Copyright: Its History and Its Law

English patent proviso

Unfortunately, the precedent of our copyright act of 1891 has since been followed in England in the patent and designs act of 1907, which provides (sec. 27) that a patent may be revoked after four years "on the ground that the patented article or process is manufactured or carried on exclusively or mainly outside the United Kingdom." Such a provision had been a feature of the patent laws of Germany, Canada and other countries, but it is new in British law and has evoked strong protest from American patentees, notwithstanding that it is parallel with our manufacturing provision with respect to copyrights.

XI

DRAMATIC AND MUSICAL COPYRIGHT, INCLUDING PLAYRIGHT

Dramatists' and composers' rights

The dramatic author and the musical composer receive recompense for their creative labor not so much from publication of their works in the printed form of a book as through their performance or representation, when protected as playright or performing right, as the artist receives remuneration not only for the reproduction and sale of copies, but also from the exhibition as well as sale of his original work. Dramatic and musical copyright, in the wide sense, therefore, covers copyright in the specific sense and playright, as to which latter common law rights especially need statutory protection.

American provisions

In the protection of dramatic and musical compositions the new American code specifically provides not only for copyright, but for playright or right of performance. Under subject-matter of copyright (sec. 5) such works are classified as "(d) Dramatic or dramatico-musical compositions; (e) Musical compositions"; and the Copyright Office Rules and Regulations further define these classes as follows:

Copyright Office definitions

"8. (d) Dramatic and dramatico-musical compositions, such as dramas, comedies, operas, operettas and similar works.

"The designation 'dramatic composition' does not include the following: Dances, ballets, or other choregraphic works; tableaux and moving picture shows; stage settings or mechanical devices by which dramatic effects are produced, or 'stage business'; animal shows, sleight-of-hand performances, acrobatic or circus tricks of any kind; descriptions of moving pictures or of settings for the production of moving pictures. (These, however, when printed and published, are registrable as 'books.')

"9. Dramatico-musical compositions include principally operas, operettas, and musical comedies, or similar productions which are to be acted as well as sung.

"Ordinary songs, even when intended to be sung from the stage in a dramatic manner, or separately published songs from operas and operettas, should be registered as musical compositions, not dramatico-musical compositions.

"10. (e) Musical compositions, including other vocal and all instrumental compositions, with or without words.

"But when the text is printed alone it should be registered as a 'book,' not as a 'musical composition.'"

Rights assured

To dramatic and musical authors are given (sec. 1) in addition to the general right, granted in subsection "(a) To print, reprint, publish, copy and vend the copyrighted work," the specific exclusive rights:

"(b) … to dramatize it if it be a non-dramatic work; to convert it into a novel or other non-dramatic work if it be a drama; to arrange or adapt it if it be a musical work;…

Dramatic rights

"(d) To perform or represent the copyrighted work publicly if it be a drama or, if it be a dramatic work and not reproduced in copies for sale, to vend any manuscript or any record whatsoever thereof; to make or to procure the making of any transcription or record thereof by or from which, in whole or in part, it may in any manner or by any method be exhibited, performed, represented, produced, or reproduced; and to exhibit, perform, represent, produce, or reproduce it in any manner or by any method whatsoever;

Musical rights

"(e) To perform the copyrighted work publicly for profit if it be a musical composition and for the purpose of public performance for profit; and for the purposes set forth in subsection (a) hereof, to make any arrangement or setting of it or of the melody of it in any system of notation or any form of record in which the thought of an author may be recorded and from which it may be read or reproduced"; – to which provision of subsection (e), in respect to copyright control of mechanical records, are added provisos that such control shall not extend to compositions published and copyrighted before July 1, 1909, and works of foreigners whose state does not grant similar right to American citizens, and shall be subject to compulsory license arrangements, requiring that if the author permits any mechanical reproduction, he shall license any manufacturer under conditions stated in detail in the act, all of which exceptions and conditions are fully stated in the chapter on mechanical music provisions.

