C. A. 1903 travel on the engine. There was certainly evidence fit for the consideration of the jury on this point. And there was evidence of such a failure of due care on the part of the defendant's servants as to render the defendant responsible to the PERRY & Co. plaintiff for the damage arising therefrom. I am of opinion that the appeal must be dismissed. I have to add that Stirling L.J. and Mathew L.J. concur in the judgment that I have read. Appeal dismissed. Solicitors for plaintiff: Gibson, Usher & Co. HARRIS V. Collins M.R. Solicitors for defendant: Munns & Longden. A. M. [IN THE COURT OF APPEAL.] BOUCAS v. COOKE AND OTHERS. Copyright-Photograph-Photograph "made for or on behalf of any other Person for a good or a valuable Consideration”—Photograph taken at request of Sitter-Fine Arts Copyright Act, 1862 (25 & 26 Vict. c. 68), s. 1. Where a photographer takes a photograph at the request of the sitter upon the terms that the sitter will pay for taking it, or under circumstances which raise an implied promise to pay on the sitter's part, the photograph is "made or executed for or on behalf of any other person for a good or a valuable consideration" within the meaning of s. 1 of the Fine Arts Copyright Act, 1862, and the copyright in the photograph is in the sitter, notwithstanding that the property in the negative, in the absence of any agreement for its purchase, may remain in the photographer. Pollard v. Photographic Co., (1888) 40 Ch. D. 345, approved. Melville v. Mirror of Life Co., [1895] 2 Ch. 531, considered, and observations in judgment disapproved. APPLICATION of the defendants for judgment or a new trial in an action tried before Ridley J. and a common jury. The plaintiff carried on business as a photographer, and the defendant Cooke was a youth seventeen years of age, known as the "boy preacher." On January 20, 1902, Cooke, accompanied by the defendant Coutts, came into the plaintiff's studio; C. A. 1903 May 8, 12. C. A. 1903 BOUCAS v. COOKE. they said that they came from Mr. Charrington (the proprietor of a mission hall where Cooke was preaching) to have a photograph taken of Cooke, which must be of a particular kind as it was required for a block in order to make a reproduction of the photograph for distribution at meetings where Cooke was preaching it was arranged that the plaintiff should take a silver-print photograph. The plaintiff then took the two defendants inside and took two negatives for the photograph; he knew then that Cooke was the "boy preacher." After taking the photograph, there was a conversation as to purchasing the negative; according to the plaintiff, Cooke said, "If it is good I may buy the negative of you," while Cooke's evidence was that he told the plaintiff that on completion of the order he should require the negative for the sake of the copyright, and that the plaintiff agreed to it. Cooke said in his evidence that he thought he should have to pay 5l. or 107. for the negative; nothing, however, was said by either Cooke or Coutts as to the price at which they would buy it. The plaintiff was not paid for taking the photograph; he said in evidence that he did not charge for it because he thought Cooke was a celebrity, and that there was no agreement that he was to take the photograph in the ordinary way and to be paid for copies supplied to Cooke. On the following day the plaintiff sent a silver print of one of the negatives to the defendant Reynolds, a printer, who was to make a block for the purpose of reproducing it; the photograph was sent to Reynolds by direction of the defendants Cooke and Coutts given at the interview with the plaintiff, and when it was sent the plaintiff knew that the defendants intended to use it for making a block. The photograph was approved by Cooke, who gave the plaintiff an order for twenty-four copies, eighteen of which were subsequently delivered; it did not appear from the evidence what was the agreement as to payment for the copies, but the plaintiff said in cross-examination that he expected to be paid for them by Cooke. On January 29 (before the copies had been delivered) Cooke came to the plaintiff's place of business and saw the plaintiff. Cooke asked the plaintiff what price he could do ten or twenty thousand copies for; the plaintiff quoted a price, but the terms were never agreed, and the plaintiff never got the order. It was suggested that at this interview Cooke told the plaintiff he had no right to copyright the negative; but this was denied by the plaintiff, who said that nothing was then said about the copyright or negative. The plaintiff had in fact copyrighted the negative on January 27, and when the eighteen copies were delivered he sent a message to that effect. The photograph was eventually reproduced by Reynolds, who registered his own print as copyright, and copies were sold at the mission hall; the plaintiff's name was not put on these copies, nor did he authorize Reynolds to put his own name or the word "copyright" on them; the plaintiff never received any money for the use of the picture. Payment for the two dozen photographs was offered to the plaintiff on more than one occasion, but was declined, and when asked in February to send in his account he refused to do so, the reason given both for declining payment and for refusing to send in an account being that the order was not complete. Several interviews took place between the parties with the view to an arrangement of the dispute as to the copyright, but no settlement could be arrived at, and eventually the plaintiff issued the writ in the present action, claiming damages for the alleged infringement of copyright, an injunction, and penalties. At the trial before Ridley J. and a common jury the plaintiff and the defendant Cooke were the only witnesses called, and the effect of their evidence is summarized above. In summing up the case to the jury the learned judge directed