CHAPTER VIII

COPYRIGHT IN PAINTINGS, DRAWINGS, AND PHOTOGRAPHS

SECTION I.--WHAT WORKS ARE PROTECTED.

The following works are protected under the Fine Arts Copyright Act, 1862:

1. Every original painting, drawing, and photograph:[910] 2. Not first published outside the British Dominions:[911] 3. The "author" of which is a British subject, or is resident within the dominions of the crown [when the work is made]:[912] 4. Which has been registered before infringement:[913] 5. And is innocent.[914]

Protection vests at the date of making, and endures for the author's life and seven years.[915]

Protection is limited to the United Kingdom.[916]

=Every Original Painting, Drawing, and Photograph.=--There is no attempt to define what is a painting, drawing, or photograph within the meaning of the Act.[917] The substances used in the making are no doubt immaterial, so long as the result is _ejusdem generis_ with what is ordinarily meant by a picture, drawing, or photograph. A painting on the wall of a house would doubtless be protected, but not a design created by grouping figures in a _tableau vivant_.[918]

_Originality_ as an essential of protection means that there must be something either in the design or execution of the work which is not merely copied from some other artistic work. The whole work need not be original. Thus the execution may be original but not the design, as in the case of a photograph of an old picture;[919] or part only of the design may be original, as in the case of the design of an old drawing added to or altered. In so far as the work is new there will be protection, but in so far as it is old there will be no protection.[920]

_Artistic Merit._--The Court will not inquire as to whether a painting, drawing, or photograph is good, bad, or indifferent. If it consists in the representation of some object by means of light and shade or colour, it will suffice, and even the coarsest or the most commonplace, or the most mechanical representation of the commonest object would be protected so that an exact reproduction of it, such as photography, for instance, would produce, would be an infringement of copyright.[921] Probably there must be a representation of some concrete object, real or imaginary. Protection, for instance, was refused to a label for Eau de Cologne,[922] which merely bore the legend "Johanna Maria Farina gegenüber dem Julichs Platz," written in copperplate with sundry dots and flourishes. It was held that any one who had a right to sell Farina's Eau de Cologne might manufacture and use the label, since although the label was a trade mark there was no copyright in it. A label with anything in the nature of a picture on it would undoubtedly be copyright, as the use to which a work of art is put is immaterial, but it is doubtful whether a label containing merely geometrical figures and fancy dots and lines would be protected under the Act of 1862. Probably it would not.

=Publication outside the British Dominions.=--Copyright in works of art under the Act of 1862 begins on the making thereof, and is not dependent on publication. It is immaterial where the work is made, whether in the British dominions or elsewhere, and it would be as immaterial where it was first published, or whether it was published or not, but for the provision of the International Copyright Act, 1844. Section 19 of this Act provides that the maker of a work of art which shall be first published out of the British dominions shall not have copyright therein otherwise than such as he may become entitled to under the International Acts; which means that where there is no treaty a work first published abroad is not protected at all. The result of this section was evidently not contemplated when the Fine Arts Act, 1862, was framed. There seems to be no doubt that the work, wherever made, will acquire copyright immediately on the making, but that that copyright may be lost if the work is published abroad before it is published in the British dominions.

