the registration of that sale, ’there would exist a copyright unknown to the public for the whole period of one year’.106 An arrangement ’more inexpedient, more impolitic, and more inconsistent with justice’, he considered, ’could not well have been devised’.107 Better, in his opinion, that registration should ’accompany, if not precede, the first production of the work; otherwise copies made previous to registration, and purchased in good faith by parties ignorant of the suppressed copyright, would be liable at any moment to be seized’.108 When the Bill came back from the Lords, the registration provision had been amended to provide that a memorandum ’of every Copyright to which any Person shall be entitled under this Act’ was to be registered at Stationers’ Hall, without which no action was sustainable, nor any penalty recoverable, ’in respect of anything done before Registration’.109 On 24 July, when Palmer presented the amended Bill to the Commons, he accepted that should the amendment be objected to ’the passing of the Bill that Session would be endangered, and therefore he was prepared to ask the House to agree to them’.110 The Commons agreed, and, five days later, the Act received the Royal Assent.111

Ownership, Originality, and the interests of the Art Market

  • 112 Report of the Royal Commission on Copyright (1878), XXIV, C.2036, XIX.

41That the registration system was incorporated within the final version of the 1862 Act to guard against potential ’misconduct’ on the part of the artistic community, while securing the economic concerns of purchasers and publishers, is of some interest. That the legislation had to navigate and resolve these tensions was also manifest in relation to the question of ownership of the copyright in a work purchased from an artist, or produced upon commission, an issue which the 1878 Royal Commissioners’ Report on Copyright would subsequently refer to as ’[t]he most difficult question with relation to fine arts which we have had to consider’.112

  • 113 Clause 3 of the 1861 Bill provided that ’[t]he Author of every Picture, Work of Sculpture, and Eng (...)

42When the 1861 Bill was discussed in the Commons, upon its second reading concern had been raised about the manner in which it proposed to secure the copyright in a work to the artist regardless of the fact that he might have sold the work to another.113 On this point, Mr Walter, the M.P. for Berkshire, remarked that ’the effect of [the legislation] would be that any person who purchased a picture after the passing of the Act [...] would be deprived of the power of permitting any friend to copy it, or of having it engraved himself’. He continued:

  • 114 Hansard, 3rd ser., 162 (1861), 1632. See also the comments of Lord Fermoy, ibid., p. 1633, and Lor (...)

He was persuaded that very few persons would like to purchase works of art with any such conditions attached to them. The House had seen many a curious tenant-right Bill, but it appeared to him that to allow an artist, after he had sold a picture, to retain a copyright in it, and thereby to deprive the real owner of those rights which the artist originally enjoyed, was about as unreasonable a proposition as had ever been submitted to Parliament [...] He regarded [the clause] as a great infringement upon the liberty of the subject, and if he wanted to have a picture copied he should consider such an enactment as an unwarrantable interference with this right of property.114

  • 115 Hansard, 3rd ser., 162 (1861), 1635.

43When Bethell, the Attorney-General (as he was then), addressed this criticism he responded by reminding the House that anyone who wanted to do so could purchase a picture ’“out and out” giving a corresponding price for it; and, if he bought the copyright, he would then hold the picture free from every description of interference’. Nevertheless, he pressed: ’If, however, he bought the picture, simply as a picture, he would then have the gratification and delight resulting from its contemplation; but was it right that he should have copies and engravings made from it, using it for a different purpose from that for which the artist sold it?’115

  • 116 Draft Bill, 27 February 1862, clause 1.

44Regardless of Bethell’s comments, the 1862 Bill revised the original wording of the previous Bill to provide that when any work was sold for the first time, ’the Person so selling or disposing of the same shall not retain the Copyright thereof unless it be expressly reserved to him by Agreement in Writing, signed at or before the Time of such Sale or Disposition, by the Vendee or Assignee of the Painting or Drawing’.116 This, in the opinion of the Athenæum, was scarcely an improvement in that it still offered no benefit or security for the purchaser of the picture:

  • 117 Athenæum, 8 March 1862, p. 334.

As the section stands, it means that when an artist has acquired a copyright by executing a work, that copyright is to cease, unless when he first sells such work his purchaser signs an agreement for the purpose of reserving the copyright to the artist. It follows, that where an artist thus reserves his copyright, he will have the exclusive privilege of making as many copies or repetitions of his work as he pleases; – but where the purchaser declines to enter into such an agreement [...] then that copyright will thereupon cease, and the artist will consequently, as at present, be able to make and sell as many unauthorised copies and repetitions of the work as he please; the only difference being, that he will not have the monopoly for that purpose.117

  • 118 Fine Arts Copyright Act 1862, s. 1.
  • 119 On the ’surprising’ nature of the legislation in this regard see for example the comments of R. Wi (...)

45As was the case with the provision on registration, this aspect of the Bill was amended in the Lords. Two main changes were introduced. First, the Act provided that, when first sold the copyright in a work would pass to the purchaser at the same time unless the seller specifically retained the copyright therein by ’agreement in writing’; this, however, was coupled with an obligation on the part of the purchaser to secure the transfer of copyright, by way of written agreement with the seller, before or at the time of the sale.118 And so, in the final version of the Act, the basic point raised in the Athenæum that the copyright in a work would cease to exist in the absence of any written agreement between seller and purchaser prior to or at the point of first sale remained unaddressed.119

  • 120 Fine Arts Copyright Act 1862, s. 1.
  • 121 Hansard, 3rd ser., 166 (1862), 2014, 2094.
  • 122 Athenæum, 14 June 1862, p. 790.

