"‘Death of Chatterton.’" Athenaeum 1648 (4 Feb. 1860), 177.

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A case of great interest to the artistic world was decided on Monday last by the Master of the Rolls in Ireland. The facts are these: Mr. Wallis sold his well-known picture of ‘The Death of Chatterton’ to Mr. Egg, who sold to one Robert Turner the sole right to engrave and publish an engraving of it. In the agreement for sale to Turner there was the usual clause, providing that he should for a specified time be at liberty to exhibit the picture, in order to obtain subscribers, and it was exhibited accordingly, at Mr. Cranfield’s. The picture had been exhibited at the Royal Academy in 1856, and at the Art-Treasures Exhibition at Manchester, and Mr. Wallis had permitted a wood-engraving of it to appear in the National Magazine. Under these circumstances one Robinson published a pirated photograph of the picture. There is no statute for the protection of copyright in a painting, so protection exists only so long as the work remains unpublished. The remedy is by action at law, or by suit in equity for an injunction. Mr. Turner elected to proceed by suit for an injunction. The defences raised show that the ingenuity of the Irish Bar is not inferior to its eloquence. It would be unjust not to give the heads of the defence seriatim. Firstly, the permission to publish the wood-engraving was a publication. Secondly, the Exhibition at the Royal Academy was a publication. Thirdly, so also was the Exhibition at Manchester. Fourthly, the copyright was not transferable at law, so the petitioner had no interest in the matter. Fifthly, the transfer to Mr. Egg was a publication. Sixthly, so was the Exhibition at Mr. Cranfield’s. Seventhly, the painting was not original, but taken from an old engraving. So there could be no copyright. Eighthly, the painting was not pirated. Ninthly, the petitioner could only sue in respect of a right of property, and many persons are of opinion that all property is robbery! And, tenthly, the petitioner had no such right in the picture as could sustain the suit. We have mentioned the points raised, in the order in which they are disposed of by the Judge, following, as we presume the line of the argument, for they might be better arranged. They may be divided into questions of fact, questions of law, and–jokes! The questions of fact, as to the originality of the production and the piracy, were decided against the petitioner without hesitation. The several questions as to publication, by allowing a wood-engraving to appear, and by exhibiting the picture, we should have conceived to be quite free from doubt. The Master of the Rolls, however, considered them worthy of elaborate consideration. The petitioner could not have restrained any one from copying the wood-engraving itself, but this did not affect the copyright in the picture. The learned Judge ascertained, by correspondence with Mr. Redgrave, that an express rule of the Royal Academy disallows all copying from pictures sent for exhibition. In like manner he ascertained from Mr. Fairbairn that, at Manchester, no copying was allowed, except with the express permission of the owner of the picture; and, having regard to these facts, he held that these exhibitions did not amount to publication. He also held that the exhibition, for the purpose of obtaining subscriptions, had not the effect of publication, which would defeat the very object of the exhibition. The objection that the copyright was not transferable, and that the transfer to Egg was a publication, the Master of the Rolls could not perceive the force of. We suspect there must have been some joke intended, which he failed to take. The ninth defence (which we have cautiously given in the Judge’s own words) is clearly facetious. If property be robbery, what is the use of lawyers? No Irish barrister can ever have doubted his own utility, and, therefore, this argument can never have been seriously used. It was also decided that the petitioner had a sufficient interest to support his case; an injunction was therefore granted, limited to the time for which the petitioner was to have the right to exhibit the picture, and Mr. Robinson was ordered to pay the costs. We think it was Lord Jeffrey who remarked, that the Courts of Justice waste time in proportion as they have little to do, and that if there were but one cause it would never be finished at all. If this be so, we conceive from the conduct of this case, that there can be no pressure of business in the Irish Rolls Court. The judgment, the effect of which we have endeavoured to give, is very long, but is worthy of perusal. The learned Judge laments the inadequacy of the protection afforded to painters by our law, and expresses a hope that the subject may be brought before Parliament this Session–a hope in which all will join, for on no point is the state of the law more unsatisfactory–and this is saying a good deal.


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Copyright © 1999 Thomas J. Tobin.

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