Commentary on Graves’ Case

Elena Cooper, CREATe, School of Law, University of Glasgow, UK

Please cite as:

Cooper, E. (2018) ‘Commentary on Graves’ Case (1868-9)’, in Primary Sources on Copyright (1450-1900), eds L. Bently & M Kretschmer, www.copyrighthistory.org

1. Full title

2. Abstract

3. The Ruling in Graves’ Case

4. Summary Jurisdiction and the Engraving Acts

5. Summary Proceedings after Gambart v. Powell

6. Conclusion

1. Full title

Graves’ Case(1868-69) L.R. 4 Q.B. 715; (1869) XX LT 877

2. Abstract

In Graves’ Case, decided by the Court of Queen’s Bench in 1869, Blackburn J delivered a judgment containing brief and elusive dicta about the meaning of originality under the Fine Arts Copyright Act 1862 in relation to a photograph of an engraving of a painting. This commentary casts new light on this decision by placing it within its nineteenth century legislative and enforcement context. ¹

3. The ruling in Graves’ Case

Graves’ Case, decided by the Court of Queen’s Bench in 1869, concerned an application to expunge registrations of copyright photographs, registered by the printseller Henry Graves under the Fine Arts Copyright Act 1862.² The application was brought by a George Boulding Walker of Blackfriars, who had been imprisoned after he failed to pay penalties for infringement of those copyrights following proceedings brought by Graves before Southwark Police Court. Walker, like many other defendants pursued by printsellers, had sold cheap unauthorised photographic copies in smaller size of the printsellers’ more expensive engravings of popular paintings, in which the printsellers claimed copyright.³

Before the Court of Queen’s Bench, the barrister Emmanuel Maguire Underdown representing Walker, argued that Graves’ registrations for photographs should be expunged as the photographs were not original under section 1 of the 1862 Act. The registrations were for photographs of engravings; the photographs were not original as they were merely ‘copied from engravings’.⁴ Graves challenged this view of originality, and also argued that Walker was not a person entitled to bring an application to expunge a register entry: he was not an ‘aggrieved person’ under section 14 of the Literary Copyright Act 1842 (which governed applications under the 1862 Act).

The Court of Queen’s Bench stated obiter that a person aggrieved ‘must have some substantial objection, and one going to the merits of the registered proprietor’s title’, but considered the main issue to be the interpretation of the criterion of ‘originality’ under the section 1 Fine Arts Copyright Act 1862.⁵ In a brief passage, Blackburn J. defined originality as follows:

The distinction between an original painting and its copy is well understood, but it is difficult to say what can be meant by an original photograph. All photographs are copies of some object such as a painting or a statue. And it seems to me that a photograph taken from a picture is an original photograph, in so far that to copy it is an infringement of this statute.⁶

One report of the case, in The Law Times, records the detail of the discussion during the course of argument, between Underdown, for the defendant and Blackburn J. This suggests that Blackburn J. accepted that the implication of his ruling was that all photographs would be original: Underdown⁷ submitted that if a photograph of a picture was held to be original it ‘will follow that every photograph must be original, and that the word ‘original’... has no force whatever’, to which Blackburn J. replied that he was ‘of the opinion that every photograph is original in that sense.’⁸ The same report also records that Blackburn J doubted that ‘the word ‘original’ was intended to apply at all to photographs’ under the 1862 Act.⁹ This commentary argues that one explanation for these comments may lie with the legislative and enforcement context of the decision.

4. Summary Jurisdiction and the Engraving Acts

The Fine Arts Copyright Act 1862, was the first legislation expressly to protect painting, drawing and photographs. It was also the first copyright statute to provide for the recovery of pecuniary penalties through summary proceedings before magistrates (or sheriffs’ courts in Scotland) for infringement generally; the Literary Copyright Act 1842, had introduced summary jurisdiction for literary copyright for acts of importation into the UK only.¹⁰ Section 8 of the 1862 Act also stated that summary proceedings could be brought for the recovery of ‘all pecuniary penalties’ under the Engraving Acts; the Engraving Acts, as explained by Ronan Deazley’s commentaries in this Primary Sources collection, was legislation which pre-dated the Fine Arts Copyright Act 1862, protecting prints produced by engraving and other similar processes.¹¹

The introduction of summary jurisdiction for penalties under the Engraving Acts, was included in the 1862 Act following concerns raised with the Home Office in 1861 by a number of printsellers including Ernest Gambart and the claimant in Graves’ Case, Henry Graves. Printsellers had invested heavily in copyright under the Engravings Acts, and were dissatisfied with the slow and expensive procedures of the courts of common law and equity; summary jurisdiction, asserted the printsellers, would facilitate ‘a more speedy and less expensive remedy against photographers and other producers and sellers of pirated copies of English copyright engravings’.¹²

However, soon after the passage of the 1862 Act, the printsellers encountered an obstacle: in Gambart v. Powell, ¹³Bow Street Police Court held that section 8 of the 1862 Act only enabled the recovery of penalties for infringing acts for which penalties were expressly designated under the Engraving Acts. In particular, the Copyright Act 1767 – upon which the printsellers in general sought to rely – was drafted such as the act of selling or exposing for sale was not included amongst the infringing acts for which penalties could be recovered. The result was that printsellers could only pursue a defendant who sold or exposed for sale through a civil action on the case under the 1777 Act. This was the slow and expensive procedure that the printsellers had hoped to avoid through the introduction of summary proceedings by the 1862 Act.¹⁴