them that the question was whether the authorship or property in the negative was in the plaintiff or in Cooke, and that a man could not make a photograph for or on behalf of another, if the latter was not entitled to have the negative when the photograph was made; he left to the jury the question whether the negative was made on behalf of Cooke for a good and valuable consideration in the sense that it was to be his in any event, or whether it was only to be his if he paid for it. The jury found that the negative was the property of the plaintiff, and assessed the damages at 201. and penalties at 51., and judgment was given for the plaintiff for those amounts and for an injunction restraining the defendants from further publication of the C. A. 1903 BOUCAS V. ССОКЕ. C. A. 1903 BOUCAS v. COOKE. photographs. The defendants appealed, and asked for judgment or for a new trial. (1) Sir A. J. H. Collins, K.C., and Trickett, for the defendants Cooke and Coutts. The plaintiff was not entitled to the copyright in the photograph. The learned judge at the trial thought that the effect of the proviso in s. 1 of the Fine Arts Copyright Act, 1862, was that the copyright belonged to the photographer, unless the negative was sold to the customer, and that, the negative not having been sold to the defendant Cooke, the plaintiff remained the owner of it, and his summingup of the case to the jury proceeded on that footing. That is not the true construction of the section. It is really the photograph which is the subject of copyright, not the negative by means of which it is produced, and which bears the same relation to it as the type does to the work which is printed by means of it. A negative may be made or executed by the photographer for or on behalf of another person for valuable (1) By s. 1 of the Fine Arts Copyright Act, 1862 (25 & 26 Vict. c. 68), "The author, being a British subject or resident within the dominions of the Crown, of every original painting, drawing, and photograph which shall be or shall have been made either in the British dominions or elsewhere, and which shall not have been sold or disposed of before the commencement of this Act, and his assigns, shall have the sole and exclusive right of copying, engraving, reproducing, and multiplying such painting or drawing, and the design thereof, or such photograph, and the negative thereof, by any means and of any size, for the term of the natural life of such author, and seven years after his death; provided that when any painting or drawing, or the negative of any photograph, shall for the first time after the passing of this Act be sold or disposed of, or shall be made or executed for or on behalf of any other person for a good or a valuable consideration, the person so selling or disposing of or making or executing the same shall not retain the copyright thereof, unless it be expressly reserved to him by agreement in writing, signed, at or before the time of such sale or disposition, by the vendee or assignee of such painting or drawing, or of such negative of a photograph, or by the person for or on whose behalf the same shall be so made or executed, but the copyright shall belong to the vendee or assignee of such painting or drawing, or of such negative of a photograph, or to the person for or on whose behalf the same shall have been made or executed; nor shall the vendee or assignee thereof be entitled to any such copyright, unless, at or before the time of such sale or disposition, an agreement in writing, signed by the person so selling or disposing of the same, or by his agent duly authorized, shall have been made to that effect." The consideration within the meaning of the section, although there is no purchase of the negative by that other person. common practice in the case of a person who employs a photographer is for the negative to remain the property of the latter, who retains it for the purpose of supplying the customer with any copies of the photograph which he may afterwards require, but the copyright in the photograph does not belong to the photographer. A wholly different class of case is where the photographer requests a celebrity to allow a photograph of himself to be taken gratuitously, as a speculation for the benefit of the photographer, in which case the copyright would belong to the latter. When the section speaks of a negative being made or executed on behalf of any other person for a good or a valuable consideration, it contemplates the first case, that of the ordinary custom. In the second case the photograph is taken for or on behalf of the photographer, not for or on behalf of the sitter. The present case comes within the first class, for the evidence shews clearly that the negative was executed for or on behalf of the defendant Cooke at his request in the ordinary way, and on the understanding that he was to pay for it being taken; it was not a case of the plaintiff requesting Cooke as a celebrity to sit for his photograph in order that the plaintiff might sell copies for his own benefit. The view taken by Kekewich J. in Melville v. Mirror of Life Co. (1), to the effect that, where it is the intention of the parties that the photographer should keep the negative as his own property, the photograph is not made for or on behalf of the sitter, is erroneous, and cannot be reconciled with the principle laid down by North J. in Pollard v. Photographic Co. (2) [They also cited Ellis v. Ogden (3); Ellis v. Marshall. (4)] H. Reed, K.C., and Turrell, for the defendant Reynolds, argued to the same effect. Scrutton, K.C., and Colam, for the plaintiff. Upon a correct view of the facts, which are of a very special character, it may be unnecessary to discuss any question with regard to the general relations between photographers and their customers, (1) [1895] 2 Ch. 531. (2) 40 Ch. D. 345. (3) (1894) 11 Times L. R. 50. C. A. 1903 BOUCAS v. СООКЕ. |