Copyright: Its History and Its Law

Judicial definitions

In a recent case of Barnes v. Miner in 1903, where an injunction was asked against a vaudeville change artist who had combined songs in costume with a cinematograph representation of scenes in the dressing room during the changes, Judge Ray, in the U. S. Circuit Court in New York, declined to grant relief, adding that as a mere spectacular composition such "sketch" was not properly a dramatic composition. The English law was construed in 1848 in Russell v. Smith, when a song "The ship on fire," in which dramatic action was exhibited by the singer alone without costume or scenery, while seated at the piano, was construed to be a "dramatic piece" – the action being "not related but represented." In 1872, in Clark v. Bishop, a music hall song "Come to Peckham Rye" was similarly protected as a "dramatic piece." But in 1895, in Fuller v. Blackpool Winter Gardens Co., it was held that the song "Daisy Bell," though sung in character costume, was not a "dramatic piece" because its representation did not require acting or dramatic effect. Later decision construed the act of 1833 to cover only spoken words, the English Court of Appeal holding in Scholz v. Amasis in 1909, through Lord Chief Justice Farwell, that only substantial copying of written dialogue, and not of a plot or situation, constitutes infringement, and in Tate v. Fullbrook in 1908, that the writer of the dialogue is the sole author of the musical sketch though devised and staged by another. But in two cases, one by Moore in 1903 and one by Fraser in 1905, against George Edwardes, English juries gave heavy damages where the scenarios for musical comedies submitted to that theatrical manager had been made the basis for musical comedies by other writers afterward produced at Daly's Theatre, London.

Moving pictures may be infringements

The opinion of Judge Blatchford was quoted and followed by the U. S. Circuit Court of Appeals in New York, in 1909, in Harper v. Kalem Co., which said through Judge Ward: "The artist's idea of describing by action the story the author has written in words is a dramatization. It is not necessary that there should be both speech and action in dramatic performances although dialogue and action usually characterize them." In this case the defendants had caused persons to represent the action in certain scenes of "Ben Hur" and photographed this representation on a moving picture film, which they reproduced for sale to theatoriums, where public exhibitions were given for profit. The court held under the old law that "moving pictures would be a form of expression infringing the author's exclusive right to dramatize his writings and publicly to perform such dramatization." The contrary view was held in the English case of Karno v. Pathé Frères in 1908, where also the Court of Appeal held, in 1909, that not the manufacturer but the exhibitor of such a film would be the responsible party if there were infringement.

Literary merit not requisite

The doctrine that copyright does not depend on literary merit, was strengthened in a dramatic case in Henderson v. Tompkins in 1894, in the U. S. Circuit Court in Massachusetts by Judge Putnam, who held that a paraphrase of "I wonder if dreams come true," from "Ali Baba," constituted an infringement, though the offending piece had slight literary merit.

What is a dramatico-musical composition

As to what is a musical composition, the term defines itself. But the phrase "dramatico-musical compositions," as used in the American code, bristles with perplexities, not altogether solved by the definitions of the Copyright Office Rules, above cited. It means, of course, music and drama in association, but in this combination the definition of the dramatic side is peculiarly difficult. Whether a dance, ballet or other choregraphic work, with or without music, is included, is a mooted question. In 1892, in Fuller v. Bemis, where the plaintiff sought to protect a skirt dance of which she had filed a description for copyright as a dramatic composition, Judge Lacombe, in the U. S. Circuit Court in New York, held that: "It is essential for a dramatic composition to tell some story. The plot may be simple, it may be but the representation of a single transaction; but it must repeat or mimic some action, speech, emotion, passion, or character, real or imaginary. A series of graceful movements, combined with an attractive arrangement of drapery, lights, and shadows, telling no story, portraying no character, depicting no emotion, is not a dramatic composition." This view is adopted in the Copyright Office Rules and defines accepted American practice, but is not consonant with English and international views.

The new British code

The new British measure is definitely comprehensive and specific in including as a dramatic work "any piece for recitation, choregraphic work or entertainment in dumb show the scenic arrangement or acting form of which is fixed in writing or otherwise, and any cinematograph production where the arrangement or acting form or the combination of incidents represented give the work an original character."

Protection of playright

It is evident that the methods for securing copyright for published dramatic and musical works are in general the same, with exceptions noted in this chapter, as for literary works, that is, publication with copyright notice and registration with deposit promptly after publication of two copies of the best edition then published, with a fee of one dollar. Copyright in the specific sense is, however, of less importance to the dramatic or musical author, as has already been pointed out, than playright or performing right, which is also covered and protected specifically by the code of 1909, though in less accurate, definite and satisfactory provisions, involving in some respects serious questions. The right at common law or in equity to prevent the copying, publication or use of an unpublished work and to obtain damages therefor, is specifically confirmed (sec. 2), and this applies especially to unregistered manuscripts.

