Part 21 (1/2)

Mr. BETHUNE. Yes.

The CHAIRMAN. And the lack of uniformity of the decisions relative to publication. Is not that fact due to the conditions which you now describe, and which have been suggested by different members of the committee--because what may be publication in one copyrightable article may not be publication in another?

Mr. BETHUNE. Yes, sir. For that reason----

The CHAIRMAN. Now, then, if the courts, with this attempt to define publication, have found difficulty and have differed, is it not because of the different character of the articles that have been involved in the litigation before the courts?

Mr. BETHUNE. No; it is the same article that I have in mind. There is one Ma.s.sachusetts case, a Federal case, where, in the case of a public exhibition of a painting, the circuit court of appeals in the first district held that that was a publication of the painting.

Mr. CAMPBELL. Was the exhibition given for hire, for profit?

Mr. BETHUNE. Yes; my recollection is that it was a public exhibition for hire. Subsequently another case----

Senator MALLORY. It held that that const.i.tuted publication?

Mr. BETHUNE. That that const.i.tuted publication.

Senator MALLORY. It did not define what publication was any more than that?

Mr. BETHUNE. No; it simply decided that that particular public exhibition was a publication of the work.

The CHAIRMAN. In other words, it decided that in that case special acts const.i.tuted a publication?

Mr. BETHUNE. Yes, sir. Now, the Federal courts in New York State have held the contrary view in respect of a public exhibition of a painting for hire (in the Workmeister cases). Those cases will probably go up to the Supreme Court, but they may not.

The CHAIRMAN. What was the argument or the reasoning of the court in the latter decision?

Mr. BETHUNE. The Ma.s.sachusetts case was distinguished, if my memory is correct, on the fine point that in one case there was a reservation--in the one case the artist made some reservation in respect of the use of the painting when he loaned it to the exhibition, and in the other case he did not; but it is just those fine points which we want to eliminate.

Senator MALLORY. From what you say, I think it would be well for us to avoid the word ”publication” and state just what we want without using the word ”publication” at all, if we are going to give rise to diverse decisions and litigation. I think we had better express it, perhaps, in the language which you have--”after sale or exhibition for hire”

and ”public exhibition.”

Mr. BETHUNE. Well, there you do limit it.

Senator MALLORY. Just express it in those words.

Mr. BETHUNE. There you do limit distinctly what would be, in effect, publication, though you do not call it so, and that we do not want.

The CHAIRMAN. We would be very glad if you would submit your proposed amendment to the committee later.

Mr. PUTNAM. Mr. Chairman, I understand that Mr. W. A. Livingstone, representing certain reproducing interests, and Mr. McDonald, representing the National Photographers' Copyright League, wish to have a note recorded--not to argue a point, but simply to have a note recorded in the minutes.

STATEMENT OF WILLIAM A. LIVINGSTONE, ESQ., OF DETROIT, MICH.

Mr. LIVINGSTONE. Mr. Chairman, I simply wish to state two things in contradiction of the last speaker. I stand here for a large reproductive interest, and consequently we are speaking also from the standpoint of the reproducer. We dissent very strongly from his opinion and we support the bill in respect to notice as it now is.

That is all we wish to say now.

Mr. WEBB. You want the word ”accessible” kept in just as it is now?