Page:The copyright act, 1911, annotated.djvu/27



engraving may be infringed by a photograph. Copyright in a painting may be infringed by a photograph or pencil sketch.

It is doubtful whether a reproduction in the round of an artistic work on the flat or vice versa can be an infringement; that is to say, whether copyright in a painting can be infringed by the reproduction of the design in the form of a work of sculpture or whether copyright in a work of sculpture can be infringed by a painting, drawing, or photograph.

The representation of a painting in the form of a tableau vivant is not an infringement of the copyright in the painting.

The words "any substantial part thereof" express what has been decided under the Copyright Act, 1842, upon the construction of the phrase, "multiplying copies." The sole right of making copies is held to include the sole right of making copies of any part. This deduction, coupled with the maxim, de minimis non curat lex, resulted in the decisions to the effect that it was an infringement to take a substantial part, but that it was not an infringement to take an insignificant particle. The question as to what is substantial is not altogether one of quantity, it is, perhaps, mainly one of quality, and depends on the character of the work and the relative value of the material taken. The following are among the considerations which are relevant on the question of substantiality; what proportion does the material taken bear to (i) the work infringed, (ii) the infringing work ; will the infringing work compete with the work