Protection of unpublished work

The method of registration of an unpublished work to secure playright or performing right, as previously stated, is absolutely simple, consisting solely in the registration of a claim and the deposit of one copy of the work in manuscript or other unpublished form, with a fee of one dollar. The law is clear and satisfactory as to the punishment, after such registration, of infringement of playright or performing right, but it is not clear as to the date from which such protection starts, and whether protection is for an indeterminate period up to publication (practically in perpetuity if no publication be made), or for the statutory term. This is because the relations of publication and first performance are inferences only and specifically defined in the law. The Copyright Office issues a certificate for twenty-eight years, but without reference to initial date, which would be presumably the date of the certificate. The Copyright Office will doubtless, under this precedent, issue renewal certificate for the second term of twenty-eight years. The trend, and in several instances the letter of the law, shows publication to mean the multiplication or reproduction of printed or other copies and their public offering, sale and distribution, and indicate that performance, whether privately or publicly and for profit, is not publication. The new Copyright Office Rules specifically hold that: "Representation on the stage of a play is not a publication of it, nor is the public performance of a musical composition publication." Judicial decisions on this point both in England and this country are confusing if not contradictory. In the absence of specific provision in the law for renewal of term in unpublished works, the view that the grant of the statute is for protection under the common law rather than a statutory and limited grant of privilege, is defensible and may be upheld by the courts, should a case arise. No case is likely to arise for twenty-eight years from the time of first copyright, under the act, of an unpublished work; but the dilemma will then present itself to the author whether he should apply for a renewal term and thus accept the limitations of the statute, or rely upon the original registration as a protection in perpetuity up to the time of publication. Possibly before that time this difficult point may be made clear by supplementary legislation.

Indeterminate protection

The most serious argument against the view that unpublished works may be protected indeterminately, is founded on the provision of the Constitution authorizing Congress to grant protection for limited terms, as to which the view may be upheld that Congress is not here making a grant, but is offering statutory protection to the inherent right of an author in an unpublished work.

In any event the author has clear rights for twenty-eight years from the date of publication or the date of first performance, whichever the earlier. In case of publication, it is altogether probable that the playright or performing right will be construed by the courts to lapse at the end of the copyright term and renewal thereof of the published work, and in case a "book of the play" or libretto of an opera is printed for sale within a theatre in connection with the performance, that will undoubtedly constitute publication and such copies should be copyrighted.

Printing and performance

The doctrine that performance is not publication was upheld by the N. Y. Court of Appeals in Palmer v. DeWitt in 1872, in which the assignee of the manuscript and playright of Robertson's drama "Play" was granted an injunction against the printing of the drama, although it had been publicly performed, but not printed, in London. The same doctrine was applied in the Illinois Supreme Court in 1909 in Frohman v. Ferris. But publication abroad, by the printing of a drama unless protected under the international copyright provisions, has been held to forfeit the common law playright transferred with an unpublished manuscript, by the decision in Daly v. Walrath in 1899, by Judge Bartlett in the N. Y. Supreme Court, when an injunction was refused against the performance of Sudermann's "Die Ehre," translated as "Honor," because the author had printed the play in Germany despite a contract with the American assignee to refrain from publication. In the case of Wagner v. Conried in 1903, in the U. S. Circuit Court in New York, Judge Lacombe declined to enjoin a production of "Parsifal," holding that the publication of a printed edition by Schotts in Germany had forfeited playright, since the reservation by Wagner in his contract with Schotts of the acting rights was not applicable in this country. The printing of a dramatic manuscript solely for the use of the players is not publication, as was held in French v. Kreling, in 1894, by Judge Hawley in the U. S. Circuit Court in California, where Farnie's opera "Falka," of which the musical score had been published, but the libretto printed only for the singers, was protected as an unpublished manuscript.