46The second alteration introduced by the Lords concerned those for whom works were made or executed ’for a good or a valuable consideration’.120 As was the case with the first sale of a work, an artist retained no copyright in any work made on commission unless he or she specifically retained the same by an agreement in writing. Unlike the situation with the first sale of a work, however, there was no corresponding requirement that the person commissioning the work secure the copyright in the work by way of a written agreement. That is, in the absence of any written agreement between the two parties, there was a presumption that ownership of the copyright in a work passed to the person who commissioned that work. This aspect of the legislation was almost certainly introduced as a consequence of Overstone’s intervention on this point. He had argued in the Lords that ’[i] f a man engaged an artist to paint for him a portrait of himself or a member of his family, or if he commissioned him to paint for him a picture on any given subject, the copyright of that picture ought to belong to the employer who paid for it’, and that ’if Parliament were prepared to grant a copyright, it ought at once and absolutely, without necessity for negotiation or arrangement between the parties, to vest that right in the employer, and not in the artist’.121 Overstone’s intervention was also remarked upon in the Athenæum when it reported that he had ’presented a petition against some of its provisions on behalf of several of the most eminent publishers of illustrated books’; the report continued that ’[t]hey especially complain that the measure fails to provide for the interests of employers of artists’.122

  • 123 Athenæum, 8 March 1862, p. 334.
  • 124 Sculpture Copyright Act 1814, s. 1.
  • 125 An Act to Consolidate and Amend the Laws Relating to the Copyright of Designs for Ornamenting Arti (...)
  • 126 Draft Bill, 15 April 1861, clause 3.
  • 127 Athenæum, 5 April 1862, p. 466. The commentary continued that ’[i]f repetitions of pictures are to (...)

47Tied to these questions of ownership and exploitation was the third of the ’great principles’ upon which, in the opinion of the Athenæum, all previous copyright legislation was based: that any registered work should also be ’new and original’.123 The Sculpture Act 1814 had previously established the requirement that protected works be ’new and original’,124 as had the Copyright of Designs Act 1842,125 whose formula had also been adopted in the 1861 Bill.126 When the first draft of the 1862 Bill came before the House, however, there was no similar requirement. As with the question of registration, this omission, for the Athenæum would only operate to disadvantage those purchasing works of art. Consider, for example, an artist who sold a picture without executing any written agreement in relation to the sale; in accordance with the proposed legislation, no copyright would be retained, by anyone, in that picture. ’From the fact of the words “new and original” picture being omitted’, however, ’the artist may, after having sold an original picture, without retaining the copyright, instantly set up a claim to copyright in a copy or “repetition” of the same picture and the design thereof for all purpose’. That is, by ensuring that no copyright subsisted in relation to the first picture, an unscrupulous artist might produce a later identical copyright-protected work that could be relied upon to impede the ability of the person who purchased the first work to ’safely engrave or otherwise copy’ the same.127

  • 128 Hansard, 3rd ser., 165 (1862), 1889. Similarly, a Mr Henley ’put the case of an artist selling a p (...)
  • 129 Ibid.

48This issue had also been raised in committee in the Commons when George Cavendish Bentinck, M.P. for Taunton, had asked whether ’the term “painting” in the bill applied to original paintings only, or included a copy so as to give copyright in a copy whilst there was no copyright in the original’.128 In response, the Solicitor-General proffered that he would consider whether words ’should not be inserted to the effect that an original work being sold without copyright, no subsequent copy or repetition of the same work should be entitled to copyright’;129 no such proviso was introduced however before the Bill carried to the Lords.

  • 130 Hansard, 3rd ser., 166 (1862), 2014.
  • 131 Fine Arts Copyright Act 1862, s. 1; this however was subject to the proviso in s. 2 that ’[n]othin (...)
  • 132 See also Blaine, Suggestions on the Copyright Bill, pp. 8-9.

49Again, in the House of Lords, Overstone intervened, asking why the expression ’new and original’, used in previous legislation, ’had in the present instance been carefully excluded’,130 and proposed their introduction. Although his suggestion was not followed to the letter, the final version of the Act did provide the authors of ’original’ paintings, drawings and photographs with the sole and exclusive right of ’copying, engraving, reproducing, and multiplying’ their work ’by any means and of any size’, which protection also extended to the ’design’ of both paintings and drawings, and the ’negative’ of the photograph.131 Why the existing formula that works be ’new and original’ was abandoned is not clear; what is clear, though, is that the 1862 Act provided the first occasion on which the legislature introduced the requirement that works be ’original’ as a threshold for copyright protection. Moreover, as was the case with the registration requirement, the inclusion of the originality threshold in the final version of the Act appeared to be principally motivated by the interests of purchasers, publishers, and the operation of the art market in general.132

Domestic Legislation and the Work of Foreign Artists

50One substantive aspect of the 1862 Act remains for discussion. It concerns the question of who was entitled to the benefit of the protection of the legislation. When the Copyright Committee of the Society of Arts reported in March 1858, they noted that, in addition to the problems which the current copyright posed for British artists:

  • 133 Journal of the Society of Arts, 6 (1857-8), 294.

[O]ur Artistic Copyright laws are unjust in their operation upon the Subjects of those foreign States who have entered into International Copyright Conventions with Her Majesty, inasmuch as such treaties are based upon the principle of reciprocity, and that while under those treaties the works of British artists first published in the British dominions are protected from piracy in within the territory of the foreign State named in any such treaty, no similar protection is afforded in the British territories in respect of the works by artists of such foreign States.133

  • 134 Ibid.
  • 135 For details, see F. Rideau, ’Commentary on the International Copyright Act, Paris (1852)’, Primary (...)
  • 136 Draft Bill, 15 April 1861, clause 9.
  • 137 Except, that is, in the context of securing copyright protection for British authors in accordance (...)
  • 138 Blaine, Suggestions on the Copyright (Works of Art) Bill, p. 24.

