PART L ith letter-press which they illustrate. (a) Lord Ellenragh, however, was of opinion that if an artist should, CHAPTER IX. merely from reading the letter-press of another's work, sketch designs similar to illustrations appearing in that work, this ald not be a piracy of such illustrations. (b) Maps, charts, and plans are now brought expressly within Maps, Charts, the protection of the statutes. (c) and Plans, Where the subject from which an engraving is taken is Where subject common and open to all, the first engraver of a print of it is is common. not entitled to restrain any one else from making an engravg of the same subject, provided it be made from the riginal subject and is not a copy of the first engraving; but he is entitled to prevent another from copying his own engraving. Thus before the Act 25 & 26 Vict. c. 68, gave copyright in paintings, drawings, and photographs, the engraver of a print of any such painting, drawing, or photograph, though he could not claim a monopoly of the e of the picture, &c., from which the engraving was made, was entitled to say to any other person wishing to copy the picture, "Take the trouble of going to the picture yourself, but do not avail yourself of my labour, who have been to the picture, and have executed the engraving."(d) In Wyatt v. Barnard, (e) Lord Eldon said, with reference to specifications of patents, that a person who chose to go to the office, copy a specification and publish it, could not by 30 doing acquire a right to restrain another from copying it. It is not clear from the meagre report whether Lord Eldon ntended merely to assert the right of every one to copy the riginal specification, or to deny altogether the existence of Copyright in productions copied from specifications. The reporters, judging from their marginal note, seem to have understood him in the latter sense, but the former was most robably what he intended. At any rate, if an engraving is made from a drawing aken from the specification of a patent, the engraver has a ight to prevent any other person from pirating his enraving. The engraver," said Best, C.J., in Newton v. rie, (f) "although a copyist, produces the resemblance by means very different from those employed by the painter or raftsman from whom he copies-means which require great abour and talent. The engraver produces his effects by (a) Roworth v. Wilkes (1 Camp. N. P. 94); Wilkins v. Aikin (17 Ves. 22). (b) See Roworth v. Wilkes (1 Camp. 99). (See 7 Geo. 3, c. 38, s. 1, and 17 Geo. 3, c. 57. PART I. .... the management of light and shade, or as the term of his art CHAPTER IX. expresses it, the chiaro oscuro. The due degrees of light and shade are produced by different lines and dots: he who is the engraver must decide on the choice of the different lines or dots for himself, and on his choice depends the success of his print. If he copies from another engraving, he may see how the person who engraved that has produced the desired effect, and so without skill or attention, become a successful rival. . . . . Without the introduction of express words, I should have thought, therefore, that a case of this kind fell within the spirit of the Act. But the 7 Geo. 3, c. 38, extends the protection of the first statute to any print of any map, chart, or plan, or any other print or prints whatsoever.' The same words are used in 17 Geo. 3, c. 57, and nothing is said as to the place in which the original is to be found." In this case the engraving had been executed from a drawing made by an apprentice of the engraver's, from a patent specification. Requisites to copyright in engravings. The words in sect. 1 of 8 Geo. 2, c. 13, requiring the proprietor's name to be affixed to each print, have given rise to considerable discussion, and to some diversity of opinion, amongst the judges. That Act confers a copyright, and inflicts a penalty for the infringement of it, in historical and other prints-to commence from the day of the first publishing thereof-which shall be truly engraved with the name of the proprietor on each plate, and printed on every such print or prints." This would seem to confer a copyright property only in prints so marked with the proprietor's name, and since the decision of Donaldson v. Beckett [in the year 1774] put an end to the notion of a copyright at common law, independent of statutory enactment, it should seem that no property can now exist in published engravings other than what springs from a strict compliance with the requisites of the statute. A different opinion, indeed, appears to have been entertained by Lord Hardwicke in the case of Blackwell v. Harper. (a) That eminent judge expressed an opinion, but somewhat doubtfully, that the words of the Act requiring the insertion of the date of publication on prints were directory only, and not descriptive; and, therefore, that the day was necessary to be inserted on prints only where the penalty of the Act was intended to be taken advantage of. The injunction prayed for by the plaintiff in that case was granted, though the date of publication did not appear on the engravings. And Lord Ellenborough, in Roworth v. (a) 2 Atk. 95; Barn. Chanc. Rep. 210. PART L Wilkes, (a) was of opinion that a plaintiff could recover for piracy of his prints, though his name was not engraved CHAPTER IX. upon them; that the interest being vested, the common law gave the remedy. His lordship, however, reserved the point for the consideration of the full court, but it was not brought before them. Lord Alvanley was of a contrary opinion in Harrison v. Hogg.