English confusion

Specific English provisions

The English law as to dramatic and musical copyright and playright and performing right, has been most confusing if not contradictory, and authorities differ, as do MacGillivray and Scrutton, in its interpretation. Whether public performance constitutes publication or whether they are separable and separate events has been diversely treated in the laws, by the judges and in legal text-books. The dramatic copyright act of 1833, known as Bulwer-Lytton's act, a clumsy attempt to clear up earlier uncertainty, provided that the author of "any tragedy, comedy, play, opera, farce, or any other dramatic piece or entertainment, composed, and not printed and published," shall have "the sole liberty of representing in any part of the British Dominions"; "and the author of any such production, printed and published," shall, "until the end of twenty-eight years from … such first publication" or for life, have "the sole liberty of representing … as aforesaid." The general copyright act of 1842 specifically applied this previous act also to "musical compositions" and enacted "that the sole liberty of representing or performing … any dramatic piece or musical composition" shall "endure … for the term in this act provided for … copyright in books," that is, for forty-two years or life and seven years; and the provisions of the act as to copyright and registration were extended to representing or performing, "save and except that the first public representation or performance of any dramatic piece or musical composition shall be deemed equivalent in the construction of this act to the first publication of any book." The "copyright (musical compositions) act" of 1882 added the requirement, that in the case of a musical composition, to retain the performing right, notice of reservation should be printed on the title-page of every published copy, and the act further provided that the proprietor of the performing right, if the owner of the copyright be another person, may require him to print such notice of reservation, for neglect of which he shall forfeit twenty pounds.

Probable effect

Thus common law rights, it would seem, in an unpublished and unperformed dramatic or musical work were given, pending publication, statutory protection, apparently in perpetuity, from the date of composition. Publication of a dramatic or musical composition in printed form ensured copyright protection as a book for forty-two years or life and seven years; and performing right was protected for forty-two years from "the first public representation or performance of any dramatic piece or musical composition" or life and seven years, whichever the longer.

Publication prior to performance

It had been the view of many English authorities that publication in printed form as a book before the first public performance forfeited performing rights, which opinion was shared by the Royal Copyright Commission as voiced in the report of 1878 in the digest of Sir James Stephen, who said: "The exclusive right of representing or performing a dramatic piece or musical composition cannot be gained if such dramatic piece or musical composition has been printed and published as a book before the first representation thereof." But in the later case of Chappell v. Boosey in 1882, in respect to John Oxenford's play of "The bellringer," which had been printed and published previous to performance, it was held in the Court of Chancery that publication as a book before performance does not take away performing rights. On musical compositions, however, the performing right is forfeited on publication in print unless notice of reservation is printed on the published copies. There remain the difficult questions whether when publication precedes performance the statutory protection of the performing right extends beyond the forty-two years from publication and whether copyright and playright should be separately registered. It has been the practice of English dramatists to give a so-called "copyright performance" at a minor theatre, in which actors walk and talk through the drama and the public is invited to pay a shilling at the box office – and sometimes given half a crown apiece for the purpose; which performance, though probably not necessary to fulfill any legal requirement, permits registration of first performance at Stationers' Hall and gives useful public notice to possible infringers.

The new British code

This uncertain and confused situation will be remedied under the new British measure by the inclusion under "copyright" of the right "to perform … to deliver, in public" and the making of the copyright term the "life of the author and fifty years after his death," which together afford the simplest and most complete protection of playright as incident to copyright.

British international protection

The international copyright act of 1844 contained the provision "that neither the author of any book, nor the author or composer of any dramatic piece or musical composition … which shall … be first published out of her Majesty's dominions, shall have any copyright therein respectively, or any exclusive right to the public representation or performance thereof, otherwise than such, if any, as he may become entitled to under this act," – a provision inserted probably for advantage in negotiating reciprocal conventions with other countries. This provision was applied in 1863, in the case of Boucicault v. Delafield, to a British author whose play had been first printed and published as well as performed in America. In Boucicault v. Chatterton in 1876, the Chancery Division held that the prior performance of "The Shaughraun" in New York was publication and deprived the author of playright in England, – which again seems incompatible with the doctrine upheld in the later case of Chappell v. Boosey, above cited. Great Britain is the only country in the International Copyright Union which has declined to accept the declarative interpretation made in Paris in 1896 of the Berne convention of 1886, declaring that performance does not constitute publication. Thus if a dramatic or musical work is first publicly performed outside the British dominions, the performing right is extinguished therein, unless protected under the international copyright acts, though first publication outside the British dominions of a work first publicly performed within them, may not extinguish the performing right.

Statutory ambiguity

The confusion of judicial interpretations, as to the relations between performance and publication, in international as well as domestic copyright, was invited by the unfortunate draftsmanship in the copyright act of 1842, in which the clause making first performance "equivalent in the construction of this act to the first publication of any book" may be taken either in a comprehensive sense or merely as defining the starting-point for performing right as well as for copyright in the specific sense.