51To remedy this issue, they suggested that any Bill prepared to amend the various defects of the law, ’should likewise protect all works of Art by alien authors (whether friends or enemies), although executed or first published in any Foreign State’.134 Like the French decree of 28 March 1852 concerning the counterfeiting of foreign works,135 the Committee were recommending that the new legislation should be universal in its scope and effect. The 1861 Bill followed this suggestion in providing that the author of any work made ’in any place out of the British Dominions’ was to be entitled to copyright protection ’whether he be a British Subject or not’.136 No previous domestic copyright Act had ever made reference to the protection of work created (or indeed first published) outside the British Dominions,137 never mind suggesting that such protection should extend to the work of foreign authors. Blaine, in his pamphlet on the 1861 Bill, described this provision as ’a liberal and noble step in the right direction’.138

  • 139 Draft Bill, 27 February 1862, clause 1 (emphasis added).

52When the first draft of the 1862 was presented to the Commons, while not as explicit as the 1861 Bill, it nevertheless provided that ’[t]he author of every painting, drawing, and photograph, which shall be made [...] either in the British Dominions or elsewhere’ would be entitled to copyright protection.139 When discussing this aspect of the proposed legislation the Athenæum, however, was less generous than Blaine:

  • 140 Athenæum, 5 April 1862, p. 466.

[It] ignores the previous policy of Parliament in passing the International Copyright Acts; it inclines not only to British artists and photographers, but also to those of the whole world. If this measure become law, the curious and not very creditable anomaly in our legislation will exist, that a foreign author of the most trumpery “picture, drawing or photograph,” made or first published out of the British dominions, will be invested with such a copyright as no foreign literary author, composer, engraver or sculptor will enjoy in respect of his works, first made or published abroad. Can these facts have been duly considered?140

  • 141 Clementi v. Walker (1824) 2 B&C 861 (pp. 867-8, 870; per Bayley J).
  • 142 Chappell v. Purday (1845) 14 M&W 303 (pp. 317-8; per Pollock CB).
  • 143 Fine Arts Copyright Act 1862, s. 1.
  • 144 Jeffreys v. Boosey (1854) 4 HLC 815 (p. 955).

53A subsequent court might, of course, have tried to confine the scope of the legislation to the work of British subjects, in line with the sentiments expressed in decisions such as Clementi v. Walker (1824),141 and Chappell v. Purday (1845).142 The point, however, would not be subject to litigation, for the wording of the first section was altered in the Lords to specifically limit the operation of the legislation to an author ’being a British subject or resident within the Dominions of the Crown’.143 This amendment, in effect, brought the legislation into line with the decision of the House of Lords in Jeffreys v. Boosey (1854), in which Lord Cranworth, when discussing what protection a foreign author might enjoy under British copyright legislation, had indicated that the concept of the ’British subject’ could include ’all persons who are within the Queen’s dominions, and who thus owe to her a temporary allegiance’.144

Conclusion

  • 145 Hansard, 3rd ser., 162 (1861), 1637. Similarly, as Lord Chancellor, Bethell described the introduc (...)

54For many, the rationale for extending the law of copyright to the fine arts, in the guise of paintings, drawings, and photographs, was simple enough; as Bethell remarked on 6 May 1861, it was ’an attempt for the first time to do justice to the artists of this country’. ’[T]he right of the author to protection had been recognised by the Legislature’; ’[w]as it not just’, he continued, ’to extend the same protection to the artist?’145 Similarly, in the House of Lords on 22 May 1862, Earl Stanhope, put it in the following terms:

  • 146 Ibid, p. 2016.

[T]he claims of the artist to a copyright in his works were quite as valid as those of the literary author in his; and if they at once admitted the principle that a man should be protected in the enjoyment of his intellectual productions, and if they allowed a certain period of possession to the author for his benefit before the public were put in full and free enjoyment of the work, he did not see how Parliament could refuse the same privilege to the artist as it has already been granted to the author. There was no difference in principle between a poem and a picture.146

55And yet, what was being proposed was, by no means, a mechanistic expansion of the existing principles and doctrine of copyright law to a new category of subject-matter, that is: works of fine art. Indeed, the 1862 Bill, in its earliest incarnation, incorporated a number of elements that would have signalled a profoundly radical departure from established British copyright norms. Two aspects of the Bill stand out in this regard: the need for registration and the protection of the works of foreign authors.

  • 147 Athenæum, 20 March 1886, p. 393.

56When first introduced to the House of Commons, the 1862 Bill proposed that copyright protection should arise at the point of creation and that it should not be contingent upon or subject to the formality of registration. Within fifty years, of course, this proposition would become a cornerstone of the copyright system, both domestic and international. Indeed, by the 1880s, the Athenæum entirely abandoned its professed adherence to this ’great principle’ of copyright law: ’We contend that when a right has been recognised, any formality, the performance of which is made a condition precedent to obtaining that right or to enforcing the remedy which is to protect it, is an evil’.147 In 1862, however, that copyright works need not be registered proved too disruptive a prospect to be easily accommodated within the existing copyright framework.

  • 148 International Copyright Act 1838; International Copyright Act 1844; International Copyright Act 18 (...)
  • 149 See for example the commentary and analysis in L. Bently and B. Sherman, ’Great Britain and the Si (...)

