In this case the plaintiff was an artist who was the author of a fine line drawing made for the purpose of being used as an advertisement in newspapers and periodicals by the defendants, and the copyright was vested in them. The defendants produced and published, without the consent of the plaintiff, on public hoardings throughout the country, in the form of large colored posters, a reproduction of the plaintiff’s drawing, and, for this purpose, they caused various alterations to be made in the original drawing by someone other than the plaintiff, leaving the plaintiff’s signature on the posters.
Channell J. held that an offence had been committed under the fourth clause of section 7 of the Copyright Act of 1862, although no suggestion of fraud was made. In dealing with the question of what would be an “alteration” of the work within the clause, the learned Judge pointed out that there might be some alterations which would not come within the clause. He did not think that an alteration in the artist’s signature, for instance, would have been within that clause, for that would have been an alteration immaterial with reference to the object for which the clause was passed. He said, “To come within the enactment, an alteration must be a material alteration, having regard to the object with which the enactment was passed; and that would be some alteration, which might affect the credit and reputation of the artist. To my mind, that is what is prohibited. I do not think it would be necessary to find in any particular case the alteration had affected the character and reputation of the artist; it is insufficient if the alternation is of such a character that it might affect his character and reputation. Applying that principle, I think that this case is brought within the clause.”
He then dealt with the question whether a change in the coloring of a picture would be such an “alteration” as to be an offence under the clause, and expressed the opinion that must depend upon the facts of each case. He thought that if the drawing was colored originally, the putting of different colors would obviously be an alteration; but that the mere addition of color to a drawing, which originally had none, would not necessarily be an alteration, although in the majority of cases it probably would be so.
The work must be sold as and for the unaltered work of the author. It has been decided that this means that there must be a selling or publishing under circumstances in which, to the knowledge of the seller or publisher, there is made, either expressly or by necessary implication, a representation that the author is the author of the work sold or published in the form in which it is sold and published. The necessary implication does not arise merely from the fact that some persons might know who was the author of the work sold from the style of the work.
– Rohan Jhusiwala