New-York tribune., 1900-01-26
PHOTOGRAPH COPYRIGHT.
THE RIGHTS OF PUBLISHERS SAFE
GUARDED COURT BARS
MANY uNRIGHTEOUs CLAIMS.
To the Editor Of The Tribune.


Outing Company is of far reaching Importance
TO the publishers Of the large metropolitan news
papers and other publications using reproduc-
tions Of photographs Illustrations. II will re-
heve them from the chief danger of unconscion-
able and eXtravagant penalties frequently de-
manded in the Federal courts for technical vio-
lation Of the Copyright law by the owners of
copyrighted photographs. The vigor and loud
ness with which these interests have been COM
planning Of the decision show how effectuallv il
has cut of their source of profit from such
sources. They are making persistent demands
for the appointment Of a commission TO revise
the Copyright law, and to correct what they
regard as the evil consequences Of this decision.
1t may well be conceded that our present copy
right statute is not perfect 1t scarcely could be
expected to be, in the face Of all the antag-
onistic interests attempted to be harmonized or
compromised by its provisions. But it is a safe
assertion that if revision of this is necessary
desirable, the reasons for it are not to be
found in the Bolles case. On the contrary, any
modification OF the law which should in a ma
terial degree nullify the effect of the judgment
in that action would be public loss rather than
benefit. An examination of the facts and opin-
ion of the court will demonstrate this.
The defendant published in fits magazine, out
ing" a reproduction Of the plaintiffs photograph
Of the yacht 'Vigilant.' which the defendant
had purchased from the agents Of Bones but
without his permission being secured in the form
required by the Copyright law. The statute pro-
vides that such consent of the proprietor Of the
copyright must be first obtained in writing.
signed in the presence of two or more witnesses"
If the publisher sells copies Of his publication
containing reproductions of such photographs
without complying with these requirements the
statute says that he shall forfeit 81 for every
sheet of the same found in his possession" In
his action Bollss claimed judgment for many
thousand dollars because he was able to prove
that Outing mad sold and circulated a corre-
spending number Of copies. But the Supreme
Court in affirming the courts below says NO"
This is clearly a penal statue, and must be
construed with such strictness as to carefully
safeguard the rights Of the defendant and at the
same time preserve the obvious intention Of the
Legislature. While the forfeiture is not
limited as 10 the number Of copies, it is limited
to such as are found in, and not simply traced
TO. the possession Of the defendant. Congress
may have been perfectly willing TO impose a
forfeiture of 81 for every such copy, and have
been reluctant to impose it upon the thousands
of such copies that may have previously been
put in circulation. The construction contended
for would permit an author to lie by during the
two years allowed him for bringing suit. permit
another to publish the work during that time
and then recover for every copy published.
Not only this but the penalty is imposed
upon any person who engraves, copies, prints,
publishes or sells copy not only the publisher,
but the printer and bookseller might be liable
for every copy traced 10 his possession. Indeed
the defendant might be made liable for every
copy traced TO his possession, even though he de-
sEroyed the whole edition for the purpose of re-
neving himself from the penalty"
This effectually ends the lucrative business
that has been carried by certain photograph
ers in this and other large communities. The
evr was even greater before the modification
Of the law which limits the maximum recovery
to $1,000 for each infringement, But even with
that limitation. the operation Of the law would
be most unjustly oppressive, in many in
stances, If the contention Of the photographers
had been upheld. The hardship and mischief lie
in the clauses of the statute requiring the pub
Usher first 10 obtain the consent of the copy
right owner in writing, signed in the presence
OF TWO or more witnesses" II is upon the tech
nichl violation Of that provision that most of
such suits are founded, especially in the case of
daily newspapers. The exigencies OF their bust
ness frequently make it quite impracticable 70
obtain agreement with the OF a copy
righted photograph, executed with such formal
ities so that in many instances IL becomes nee
essery 10 act upon mere informal consent OF
the owner and trust 10 his good faith in the mat
ter not TO bring suit for the penalties imposed
by the statute.
For instance II is, as you are well aware a
common occurrence for g New York daily news
paper to have occasion 10 publish reproductions
OF photographs copyrighted by persons living
IN Boston. Philadelphia and other cities; in
which case it is not unusual TO telegraph to the
owner asking him to state the price charged
by him for such use, and to act upon his favor
able telegraphic reply. But despite his consent
given in that bUsfnessike way, he could still
maintain action against the publisher for the
''infring cement" and, II the plaintiffs conten-
ton had been sustained in the Boles case, could
recover 50 600 for every such photograph so
published by merely proving that the circula-
ton Of the newspaper exceeded five thousand
copies The chief danger to publishers from
such a source is removed by this latest decision
OF the Supreme Court, but the unreasonable
provision requiring the copyright owners con-
sent in writing, attested by two witnesses, stin
remains to plague honest publishers The or
ganized band Of photographers who are chiefly
responsible for such infringement suits boast
that they secured the insertion Of this provision
in the copyright law, 'as compromise" al the
time that the limit Of recovery was made $4,000.
They have since been utilizing its drastic pro
visions TO the fullest extent In the recovery Of
penalties either by way Of Judgment or settle
ment.
Take two instances within recent experience.
In the first case, the publisher bought four
photographs from seller whom the publisher
supposed to be the agent Of the owner OF the
copyright, the latter's price being understood
TO be SO for each photograph so reproduced in
a single issue. The photographs were published
and the photographer sent IN his Dill al the
rate OF SO for each photograph; but before the
cash forwarded in payment could reach him
his attorney had persuaded him to bring suit
for S20,000 penalties and he refused the Sl2 sent
in payment Of his bill. In the other case a
photographer had sold to the Navy Department
many copies OF his copyrighted photographs
Of the new battlesh1ps. knowing that the
Department intended to use them by pub
Iication in different parts Of the country
to make known their merits to the peo-
ple generally: but Immediately upon the
publication Of some of these so obtained from
the Navy Department the photographer brought