AN APPEAL FROM THE COURT OF APPEAL IN ENGLAND.

Copyright-Infringement-Paintings-Fine Arts Copyright Act 1862 (25 & 26 Vict. c. 68), s. 1 -Sketches in newspaper.

The manager of a theatre exhibited on the stage tableaux vivants, which were grouped and dressed in imitation of certain pictures, of which the copyright was in the appellant. The respondents, who were proprietors of an illus. trated newspaper, published sketches of the tableaux exhibited at the theatre.

Held (affirming the judgment of the court below), that such sketches were not copies or reproductions of the appellant's pictures, or of the design thereof, within sect. 1 of the Fine Arts Copyright

Act 1862.

By Lord Watson: The "idea" of a painting is something different from the "design," and is not within the protection of the statute. THIS was an appeal from an order of the Court of Appeal (Lindley, Lopes, and Davey, L.JJ.), reported in 70 L. T. Rep. 854, and (1894) 3 Ch. 109, discharging an order of Stirling, J., whereby an injunction until the trial of the action, or until further order, had been granted on the motion of the plaintiff, the present appellant, restraining the defendants, the present respondents, from copying or colourably imitating, or from printing, selling, or exhibiting, copies of certain copyright pictures of the plaintiff's, and ordering-the appeal being treated by consent as the trial of the action-that

(a) Reported by C. E. MALDEN, Esq., Barrister-at-Law. Vol. LXXII., 1842.

the action should stand dismissed as against the defendants.

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The appellant was a fine art publisher and dealer in works of art, and carried on business at Munich, in London, and elsewhere. respondents were respectively the proprietors and the publisher of the Daily Graphic. The appellant was the proprietor of the following copyright picFirst tures: "The Three Graces," by Courten; Love," by Koch; "Yes or No." by Menzler; "Charity," by Liezen Mayer; "Naughty Song," by Andreotti; "Night," by Kray; "Vestal Virgin," by Wünnenberg; and "The Billet Doux," by Erdmann. All the pictures were first published in Munich after the conclusion of the Berne Convention in 1887, and the appellant was entitled to the exclusive copyright therein throughout the German empire. In these circumstances the appellant contended that, by virtue of the International Copyright Act 1886 (49 & 50 Vict. c. 33), and of an Order in Council made thereunder in 1887, he was entitled to the exclusive copyright in the works in the United Kingdom. In his statement of claim the appellant described the pictures as consisting in part of compositions intended to represent one or more human figures dressed in fancy or character costumes or draperies, and posed in distinctive attitudes, and in part of compositions intended to represent indoor or outdoor scenes, and claimed the copyright for the United Kingdom of the representations of human figures in the characteristic costumes and distinctive attitudes, as well as of the scenes, and of the combinations. The Empire Palace Limited, in the course of their entertainment, presented in their music-hall a series of so-called "living pictures,” which they advertised as "pictures of wellknown masters realised." The entertainment consolid gilt picture-frame of representations of sisted in the presentation on the stage within a various pictures, the figures in which were those of living persons, the scenery around them being painted on canvas. The appellant alleged that these representations were copies of his pictures,

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and as such constituted an infringement of his copyright, and that the Daily Graphic, in publishing sketches of such representations, had also infringed his copyright. The case originally came before Stirling, J., when three questions were argued (1) whether the appellant, not being registered as the proprietor of the pictures in this country, could maintain the action; (2) whether, assuming him to be entitled to the copyright in the pictures, the extent of that right was to be determined by the German or the English law; and (3) whether what the respondents had done was an infringement of the appellant's copyright under either the English or the German law. The learned judge decided all three points in favour of the appellant, and granted the injunction asked for. The Court of Appeal, however, reversed the decision upon the third point, holding that the sketches in the Daily Graphic were so rough and incomplete that they did not represent any of the artistic merits of the appellant's pictures.

Finlay, Q.C., Scrutton, and Jessel, for the appellant, argued that the sketches in the respondents' paper were, in fact, infringements of the appellant's copyright within the statute 25 & 26 Vict. c. 68. [The LORD CHANCELLOR.The object of the sketches is not to copy the appellant's pictures, but to show the public what is to be seen at a public entertainment.] If these are in fact copies of the pictures, the intention is not material. A bad copy may be an infringement, and, by vulgarising the picture, may do more harm than fair artistic competition. See

Hanfstaengl v. Holloway, 68 L. T. Rep. 676; (1893) 2 Q. B. 1.