Excepted performance

An exception to these exclusive rights is, however, made in the proviso (sec. 28) "Provided, however: That nothing in this Act shall be so construed as to prevent the performance of religious or secular works, such as oratorios, cantatas, masses, or octavo choruses by public schools, church choirs, or vocal societies, rented, borrowed, or obtained from some public library, public school, church choir, school choir, or vocal society, provided the performance is given for charitable or educational purposes and not for profit."

This proviso is singularly defective in phraseology, as the phrase "octavo choruses" has no musical significance and uses a music-trade term to designate choruses usually but not necessarily published in octavo form; and the duplication of the words "public school," etc., is probably a verbal error in the bill which mistakenly became part of the law. The proviso is doubtless intended and would fairly be construed to permit gratuitous unauthorized performance of religious or secular works such as oratorios, cantatas, masses, and choruses by public schools, church choirs, school choirs or vocal societies, from copies rented, borrowed, or obtained from some public library, provided the performance is given for charitable or educational purposes and not for profit. Curiously the letter of the proviso would seem to provide that the beneficiary organization cannot perform from a purchased copy, but only from copies rented, borrowed or "obtained from" some public source; but this also is an evident error.

Performance "for profit"

It should be noted that the omission from subsection (d) as to drama and the inclusion in subsection (e) as to music, of the words "for profit," – doubtless with the intent of assuring to the individual purchaser of music the right to perform it privately, – have significance here, and serve, it would seem, to give the dramatic author absolute control even over gratuitous performances and to limit the control of the musical author to performances which are not gratuitous, a negative provision covering, and giving much wider latitude than, the proviso (sec. 28) above cited. But as dramatico-musical compositions are classified (sec. 5, d) with dramatic compositions, and an oratorio and possibly a cantata might be considered as a dramatico-musical composition, the proviso (sec. 28) may have a specific effect as to this kind of dramatico-musical compositions. The law is unfortunately defective and confusing by reason of this proviso and will be so difficult of judicial construction as to suggest the omission, by amendment, of this proviso. The use of the word "public" in both cases implies that the author cannot control private representation and opens other questions difficult of judicial interpretation.

Works not reproduced

It is provided (sec. 11): "That copyright may also be had of the works of an author of which copies are not reproduced for sale, by the deposit, with claim of copyright, of one complete copy of such work if it be … a dramatic or musical composition"; provided that the required deposit of two copies shall be made, as in the case of books, on publication thereafter by the multiplication and public sale or distribution of copies.

Copyright notice

The notice of copyright must be printed (sec. 18) on each copy, as in the case of a book in the form "Copyright" or the abbreviation "Copr.," "accompanied by the name of the copyright proprietor" and "the year in which the copyright was secured by publication." In the case of a published dramatic work the notice must be placed, as in the case of a book, upon the title-page or the page immediately following, but in the case of a published musical work the law provides that the notice "shall be applied … either upon its title-page or the first page of music," and this specification makes the copyright notice of doubtful validity if applied in a musical work on the page following the title-page, unless this is the first page of music.

Dramatico-musical works protected from mechanical reproduction

The classification of dramatico-musical compositions under subsection (d) as dramatic works and not under subsection (e) as musical compositions, defines an opera and possibly an oratorio or cantata as a dramatic rather than a musical composition. As the dramatic author is given (sec. 1, d) the comprehensive rights over reproduction "in any manner or by any method whatsoever" while the musical author is limited (sec. 1, e) in respect to mechanical reproductions, it would seem to follow that the author of an opera may retain absolute control over mechanical reproduction, as the author of a non-musical drama retains absolute control over phonographic or other reproduction of his drama. This would seem to confine the requirements that the author of a musical composition permitting mechanical reproduction should license any manufacturer, to musical compositions which are not dramatic, i. e., to instrumental compositions or to songs and other vocal music not associated with drama. As an overture to an opera is an integral part of the dramatico-musical composition, it would even seem that an overture which is part of an opera, or possibly an orchestral introduction or interlude in an oratorio or cantata, would not be subject to the mandatory license provided as to musical compositions. But this question has not yet come before the courts.

