COPYRIGHT (Fr., Droit d' auteur ; Ger., V erlagsrecht, UrIzeberrecht) Protection against copying and other forms of reproduction is granted to photographs equally with paintings and drawings. The Act by which this protection is afforded is the Copy right Works of Art Act of 1862, the clauses of which Act, taken in conjunction with the judg ments of the courts during the years that have intervened since then, cover the many incidents which may arise in the creation of copyright, in its assignment, and in the infringement of copy right works. The Act defines copyright as " the sole and exclusive right of copying, engraving, reproducing, and multiplying any photograph and the negative thereof by any means and of any size "—that is to say, the reproduction of a photograph by another graphic method, such as drawing or painting, may yet be an infringement of the copyright. The Act in another place uses superintended the arrangements by putting the people into position. It has also been held that an absentee principal cannot be the author, even though, by the creation of system in his business, he may be actually just as responsible for the result as though he had been present.
The most important clause in the Copyright Act is that which describes the conditions as to payment when a photograph is taken, because upon these conditions the ownership of the copyright depends. The Act expressly states that when the negative of any photograph is made for or on behalf of any other person " for a good and valuable consideration," the copy right belongs to the person for or on whose behalf the work is done. Thus, in the case of au ordinary sitter in a studio, the copyright is his ; in the case of a landscape photographer working for an employer, all copyrights in the views taken are the employer's. The question of what is " good and valuable consideration " has involved some nice points of law. Articles of value, or board and lodging, may be agreed upon as " valuable consideration," and there is, in fact, one case in which the granting of permission to photograph certain premises was judged to be " valuable consideration " to the photographer because it gave him the oppor tunity to sell numerous copies of the photographs he had taken.
It should be noted that the Act does not say on payment of the consideration, and, so far as the ownership of copyright is concerned, non payment to the photographer by his customer, or employer, does not give the first-named any rights in the photographs ; the copyright remains with the customer or employer, whilst the photo grapher must sue in the usual course for payment or wages. In cases of doubt as to the owner ship of a copyright this forms a useful test. If one is in a position to sue for payment one cannot then have any ownership in the copy right.
The portrait photographer should also note that in the case of negatives taken at the same time as others at the sitting, but not ordered by the customer, the copyright is neverthe less the property of the customer. In cases where this point has arisen it has been held that payment was for the labour of the artist as a whole, and, therefore, covered all the exposures made at the sitting. Any use made of such extra negatives will thus be an infringement of the sitter's rights.
Again, when, as sometimes happens, the por trait of a person is taken by the order and at the expense of a second person, the copyright naturally becomes the property of the person paying, or suable for payment. And, in the absence of any agreement that the photo grapher should make some negatives for himself at such a sitting, the whole of the portraits taken are the property of the person ordering the work.
Though the Copyright Act does not say any thing about the ownership of the negative, it is perfectly clear on one point—namely, that the sale or disposal of the negative by the owner of the copyright to another person without the formal assignment of the copyright in writing to ,either buyer or seller causes the copyright to be destroyed. This fact should be borne in mind when purchasing negatives or acquiring them .along with the purchase of a business. It is necessary to draw up an itemised list of the subjects, sufficient for separate identification, and to have the whole document signed by the vendor transferring the copyright to the pur chaser, or by the purchaser reserving the copy right to the vendor, according as the copyrights are, or are not, to change hands.