57Arguably more interesting, however, was the fact that, given the extent to which the need for legislation was predicated upon the existing gap between domestic law and international obligation (in the guise of the norms of the International Copyright Act 1844), the first draft of the Bill should, apparently with government approval, depart from the central principle underpinning Britain’s contemporary (and continuing) attitude to international copyright relations – that is, the principle of reciprocity. Within the context of literary copyright, the courts had, for the thirty years prior to the House of Lords’ decision in Jeffreys v. Boosey (1854), wrangled with the question as to what rights, if any, foreign authors might enjoy under British domestic copyright law. In Jeffreys it was decided that a foreign author had to be resident within the Empire at the time of publication if they were to enjoy copyright protection under the UK legislative regime. During that same period three International Copyright Acts had been passed to address this issue, all of which proceeded upon the basis of bilateral negotiation and reciprocal protection.148 And yet, the 1862 Bill proposed taking the unprecedented step of abandoning both residency and reciprocity as key aspects of Britain’s international copyright relations. In short, but for the intervention of the House of Lords, a British statutory measure would have embraced the same principle of universal protection that lay at the heart of the French decree of 1852. Britain, of course, would subsequently play a significant role in shaping the contours and securing the success of the Berne Convention in the mid-1880s.149 Had the original draft of the 1862 Bill been passed without amendment, the implications this might have had for the future of the copyright regime, both domestically and internationally, might have been far-reaching indeed.

  • 150 Fine Arts Copyright Act 1862, s. 7.

58In any event, the legislation did otherwise innovate in a number of important respects. In the first place, it decoupled the copyright term from the moment of publication, providing that the life of the author should be the sole criterion by which to calculate the duration of copyright. Second, in its section addressing the fraudulent production and sale of works of art, it provided artists with an early forerunner to the ’moral rights’ currently enshrined within the Copyright, Designs and Patents Act 1988. As a result, work that artists had not produced could not be falsely attributed to them, and artists were also entitled to prevent others from altering their own work during their lifetime without their consent.150 Third, this was the first British statute to introduce the concept of ’originality’ as the standard threshold criterion for securing copyright protection.

  • 151 Hansard, 3rd ser., 166 (1862), 2014.
  • 152 Ibid.

59As the discussions that surrounded the introduction of the originality requirement made clear, however, its inclusion had little to do with origination, authorship, or the conceit of the creative author-genius. Rather, for the individual who purchased both a picture and the copyright in that work, the originality threshold ensured that the artist of the work could not subsequently execute an identical repetition and claim a new, and so competing, copyright therein. Similarly, for the individual who purchased a picture without any written agreement as to the ownership of the copyright in that work (such that any copyright in the work was lost) the originality requirement would prevent the artist from relying upon a copyright-protected repetition of that work to interfere with the purchaser’s commercial exploitation of the original picture. When first introduced, the 1862 Bill was, for Overstone, ’an artists’ Bill, drawn up for the protection of artists only’.151 When the Act received the Royal Assent, however, both the retention of the registration system and the requirement that works should be ’original’ spoke to interests other than those of the artistic community. These aspects of the legislation were considered necessary to secure, in Overstone’s words, ’the interests of the general purchasers of pictures, the interests of the publishers of illustrated works, and the interests of the public at large’.152

Notes

1 This paper is based upon material developed for the AHRC-funded project: Primary Sources on Copyright (1450-1900).

2 International Copyright Act 1844, 7 & 8 Vict., c.12, ss 2, 5.

3 International Copyright Act 1844, ss 3-5.

4 Engravers’ Act 1735, 8 Geo. II, c.13; Engravers’ Act 1766, 7 Geo. III, c.38; Engravers’Act 1777, 17 Geo. III, c.57; Models and Busts Act 1798, 38 Geo. III, c.71; Sculpture Copyright Act 1814, 54 Geo. III, c.56.

5 B. Sherman and L. Bently, The Making of Modern Intellectual Property Law (Cambridge: Cambridge University Press, 1999), p. 126. See also L. Bently, ’Art and the Making of Modern Copyright Law’, in Dear Images: Art, Copyright and Culture, ed. by D. McClean and K. Schubert (London: Ridinghouse/ICA, 2002), pp. 331-51 (p. 336), in which he discusses the influence which the International Copyright Act 1844 had in creating an image of copyright as a distinct branch of the law; this image, he continues, ’became a standard or ideal which begged that the legislature pass a law to protect paintings and drawings’.

6 Sherman and Bently, p. 127. In a Report prepared by the Artistic Copyright Committee for the Society of Arts, designed to address the ’exceedingly defective and unjust’ state of British artistic copyright law, one of the chief defects of the current law was recorded as follows: ’That our Artistic Copyright laws are unjust in their operation upon the Subjects of those foreign States who have entered into International Copyright Conventions with Her Majesty, inasmuch as such treaties are based upon the principle of reciprocity, and that while under those treaties the works of British artists first published in the British dominions are protected from piracy in within the territory of the foreign State named in any such treaty, no similar protection is afforded in the British territories in respect of the works by artists of such foreign States’; Journal of the Society of the Arts, 6 (1857-8), 294. See also the observation of Earl Granville on 22 May 1862, in the House of Lords, upon moving the second reading of the Bill: ’[S]ome change was required in our law in order to enable us to avail ourselves of the provisions to international treaties with reference to this subject’; Hansard, 3rd ser., 166 (1862), 2013.

7 I. Pears, The Discovery of Painting. The Growth of the Interest in Arts in England 1680-1768 (New Haven, Connecticut & London: Yale University Press, 1988), pp. 55-106.

8 Engravers’ Act 1735, 8 Geo. II, c.13; the Act provided anyone ’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’ with a fourteen year right to print and reprint the same (s. 1).

