Primary Sources on Copyright (1450-1900)
www.copyrighthistory.org
Identifier: uk_1735

Commentary on the Engravers' Act (1735)
Ronan Deazley

School of Law, University of Birmingham, UK

Please cite as:
Deazley, R. (2008) ‘Commentary on the Engravers' Act (1735)', in Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org

1. Full title

2. Abstract

3. The Engravers lobby Parliament

4. The substance of the Engravers' Act 1735

5. References

1. Full title
An Act for the encouragement of the arts of designing, engraving, and etching historical and other prints, by vesting the properties thereof in the inventors and engravers, during the time therein mentioned, 1735, 8 Geo.II, c.13

2. Abstract
Legislation conferring exclusive rights, for a period of 14 years, on persons inventing and designing engravings and similar works. This was first occasion on which British copyright legislation extended to something other than literary works. The commentary describes the background to the Act, in particular the lobbying efforts of a small group of artists and engravers led by William Hogarth, and details similarities and differences which the legislation bore to the Statute of Anne 1710. The commentary suggests that, whereas the Statute of Anne essentially sought to regulate the production of the physical book, with the Engravers' Act the legislature began to articulate a more subtle distinction between the physical object and the subject of copyright protection, which was in this case, the engraved image.

3. The Engravers lobby Parliament
On 7 February 1735 a petition was presented before the House of Commons concerning "[t]he case of designers, engravers, etchers &c".[1] The artists and engravers responsible for the petition were a small group which included George Vertue (1684-1756), George Lambert (1699/1700-1765), Isaac Ware (bap.1704, d.1766), John Pine (1690-1756), Gerrard Vandergucht (1696/7-1776) and John Goupy, but led by William Hogarth (1697-1764).[2] The spur for their action lay in Hogarth's experiences in marketing and selling his own work, rather than relying upon the existing trade structures of the London printsellers. Hogarth laid the groundwork for the passing of the Engravers Act when he himself published and distributed A Harlot's Progress in 1731-32. Working on a subscription basis, with subscriptions taken only in his shop, he was able to guarantee a minimum return on this series of prints before he had even begun to engrave them. By April 1732, when the subscription came to an end, Hogarth had brought in over £1200 for this first independent series, and had done so in a way as to exclude the printseller from the entire business.[3] Not long after the series first appeared, however, there were "no less than eight piratical imitations".[4] The printsellers had responded by making their own copies and undercutting Hogarth. As Paulson recounts, the next step for the engraver-entrepreneur, was to "secure my Property to myself".[5]

Unlike the Statute of Anne, in which the booksellers had co-opted the authorial figure to secure and promote the economic interests of the book trade, now it was the artists themselves, these ‘authors' of engravings, who directly petitioned parliament for protection on their own terms. Moreover, unlike the situation surrounding the 1710 Act, when the established booksellers sought to curb the excesses of those ‘pirates' who operated on the fringes of the trade, now it was the actions of the established print dealers that provided the engravers with the greatest cause for complaint. The artists set out in their petition that they were "opress'd by the tyranny of the Rich ... the Rich of that very trade which could not subsist without them": the printsellers. Not only did the printsellers "insist upon a most unreasonable share of the Profits for selling the Prints", but further, if a print proved successful, copies of it were made and sold in place of the engravers' originals. As well as impacting unfairly upon the individual artists, the tyranny of these existing trade practices had also operated to sink "the Arts themselves into the low Condition which they are at present in". To remedy this situation, the engravers' petition proposed that an Act "make it punishable ... for any one to copy the Designs of Another" which would secure "to every one the Fruits of his own Labour" and provide "the greatest and noblest Encouragement, that any Art can possibly receive". Securing such legislative protection would also enhance both the quality and quantity of these visual arts, as well as encouraging more "young Men of Taste and Genius ... to indulge their Love of Designing". As a result, the purchaser would have "a greater variety of Prints to chuse out of". Further still, they contended, as designing was "the Foundation of Painting, Sculpture, Architecture" as well as "all the Train of inferior Arts", an improvement in the quality of designing and engraving would do nothing if not transform the nation's artistic and cultural canvas.[6]

Between identifying their problem and presenting this panacea, the petitioners proffered some justification as to why an engraver should be entitled to profit from his designs and prints at all. It was the work of the artist, they propounded, which gave a print "whatever Value it has above another common Piece of Paper". This value lay not in the physical page, but in the application of the artist's industry and skill in capturing a given subject upon that page. Thus, when someone simply took a direct copy of another's work, he did so "mechanically", with "absolutely no Skill in Designing requir'd". Moreover, they explained, when the copier did so:

"He does not indeed steal the very Paper, (which if he did, tho' it is not of near so great a Value, he knows he should suffer for it) but he steals from him every Thing that made the Paper valuable, and reaps an advantage which he has no more right to, than He, who counterfeits a Note of Hand, has to the Money he receives by it." [7]