At any rate, these are reproductions of the designs of the pictures within the statute. See

Ex parte Beal, 18 L. T. Rep. 285; L. Rep. 3 Q. B. 387;

Turner v. Robinson, 10 Ir. Ch. Rep. 121. The Court of Appeal misunderstood the decision in Dicks v. Brooks (43 L. T. Rep. 71; 1 Ch. Div. 22), which was decided on the Act which protects an engraving, apart from the original design. See also West v. Francis (5 B. & Ald. 737) as to what is a copy.

Crackanthorpe, Q.C., Grosvenor Woods, Q.C. and Forman, who appeared for the respondents, were not called upon to address their Lordships.

At the conclusion of the argument for the appellant, their Lordships took time to consider their judgment.

Dec. 17.-Their Lordships gave judgment as follows:

The LORD CHANCELLOR (Herschell). - My Lords: The plaintiff is the owner of the copyright in certain paintings. Some points were raised as to his title, but as, in the view which your Lordships take, it has not been found necessary to argue them, he must be assumed to have all the rights which are conferred by the Copyright Acts. An exhibition took place on the stage of the Empire Theatre of what were called living pictures. These were formed by living persons who had assumed the dress, attitude, and position of the figures to be found in the plaintiff's copyright paintings, and had been placed, as far as possible, in apparently the same surroundings. In short, the living picture was intended to be a representation of the artist's work. The defen

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dants are the publishers of the Daily Graphic newspaper. They published, in their issue of the 8th Feb. 1894, sketches of the living pictures, taken by one of their artists. These were accompanied by an account of the performance, and were intended to convey information, by pictorial means, of the entertainment to be witnessed at the theatre. The plaintiff complains that the sketches so published constitute an infringement of his copyright. Stirling, J. came to this conclusion, but the Court of Appeal reversed his decision, and gave judgment for the defendants. The copyright in paintings is regulated by the 25 & 26 Vict. c. 68, which, by sect. 1, confers the sole and exclusive right of copying, engraving, reproducing, and multiplying the painting and the design thereof, and, by sect. 6, imposes a penalty on any person who shall, without the consent of the proprietor of the copyright, “repeat, copy, colourably imitate, or otherwise multiply for sale, hire, exhibition, or distribution, or cause procure to be repeated, copied, colourably imitated, or otherwise multiplied for sale, hire, exhibition, or distribution, any such work, or the design thereof." The plaintiff's counsel felt it difficult to say that the alleged infringement was a copy or reproduction or multiplication of the plaintiff's paintings, but they relied on the words. or of the design thereof." And I think that the plaintiff cannot succeed in this action unless he can show that the defendants have copied the design of some or one of his paintings. It is obvious that the plaintiff cannot successfully claim to have a monopoly of every treatment of such common subects as Love and Courtship, or Charity. I take these as examples. The paintings of which he alleges his copyright to have been infringed were all of this class, and it would be impossible to give the word "design," as used in the statute, so wide a meaning as to confer such a right as this. What is covered by that word must depend in each case upon the nature of the painting. The plaintiff puts his case in this way. The living pictures exhibited at the Empire Theatre he says, copies from the paintings of which he owns the copyright, and the sketches published in the defendants' paper were copies of these living pictures, therefore they must be copies of the design, at least, of his copyright paintings. It is not accurate to say that the living pictures were copies of the paintings. It is admitted that the faces, at all events, were different. It is not shown that the countenances of the living persons who figured upon the stage bore any close resemblance to those depicted by the artist. In some cases this difference would be all-important. The skill of the artist might have been mainly devoted to this part of the picture, and the faces depicted might be of the very essence of the design. The other details might be so subordinated to these that even if a drawing showed some resemblance in other respects, yet, if the faces were different, no one would dream of saying that the one was a copy or reproduction of the other. the other hand, there might be cases where the grouping of the figures and their accessories might be more important in comparison, and a change in the countenances represented might leave the design of the painting substantially the same. It must always be a question of fact whether what is complained of as an infringement is a copy of the design. I mention these