(b) He considered it "essential to the plaintiff's right to insert the date, &c., many good reasons requiring that the date should be upon the plate." The reason for requiring the name and the date to appear on the print is, according to Lord Kenyon, "that they might convey some useful intelligence to the public. The date is of importance, that the public may know the period of the monopoly. The name of the proprietor should appear, in order that those who wish to copy it might know to whom to apply for consent. It seems, therefore, necessary that the date should remain, but that the name of the proprietor should be altered as often as the property is changed." (c) The view taken by Lord Alvanley, in Harrison v. Hogg, was adopted by the Court of Common Pleas in Newton v. Cowie, (d) after a review of all the cases. They held that in order to maintain an action for pirating prints, the proprietor's name and the date of publication must both appear on the original print, pursuant to 8 Geo. 2, c. 13. Speaking of the statutes 7 Geo. 3, c. 38, and 17 Geo. 3, c. 57, Best, C.J., delivering the judgment of the court, said, "Neither of these two Acts repeats the qualifications of name and date [contained in 8 Geo. 2, c. 7], and the last has, after enumerating different sorts of prints, the words 'any print or prints whatsoever.' But these Acts are in pari materia, and must be taken together, and it was not necessary to repeat in the last the qualifications contained in the first. The right of action given in 17 Geo. 3 is for the piracy of plates, the monopoly of which is secured by the 8 Geo. 2. It is impossible to suppose the legislature intended that the public should not have the protection afforded them by the first Act against a fraudulent continuance of the monopoly beyond the term prescribed by that Act." This case was followed by the Court of King's Bench in Brooks v. Cock, (e) Littledale, J., remarking, that the words "which shall be truly engraved (a) 1 Camp. N. P. 97. (b) 2 Ves. 327. See also Bonner v. Field (cited 5 T. R. 44). (e) 3 Ad. & El. 138. PART L on each plate" are not merely directory, but make such CHAPTER IX. engraving part of the thing to be protected. And in reply to an argument of counsel that 17 Geo. 3, c. 57, passed for the purpose of enlarging the privileges of the artist, gave him a right of action for injuries to his copyright, without any such restriction or condition as is supposed to attach under the previous statute of Geo. 2, Lord Denman, C.J., remarked: "The statutes are evidently connected with each other;" and Littledale, J. added: "the Stat. 17 Geo. 3, c. 57, was intended only to give the proprietors of plates a further remedy. Before that Act, the person infringing the copyright was liable only to forfeit his plate and prints, and five shillings for each print. As many engravings are published at a great expense, this was an insufficient remedy for their being pirated, and, therefore, the Act of 17 Geo. 3, c. 57, was passed enabling the proprietor to recover damages in an action on the case."(a) All the cases agree that the penalties at least cannot be recovered, unless the conditions laid down in the Act of Geo. 2 are complied with. The statute requires that the "name of the proprietor" shall be truly engraved on each plate, as well as "the day of the first publishing thereof." The name of the publisher is not required, but only that of the proprietor. The Act does not, however, say that he shall be called the proprietor on the plate; he may even be described on the plate as the publisher, provided he be in fact the proprietor. Thus, where the publication line contained the words-" London: Published by Henry Graves & Co., May 1, 1861, Printsellers to the Queen, 6, Pall Mall," Henry Graves & Co. being the actual proprietors of the engraving, it was held to be a sufficient compliance with the requisites of the Act. In that case (b) Kelly, C.B., delivering the judgment of the Court of Exchequer Chamber, said, "The question is, whether the Legislature, when they required the name of the proprietor to appear, required that he should be expressly described as being the proprietor. They certainly have not said so in terms, and we must put a reasonable construction upon the words they have used. Every one who is at all conversant with these things looks at what is called the 'publication line' for the name of the proprietor. The name which appears on the face of the print must be assumed to be that of the proprietor, and it cannot alter the effect or be less a compliance (a) Cf. Colnaghi v. Ward (6 Jur. 970). (b) Graves v. Ashford (L. Rep. 2 C. P. 421; 16 L. T. N. S. 98 36 L. J. 139, C. P.). PART L with the Act because he is called the publisher. I think the statute has been substantially and literally complied CHAPTER IX. with." A further objection was urged in the case last referred to -that the words "Henry Graves and Company" imported that Henry Graves had a partner, who prima facie would be s part proprietor of the engraving, and that, as his name was not given the Act was not complied with. It appeared, however, from the evidence, that the person indicated by the words "and company" was a person to whom Mr. Graves paid a fixed sum per month out of his business; and the court held that the payment to a person of a fixed m periodically did not constitute that person a partner or part proprietor; that Henry Graves, therefore, was the sole proprietor of the engravings in question, and that as his name appeared thereon, the requirement of the statute had been sufficiently complied with. In Blackwell v. Harper (a) Lord Hardwicke held the words. "Elizabeth Blackwell, sculpsit et delineavit" to be a sufficient disclosure of proprietorship. In the case just referred to only one name appeared on the print, and so no mistake could arise. But even where more than one name appears on the engraving, if one of them is the name of the proprietor, the requirement of the statute is sufficiently complied with. Thus, where the publication line ran "Newton, del., 1st May, 1826; Gladwin, sculp.," the Court of Common Pleas held it to be sufficient. (b) "The words on these prints," said Best, C.J., "do not directly designate that the plaintiff the proprietor, nor do I believe that it has ever een stated on any print that was ever published who was he proprietor. Nor in any one of the cases which have een decided in favour of engravers has the word proprietor ver appeared upon the print. . . . The words of the Act re satisfied by the disclosure of the proprietor's name; this a sufficient indication of the person who is to be applied for leave to copy the print; coupled with the date, it hows how long the designer has had the monopoly, and lly accomplishes the two objects of the Act." (c) It is not necessary to register engravings or prints under he Act of 5 & 6 Vict. c. 45, in order to sue for piracy. egistration is not required even in the case of lithographic rints of a map. (d) (a) 2 Atk. 93; Barn. 210, s. c. See also Stannard v. Lee (23 L. T. |