Dramatic and musical works excepted from manufacturing provisions

Dramatic and musical works are not mentioned in the manufacturing and affidavit provisions (secs. 15, 16, 17) which are specifically confined to "the printed book or periodical specified in section 5, subsections (a) and (b)," while dramatic and musical compositions are classified in subsections (d) and (e). It might be alleged that dramatic or musical compositions in book form or produced as books from type or by lithographic or photo-engraving process should be classified as books and subjected to the manufacturing provisions; but this is distinctly not the letter of the law. This exception was specifically upheld for music in the case of Littleton v. Ditson in 1894, by Judge Colt in the U. S. Circuit Court in Massachusetts, where the defense that there was no copyright in certain songs because the music sheets were not from type set or plates made within the United States, was overruled; and for drama in Hervieu v. Ogilvie in 1909, where in the U. S. Circuit Court in New York, Judge Martin cited with approval Judge Colt's decision. This ruling was also embodied in Treasury decision No. 21012 of April 17, 1899, permitting the importation of musical compositions copyrighted in the United States and printed abroad.

British colonial practice

The Australian law, on the contrary, specifically includes under the definition of "book," a "dramatic work" and a "musical work," and thus subjects both to the manufacturing clause. Printing and publishing are required in Canada ("within one month after publication or production elsewhere") and in Newfoundland to obtain copyright under the local acts; and as drama is not mentioned but included generically as a book or literary composition, and music is specifically included, both dramatic and musical compositions must be manufactured within each country to obtain local, as distinguished from British or Imperial, protection.

Entry under proper class

Applications and certificates

The author of a dramatic, dramatico-musical, or musical composition should therefore be careful to make application in the United States under class (d) or (e) and not as a book under class (b). The fact that the law classifies under subsection (d) dramatic or dramatico-musical compositions and under subsection (e) musical compositions, has caused the Copyright Office to prepare separate application forms and certificates for (D1) a dramatic composition, (D3) a dramatico-musical composition and (E1) a musical composition, "published"; as also for (D2) a dramatic composition (or a dramatico-musical composition) and (E2) a musical composition, "not reproduced for sale." It would seem advisable therefore that the author of an opera, oratorio or the like, to obtain the fullest protection under the law, should enter such work in class (d) as a dramatico-musical composition rather than in class (e) as a musical composition, and thus safeguard himself against the mechanical music proviso applied exclusively to class (e).

Right of dramatization

In regard to dramatization, the new American code is specific (sec. 1, b) in giving to the author of an original work the exclusive right "to dramatize it if it be a non-dramatic work" or "to convert it into a novel or other non-dramatic work if it be a drama." The relations of a maker of a dramatic version of a literary work or of a literary version of a dramatic work, would follow the same rule as in the case of a translator. An author has the exclusive right to dramatize or permit the dramatization of his work, and the dramatization may be copyrighted in the name of the original author or of the dramatizer, but the dramatizer cannot prevent another dramatization of the same work unless by transfer of exclusive right from the original author.

Dramatization term

The specific copyright on a published dramatization dates from the publication of the dramatization, which may extend the protection of the dramatization beyond the copyright term of the original work. But on the expiration of the copyright in the original work rival dramatizations can no longer be prevented. All this holds true as to the novelization of a drama.

Musical arrangements

In respect to music, the language of the law (sec. 1, e) is thoroughly comprehensive in covering the arrangement or setting of a musical composition or of a melody in any notation or in any form whatever. This gives to the musical author entire control over the use of any part of his work, as for instance the transcription from an orchestral work for piano use, the instrumentation of a vocal work or the use for a song of any melody in an orchestral work. On the other hand, variations, transcriptions and so forth of a copyrighted work, made under authorization from the copyright proprietor, may be separately copyrighted as to that extent original works.

Copyright Office definitions

The Copyright Office Rules and Regulations say specifically: "(10) 'Adaptations' and 'arrangements' may be registered as 'new works' under the provisions of section 6. Mere transpositions into different keys are not expressly provided for in the copyright act; but if published with copyright notice and copies are deposited with application, registration will be made."