_Published._--A painting, drawing, or photograph is probably published when it is so exhibited as to give the public an opportunity of viewing it. The leading case on publication of works of art is _Turner_ v. _Robinson_[923] in the Court of Chancery in Ireland. This case was decided before 1862, and therefore before there was any statutory copyright in paintings. The subject-matter was a painting from which certain stereoscopic views had been taken without the proprietor's consent. The painting had been previously, with the consent of the proprietor, published in the form of an engraving in a magazine, and exhibited at the Royal Academy in London and in Manchester. It was then exhibited with the proprietor's consent in Dublin for the purpose of obtaining contributors to a proposed engraving, and while so exhibited the defendant, without consent, copied it and produced his stereoscopic photographs. The Master of the Rolls[924] thought that the picture had never been published, because the exhibitions to the public in the Academies and in Dublin were on the condition that no copies should be taken, and the engraving in the magazine was not a publication of the picture, but only of a rough representation of it. He therefore held that the common law right in the picture had not been lost by publication, and that the proprietor could recover against the taker of the stereoscopic views as against an infringer of common law rights. The Court of Appeal in Chancery upheld the judgment of the Master of the Rolls, but on different grounds. They said it was unnecessary to decide whether there had been publication in London and Manchester since, in their opinion, the act of the defendant in taking stereoscopic views from the painting was a breach of faith. He was admitted to the view in Dublin for one purpose only, _i. e._ to become if he wished a subscriber to an engraving; but he abused his privilege by taking a copy of the painting which might well compete with the plaintiff's proposed engraving. The defendant was, therefore, restrained on the ground of breach of faith or implied contract. In his judgment the Lord Chancellor disapproved of the view of the Master of the Rolls that there had been no publication in London or Manchester. He thought exhibition in the Academy, even although to a certain extent conditional, would be sufficient publication to vest the copyright, _e. g._ in a work of sculpture under the statutes applicable to such works. Exhibition in a public gallery, therefore, would be publication, but not a private view in the artist's studio to which only a small and selected portion of the public are invited. Whether the publication of a print would be publication of the picture from which it was taken, _quære_; the Master of the Rolls thought not, and on this point the Court of Appeal neither approved nor disapproved.

=Nationality or Residence of Artist.=--The protection of the Act is expressly limited to the works of British subjects and of such foreigners as are resident within the dominions of the Crown.[925] There is no direction in the statute as to the time when the author must possess the requisite nationality or residence. Must it be at the time of making or at the time of publishing, or both? It is submitted that it must be at the time of making, since copyright in the work vests at that time, and there may never be publication at all. There seems to be no reason for suggesting that the date to be looked at is the date of publication, except that the next words in the section provide that the work may be made anywhere, and the proviso as to the residence of the author, if applied at the date of making, means that--

1. A work by a British subject may be made anywhere; but, 2. A work by an alien must be made within the dominions of the Crown.

There does not seem to be anything absurdly contradictory in this, and there is, on the other hand, a patent absurdity in not being able to determine whether the author is an author within the Act until long after the right has begun to run.

=Registration.=--A condition precedent to protection is registration in the book kept at the Hall of the Stationers' Company.

_The Requisite Entry._--There must be registered:

1. Name and place of abode of the "author." 2. Name and place of abode of the proprietor. 3. Short description of the nature and subject of the work. And if desired, 4. A sketch outline or photograph of the work.

The wording of section 4 of the Act of 1862 providing for compulsory registration is very confused, the requirements on first registration being unaccountably mixed up with the requirements on subsequent assignment.

On first registration whenever it takes place it is submitted that the

## particulars entered should be as above.[926] The author and proprietor

may very likely be the same individual, in which case the one name will be entered twice, once under each description. It would probably not be sufficient merely to enter the author's name once as author and leave it to be implied that he is the owner. Even if the author and proprietor are different persons, either because the author has been employed for valuable consideration or because he has granted an assignment, the particulars to be entered on first registration are the same, no entry of the terms of employment or assignment being necessary.[927] The real proprietor must be on the register, and if the wrong person is registered as proprietor it will not give a cause of action to join such person as co-plaintiff with the real proprietor who is not on the register.[928]

As in the Literary Copyright Act, copyright in the work exists before registration, but no action is maintainable without registration, and under this Act even after registration there is no remedy in respect of infringement committed before registration.[929]

It need hardly be said that the necessity of registration only applies to an action on copyright proper, and an action will without registration lie on breach of contract, express or implied,[930] and probably on the common law right of an author and his assigns in unpublished work.[931]

If an unauthorised copy is made before the proprietor is registered but sold afterwards, an action for damages will lie for the offence of selling such copies, but no action for penalties.[932] No action at all will lie for making.[933]

If an action is brought by an assignee, such assignee must be on the register as proprietor,[934] and it will not avail to join as co-plaintiff an unregistered assignee with the assignor who although registered has parted with the copyright.[935] An assignee taking from a registered assignor probably cannot sue in respect of acts of infringement committed before the registration of the assignment.[936] It is not necessary that the original proprietor, whether author or employer, should have been registered,[937] but once registration has been effected it would seem that all future assignments must be entered on the register.[938]

The registration by an assignee under an assignment, subsequent to first registration, must contain the following particulars:[939]

1. Date of assignment. 2. Names of parties to the assignment. 3. Name and place of abode of the assignee. 4. Name and place of abode of the author. 5. Short description of nature and subject of the work. And if desired, 6. A sketch outline or photograph of the work.

