By E. B. V. CHRISTIAN, LL.B.
It is chiefly in matters of copyright that the photographer meets Old Father Antic the Law. In the lesser transactions of life, buying, selling and getting gain, marrying, company promoting and the like, the photographer is but as an ordinary man. Until 1862 he had no statutory protection in his vocation, or avocation ; but in that year the 25 and 26 Vict., c. 68, since re-christened "The Fine Arts Copyright Act 1862," included photography in the protection given to paintings and drawings, as if - to quote the language of Lord Bowen - " as if it were an art." That act has now been repealed, after a duration of half a century ; but as questions may, for some years to come, arise concerning photographs which acquired copyright before 1st July, 1912, it will still be convenient, for the sake of law as well as of history, to have the words of the old statute accessible.
Section 1 of the act of 1862 was as follows : " The author, being a British subject or resident within the Dominions of the Crown, of every original painting, drawing, and photograph which shall be or shall have been made either in the British Dominions or elsewhere, and which shall not have been sold or disposed of before the commencement of this Act, and his assigns, 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 such author, and seven years after his death ; provided that when any painting or drawing, or the negative of any photograph, shall for the first time after the passing of this Act be sold or disposed of, or shall be made or executed for or on behalf of any other person for a good or a valuable consideration, the person so selling or disposing of, or making or executing 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 such painting or drawing, or of such negative of a photograph, or by the person for or on whose behalf the same shall be so made or executed, but the copyright shall belong to the vendee or assignee of such painting or drawing, or of such negative of a photograph, or to the person for or on whose behalf the same shall have been made or executed ; nor shall the vendee or assignee thereof be entitled to any such copyright unless, at or before the time of such sale or disposition, an agreement in writing signed by the person so selling or disposing of the same, or by his agent duly authorised, shall have been made to that effect." The modern parliamentary draftsman does not proceed in this straightforward, breathless way. He is fond of sections, sub-sections, definition clauses, notes and schedules. The Copyright Act, 1911 - " an act to amend and consolidate the law relating to " all classes of "copyright," which came into force on 1st July, 1912, has a delusive appearance of being easy reading. It will doubtless be found some day to have provided a fair share of riddles for judicial solution.
Copyright means "the sole right to produce or reproduce the work or any substantial part thereof in any material form whatsoever." The " work' is any " original . . . artistic work "; so far have we moved from the days of Lord Bowen's jeer, that every original photograph is now by statute not merely a work of art, but (at least for copyright purposes) artistic work. The right is not only to prevent reproduction of a published photograph, but also to prevent publication of an unpublished one. And ' photograph " includes photo-lithograph, and any work produced by any process analogous to photography.
The conditions which must be fulfilled to acquire copyright are (for a published work) first publication - which means the issue of copies to the public, or exhibition in public - in the parts of His Majesty's dominions to which the act applies ; and (for an unpublished work) the author's being a British subject or a resident within those parts when the photograph is taken. Moreover, the photograph must be " original."