Gambart v. Powell was a source of great disappointment to printsellers, as in most cases it was the seller of an infringing copy that would be a defendant; those making the infringing copies were more difficult to locate. Gambart’s solicitor stated that Powell rendered summary jurisdiction for penalties under the Engraving Acts ‘practically inoperative’. ¹⁵ Gambart also publicly complained about the ruling in a letter to The Times,¹⁶and subsequently, in 1863, held a meeting to debate the issue at his French Gallery, attended by printsellers (Graves and Dominic Colnaghi), engravers (Samuel Cousins, Thomas Landseer and C.G. Lewis) and painters (William Holman Hunt, William Powell Frith and John Everett Millais). ¹⁷

5. Summary proceedings after Gambart v Powell

With Gambart v. Powell standing in the way of the efficient recovery of penalties under the Engraving Acts, the printsellers brought cases on the basis of copyright subsisting under the 1862 Act. Defendants traded in unauthorised copies of photographs of the printsellers’ engravings of popular paintings, and successful proceedings were brought by printsellers relying on copyright in the underlying painting (registered by the printsellers under the 1862 Act); in ex parte Beal, the Court of Queen’s Bench held that a ‘copy from an intervening copy’, such as an engraving, would infringe copyright in the underlying painting.¹⁸

Where, however, the printsellers did not own copyright in the underlying painting, the printsellers registered a photograph of the engraving and argued that the registered photographs were infringed by the defendants’ independently taken photographs of the same engravings. In framing their case in this way, the printsellers asserted that photographic copyright protected the ‘lines and dots’ of the engraving that the registered photograph recorded. This approach was accepted by magistrates in numerous instances. For example, in Graves v. Ashford (1868), Guildhall Police Court found a defendant liable for 24 counts of selling photographs of engravings on the basis that they infringed copyright in Graves’ independently taken photographs of the same engravings.¹⁹Graves’ affidavit is held by The National Archives, London, and sets out the case on infringement in the following terms:

the copies, repetitions and imitations so sold by the said Henry Ashford were copies, repetitions and imitations of the original Photograph of the said Engraving or the design thereof… so registered… by me… as…. the said copies, imitations and repetitions so sold by the said Henry Ashford were photographed from the said Engraving called ‘The Railway Station.’ … That, in consequence thereof the said Copies so sold by the said Henry Ashford could not fail in any respect to be perfect, precise and exact copies line of line and dot for dot of the original photograph of the said Engraving so registered by me…²⁰

A similar case was accepted by magistrates in Graves’ v. Ritchey (1869). ²¹In accepting this broad scope to photographic copyright, magistrates may have been providing a means of facilitating summary proceedings for engraving copyright, perhaps in view of the problems stemming from the ruling in Powell. Hence, in both Graves v Ashford and Graves v Ritchey, Graves gave evidence that he owned copyright in the engravings and that he had complied with all formalities for the subsistence of copyright under the Engraving Acts.²²

Prior to Graves’ Case here were two attempts to bring the printsellers’ use of photographic copyright under the scrutiny of the higher courts, brought by Samuel Benoni Beal and Henry Ashford, founding members of the Photographic Protection Society, a society for those trading in unauthorised photographs of the printsellers’ engravings.²³ However, these cases did not result in any decision on the question. This was provided by the Court of Queen’s Bench in Graves’ Case.

6. Placing Graves’ Case in context

How might the legislative and enforcement context explored in this commentary, help us to think again about Graves’ Case? Blackburn J’s statement that, a photograph would only be infringed ‘in so far’ that it was copied, can be seen as a critique of the magistrates’ practice of ignoring derivation. Further, the wider context of concern, following Gambart v. Powell, about the frustration of legislative intentions in 1862 – to make summary proceedings also available for infringement of copyright under the Engraving Acts – may have influenced other aspects of the Court’s ruling: the interpretation of originality, as well as Blackburn J’s comments during argument (recorded in The Law Times) that ‘originality’ was perhaps not intended to apply to photographs and that all photographs would in any case be original. In 1852, the Engraving Acts had been extended also to apply to ‘prints taken by lithography or any other mechanical process’ and this extension applied both to the subsistence and infringement provisions of those Acts.²⁴ The cases of Gambart v. Ball and Graves v. Ashford, both contained dicta supporting the view that photography was a ‘mechanical process’ under the 1852 Act for the purposes of infringement.²⁵ It was, therefore, at least arguable that the same was also the case as regards subsistence: unoriginal photographs were also arguably part of copyright subject matter under the Engraving Acts, as products of a ‘mechanical process’. In this way, given that Powell was considered to stand in the way of legislative intentions in 1862 – to facilitate the use of summary procedures for infringement of copyright under the Engraving Acts - the Court may have been motivated to interpret originality liberally, in view of the fact that, by 1869, it may have been accepted that unoriginal photographs were part of the subject matter of the Engraving Acts.