9 Models and Busts Act 1798, 38 Geo. III, c.71.

10 See: G. Reitlinger, The Economics of Taste, The Rise and Fall of Picture Prices 1760-1960 (London: Barrie and Rockliff, 1961); and L. Lippincott, Selling Art in Georgian England: The Rise of Arthur Pond (New Haven and London: Yale University Press, 1983).

11 See: Lippincott, Selling Art; and M. Pointon, ’Portrait Painting as a Business Enterprise in London in the 1780s’, Art History, 7 (1984), 187-205.

12 Lippincott, p. 78.

13 Reitlinger, p. 68.

14 When the Royal Academy drafted the rules pertaining to its first exhibition in 1769, it addressed this phenomenon of copies in the marketplace. The rules provided that ’[n]o Picture copied from a Picture or Print, a Drawing from a Drawing; a Medal from a Medal; a Chasing from a Chasing; a Model from a Model, or any other species of Sculpture, or any Copy be admitted in the Exhibition’; quoted in Sidney C. Hutchison, The History of the Royal Academy 1768-1968 (London: Chapman and Hall, 1968), p. 54. Similarly, when the Academy subsequently advertised for exhibitors, they were keen to stress the same: ’N.B.- No Copies’; Royal Academy Council Minutes, I, 11, quoted in ibid, p. 55.

15 R. Wendorf, Sir Joshua Reynolds, The Painter in Society (Cambridge, MA: Harvard University Press, 1996), pp. 90-1.

16 Reitlinger, pp. 57, 70.

17 R.C. Alberts, Benjamin West: A Biography (Boston: Houghton Mifflin, 1978), p. 109.

18 Ibid. See also: H. von Erffa and A. Staley, The Paintings of Benjamin West (London: Yale University Press, 1986), p. 62; and D. Montagna, ’Benjamin West’s The Death of General Wolfe: A Nationalist Narrative’, American Art Journal, 13 (1981), 72-88. Roberton Blaine, writing in 1861, observed that ’[i]nstances are known where artists have sold from one up to nine repetitions of their pictures!’ He continued: ’Thus, for example, at the South Kensington Museum may be seen three pictures, called ”Uncle Toby and the Widow Wadman”, by a late eminent Royal Academician’. D.R. Blaine, Suggestions on the Copyright (Works of Art) Bill (London: Hardwicke, 1861), p. 9.

19 In general see: S.H.A. Bruntjen, John Boydell, 1719-1804: A study of Art Patronage and Publishing in Georgian London (New York: Garland Publishing, 1985); and W.H. Friedman, Boydell’s Shakespeare Gallery (New York: Garland Publishing, 1967).

20 Alberts, p. 110.

21 Ibid.

22 Friedman, pp. 39-40.

23 Alberts, p. 110.

24 Ibid. See also von Effra and Staley, p. 62.

25 About West in particular, von Erffa and Staley write that, after Wolfe: ’Throughout the rest of the eighteenth century, reproductive prints after West’s major paintings continued to appear regularly, giving his compositions an international circulation and allowing him to expand his income by appealing to a public far larger and more diffuse than they tiny fraction of it that could afford to buy large paintings. In expanding the market for works of art, the flourishing print industry encouraged and responded to popular taste, and so did painters such as West’; ibid.

26 Reitlinger, p. 70.

27 See: von Erffa and Staley, p. 63; and Reitlinger, p. 68.

28 Blaine records that whereas Landseer’s painting Peace and War sold for £1260, the copyright for engraving the same was sold for £3150; Blaine, Suggestions on the Copyright Bill, p. 8.

29 See W.G. Rawlinson, The Engraved Work of J.M.W. Turner, vol. 1 (London: Macmillan and Co, 1908).

30 Reitlinger, p. 98; see also Bently, pp. 337-8.

31 Sayre v. Moore (1785) 1 East 362. About Mansfield’s dictum, Blaine, writing in 1853, commented: ’Notwithstanding the very high authority of the great judge who tried that case, and the previous dictum of Lord Mansfield on the point, it may be doubted whether his direction on that occasion will stand the test of further inquiry. If it be sound, then it is obvious that the value of the copyright which an artist has in the invention or design of his picture is comparatively small; and that the enormous capital embarked in the copyright of pictures and engraving them, is placed in the greatest jeopardy; because it follows that anyone who can surreptitiously or otherwise gain access to a picture, either before or after it is engraved, so as to obtain sketches from, or a copy of it, may thus proceed to engrave the picture, provided he does not copy from the authorized engraving’; D.R. Blaine, On the Laws of Artistic Copyright and their Defects (London: Murray, 1853), pp. 25-6.

32 Sayre v. Moore, 362; Lord Mansfield observed: ’[W]hoever has it in his intention to publish a chart may take advantage of all prior publications. There is no monopoly of the subject here [...] but upon any question of this nature the jury will decide whether it be a servile imitation or not’.

33 De Berenger v. Wheble (1819) 2 Stark 548.

34 Ibid., pp. 548-9.

35 Engravers’ Act 1735, s. 1.

36 Engravers’ Act 1766, 7 Geo. III, c.38, s. 2.

37 Newton v. Cowie (1822) 4 Bing 234 (pp. 245-6). See also Moon v. Broker (1840) The Times, 27 June 1840, in which Moon, a printseller who had acquired ’the exclusive right of engraving and publishing copies’ of a Lanseer painting (A Distinguished Member of the Humane Society) ’for a large pecuniary consideration, and an assignment made to him of the copyright in the engraving’, secured an injunction to prevent the defendant reproducing the same by means of ’a novel and singular process, by which a copy in oil-colours was taken from the engraving in a trifling degree smaller than the original’.

