Mr. BETHUNE. Let it be on some accessible portion, but let the bill provide that it shall be always uncovered. As it stands now, it might be on the back of the painting, and the painting might be in a box, and it would be accessible in a sense.
Mr. CHANEY. You would put in the word "uncovered?"
Mr. BETHUNE. It should be uncovered.
Mr. PUTNAM. Accessible and uncovered?
Mr. BETHUNE. Accessible and uncovered. We want to be able to ascertain at once by examining the painting in the frame, if it is in a frame, whether the picture is copyrighted or not.
Section 9 provides, about the fifth or sixth line, that "in the case of a work of art" the notice "shall be affixed to the original before publication thereof." The word "publication" is not defined, and it has been the source of considerable litigation as to what is and is not publication.
The CHAIRMAN. Has that been settled by the courts?
Mr. BETHUNE. It has not been settled by the courts. There are differing decisions now.
Mr. CURRIER. Is it not ordinarily understood to be the putting on sale of the object?
Mr. BETHUNE. No; I think not--not if it is a private sale. I think a sale should be specifically stated by the statute to be a publication, whether a private or a public sale, and the public exhibition of a painting should be a publication of it.
Mr. CURRIER. Will you suggest an amendment that will meet your idea?
Mr. BETHUNE. I am not prepared to suggest an amendment, but I shall do so in writing to this committee, if I may.
Mr. CHANEY. In a general way, what is your idea?
Mr. BETHUNE. That the statute should state that certain things shall const.i.tute publication of a work of art, and state that publication shall include a sale, whether a public or private sale, and a public exhibition of the work of art.
I must refer again to section 14. That provides that not only in respect of paintings, but also maps and photographs, the notice can be on the back or the margin. Now, so far as a painting is concerned, that is quite satisfactory to us if the notice is to be "uncovered,"
but in respect of a photograph, which may be very loosely attached to a little piece of pasteboard, and the notice may be put on the pasteboard, which could be very easily removed from the photograph.
The reproducer to whom the photograph is then brought, there being no evidence of its having been detached from any mount, may be easily misled, and before he discovers that he is infringing he may have invested thousands of dollars in the undertaking to reproduce it.
Mr. CURRIER. Then your suggested amendment, "uncovered," does not meet this objection, which you now state, at all?
Mr. BETHUNE. It does in respect of the painting, but I do not think that so far as the photograph is concerned the law should permit the notice of copyright to be simply on the thing to which it is attached or mounted. It should be on the photograph itself. I think that that will prevent litigation and expense to both photographers and reproducers.
Mr. PUTNAM. Mr. Chairman, may I ask Mr. Bethune to state whether, under the present law, the notice can be put on the mount of a photograph? Is that your understanding--that it can not be, and that this is an extension of the privilege?
Mr. BETHUNE. I understand that it can under the present law.
Mr. PUTNAM. That it can now; so that this simply repeats the privilege.
Mr. MCGAVIN. An objection was made here yesterday, I think, on the ground that it would deface the photograph.
Mr. BETHUNE. Yes; that objection has been made by the photographers; but I leave it to the intelligence of this committee----
The CHAIRMAN. And in case of a fine picture, for instance, the artist might object to having the words prescribed by this act appearing permanently upon the face of the picture.
Mr. BETHUNE. Yes, he might; but as a matter of fact, I am informed that there are very, very few artists who do not insist upon putting some mark, if not their name, upon the face of their painting.
The CHAIRMAN. Can you call attention to that section?
Mr. BETHUNE. There is no section in this bill providing for the placing of the notice upon the face of the painting; but, I say, there are very few artists, I am informed----
The CHAIRMAN. Where is the section that prescribes the form?
Mr. BETHUNE. Section 14.
Mr. MCGAVIN. On page 10.
Mr. BETHUNE. It may be simply a "C," with a little circle around it.
Senator MALLORY. Do you object to the word "accessible" here, on line 10?
Mr. BETHUNE. Yes; the word "accessible."
Mr. PUTNAM. Except as coupled with the word "uncovered."
Mr. BETHUNE. Yes.
Mr. MCGAVIN. If this language were made to read "accessible and uncovered," it would necessarily, then, require that it be placed upon the face of the photograph or picture, would it not?
Mr. BETHUNE. No; I think not.
Mr. MCGAVIN. You could not put it on the back, where it would be uncovered?
Mr. BETHUNE. No; I do not think that that would be covered----
Mr. CAMPBELL. How about the word "visible?"
Mr. BETHUNE. "Visible" was the word which I suggested at the conference. I do not know why it was not put in.
Mr. PUTNAM. I may say, Mr. Bethune, if you will permit me, Mr.
Chairman, that this question of notice was a long-discussed question between the artist group and the committee of the reproduction group; and they started, of course, at very opposite extremes. We understood finally that they reached this point: That in the first place there should be a notice. That was a concession on the part of the artist group, who thought there ought not to be any notice except their own name. That there should be a notice--that is, something to indicate copyright, even if it should be only "C" within a circle--was insisted upon by the reproducing group. So that it was agreed that there should be something to indicate copyright. Where should it be?
Now, the present statute uses the term "visible;" but the reproducing group said (if I am wrong, Mr. Bethune will correct me): "We do not care that it shall be visible in the sense that he who runs may read it. We do not care, even, that it shall necessarily be on the front of the painting. It may be on the back of the painting. It must not be on the frame, because the frame is a detachable thing. People"s tastes as to frames differ, and one collector likes one, while his successor may prefer another, and he will change the frame, and with it goes the notice. It must be on the thing itself"--that was their contention--"but it may be on the back."
Now, if it is on the back, is the word "visible" descriptive? We wanted to get some word that would indicate that it might be put in some place where it could be found by somebody looking for it, and that was the requirement of the reproducer that somebody with a sincere desire, not with a malicious intention to appropriate it, but with a sincere desire to find out whether it was copyrighted or not, might find out with a reasonable search intending to look for it. That was satisfactory to them and that was the endeavor in using the word "accessible."
Now, it is that little doubt which Mr. Bethune has suggested to you.
Would it cover the back? And would it cover and prevent a case of covering it up? The notice might be covered up. So he has suggested the addition of the words "and uncovered," but the use of the word "accessible" rather than the word "visible" was to endeavor to express what we understood to be agreed to, as the agreed intention.
Mr. BETHUNE. I think it will express it if "uncovered" is added.
Mr. PUTNAM. I should add that the reproducers definitely objected to the privilege on the part of the photographers, and so on, the print publishers, etc., of putting the notice on the mount; but of course it was understood that they had that privilege at present. They have that privilege at present, but the reproducers never thought that that was reasonable, and did not concede it to be reasonable.
Mr. BETHUNE. Now, reproducers are open to fraudulent attempts to sell to them copyrighted works by simply removing the notice of copyright, and section 25, in the draft of the bill, imposes simply a penalty of $100 as a minimum and $1,000 as a maximum fine for the removal of this notice. We think that the punishment should be imprisonment as well as fine. We want to protect ourselves from that fraud, which is very frequently encountered.
Mr. CHANEY. So that that paragraph of that section as it stands is satisfactory to you?