clearly shewed that the plaintiff's intention was to charge the defendant Cooke for the photograph, and Cooke himself understood that he would have to pay for it, and those facts bring the case within the branch of the proviso dealing with the making of a photograph for or on behalf of a person for a valuable consideration. Following the observations of Kekewich J. in Melville v. Mirror of Life Co. (1), the learned judge made the test whether the sitter had arranged with the photographer for a consideration to buy the negative-in other words, he made the property in the negative the sole test of the rights of the parties, and the jury were of opinion that the negative was the property of the plaintiff. Looking at what happened in Melville v. Mirror of Life Co. (1), I do not think that in the present case the learned judge can be said to have been really following the decision of Kekewich J., by which he considered himself to be bound, although no doubt he followed certain observations in the judgment. No doubt upon the facts of the case the judgment of Kekewich J. was right; but in the Court of Appeal we are entitled to ask ourselves whether the observations in his judgment were sound in law, and I am of opinion that they were not: they were contrary to the language of the whole section. The section does not necessarily involve the purchase of the negative by the customer, but gives him the same rights as if he had purchased it. I am clearly of opinion that in the present case there has been misdirection. But the question remains whether we should send the case back for a new trial or whether it is evident that the verdict ought to be only one way, and that judgment ought to be entered for the defendants-in other words, whether there was any reasonable evidence that the contract between the parties was other than an ordinary contract between photographer and customer for the taking of a photograph. I am of opinion that there is no such evidence. The point that makes the difficulty is that, where a photographer solicits a celebrity to have his photograph taken without making any charge for the actual taking of the photograph, the right of multiplication of (1) [1895] 2 Ch. 531. C. A. 1903 BOUCAS V. COOKE. Collins M.R. C. A. 1903 BOUCAS v. СООКЕ, Collins M.R. the photograph primâ facie belongs to the photographer. That is, no doubt, an element which has to be considered. But here the sitter came in the ordinary course, bringing his friend with him, and there seems no evidence that this was other than a bargain for taking the sitter's photograph for a valuable consideration; if that is so, the law is absolutely clear, and there must be judgment for the defendants. STIRLING L.J. I entirely agree with what has been said by the Master of the Rolls both as to the state of the law and on the question of misdirection. The law on this subject is in my opinion correctly stated by North J. in Pollard v. Photographic Co. (1) That was the ordinary case of a photographer taking a photograph at the request of the sitter, and on the terms that he should be paid for taking it; there the copyright, as North J. pointed out, is in the sitter, although the legal property in the negative remains in the photographer, and although (as the learned judge held) part of the bargain was that the photographer was not at liberty to sell copies or to make use of the negative without the authority of the sitter. But the case becomes totally different when the photograph is taken by the photographer at his own request for his own use, and without any bargain with the sitter as to payment. All the decided cases, with one exception, are consistent with the law as laid down by North J., among them being Ellis v. Ogden (2) and Ellis v. Marshall. (3) The only case which seems to conflict with those decisions is that of Melville v. Mirror of Life Co. (4), before Kekewich J.; but in that case the photograph was taken at the photographer's own request, and not at that of the sitter, and there was no payment by the sitter. On those facts the case was rightly decided, but observations were made by the learned judge in the course of his judgment which, read literally, support the view taken by Ridley J. in the present case. Kekewich J. said: "a man cannot be said to make a photograph for or on behalf of another, when that other is not entitled to have the negative of the photograph (1) 40 Ch. D. 345. (2) 11 Times L. R. 50. (3) 64 L. J. (Q.B.) 757. when made. My conclusion therefore is that, though the photograph was of Crossland, yet as the negative was not made or executed for or on behalf of him, the proviso has no application to the present case." If those remarks are to be taken apart from the particular circumstances of the case and as an absolute statement of the law, I am unable to agree with them, though I think that the decision on the particular facts was correct; I agree with the view of North J., and with the view taken in the other decisions to which I have referred. In the present case the learned judge has in my opinion given