Transposition

In Hein v. Harris in 1910, the U. S. Circuit Court awarded damages where the chorus of a song proved on transposition into the key of the copyright song to be practically a copy of the melody.

Works in the public domain

It is specifically provided (sec. 6) that "adaptations, arrangements, dramatizations … or other versions of works in the public domain, … shall be regarded as new works subject to copyright," and in the case of such versions copyright inheres in the dramatizer, adaptor or maker of a version, as in the case of a translator of a book, in the public domain. Thus a dramatic or musical work in the public domain may be dramatized or adapted freely and any individual dramatization or adaptation may be copyrighted by the dramatizer or adaptor, but he cannot prevent other dramatization or adaptation of the same work.

Dramatization right protected by courts

The American courts have fully upheld the control over dramatization under the right "to dramatize" specifically given in the law of 1891 and preserved under the new code. In 1895 in Harper v. Ranous, Judge Lacombe, in the U. S. Circuit Court in New York, enjoined a play, "Trilby," on the ground that the drama "presents characters, plot, incidents, dramatic situations and dialogue appropriated from Du Maurier's copyrighted novel," while denying protection against the mere use of the title. In the same year and in respect to the same novel, in Harper v. Ganthony, the Harpers, as owners of the copyright of "Trilby," also obtained from Judge Lacombe an injunction against Miss Ganthony, who had presented at the Eden Musée a series of monologues in costume following the plot of the story, which the judge held to constitute a dramatic version and therefore an infringement. A story, "The transmogrification of Dan," purchased by the Smart Set for $85, copyrighted as part of that periodical and assigned back to the author, was dramatized by Paul Armstrong and produced by the defendants under the name of "The heir to the Hoorah," retaining the central incident of the story, though with modification and extension of the characters, situation and dialogue. In 1908 Judge Hazel, in Dam v. Kerke La Shelle Co., in the U. S. Circuit Court in New York, awarded the full profits from the dramatic representation as damages to the executor of Dam, the author of the story; which decision was fully upheld in 1910 by the Circuit Court of Appeals through Judge Noyes. Thus the new American code specifically enacts into statute law previous decisions of the American courts.

English law and practice

Under English law, on the contrary, the right of dramatization has not been included under copyright; the mere copyrighting of a book could not prevent its dramatization, but the copyrighting of a work in dramatized form before its publication as a novel practically prevented other dramatization of the literary work in so far as the one drama was a reproduction of the features of the other. As stated by Colles and Hardy in their recent work (1906) on "Playright and copyright in all countries," "a novel is not a dramatic piece, ready and fit for representation on the stage. Consequently, the author of a novel has the copyright in his book, but he has no playright according to English law." The general principles were best stated in 1874 by Chief Justice Cockburn in Toole v. Young, where Grattan's drama "Glory" was declared not to be an infringement either of Hollingshead's novel "Not above his business," on which it was confessedly founded, nor of the dramatic version made under the title of "Shop" by Hollingshead himself, but never printed or performed and therefore unpublished: "Two persons may dramatize the same novel, for that is common property. It is true that a writer cannot produce and represent a drama, which he has borrowed from a drama written previously by another person; he would then be representing the production of the first dramatist… I wish to guard myself against being supposed to lay down that, if a writer, while dramatizing a novel, takes the incidents, characters, and dialogue of a previous drama founded upon that novel, and reproduces what is in substance identical with the previous drama, there might not be an infringement of the right of the earlier dramatist if the later drama be represented on the stage."

The new British code

The new British measure remedies this defect by specifically including the sole rights to convert a novel or other non-dramatic work, or an artistic work, into a dramatic work, by way of performance in public or otherwise, and to convert a dramatic work into a novel or other non-dramatic work.