Central to their thesis, however, lay the significant concession that "[e]very one has undoubtedly an equal Right to every Subject". These artists were seeking to prevent the copying of their work, their prints, but not to prevent others making prints of their own, albeit of the same subject. Indeed, they submitted that anyone "who attempts a Subject already executed" without directly copying another's work, had "undoubtedly the same Rights to the Fruits of his Skill, that the first had".[8] Anticipating possible objections, they posed the following question: if every subject was free to be treated by every man, would this not give rise to numerous "frivolous and vexatious Law-suits", given that one engraver may claim that another has simply copied his work? To this they provided an answer that foreshadowed the emergence of the now commonplace dichotomy between the idea and the expression of an idea. The petitioners asserted that two different artists taking the same subject would produce two different works wherein the manner, shape and distances (that is, the form or the style in which each was rendered) would vary so greatly as to easily denote each work as original. It was self-evident to the engravers that one person's design would be just as unique and original as his handwriting, which likewise depended upon "the Manner, Distances and Shape of the Strokes which compose the Letters".[9]

Having laid the petition before the house it was ordered that it be referred to the consideration of a committee who were to provide their opinion upon the same.[10] On 14 February 1735 they reported that the petitioners had fully proved their allegations, and leave was given to bring in a Bill for the Encouragement of the Arts of designing, engraving and etching, historical and other Prints, by vesting the Properties thereof in the Inventors and Engravers, during the Time therein to be mentioned.[11] The Bill received its first reading on 4 March, was amended in committee, at the report stage, and upon its third reading, and then passed through the Lords unchanged.[12] The Act came into force on 25 June 1735, upon which day Hogarth issued his second major series: A Rake's Progress. By all accounts, the legislation proved remarkably effective. Of Hogarth's subsequent work, Paulson notes that "[a]side from a few Dublin piracies, unauthorised copies ... virtually disappeared until the 1750s when the copyrights began to expire".[13]

4. The substance of the Engravers' Act 1735
Much of this Engravers' Act derived from the Statute of Anne. While the artists' petition had made no explicit reference to the 1710 Act, the Journal of the Commons recounts that leave was sought to bring a Bill into the house to secure "the Properties of the Petitioners, as the Laws now in being have preserved the Properties of the Authors of Books".[14] The Act provided "every Person who shall invent and design, engrave, etch, or work in Mezzotinto or Chiaro Oscuro", with the "sole right and liberty of printing and reprinting" their work, "for the term of fourteen years to commence from the day of first publishing thereof". The first section replicated the terms of the earlier legislation, in that anyone who copied, printed, reprinted, sold or imported for sale, another's work would be subject to the various penalties detailed therein.[15] There were, however, two significant variations between both statutes in this regard. In the first place, the nature of the engravers' reproduction right was more extensive than its predecessor. The statutory prohibition was extended to prevent copying a work "in the whole or in part, by varying, adding to or diminishing from the main Design". This aspect of the Act was no doubt incorporated following the warning in the artists' petition that:

"It will be a very trifling evasion of the law to plead that one cannot be a copy of another, because there is a figure more or less in it, than in the original, when all the others can evidently be shown to be taken from it; and it is hoped, that by the wording of the Act, all such wicked attempts to render the design of it useless will be entirely prevented."[16]

Second, the new Act made clear, albeit implicitly, that it was only such work as was original to an engraver that would be protected. During the third reading of the Bill in the Commons, a proviso was inserted for the benefit of the engraver, John Pine. Pine had proposed to engrave a set of prints "copied from several Pieces of Tapestry in the House of Lords and His Majesty's Wardrobe" relating to the Spanish Invasion of 1588. The proviso ensured that Pine would be entitled to the benefit of the Act "in the same manner as if the said John Pine had been the Inventor and Designer of the said Prints".[17] The need for providing explicit protection for Pine's project, colours the way in which we must read the first section. It had set out that anyone who should "invent and design, engrave, etch [etc.]" work would receive the benefit of the legislation. Reading both sections together makes it clear that only those prints that were not copied from some other source were to be protected, Pine's work providing the exception to the rule.[18]

The statute also made explicit that anyone purchasing engraved plates "from the original Proprietors thereof" was free to print and reprint from them without incurring the penalties detailed in the Act.[19] Just as the engravers themselves had drawn attention to the distinction between the physical page or print, and that which made it valuable, the image, here the legislature tried to account for, and give recognition to, the convergence of two types of property in the one form. To purchase the physical plates would have been of little value to a printseller were it not also clear that they were free to reproduce the engraved image itself. In a way that the Statute of Anne did not, here the legislators gave express statutory recognition to the difference between the physical and the non-physical, the tangible and the intangible. The purchaser of the engraved plates was buying two disparate but linked properties: the physical plates and the right to reprint and sell the image captured thereupon. While the influence of the previous legislation was apparent,[20] the engravers' petition and the Act that followed evidenced something of a departure from that which had gone before. The 1710 Act had secured the protection of printed books; it guaranteed the right to reproduce a given physical work. Now, however, within this exchange between artist and legislature, there emerged a subtle shift away from the physical, the tangible. With this debate, and its resolution, it had been articulated that the value of a print lies not in the print itself, but in the design and execution thereof. Moreover, while the subject matter of any number of prints may remain the same, it was the individual expression of that subject that set one artist's work apart from another's. In short, the legislation acknowledged that the value of a given work lay in an artist's particular representation of a subject, an image that was as individual and unique as the features of his face.