were,

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merely as illustrations. It is impossible to lay down any hard-and-fast rule. I am far from saying that what is called a living picture might not be so arranged to represent an existing painting, that a photograph or drawing of the living picture would be a copy of the design of that painting. All I say is, that this must depend upon the character of the picture, and what is justly to be regarded as its design. It is not necessary to refer in detail to each of the sketches of which complaint is made. It is admitted that the one most favourable for the plaintiff's case is that representing “ First Love." If he cannot succeed in showing that this picture infringes his copyright, it is out of the question that he should be entitled to relief in respect of any of the others. 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. The idea suggested is, of course, the same; each represents "First Love"; 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 a design if the treatment of the subject be the same. Now, comparing the sketch with the photograph from the painting, I do not think this can be said to be the case. The faces are different; the mode in which the woman's hair is arranged is different; the dress, especially in the case of the woman, is different; the pose is different; the attitudes are different; the background is different, and, in the case of the sketch, the foreground is wanting. In the artist's design all these things play a part, and though 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 that there has been no infringement. It is difficult, if not impossible, to put into words all the reasons which lead to the conclusion arrived at on such a question as that now before your Lordships. I have tried to indicate some of those which have led me to my conclusion; but it depends really on the effect produced upon the mind by a study of the picture, and of that which is alleged to be a copy of it, or at least of its design. I think the judgment of the Court of Appeal should be affirmed and the appeal dismissed, with costs.

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Lord WATSON.-My Lords: The appellant has acquired the copyright of four pictures by foreign artists entitled "First Love," Loves me loves me not," "Charity," Pets," which he has reproduced and sold in this country as engravings or photographs, and he complains in this action that the respondents have published in the Daily Graphic certain sketches which he alleges to be copies or colourable imitations of these copyright works. In both courts below it was a matter of controversy whether under the Order in Council of the 28th Nov. 1887 the appellant can claim the full privileges conferred by the Act 25 & 26 Vict.

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c. 68. The learned judges of the Appeal Court did not decide the point. They dealt with the case upon the assumption that the appellant was entitled to all the protection which is afforded by the Act, and they refused to grant an injunction, on the ground that none of the sketches complained of constituted an infringement of his copyright. The argument addressed to this House proceeded upon the same assumption; and I understand all your Lordships to be of opinion that the decision of the Court of Appeal is right. The only question which your Lordships have found it necessary to determine appears to be mainly one of fact. It is, no doubt, necessary to ascertain the import of the statutory prohibition before considering whether it has been contravened; and so far legal construction may be involved. But the ascertainimg of the statutory rule is, in my opinion, a very simple matter in comparison with the task of determining in some cases whether in point of fact one picture or drawing is a colourable copy or imitation, or represents the design of another. Sect. 1 of the Act of 1862 gives to the author of an original painting, drawing, and photograph, and his assigns, the sole exclusive right of copying, engraving, reproducing, and multiplying such painting or drawing, the design thereof, or such photograph, and the negative thereof, by any means and of any size,” for the term of his natural life, and for seven years after his death. For the protection of the right thus conferred, sect. 6 enacts penalties against any person who, not being the proprietor for the time being "of copyright in any painting, drawing, or photograph," shall, without the consent of such proprietor, repeat, copy, colourably imitate, or otherwise multiply "any such work, or the design thereof." It will be noticed that the language of the statute expressly forbids not only copies and colourable imitations of the copyright works, but all reproductions of the design of such work. I do not doubt that the addition of the words relating to design was intended by the Legislature to reach invasions of copyright which might possibly escape the imputation of being copies, or colourable imitations of the work itself, and yet appropriated and incorporated the substance of what is described as the design of the work. The possibility of laying down any canon which will afford in every case a useful test of what constitutes a copy or colourable imitation of the work or its design, is, in my opinion, very doubtful. At all events, it is much easier to arrive at what does not, than to define what does, constitute a proper test. Thus it is clear that the statute does not exempt copies or imitations which do not reproduce the artistic qualities of the original. A slavish copy of a picture or drawing may be utterly wanting in the artistic merit exhibited by the original; and a copy by an eminent hand may display merits which the original does not possess. But the one is as much prohibited as the other. The language of Bayley, J. in West v. Francis (5 B. & Ald. 737) comes nearer to a definition of what constitutes copying than anything which is to be found in the books. It runs thus: A copy is that which comes so near to the original as to give to every person seeing it the idea created by the original." The learned judge was construing for the purposes of the case before him the provisions of 17 Geo. 3, c. 57, which differ in expression from