38 Blaine, On the Laws of Artistic Copyright, p. 26.

39 Ibid., p. 27. See also Blaine’s comment in the Appendix to the Report prepared for the Society of Arts on artistic copyright: ’Unless a picture be engraved […] before such a picture be publicly exhibited, no Copyright can, in my opinion, be acquired even in the design of the picture for the purposes of engraving; it is forever lost to the artist’; Journal of the Society of Arts, 6 (1857-8), 298.

40 Bailey v. Harrison (1849) The Times, 28 February 1849.

41 Blaine wrote about the ’practice amongst Artists as to their claims to Copyright’ as follows: ’When an artist sells his picture, it seems to be generally understood that the copyright for the purpose of engraving passes with the picture to the purchaser, unless the artist at the time of the sale either verbally or in writing reserves the copyright. No case appears in the books in which this point has ever been discussed or decided, and it may well be doubted whether such a practice, which by some persons is only asserted to amount to a usage or custom, could be established in any court of law or equity in this country, even assuming that no legislative enactment existed on the subject. It is but natural justice that the artist should have the whole profits allowed by law to be derived from the invention of his picture as well as its execution. Each work he produces may be a double source of direct profit to him, first, by sale of the picture; second, by the exercise or sale of the copyright, or the exclusive right of multiplying copies of the picture by any of the various processes of engraving’; Blaine, On the Laws of Artistic Copyright, pp. 39-40.

42 Journal of the Society of Arts, 6 (1857-8), 297.

43 Martin v. Wright (1833) 6 Sim 297 (pp. 298-9).

44 Report of the Artistic Copyright Committee to the Council (London: Bell and Daldy, 1858). It seems that the Society was prompted to act at this time by the implications of the decision in R v. Closs (1858) Dears & Bell 460. For further details, see the next section: ’The 1861 Bill, the Prevention of Fraud, and the Moral Rights of the Artist’.

45 Journal of the Society of Arts, 6 (1857-8), 91.

46 Ibid., p. 294.

47 Blaine, Suggestions on the Copyright Bill, p. 6 (n. 1).

48 Journal of the Society of Arts, 6 (1857-8), 455-6.

49 Journal of the Society of Arts, 7 (1858-9), 747.

50 Journal of the Society of Arts, 8 (1859-60), 432.

51 Journal of the Society of the Arts, 9 (1860-1), 136.

52 Journal of the House of Commons, 116 (1861), 146; see also Hansard, 3rd ser., 162 (1861), 543.

53 Quoted in Blaine, Suggestions on the Copyright Bill, p. 5.

54 Journal of the Society of the Arts, 9 (1860-1), 576, 583-4.

55 Not everyone was convinced however that the forthcoming International Exhibition provided sufficient grounds for introducing the Act at this time. A commentator for the Athenæum, for example, remarked as follows: ’Much has been said as to the importance of obtaining a desired act prior to the opening of the International Exhibition next May, so as to protect the works of foreign artists which will be exhibited there. This argument, it seems to us, is not of much importance, because a similar temporary act to that passed in 1851 will doubtless be obtained for the purpose of protecting from piracy persons exhibiting new inventions at the International Exhibition of 1862. Nothing, therefore, will be easier than to extend that protection to new and original works of Fine Art either by British or foreign artists’; Athenæum, 1 February 1862, p. 154.

56 Journal of the Society of Arts, 8 (1859-60), 432.

57 Indeed, when the Committee met with Bethell on 17 January 1861, it was resolved that sub-committees of the Artistic Copyright Committee would be appointed ’to confer with the Attorney General in settling the terms of the Bill’; Journal of the Society of the Arts, 9 (1860-1), 136. Moreover, at the Annual General Meeting of the Society, in June 1861, it was reported that ’[t]he Bill [introduced into the Commons by Bethell] though substantially the same as that of last year, has been, under the superintendence of the Attorney General, greatly improved, and as the members are aware, has been introduced into the House of Commons as a Government Bill, and it now stands waiting for Committee’; ibid., p. 583.

58 In general see Journal of the Society of Arts, 6 (1857-8), 294-5.

59 1861 Bill, clause 3; in relation to works of architecture, the protection was of a limited nature, in that once the building had been constructed, then nothing in the proposed Act ’shall preclude any Person from making any Plans, Sections, Elevations, or Models of the same, or any Part thereof, and constructing any Building therefrom, provided such Plans, Sections, Elevations, or Models be made and executed, not from those of the Author of the Design thereof, but only from the said Building’; ibid.

60 Ibid.

61 1861 Bill, clause 6; this also included the work of artists who had died within ten years before the passing of the Act.

62 1861 Bill, clause 5.

63 Rv. Closs (1858) Dears & Bell 460; see also W.A. Copinger, The Law of Copyright in Works of Literature and Art (London: Stevens & Haynes, 1870), p. 196.

64 The original painting had been sold by Linnell for £180; Closs sold the forgery for £130. See Journal for the Society of Arts, 6 (1857-8), 298.

65 Rv. Closs, p. 466.

66 Journal for the Society of Arts, 6 (1857-8), 298.

67 Ibid., pp. 294-5.

68 Compare the 1861 Bill, clauses 13, 14, with the 1862 Act, s. 7.

69 1861 Bill, clause 14.

70 Ibid. This provision was included in s. 7 of the 1862 Act which provided that ’where the Author of Maker of any Painting, Drawing, or Photograph, or Negative of a Photograph, made either before or after the passing of this Act, shall have sold or otherwise parted with the Possession of such Work, if any Alteration shall afterwards be made therein by any other Person, by Addition or otherwise, no Person shall be at liberty during the Life of the Author or Maker of such Work, without his Consent, to make or knowingly to sell or publish, or offer for Sale, such Work or any Copies of such Work so altered as aforesaid, or any Part thereof, as or for the unaltered Work of such Author or Maker’.