too much weight to the mere legal title to the negative in the photographer's hands, and not enough weight to the fact that the photograph was taken at the request of the sitter and for valuable consideration, and that the latter would have a right to control the use of the negative by the photographer. I have felt some hesitation as to whether the case should not be sent back for a new trial before another jury, but on the whole I assent to the view that judgment should be entered for the defendants. MATHEW L.J. I agree that judgment must be entered for the defendants, and that there is no need for submitting the case to another jury, the law being perfectly clear. What is the complaint which is made of the summing-up? Substantially it is that the learned judge followed expressions of opinion of Kekewich J. in Melville v. Mirror of Life Co. (1) From that case the learned judge gathered that the only true test of ownership of the copyright by the sitter was the purchase of the negative, and it was said that as the negative had not been bought the copyright was in the photographer. But the true test of ownership of the copyright is to be found in the Act of Parliament, and the words of the section are plain: "When 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 (1) [1895] 2 Ch. 531. C. A. 1903 BOUCAS v.. COOKE. Stirling L.J. thereof, unless it be expressly reserved to him by agreement in writing." There was no reservation in the present case, and the facts bring it within the Act of Parliament. That is clear from the evidence of the plaintiff himself, which is a description of an ordinary transaction between a sitter and a photographer. It was necessary that a negative should be taken, and in ordinary transactions it is taken for a valuable consideration. If a person comes to be photographed, the photographer is as well entitled to be paid for his work as a bootmaker would be, and that in the present case the photograph was taken for a valuable consideration is abundantly made out. But it was suggested that the sitter was a celebrity, and the photograph was intended to be extensively distributed. The evidence is that the defendant Cooke came to the plaintiff's establishment, and required a special print to be made from the negative with a view of repeating it: that is agreed. It is clear that the photographer foresaw that the photograph was to be repeated, and it is contended that somehow or other he is possessed of the copyright, and that he can prevent the customer from using the silver print. It is clear, however, that the plaintiff, having produced the negative for a good and valuable consideration, in the absence of the agreement mentioned in the section can be prevented from dealing with it. In my opinion, sufficient attention was not paid to the language of the statute in the summing-up in the Court below, and this appeal must be allowed. Appeal allowed. Judgment for defendants. Solicitors for plaintiff: C. V. Young & Son. Solicitors for defendants: Beckingsale, Greenwood, Tucker & Cross. W. J. B. HARMAN v. AINSLIE. Landlord and Tenant-Lease-Negative Covenant-Proviso for Re-entry. A lease of a house contained a covenant by the tenant to pay the rent, rates, and taxes, and also a covenant not to use the premises for certain specified purposes without the consent of the lessor, and it contained a proviso that "if the lessee shall commit any breach of the covenants herein before contained and on his part to be performed" the lessor might re-enter: Held, that, as the lease contained both affirmative and negative covenants, a proviso for re-entry in the above form must be understood as applying only to breaches of the former. TRIAL before Wright J. without a jury. By an indenture of lease dated July 8, 1885, Mrs. S. Popplesdorf demised a house No. 76, High Street, Southend, to Edwin C. Alderman for the term of twenty-one years at the rent of 60%. The lessee covenanted to pay the rent reserved, land tax, tithe rent-charge, and all other rates, taxes, and outgoings. He also covenanted that he would not "use or suffer the said premises or any part thereof to be used for any art, trade, or business whatsoever except the trade of an outfitter without the licence or consent in writing of the said lessor for that purpose first obtained." He also further covenanted that he would not assign or underlet the premises or any part thereof without the consent of the lessor. The lease contained a proviso that "if the said lessee shall commit any breach of the covenants hereinbefore contained and on his part to be performed, then the said lessor may re-enter upon the said premises." On February 7, 1887, Mrs. Popplesdorf gave her licence in writing to E. C. Alderman to assign the lease to one Comber, and by the same document gave her consent "that hereafter any art, trade, or business may be carried on in the said premises except that of a photographer, hairdresser, or tobacconist." And by an indenture of even date Alderman, in pursuance of the said licence, assigned the lease to Comber. 1903 May 13. |