5. References

Governmental papers and legislation

Statute of Anne, 1710, 8 Anne, c.19

Engravers' Act, 1735, 8 Geo.II, c.13

Cases

Newton v. Cowie and Another (1827) 4 Bing 234

Books and Articles

Hunter, D., "Copyright Protection for Engravings and Maps in Eighteenth-Century Britain", The Library, 6^th ser., 9 (1987): 128-47

Nichols, J., Biographical Anecdotes of William Hogarth, 2^nd ed. (London: 1782)

Paulson, R., Hogarth's Graphic Works, 2 vols. (New Haven and London: Yale University Press, 1965)

Paulson, R., Hogarth: His Life, Art, and Times, 2 vols. (New Haven and London: Yale University Press, 1971)

[1] Journal of the House of Commons (CJ), 22: 364; see The Case of Designers, Engravers, Etchers &c. stated In a Letter to a member of Parliament, Lincoln's Inn Library, M.P.102, Fol.125 (see: uk_1735a).

[2] There is a copy of the petition in the Victoria and Albert Museum which has a hand-written inscription claiming: "Hogarth got this drawn up"; R. Paulson, Hogarth's Graphic Works, 2 vols. (New Haven and London: Yale University Press, 1965), 1: 5. Hogarth, Lambert, Ware and Pine regularly met with other artists at Old Slaughter's Coffee House, in St Martin's Lane. Of these four, Hogarth and Lambert shared the closest relationship, having previously been involved in the founding of the gregarious Sublime Society of Beefsteaks. Vertue and Goupy generally moved in a different social set, the "Clubb of St Luke", based at the King's Arms, New Bond Street. Of the seventh petitioner, Vandergucht, David Hunter notes that he was not known to have belonged to either group "though Vertue had worked for seven years with his father Michael". Although Hunter suggests Vertue played a more significant role in the engravers' campaign than has traditionally been acknowledged, Paulson nevertheless maintains that it was the Slaughter's group that acted as the "nucleus for the campaign", for which William Huggins, also a member of the Beefsteaks, provided the legal advice. See D. Hunter, "Copyright Protection for Engravings and Maps in Eighteenth-Century Britain", The Library, 6^th ser., 9 (1987): 128-47 (128, 130); R. Paulson, Hogarth: His Life, Art, and Times, 2 vols. (New Haven and London: Yale University Press, 1971), 1: 347, 359.

[3] Ibid., 6-8.

[4] J. Nichols, Biographical Anecdotes of William Hogarth, 2^nd ed. (London: 1782), 33, referred to in Hunter, 131.

[5] Paulson, Hogarth's Graphic Works, 1: 8.

[6] The Case of Designers, Engravers, Etchers &c.

[7] Ibid.

[8] Ibid.

[9] Ibid.

[10] CJ, 22: 364.

[11] CJ, 22: 380-81.

[12] CJ, 22: 401, 414, 436, 442, 457; Journal of the House of Lords (LJ), 24: 516, 517, 528, 530.

[13] Paulson, Hogarth's Graphic Works, 1: 9.

[14] CJ, 22: 364.

[15] s.1. As there existed no artistic equivalent of the Stationers' Company there was no existing trade infrastructure to support and regulate the registration of works. Instead, during the Bill's passage through the Commons, s.1 was amended to require that the name of the proprietor of every print be engraved upon every plate, and so reproduced upon every published print. This would ensure that no one would "through ignorance" fall foul of the penalties detailed within the statute.

[16] The Case of Designers, Engravers, Etchers &c.

[17] s.5.

[18] This reading of the legislation is also borne out by the substance of the Engravers' Act, 1766, 7 Geo.III, c.38 (see: uk_1766), which specifically provided that the benefit of the 1735 Act was to be extended to any person engraving a work "taken from any picture, drawing, model or sculpture, either ancient or modern"; the implication must be that engravers who worked as mere copyists, prior to 1767, did not enjoy any legislative protection for the works they produced. For an examination of the cumulative effect of the two Acts see Newton v. Cowie and Another (1827) 4 Bing 234. See also: uk_1777a.

[19] s.2.

[20] See ss. 1, 3, and 4 of the 1735 Act.