71 Hansard, 3rd ser., 166 (1862), 2019.

72 See the Journal of the House of Commons, 116 (1861), 146, 167, 173, 181, 191, 217, 229, 235, 242, 251, 265, 268, 277, 288, 297, 319, 338, 353, 361, 374, 382, 399.

73 Hansard, 3rd ser., 165 (1862), 843; and Hansard, 3rd ser., 166 (1862), 324.

74 Hansard, 3rd ser., 165 (1862), 843.

75 Draft Bill, 27 February 1862, clause 1.

76 For an argument as to the influence of the emergence of commercial photography on the timing of the 1862 Act see Bently, pp. 340-3.

77 Hansard, 3rd ser., 165 (1862), 1890-1.

78 Ibid., p. 1891.

79 G. Clarke, The Photograph (Oxford: Oxford University Press, 1997), p. 48.

80 In 1855, for example, Agnew’s, the art dealers, commissioned Roger Fenton to travel to and take photographs of the Crimean War; after Fenton’s return, Agnew’s exhibited Fenton’s work at the Pall Mall premises of the Society of Painters in Water Colours before publishing a selection of the photographs by subscription. For further details see Geoffrey Agnew, Agnew’s 1817-1967 (London: The Bradbury Agnew Press, 1967), ’Appendix II: Agnew’s and Roger Fenton’, pp. 69-76. Thanks to Elena Cooper for drawing this example to my attention.

81 The Dictionary of Art, ed. by J. Turner, 34 vols (London: MacMillan Publishers Ltd., 1996), XI, pp. 794-5. For more on Frith see J. Talbot, Francis Frith (London: Macdonald, 1985); and D. Wilson, Francis Frith’s Travels: A Photographic Journey through Victorian Britain (London: Dent & Sons, 1985).

82 Hansard, 3rd ser., 165 (1862), 1891.

83 This operated to extend the protection of literary copyright from a bifurcated twenty-eight year term to one that was to last for ’the natural life of [the] author, and for the further term of seven years’ or for forty-two years, whichever period was longer; Copyright Act 1842, 5 & 6 Vict., c.45, s. 3.

84 Hansard, 3rd ser., 165 (1862), 2016-7.

85 Ibid., p. 2019.

86 Section 1 set out that: ’The Author […] of every original Painting, Drawing, and Photograph […] shall have the sole and exclusive right of copying, engraving, reproducing, and multiplying such Painting or Drawing, and the Design thereof, or such Photograph, and the Negative thereof, by any Means and of any Size, for the term of the natural Life of the Author, and Seven years after his Death’.

87 Athenæum, 8 March 1862, p. 334.

88 That the duration of the copyright term should be the same as that for works protected under the 1842 Act was also in line with the recommendation which Blaine had made in his 1853 treatise On the Laws of Artistic Copyright.

89 Copyright Act 1842, s. 3.

90 See: Copyright Act 1842, s. 3; Sculpture Copyright Act 1814, s. 2; Models and Busts Act 1798, s. 1; Engravers’ Act 1766, s. 7; Engravers’ Act 1735, s. 1. There was, however, one exception in the guise of the Dramatic Literary Property Act 1833, 3 & 4 Will. IV, c.15, which provided the right to represent the work in public while the manuscript of the play remained ’not printed and published’; once published however both the copyright (in accordance with the Copyright Act 1814, 54 Geo. III, c.156, s. 4) and the representation right lasted for twenty-eight years from the day of first publication of the same and ’if the Author or Authors, or the Survivor of the Authors’ was still living at the end of that time then for the remainder of his life (s. 1).

91 Fine Arts Copyright Act 1862, s. 1.

92 Draft Bill, 15 April 1861, clause 5.

93 Draft Bill, 27 February 1862, clause 1.

94 Journal of the Society of Arts, 6 (1857-8), 296.

95 By this time, Blaine had resigned from his position as the Reporter of the Society. In his 1861 pamphlet, he explained that, after a Bill had been prepared by the Copyright Committee omitting any need for registration, he made clear to the Society that he would ’advocate [his] own opinions on the Bill when it should be brought before Parliament’; Blaine, Suggestions on the Copyright Bill, p. 4.

96 Ibid., p. 8. He continued: ’As much of the value of a work of art depends upon its being unique, copies of it not only tend to diminish the value of the original, but likewise to cast a doubt upon its originality. Hence it is that purchasers feel deeply aggrieved by the practice of distinguished artists, in making repetitions of their works’; ibid., p. 9.

97 Athenæum, 8 March 1862, p. 334.

98 Athenæum, 29 March 1862, p. 429.

99 Athenæum, 1 February 1862, p. 154.

100 Athenæum, 31 May 1862, p. 735.

101 Draft Bill, 20 March 1862, clause 4.

102 Hansard, 3rd ser., 166 (1862), 324.

103 ’Lord Overstone and Art’, The Times, 29 November 1883.

104 The Correspondence of Lord Overstone, ed. by D.P. O’Brien, 3 vols (Cambridge: Cambridge University Press, 1971), III, p. 32. For further details on Overstone’s life and political career, see ibid., pp. 12-47.

105 ’Lord Overstone and Art’, The Times, 29 November 1883.