The enactments of 5 & 6 Vict. c. 45 (the Literary Copyright Act) as to

1. Keeping the Register Book; 2. Searches and certified copies therefrom; 3. False entries; 4. Application to expunge,

apply _mutatis mutandis_ to registration of paintings, drawings, and photographs.

The charge for making an entry is one shilling.

_Name._--The trading style of a firm is a sufficient registration of the name of a proprietor.

_Place of Abode._--The place where a man can readily be found on inquiry is sufficient. A business address is a "place of abode" within the statute.

_Short Description of the Nature and Subject of the Work._--The title of the work will sometimes be a sufficient description. The following were held sufficient descriptions of Sir John Millais' well-known pictures, viz.: "Painting in oil, 'Ordered on Foreign Service'"; "Painting in oil, 'My First Sermon'"; "Photograph, 'My Second Sermon.'"[940] Blackburn, J., said:

"It is the object of the legislature that enough be stated to identify the production, and that the registration must be _bonâ fide_, that a man shall not first claim one thing and then sue for another. The description must be such as shall earmark the subject.... The picture 'Ordered on Foreign Service' represents an officer who is ordered abroad taking leave of a lady, and no one can doubt that is the picture intended.... There may be a few instances in which the mere registration of the name of the picture is not sufficient: for instance, Sir Edwin Landseer's picture of a Newfoundland dog might possibly be insufficiently registered under the description of 'A Distinguished Member of the Humane Society.' So also of a bullfinch and a couple of squirrels described as 'Piper and a Pair of Nut-crackers.' ... It would be advisable for a person proposing to register to add a sketch or outline of the work."[941]

In the learned judge's opinion deficient description although it would not be sufficient in itself, may be made sufficient by the addition of a photograph, sketch, or outline. It would seem, however, that there must be a description of some kind, and that a photograph or sketch would not by itself be sufficient.

=Immoral Works.=--There will be no copyright in profane, libellous, or indecent[942] works of art.

=Duration of Protection.=--The copyright under the Fine Arts Act endures for the term of the natural life of the "author" and seven years after his death.[943]

Copyright will cease if and when any painting or drawing or the negative of any photograph is sold by the first owner thereof without either the express reservation in writing of such copyright to the vendor signed by the vendee or his agent, or the express assignment in writing of such copyright to the vendee signed by the vendor or his agent.[944]

The copyright will also cease (probably) if the work is published out of the British dominions before publication within the dominions.[945]

SECTION II.--THE OWNER OF THE COPYRIGHT.

=The Author.=--The copyright is given to "the author and his assigns," except when the work is executed for or on behalf of any other person for a good or valuable consideration.[946] The author is the actual artist whose mind has created the work.[947] The giving of ideas and suggestions to another is not sufficient to constitute an author,[948] but, on the other hand, there might be an author who had done little or nothing of the manual work required in the execution. In _Nottage_ v. _Jackson_ the question of authorship in works of art was fully discussed. Brett, M. R., said:

"The author of a painting is the man who paints it, the author of a drawing is the man who draws it,... of a photograph the author is the person who effectively is as near as he can be the cause of the picture which is produced, that is, the person who has superintended the arrangement, who has actually formed the picture by putting the people into position and arranging the place in which the people are to be--the man who is the effective cause of that. Although he may only have done it by standing in the room and giving orders about it, still it is his mind and act, as far as anybody's mind and act are concerned, which is the effective cause of the picture such as it is when it is produced."

Cotton, L. J., in the same case, said:

"In my opinion 'author' involves originating, making, producing, as the inventive or master mind, the thing which is to be protected, whether it be a drawing or a painting or a photograph.... It is not the person who suggests the idea but the person who makes the painting or drawing who is the author."

=The Employer.=--When an artistic work, protected by 25 & 26 Vict. c. 68, is executed by the author for or on behalf of any other person for a good or valuable consideration, the copyright vests in the employer and his assigns, unless it be expressly reserved to the author by agreement in writing signed by the employer.[949] This provision applies to the everyday case of a person employing and paying a painter or photographer to take his portrait. The copyright vests in the customer.[950] The case, however, is not always so simple. Difficult questions arise where the artist, usually a photographer, requests the sitter, probably an actress or athlete, to allow his portrait to be taken on the understanding that the artist may publish and sell copies.[951] The sitter probably receives free copies or copies at a reduced price. The difficulties to be solved are purely questions of fact in each case, viz.:

1. Was the portrait taken for or on behalf of some person other than the artist? 2. Did the artist receive good and valuable consideration?