What is public performance

The question of what is public performance is of some importance, especially in Great Britain, where playright is not infringed except by representation in a place of dramatic entertainment and where it has been held that any place in which a dramatic piece is publicly performed is for the time a place of dramatic entertainment. A public performance is probably one to which the public in general is admitted either by sale of tickets or by invitation; and this would probably include a performance given before a society to membership in which the public might be admitted, although a performance limited to a certain class of the public might not be construed as a public representation. Where "Our boys" was performed at Guy's Hospital, London, by an amateur company, for nurses and others connected with the hospital specially invited, it was held in 1884, in Duck v. Bates, that though a performance may be public where the public are present, although no money is taken, yet the production in question was not a public representation. In this leading case, important as a precedent for America as well as in England, the decision was made by Justices Brett, M. R., and Bowen, L. J., Justice Fry dissenting, and the Master of the Rolls, in an elaborate opinion, discussed the relations of private and public performance, as a question of fact: "In order to entitle the author to penalties there must be a representation which will injure the author's right to money; such, for instance, as a representation which, although it is not for profit, would attract persons who are willing to pay money, and would induce them not to go and see a performance licensed by the author… The representation must be other than domestic or private. There must be present a sufficient part of the public who would go also to a performance licensed by the author as a commercial transaction… I wish to say, by way of warning, that those who go beyond the facts of the present case may incur the penalties of the statute."

Manuscript rights

Common law rights in an unpublished manuscript of an unperformed work, cover both copyright and playright. In 1894, in Gilbert v. Star, while the comic opera "His Excellency" was in manuscript and under rehearsal, Justice Chitty in the Court of Chancery granted an injunction against a newspaper report of the plot and incidents on the common law ground that its communication to the newspaper involved a breach of contract, thus confirming the right of an author to full control of his manuscript work for copyright as well as playright, upheld in Prince Albert v. Strange in 1849. But a dramatic author cannot enjoin a drama, however similar, completed before the publication or performance of his own work, as was decided in the case of Reichardt v. Sapte, in 1893, where the author of "The picture dealer" was denied relief against the closely parallel play "A lucky dog," which was proved to have been completed in 1890, though not performed until after the writing and presentation of the author's play in 1892.

American cases

The right of control of an unpublished dramatic manuscript under common law was strengthened in Herne v. Liebler, in 1902, by the decision of Judge Ingraham in the N. Y. Supreme Court, which upheld the right of the plaintiff to prevent sub-license of a play beyond the terms of the contract by a licensee, who had agreed to keep the manuscript unpublished and use it only under specific limitations. In the case of Maxwell v. Goodwin, in 1899, where the plaintiff's play of "Congress" had been rejected by the defendant, who afterward produced a play "Ambition," also founded on scenes in Washington, Judge Seaman in the U. S. Circuit Court in Illinois overruled the defendant's contentions that there was no playright under common law in an unpublished manuscript and that there was no inherent property right in ideas or creations of the imagination apart from the manuscript in which they are contained or the language in which they are clothed; though an injunction was denied on proof that the defendant had not read the plaintiff's manuscript and that the actual author of "Ambition" had no knowledge of the plaintiff's play.

Unpublished orchestral score

In 1883, in Thomas v. Lennon, where Gounod's "Redemption," of which the orchestral score was unpublished, had been rewritten for orchestra from a published non-copyright piano arrangement, Judge Lowell, in the U. S. Circuit Court in Massachusetts, ruled against this as an infringement of the unpublished work on common law grounds – but this decision has not been considered good law.

Dramatic work by employee

Copyright in dramatic work can be obtained, as in the case of encyclopædic and like works, by the employment for hire of a dramatic author, as was fully established in the case of Mallory v. Mackaye in 1898, by Judge Wheeler in the U. S. Circuit Court in New York, where Mackaye had contracted for a salary of $5000, that all inventions and plays by him within the ten years of the contract should belong to Mallory, and was restricted accordingly from the independent production of "Hazel Kirke."

Copyright term

The duration of copyright in dramatic and musical compositions is the same as for books, in the United States (twenty-eight years with renewal for twenty-eight years more), in Great Britain (under the new code life and fifty years), in Australia (forty-two years or life and seven years, as hitherto in Great Britain), and in Canada and Newfoundland (twenty-eight years with renewal for fourteen years more), – as also in most other countries, the new term for those in the International Copyright Union which have accepted the convention of Berlin, being life and fifty years. But in the case of a "dramatico-musical" work, where the libretto and the music are by different authors, the respective terms may end at different dates, as was held in 1905, and upheld in 1909, by the German courts as to the opera "Carmen" under the Franco-German convention limiting copyright to thirty years after death. Bizet, author of the music, had died in 1875, but one of the three librettists was still living, on which facts the court held that the musical score, but not the libretto, was free from copyright. Under the new British and Canadian measures, which include the unusual provision that the copyright term in a work of joint authorship shall be determined by the first instead of the last death, the result would be to the contrary effect.