Mr. BETHUNE. Section 25, sir?
Mr. CHANEY. Yes.
Mr. BETHUNE. No. We want, as well as a punishment by fine of not less than $100, the words inserted "or imprisonment" or "and imprisonment,"
both for a specified term; it is not material how long it shall be.
Mr. WEBB. Have you suggested your amendment to this section 14 that some word instead of "accessible" should be used? Did you suggest "visible"? Was that your idea?
Mr. BETHUNE. That was the word which we did suggest, but "accessible"
is satisfactory to us if "uncovered" is coupled with it.
Mr. WEBB. You want it to read "accessible and uncovered"?
Mr. BETHUNE. Yes.
Mr. WEBB. Would that apply to a magazine picture--a picture in a magazine that had the notice on the back of the original? You could look for it, and it would be uncovered.
Mr. BETHUNE. In the case of a magazine, as I understand, it would be covered by the copyright of the magazine.
Mr. WEBB. Well, that is all right; I did not understand how that would be.
Mr. BETHUNE. Those are the princ.i.p.al features----
Senator MALLORY. I would like to ask you with reference to that suggestion which you were referring to in regard to publication in the matter of a work of art, or a plastic work or drawing. Is there any definite suggestion that you could make, any definite change, so as to convey your idea? I think I know what you want; but it seems to me it is going to be pretty difficult to use an expression there that will convey the exact idea that you desire. Now, in the matter of a work of art, as long as it remains in the hands of the creator of it, one would think it would not be necessary, but it was suggested to me by the chairman here that even the maker of the work of art might want to copyright it, although he did not intend to sell it; he would want to prevent people from infringing on it.
Mr. BETHUNE. Precisely.
Senator MALLORY. And yet there would be no publication; he could keep it in his own library.
Mr. BETHUNE. He has the right to copyright it at any time he pleases, before publication.
Senator MALLORY. I know that; but the point is, What does the word "publication" here mean? And I would like to know, if you have given the thing any thought, if there is any suggestion you could make?
Mr. BETHUNE. Yes, sir; I think the term "publication" should be explained. I do not think we can define altogether what "publication"
is; but we can state that certain things shall be included within "publication."
Senator MALLORY. What is your suggestion?
Mr. BETHUNE. I think that sale, whether a public or private sale of the painting, and the public exhibition of the painting, should be construed as a publication.
Mr. WEBB. You suggest inserting after "original" "before publication, exhibition, or offering for sale?"
Mr. BETHUNE. No, sir; I should let "publication" stand there, but I should qualify or partially define in another section what "publication" is----
The CHAIRMAN. Is there not danger in making such definition?
Mr. BETHUNE. No; I think not, if you state what it shall include, or rather what shall be included in it.
The CHAIRMAN. Suppose we define publication in the manner you suggest, would there not be difficulty in cases not covered by that definition?
Mr. BETHUNE. I think not, sir.
The CHAIRMAN. Might not the courts construe that definition as covering all cla.s.ses of publications?
Mr. BETHUNE. Not if the statute specifically states that those expressions are not meant to be an exact definition of all that publication includes, and I think that can be very easily done.
The CHAIRMAN. We would be very glad to have your suggestion on that point.
Mr. BETHUNE. I should be very glad to submit it if you will be kind enough to permit me to do so.
There are some other matters which I do not care to take up your time with now, and will do so in writing.
Mr. CHANEY. Is your idea of expressing and defining "publication" for the purpose of limiting the word "publication?"
Mr. BETHUNE. Not altogether; no, sir. I think that both the reproducer and the artist should know the exact situation at the very outset. If the artist exhibits a painting in a gallery and people pay fifty cents or nothing to go in and look at the painting, although there is a restriction, perhaps, made by the artist upon copying that painting, when the painting goes to that exhibition he should know at once, and the reproducer should know, that that being a public exhibition is a publication of the painting, and if the copyright notice is not on it then the artist has lost entirely the right to copyright it entirely.
Mr. CHANEY. You are aware of the fact that if you undertake to define "publication" you do limit it to whatever you say it is?
Mr. BETHUNE. I do if I attempt to fully define it, but I should not attempt to so define it. I should attempt to say that certain things should be embraced in the term "publication."
Mr. CHANEY. Do you not thereby exclude everything else?
Mr. BETHUNE. No, sir.
Mr. PUTNAM. If Mr. Bethune will permit me, Mr. Chairman, the attention of the committee may not have been called to the fact that there is a definition of the date of publication where copies are reproduced for sale or distribution. That is in section 63. It is limited to that because, after discussion, the conference did not seem to be able, or none of our advisers seemed to be able, to suggest a definition for "publication" in the case of works of art, for instance, of which copies are not reproduced. It seemed to those who were advising us a dangerous thing to attempt.
Mr. BETHUNE. I think it would be, and I would not undertake it, but I think you will save trouble and expense to both the artists and the reproducers if you will say that the sale, whether private or public, and the public exhibition, shall be a publication of the painting.
Mr. WEBB. That is what I asked you a while ago--if you did not think, speaking of "publication" here, that it would be sufficient if you were to let it read "public exhibition or offering the same for sale,"
either public or private sale?
Mr. BETHUNE. To be included in the term "publication."
Mr. WEBB. But can you think of any other instance where publication would mean something else than those things?
Mr. BETHUNE. No; I can not for the moment, but I think there is danger, as the chairman has just stated--there may be many things which do not occur to me now, or would not occur to this committee, which should be contained in a definition.
Mr. WEBB. I think you would complicate it very much if you used the word "publication" generally, and then undertook to define "publication" also, and intended that "publication" should cover more points than you specified.
Mr. BETHUNE. Why, sir, this bill starts in and says that all the works of an author may be copyrighted. It then specifies some of the things, and it then says that the things specified are not all that may be included.
Mr. WEBB. I understand that; but you, a man who is expert in these matters, can not state to us what other points would be covered than public exhibition or offering the same for sale.
Mr. BETHUNE. I am not a reproducer; I am a lawyer, and the reproducers may be able to advise me.
Mr. CHANEY. A lawyer is an originator always. [Laughter.]
The CHAIRMAN. You spoke earlier in your remarks about the decisions of courts on this subject.