106 Hansard, 3rd ser., 166 (1862), 2015.

107 Ibid., p. 2094.

108 Ibid., p. 2015.

109 Fine Arts Copyright Act 1862, s. 4. It should be noted that this provision differed somewhat from its corresponding section in the Copyright Act 1842. Section 24 of the 1842 Act provided that ’no proprietor of copyright in any book which shall be first published after the passing of this Act shall maintain any action or suit, at law or in equity, or any summary proceeding, in respect of any infringement of such copyright, unless he shall, before commencing such action, suit, or proceeding, have caused an entry to be made, in the book of the Registry of the Stationers Company, of such book, pursuant to this Act’. That is, under the 1842 legislation, registration functioned as a prerequisite to the commencement of infringement proceedings, but did not bear upon the subsistence of copyright or upon the right to sue in respect of any infringements that occurred prior to registration. By contrast, s. 4 of the 1862 Act appeared to preclude the ability to take any form of infringement proceedings ’in respect of anything done before Registration’ (emphasis added). Clearly, under the 1862 Act, the incentive to register the copyright in works of fine art as soon as possible was much more compelling than was the case under the statutory regime protecting literary works.

110 Hansard, 3rd ser., 168 (1862), 781.

111 Journal of the House of Commons, 117 (1862), 379.

112 Report of the Royal Commission on Copyright (1878), XXIV, C.2036, XIX.

113 Clause 3 of the 1861 Bill provided that ’[t]he Author of every Picture, Work of Sculpture, and Engraving, which shall be made, or for the first Time sold or disposed of, after the Commencement of this Act, and his Assigns, shall have the sole and exclusive Right of copyright, reproducing, and multiplying such Work, and the Design thereof, by any Means, of any Size, and for any Purpose, for the Term of the natural Life of such Author, and Thirty Years after his Death’.

114 Hansard, 3rd ser., 162 (1861), 1632. See also the comments of Lord Fermoy, ibid., p. 1633, and Lord Overstone (22 May 1862), Hansard, 3rd ser., 166 (1862), 2014.

115 Hansard, 3rd ser., 162 (1861), 1635.

116 Draft Bill, 27 February 1862, clause 1.

117 Athenæum, 8 March 1862, p. 334.

118 Fine Arts Copyright Act 1862, s. 1.

119 On the ’surprising’ nature of the legislation in this regard see for example the comments of R. Winslow, The Law of Artistic Copyright (London: Clowes & Sons, 1889), p. 15.

120 Fine Arts Copyright Act 1862, s. 1.

121 Hansard, 3rd ser., 166 (1862), 2014, 2094.

122 Athenæum, 14 June 1862, p. 790.

123 Athenæum, 8 March 1862, p. 334.

124 Sculpture Copyright Act 1814, s. 1.

125 An Act to Consolidate and Amend the Laws Relating to the Copyright of Designs for Ornamenting Articles of Manufacture, 1842, 5 & 6 Vict., c.100.

126 Draft Bill, 15 April 1861, clause 3.

127 Athenæum, 5 April 1862, p. 466. The commentary continued that ’[i]f repetitions of pictures are to be made, there ought to be no deception, no suppression of the fact as to whether the object sold is original and unique, or a copy. The whole matter should be beyond suspicion, if a copyright is to be of any value to artists generally and to the public’; ibid.

128 Hansard, 3rd ser., 165 (1862), 1889. Similarly, a Mr Henley ’put the case of an artist selling a picture, and retaining no copyright in that picture. If the artist afterwards made a duplicate original, how would matters stand?’ He continued that ’[t] hey all knew that those things were often reproduced in that way, and it was difficult to determine between copies and duplicate originals. How was the second picture to stand? Was there to be copyright in it, or not?’ Ibid., p. 1890.

129 Ibid.

130 Hansard, 3rd ser., 166 (1862), 2014.

131 Fine Arts Copyright Act 1862, s. 1; this however was subject to the proviso in s. 2 that ’[n]othing herein contained shall prejudice the right of any person to copy or use any work in which there shall be no copyright, or to represent any scene or object, notwith-standing that there may be copyright in some representation of such scene or object’.

132 See also Blaine, Suggestions on the Copyright Bill, pp. 8-9.

133 Journal of the Society of Arts, 6 (1857-8), 294.

134 Ibid.

135 For details, see F. Rideau, ’Commentary on the International Copyright Act, Paris (1852)’, Primary Sources.

136 Draft Bill, 15 April 1861, clause 9.

137 Except, that is, in the context of securing copyright protection for British authors in accordance with the International Copyright Acts.

138 Blaine, Suggestions on the Copyright (Works of Art) Bill, p. 24.

139 Draft Bill, 27 February 1862, clause 1 (emphasis added).

140 Athenæum, 5 April 1862, p. 466.

141 Clementi v. Walker (1824) 2 B&C 861 (pp. 867-8, 870; per Bayley J).

142 Chappell v. Purday (1845) 14 M&W 303 (pp. 317-8; per Pollock CB).

143 Fine Arts Copyright Act 1862, s. 1.

144 Jeffreys v. Boosey (1854) 4 HLC 815 (p. 955).

145 Hansard, 3rd ser., 162 (1861), 1637. Similarly, as Lord Chancellor, Bethell described the introduction of the legislation as ’an act of simple justice to artists’; Hansard, 3rd ser., 166 (1862), 2017.

146 Ibid, p. 2016.

147 Athenæum, 20 March 1886, p. 393.

148 International Copyright Act 1838; International Copyright Act 1844; International Copyright Act 1852, 15 & 16 Vict., c.12.

149 See for example the commentary and analysis in L. Bently and B. Sherman, ’Great Britain and the Signing of the Berne Convention in 1886’, Journal of the Copyright Society of the USA (2001), 311-40.

150 Fine Arts Copyright Act 1862, s. 7.

151 Hansard, 3rd ser., 166 (1862), 2014.

152 Ibid.

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