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the enactments of 25 & 26 Vict. c. 68, and contain no reference to reproducing the design of the protected work. As I read the later statute, with which we have to deal in this case, the idea created by a picture or drawing does not necessarily form an element in the original work or its design, which is protected by copyright. The same idea which is suggested by the copyright work may be expressed by another painting or drawing, which is in no sense a copy, and does not borrow its design. To take by way of illustration the appellant's picture of "First Love," or his photograph of it, upon which reliance was chiefly placed, as showing, when compared with the respondent's sketch, an invasion of copyright. The idea conveyed by his copyright picture and photograph is simply love-making (why it should. be called First Love" is not very apparent), and the medium selected for its conveyance is a representation of two figures, male and female, standing in close proximity to each other, and to a rustic stile. It can hardly be seriously maintained that no other artist is at liberty, without the appellant's leave, to suggest the same sentimental idea by grouping together in the neighbourhood of a stile two individuals of opposite sexes, having no resemblance either in personality, dress, or attributes to the loving pair, who are the chief feature of the appellant's photograph. In all cases where the alleged invasion is not a mere copy, the statute makes it imperative to consider how far there is an identity of design. But the design which the Legislature had in contemplation is, to my mind, a very different thing from the idea created by the copyright work. So far as I can judge, the expression "design," as it is used in the statute, means nothing more than the particular forms and arrangements, whether of lines or colouring, which the copyright author has selected as the vehicle for conveying his idea to those who see his work. There may very well be-I can see no reason to doubt that there are-cases in which his design, and the idea to which it gives birth, are both of them so novel and exceptional that it would be difficult, if not impossible, for another author to create the same idea without trenching upon his design. When that occurs, the definition of Bayley, J. might come very near the mark. But in cases where copyright is claimed for pictures or drawings which treat an old and common subject, such as love-making beside a stile, the privilege of the author must, in my opinion, be strictly confined to the particular design which he has chosen. I refrain from applying these observations to the facts of the present case. because I accept without reservation comments which have already been made by the Lord Chancellor. The respondents relied to some extent in their argument upon the fact that their sketches were not taken from the appellant's copyright works, but from scenes represented by living actors; and that they were merely intended to inform the public of what might be seen at the Empire Theatre. I agree with Lindley, L.J., that the circumstance is one of the facts of the case which ought to be taken into consideration. It is clear evidence that the respondents had not the animus furandi. At the same time I am of opinion that it would not be available as a defence to the present action if it were shown that their sketches, intended to represent living pictures, were de facto either copies of the appellant's copy

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right works, or embodiments of their design. Having, however, come to the conclusion that these sketches are not copies, and do not reproduce the design of the works in question. I concur in the judgment which has been proposed.

Lord ASHBOURNE.-My Lords: I concur. The question is largely one of fact. Are the sketches in the Daily Graphic such copies of the pictures of the plaintiff, or such reproductions of their designs, as are prohibited by the statute? I arrive clearly at the conclusion that they are not. We have had the advantage of seeing excellent photographs of the pictures, and also copies of the Daily Graphic with the sketches complained of, and with every opportunity, assisted by the able arguments of the appellant's counsel, of making comparison, I cannot regard the sketches as copies or reproductions of the designs. The subjects dealt with in the pictures are not special or exceptional. They deal with ideas as old as the world, and it would be impossible, as pointed out by the Lord Chancellor, to hold that the plaintiff could claim anything like a monopoly in every treatment of such common subjects. The idea of the representation at the Empire, as pointed out in the Court of Appeal, was no doubt suggested by the plaintiff's pictures, and the representation was made as exact as could be with such materials as were procurable. But ideas of such subjects are different from copies and designs, and the Lord Chancellor has pointed out many differences between the sketches and the pictures. Although an innocent intention would afford no defence if the protection given by the statute was clearly infringed, yet it is well to bear in mind that the sketches were intended to represent what could be seen at the Empire Theatre, and were not intended as copies or to reproduce the designs of the plaintiff's pictures. As a fact, I arrive at the conclusion that they are not such copies or reproductions.

Lord MACNAGHTEN.-My Lords: I am of the same opinion. If the object of the Act of 1862 be, as I suppose it is, to protect the reputation of the artist, and to preserve intact the commercial value of the artist's work, it appears to me that the sketches in the Daily Graphic which are complained of are not within the mischief which the Act was designed to repress. They cannot, I think, by any possibility have any injurious effect on the artist's reputation, nor can they, I think, under any conceivable circumstances detract in the slightest degree from the commercial value of, the artist's work, or come into competition with it, or any reproduction of it. It is quite enough, as it seems to me, to place the sketches in question alongside of any photograph of the pictures of which they are alleged to be piratical copies. In these circumstances, in a case in which there has been no copying and no unfair use of anything which the artist can claim as his, I think it would be straining the Act unduly, and using it to no good purpose, if your Lordships were to hold the plaintiff as against the respondents entitled to any relief under the provisions of the Act.