Infringement cases

A curious early case was that of Reade v. Conquest in 1862, in which the son of Charles Reade had made and sold to the defendant, who produced it at his theatre, a dramatic version of "It is never too late to mend" in ignorance of the fact that his father had first written a play called "Gold" and had then transformed that into the novel; in this the defendant was enjoined because the version which he produced infringed the earlier play. In Beere v. Ellis in 1889, Baron Pollock enjoined a rival dramatic version of "As in a looking glass" on the ground that while bits of dialogue, presumably copied into the defendant's version, were scarcely substantial, yet a special situation founded on a new incident not in the novel and certain stage business connected with the death of the heroine constituted an infringement. In 1890, in Schlesinger v. Turner, the executors of Wilkie Collins obtained an injunction against a rival dramatic version of "The new Magdalen," the judge holding that although the defendant's version had not been copied from the author's own play, it was substantially similar and therefore an infringement. That an independent and different dramatic version can, however, be made, was specifically held in the case of Schlesinger v. Bedford in the same year, when Collins's executors failed to obtain an injunction against the defendant's rival dramatic version of "The woman in white," although the novelist himself had previously dramatized his work, the judge holding that the two plays were "essentially different."

Use of substantial quotations

But the use in a play of considerable portions of a copyrighted novel would be an infringement. That a dramatization using substantial parts of a novel infringes the novel, was definitely established in 1863 in Tinsley v. Lacy, where the proprietor of Miss Braddon's "Lady Audley's secret" and "Aurora Floyd" obtained an injunction against a bookseller who sold dramatizations under the same titles of which a quarter or more of the text was taken bodily from the novels. So in 1888 an injunction was obtained from Judge Stirling, in Warne v. Seebohm, in the Court of Chancery, against a dramatization of "Little Lord Fauntleroy" which copied from the novel beyond the limits of fair use and was therefore considered a "copy" from the work.

Specific scenes or situations

Where in dramatizing a novel, the dramatic author invents and introduces new scenes, situations or other features, the copying of such added features into another dramatic version of the novel, otherwise independent, constitutes an infringement of the original play. In the case of Nethersole v. Bell in 1903, with respect to rival English dramatic versions of Daudet's "Sapho," it was held that while there might lawfully be independent dramatizations of the novel, the circumstances indicated that the Espinasse version of the defendant, said to have been written in Australia, had been so modified consequent to representation of Clyde Fitch's version, as to constitute an infringement of the plaintiff's rights. In Tree v. Bowkett in 1896, plaintiff obtained an injunction against the use by the defendant in a rival dramatic version of "Trilby" because of two scenes introduced by the plaintiff into his drama which were not in the novel or in the American dramatization. On the other hand, in Chatterton v. Cave in 1876, where the plaintiff had dramatized Eugene Sue's "The wandering Jew" and added two scenes not in the novel, an injunction was denied by Lord Chief Justice Coleridge against an independent dramatization, though it had included similar scenes, on the ground that these were not sufficiently substantial and material in the play to constitute an infringement. And this application of the principle of de minimis non curat lex was affirmed by the House of Lords in 1878.

What is a dramatic composition

Judge Blatchford's opinion

As to what is a dramatic composition or representation, no definition is given in the American law, and the English laws of 1833 and 1842, quoted beyond, are not explicit. Both English and American courts have therefore been obliged to make or to extend definitions, but the decisions have been somewhat confusing. The most explicit general statement is that made by Judge Blatchford in discussing Daly v. Palmer in 1868: "A composition, in the sense in which that word is used in the act of 1856, is a written or literary work invented or set in order. A dramatic composition is such a work in which the narrative is not related, but is represented by dialogue and action. When a dramatic composition is represented in dialogue and action by persons who represent it as real by performing or going through with the various parts or characters assigned to them severally, the composition is acted, performed, or represented; and if the representation is in public, it is a public representation. To act in the sense of the statute is to represent as real by countenance, voice, or gesture that which is not real. A character in a play who goes through with a series of events on the stage without speaking, if such be his part in the play, is none the less an actor in it than one who, in addition to motions and gestures, uses his voice. A pantomime is a species of theatrical entertainment, in which the whole action is represented by gesticulation without the use of words. A written work consisting wholly of directions, set in order for conveying the ideas of the author on a stage or public place by means of characters who represent the narrative wholly by action, is as much a dramatic composition designed or suited for public representation as if language or dialogue were used in it to convey some of the ideas."