Chapter 21 of 40 · 1471 words · ~7 min read

CHAPTER VII

SECTION I.--WHAT WORKS ARE PROTECTED.

The following works are protected under the Sculptures Act:

1. Every original sculpture:[875] 2. First published within the British dominions:[876] 3. [The author of which is a British subject or resident within the British dominions]:[877] 4. Which bears the proprietor's name and the date [of first publication] thereon:[878] 5. And is innocent.[879]

Protection endures for fourteen years from publication, and another term of fourteen years if the author is then alive and retains the copyright.[880]

Protection is probably limited by implication to the United Kingdom.[881]

=What is an Original Sculpture.=--The work protected is "any new and original sculpture, or model, or copy, or cast of the human figure or human figures, or of any bust or busts or of any part or parts of the human figure clothed in drapery or otherwise, or of any subject being matter of invention in sculpture, or of any alto or basso-relievo representing any of the matters or things hereinbefore mentioned, or any cast from nature of the human figure or of any part or parts of the human figure, or of any cast from nature of any animal or of any part or parts of any animal, or of any such subject containing any of the matters or things hereinbefore mentioned, whether separate or combined."[882]

In one case it was contended that the Act only applied to representations of human figures and animals. North, J., however, held that "any new and original sculpture" applied to any subject "being matter of invention in sculpture," and that casts of fruit and leaves used for instruction in drawing were protected.[883]

Carefully modelled toy soldiers have been protected as works of sculpture.[884]

=The Sculpture must be First Published within the British Dominions.=--The Act provides that protection shall run from the first publication of the work.[885] Before 1886 it is possible that first publication within the United Kingdom was required, now first publication anywhere within the British dominions will vest the copyright;[886] first publication outside the British dominions will destroy it.[887]

_Publication._--A work of sculpture is published when the "eye of the public"[888] is allowed to rest upon it, that is to say when the sculpture itself and not merely a photographic copy or sketch is so exhibited that the general public have an opportunity of viewing it.[889] Exhibition in any public gallery such as the Royal Academy would be publication; but a private view in the artist's studio would not be publication.

=Author's Nationality.=--It is extremely doubtful whether the author must not at the time of first publication bear some allegiance to the crown by virtue of nationality or residence. If this is so in the case of books,[890] there seems to be no good ground for saying that the statute as to sculpture[891] was intended to be more generous to the foreigner than that as to books.[892]

=Proprietor's Name and Date.=--The protection given by the Sculpture

## Act is conditional on the proprietor or proprietors having caused his,

her, or their name or names with the date to be put on every sculpture before the same shall be put forth or published.[893]

_Proprietor's Name._[894]--As to what will probably be a sufficient statement of the proprietor's name, see the cases on engravings[895] on which also the proprietor's name is required. As to this provision the two statutes seem to be _in pari materia_ and the cases equally applicable to both.

_Date._--It is not stated what date: but there can be no reasonable doubt but that the date of first publication is intended. The older statute governing sculptures[896] (now repealed) required the proprietor's name and "date of publication." The International Act, 7 & 8 Vict. c. 12, in reciting the provisions as to sculptures, runs "and by the said Acts[897] it is provided that the name of the proprietor, with the date of first publication thereof, is to be put on all such sculptures." It should be noticed, however, that both statutes were then in operation and 38 Geo. III. c. 71 had not yet been repealed, so that the recitation in 7 & 8 Vict. c. 12 may apply only to the provision in 38 Geo. III. c. 71, and is not necessarily explanatory of 54 Geo. III. c. 36. There can be no doubt, however, that the omission in 54 Geo. III. c. 56 to state what date was required was an oversight, and everything points to its being the date of first publication that is meant. The statutory protection begins then, and from then the duration of the copyright is measured so that there is strong reason for the public being apprised of the date of first publication, while the date of making, which is the only other conceivable date, is of no importance. When the date affixed was a date a few days before publication, Wright, J., held it was immaterial, as it would only shorten the term of the copyright.[898]

=Immoral Works.=--Profane, libellous, or indecent works will not be protected. There are no direct authorities in respect of unlawful works of sculpture, but as in books,[899] paintings,[900] and engravings[901] the general policy of the law not to take an account between wrong-doers will apply.

=Duration of Protection.=--Statutory protection commences on publication.[902] Before publication the unpublished work will be protected at common law from any use which may be made of it without the permission of the owner. After publication the statutory protection alone exists and subsists for fourteen years[903] with a further term of fourteen years if at the expiration of the first term the person who originally made or caused the sculpture to be made is alive and has not parted with the copyright.[904]

SECTION II.--THE OWNER OF THE COPYRIGHT.

=The Artist.=--If a work of sculpture is made by an artist on his own behalf he becomes on publication the proprietor of the copyright if before publication he has not assigned his interest in the work.

=The Employer.=--If one procures an artist to make a work of sculpture for him the employer will be _ab initio_ the owner of the copyright without any necessity for assignment from the artist. In order so to vest the work the employer, it would seem, requires to take no part in the invention or design of the work. If he causes the work to be done, he comes within the Act. No valuable consideration need be shown.

=The Assignee.=--Assignment must be under seal, _i. e._ by a deed in writing signed by the proprietor in the presence of and attested by two or more credible witnesses.[905]

SECTION III.--INFRINGEMENT OF THE COPYRIGHT.

=Prohibited Acts and Remedies.=--The Act (54 Geo. III. c. 56) gives to the proprietor "the sole right and property" of works in sculpture.

The prohibited Acts are[906]--

1. Making a pirated copy. 2. Importing a pirated copy. 3. Exposing for sale or otherwise disposing of a pirated copy. 4. Causing any of these acts to be done.

The remedy is an action at the suit of the proprietor for[907]--

i. Damages. ii. Injunction. iii. Costs--"a full and reasonable indemnity."[908]

_Guilty Knowledge._--Ignorance is no defence to an action in respect of any of the prohibited Acts, even that of selling.

_Limitation of Action._--All actions under the Act must be commenced within six months of the discovery of the offence sued on.

_Copying for Private Use._--Either making or importing a single copy for private use would technically be an infringement. The prohibition is not limited to making or importing for sale, hire, exhibition, or distribution, as in the case of paintings, &c., under 25 & 26 Vict. c. 68, sec. 6.

=What is a Piratical Copy.=--A pirated copy may be "produced by moulding or copying from or imitating in any way any of the matters or things put forth or published under the protection of the Act ... to the detriment, damage, or loss of the proprietor."[909]

The prohibition is against "imitating in any way." This prohibition does not seem so wide as that in 25 & 26 Vict. c. 68, which prohibits the multiplication of a painting or drawing or the design thereof. It is more similar to the prohibition in the Engraving Act 8 Geo. II. c. 13, viz., against engraving, &c., "or in any manner copying" a copyright print. It seems therefore to be open to question as with engravings whether a piece of sculpture can be infringed except by some work of art which reproduces the peculiar art of the sculptor. Would a piece of sculpture be infringed by a picture, sketch, or engraving copying the design of the work?

Licence would be a defence, and it probably does not require to be in writing. There is nothing in the Act from which the necessity for a licence to be in writing could be implied.