As a rule, where a photographer invites celebrities to sit for him, the understanding will be that the portrait is taken on the photographer's behalf;[952] but at the same interview some plates might be taken on behalf of the photographer and some on behalf of the sitter.[953] The valuable consideration received by the photographer need not be a money payment, but may consist merely in the right given to him to publish and sell copies.[954]

When a managing director of a company employed A to make drawings for a trade catalogue, the letterpress of which he wrote himself, it was held that he was acting merely as agent for the company, and that as the drawings were made not on his behalf but on behalf of the company he was not the proprietor.[955]

=The Assignee.=--Assignment is required to be by some note or memorandum in writing signed by the proprietor of the copyright or his agent appointed for that purpose in writing.[956] Registration is not necessary to effect assignment,[957] although the assignee must be registered before he can sue.[958]

No particular words are required in an assignment,[959] but there must be a present grant and not only an executory contract.[960]

_Partial Assignment._--It is doubtful whether a copyright can be

## partially assigned, either limited as to a copying of a particular

kind or limited as to place or time.[961] What is called by the

## parties an assignment may only amount to a licence. In _Lucas_ v.

_Cooke_[962] the proprietor of the copyright in a picture granted the following document to an engraver: "I assign to you for the purposes of an engraving of one size the copyright of the picture painted by Mr. E. V. Eddie, entitled "Going to Work," and being a portrait of my daughter." Fry, J., said:

"The result of this instrument in my view was that after the preparation of the engraving and the registration, Mr. Lucas (the engraver) became the owner of the copyright of the print or engraving, and Mr. Halford remained the owner of the copyright of the painting."

It was held that the engraver, in order to succeed against a copyist, would have to show that the alleged infringement was a copy of his engraving, another copy of the picture itself was no infringement of his rights. The transaction was a licence, and probably a licensee can never sue in his own name. In one case,[963] however, Mathew, J., held that a sole licensee for a limited time could sue, and did not require to be registered. The plaintiff had acquired from the proprietor of the copyright in a picture the sole right to reproduce it in chromo for two years. The defendants also produced a chromo of the picture taken directly from the picture and not from the plaintiff's chromo. Mathew, J., held that the plaintiff, as sole licensee, was entitled to prevent any one infringing his right, and that being a licensee and not an assignee, his name was not required to be on the register. This is a very doubtful decision.

SECTION III.--INFRINGEMENT.

=Prohibited Acts and Remedies.=--The right given is "the sole and exclusive right of copying, engraving, reproducing, and multiplying a painting or drawing and the design thereof, or a photograph and the negative thereof by any means and of any size."[964]

It is an offence for the author having parted with the copyright, or for any other person not being the proprietor[965]--

1. To repeat, copy, colourably imitate or otherwise multiply for sale, hire, exhibition, or distribution. 2. Knowingly to import into the United Kingdom, or sell, publish, let to hire, exhibit, or distribute, or offer for sale, hire, exhibition, or distribution any copy unlawfully made.

And for any of the above offences an action lies at the instance of the proprietor for[966]--

i. Sum not exceeding £10 on each copy made or dealt with.[967] ii. Forfeiture of copies to the proprietor.[968] iii. Inspection and account.[969] iv. Damages.[970] v. Injunction.[971]

Penalties and forfeiture of copies may also be obtained by summary proceedings before any two justices having jurisdiction where the party offending resides.[972]

It is further an offence--

3. Innocently to import or sell, publish, let to hire, exhibit, or distribute, or offer for sale, hire, exhibition, or distribution any copy made without the owner's consent.

For any of which an action lies at the instance of the proprietor of the copyright for[973]--

i. Damages. ii. Delivery up of copies, iii. Inspection and account.[974] iv. Injunction.[975]

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

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

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

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

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

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

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

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

## actionable.

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

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

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

For any of these fraudulent acts the person aggrieved may recover by

## action[993]--

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

##