Lord SHAND.-My Lords: I agree in thinking that the present appeal ought to be dismissed for the reasons which have been stated by your Lordships. It seems to me to be clear that a painting, drawing, or engraving may be a copy or reproduc tion of the work of another, though it has not been

made directly from that work itself, but by the use of intermediate copies or other indirect means, such as the living pictures which were exhibited in the present instance, and were intended to give a close representation of the paintings, the copyright in which is assumed to belong to the appellant. Whether the particular painting or drawing complained of is a copy or reproduction of another picture or the design thereof" is a question of fact, and it is not easy, if indeed possible, to formulate the considerations which must be taken into view in all cases in answering the question. The inquiry involves a comparison between two works. The idea of the original, the subject and the treatment of it in all its details, the grouping and dress of the figures, in some cases the expression, as intended to convey feelings it may be of resignation, horror, pity, revenge, or the like, the background, and the accessories generally must be taken into account in the comparison to be made. In some cases, the peculiar and distinguishing feature of the work, the copyright of which is said to have been infringed, may be in the special nature of the subject, and its mode of treatment, apart from minor accessories of detail, which may be of a very subordinate character. All that can, I think, be said is, that the question of infringement of the right depends on the degree of resemblance, and must be solved by taking each of the works to be compared as a whole and determining whether there is not merely a similarity or resemblance in some leading feature or in certain of the details, but whether, keeping in view the idea and general effect created by the original, there is such a degree of similarity as would lead one to say that the alleged infringement is a copy or reproduction of the original or the design, having adopted its essential features and substance. I concur in thinking that there are such essential differences between the sketches or illustrations complained of and the paintings belonging to the appellant, that the former cannot be regarded as copies or reproductions of the paintings or of their design.

Order of the Court of Appeal affirmed, and appeal dismissed with costs. Solicitor for the appellant, Herbert Bentwitch. Solicitor for the respondents, L. Basil Thomas.

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nature of the said property," without any reference to an intestacy or the Statutes of Distributions. The several tenants for life of the property, under prior trusts, were moreover restricted from alienating their respective life interests.

Held, that nevertheless the class to take under the ultimate trusts must be ascertained in accordance with the rule established by the House of Lords in Bullock v. Downes (9 H. of L. Cas. 1), viz., as at the death of the testator, and not at the period fixed by the will for distribution. Decision of North, J. affirmed.

son

ISAAC FORD, by his will dated the 26th July 1862, after making a specific devise of his dwelling-house, devised certain specific buildings, lands, and hereditaments to his daughters Sarah Woodcock and Mary Ford, upon trust that they should pay the rents thereof unto his Abraham during his life, and after his decease the same should be in trust for all and every his children or child, who being a son or sons should attain twenty-one, or being a daughter or daughters should attain that age or marry, and, if more than one, in equal shares; and if his said son should die without leaving a child who should acquire a vested interest in the trust premises, then the same should be held upon the like trusts for the benefit of the testator's four other children, Sarah Woodcock, Mary Ford, Ursula Ford, and Isaac Ford, and their children in equal shares as tenants in common; and if all the testator's children should die without leaving issue who should acquire a vested interest in the trust premises, then the same should be in trust for his "own right heirs and next of kin according to the nature of the said property."

The testator then made similar specific devises of various lands and hereditaments, which devises comprised the whole of the residue of his freeholds and leaseholds, to his trustees upon trusts for each of his four children, Sarah Woodcock, Mary Ford, Ursula Ford, and Isaac Ford, successively for their lives and for their respective children, with similar gifts over, in default of any of his children leaving a child or children, to his (the testator's) own right heirs and next of kin according to the nature of the said property."

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The will contained a declaration that it should not be lawful for any son or daughter to sell or incumber his or her life interest, and that if any of them should so sell or incumber, the interest should thereupon cease and be held in trust for his or her brother and sisters, and his or her issue as if he or she had died.

The residue of the testator's personal estate was given to his trustees upon trust, after paying the costs and expenses and debts, for his five children, in equal shares during their lives, and after their deaths upon trust for their respective children. A direction followed that the trustees should hold the shares of residue upon like trusts and subject to like restrictions as the several shares of his land and hereditaments.

The testator made a codicil, dated the 24th Feb. 1863, whereby he made a certain specific devise, but did not otherwise revoke or alter his will. He died on the 21st Jan. 1864. His will and codicil were duly proved by Sarah Woodcock and Mary Ford on the 20th May 1864.

The testator had six children, viz., Martha Ford, Ursula Ford, Abraham Ford, Isaac Ford,