COPYRIGHT (continued 4)

Reading edition

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:

"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

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.

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.

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."

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."

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.

Registration

Registration in the United States, as also in Canada and Newfoundland, through the deposit of copies, is entirely the same for a dramatic or musical composition as for a book. Registration in England of a dramatic or musical composition under the act of 1842 (sec. 20) was to be made at Stationers' Hall, as in the case of a book, by recording in statutory form the title, the time and place of first publication, or for performing right, of first public performance, and the name and abode of author and of proprietor. But the same law (sec. 24) provided that protection of performing right in a dramatic piece should not be dependent upon entry in the registry and, by including in the definition of a dramatic piece (sec. 2) a "musical entertainment," evidently included musical compositions in this exemption, and thus made registration optional. This view was upheld in 1848 in Russell v. Smith, when the song "The ship on fire" was protected as a "dramatic piece," though it had not been registered. The new British measure omits all requirements for registration of any works. Registration of any copyright, performing right or assignment is required in Australia as a prerequisite for legal action.

Assignment

Assignment or grant of a dramatic or musical composition, as of a book, may be made (sec. 42) by an instrument in writing, acknowledged, if in a foreign country, (sec. 43) before a consular or diplomatic officer, and must be recorded (sec. 44) in the Copyright Office within three months, or if made in a foreign country, six months, in default of which it is void as against any subsequent purchaser. Assignment in Great Britain must be in writing, and previous to the new code with entry at Stationers' Hall, in the case of performing right as well as of copyright. It should be noted that playright does not pass with copyright ipso facto, though the new code as adopted by the House of Commons has no specific provision on this point. But it is most desirable that in any transfer of copyright or playright the exact nature of the right transferred should be defined in the writing. A partial assignment, or license, of performing right as well as of copyright may be made, and will be protected by the courts. The right to grant a specific license, and to enforce its limitations, was upheld in 1892 in Duck v. Mayen, in an English court by Justice Day, who held that where the defendant had obtained license at the price of one guinea to play "Our boys" for charity at a music hall, but performed it elsewhere, though for the same charity, the usual royalty of five guineas must be paid. Assignment in Canada and Newfoundland must be in writing in duplicate copies, of which one must be deposited in the office of copyright.

Parody

The general principles as to infringement and fair use, treated fully in another chapter, apply to dramatic and musical compositions, as already illustrated above, but some special applications may here be noted. That a parody or burlesque may not be an infringement, though including some quotations from the work parodied, was decided in 1903, in Bloom v. Nixon,—where Fay Templeton had given a parody or imitation of another actress's singing of "Sammy" in the "Wizard of Oz,"—in the U. S. Circuit Court in Pennsylvania by Judge McPherson, who held that as this was essentially an imitation of personality, it was not an infringement of copyright: "Surely a parody would not infringe the copyright of the work parodied merely because a few lines of the original might be textually reproduced." The judge added: "No doubt the good faith of such mimicry is an essential element; a mere attempt to evade the owners' copyright ... would properly be prohibited" as "doing in a roundabout way what could not be done directly."

Infringement by single situation

There may be infringement of dramatic copyright in the use of a single scene or situation, as already set forth with respect to novels, provided this is of dramatic character. In 1892, in Daly v. Webster, the U. S. Circuit Court of Appeals, through Judge Lacombe, held that the railroad rescue scene in Brady's "After dark" infringed the copyright of Daly's "Under the gaslight," which contained the similar situation of the rescue of a person on a railroad track before an approaching train. Though there was little dialogue in this scene, the court held that while mechanical appliances are not entitled to copyright, a series of events dramatically represented are copyrightable. In the subsequent suit for damages, Daly v. Brady, the U. S. Supreme Court in 1899, through Justice Peckham, upheld this decision, and held also that such a situation constituted an integral part of the copyrighted drama and should therefore be protected against infringement. That there may be infringement of a dramatic composition without the use of scenery or costumes was incidentally decided in Russell v. Smith, where the song "The ship on fire," sung dramatically without these accessories, was protected as a dramatic piece.

Protection of title

While the title of a dramatic or musical composition, like that of a book, cannot be copyrighted as such, the courts seem disposed to emphasize the title as an integral part of a play, perhaps more than in the case of a book because the advertising of another play of like name, especially in the case of one of long run and wide popularity, may mislead the public and involve unfair competition. This protection was upheld as a matter of common law in Aronson v. Fleckenstein in 1886, by Judge Blodgett in the U. S. Circuit Court in Illinois, when the use of the title "Erminie" was held to be unlawful, though the operetta originally designated by the title had not been copyrighted. But in Glaser v. St. Elmo Co. in 1909, the U. S. Circuit Court denied relief where the title of Miss Evans's novel, then out of copyright, was used for a second and unauthorized dramatization. There may be danger to copyright or playright when a work is published or performed under a title differing from that under which it is copyrighted; but the change of a descriptive sub-title has been held to be immaterial. In the case of Daly's play "Under the gaslight," which in the copyright entry bore the sub-title "A romantic panorama of the streets and homes of New York," but in printed form the changed sub-title "A totally original picturesque drama of life and love in these times," the defendants in Daly v. Webster alleged that this change made the copyright invalid, which contention was negatived by the U. S. Circuit Court of Appeals, which held in 1892 that the sub-title was merely descriptive and not an essential part of the title—a principle later applied by Judge Lacombe in Patterson v. Ogilvie, in 1902.

Names of characters

In the case of Frohman v. Weber in 1903, in the N. Y. Supreme Court, where the proprietor of the play entitled "Sherlock Holmes" sought to enjoin another play "The sign of the four," in which the name Sherlock Holmes designated the leading character, Judge Clarke held that this did not constitute unfair competition and denied a preliminary injunction.

Persons liable for infringement Principal in control

The question of the person liable for the infringement, especially of playright, is one of some difficulty. In general, while any one participating in a piratical performance, as an actor, is technically guilty of infringement, it is usually the person or persons responsible for and profiting by the performance who should be sued. The question of responsibility is one of fact, and the early English decisions seem confused and even contradictory. The person who has the initiative and control of a performance, particularly if he is directly the employer of the performers and has authority to discharge them, may be, par excellence, the infringer even if he does not know that the performance is piratical. In 1886, in Monaghan v. Taylor, the defendant was held liable for infringement because a singer employed in his music hall sang a copyright song, though the defendant did not choose or pass upon the number. Thereafter in the "copyright (musical composition) act" of 1888, it was provided that "the proprietor, tenant or occupier of any place of dramatic entertainment" shall not be liable, "unless he shall willfully cause or permit" a performance, "knowing it to be unauthorized." The courts seem disposed to acquit a mere agent of responsibility. In 1893, in French v. Day, Gregory, et al., it was held by Justice Kennedy as to a performance of "The miner's wife" asserted to be an infringement of "Lost in London," that the proprietor of the theatre, Day, "who merely used Gregory," the manager, "as his mouthpiece," was the responsible defendant. The new British code holds liable any person who for profit permits a place of entertainment to be used for an infringing performance unless he were not aware and had no reasonable grounds for suspecting it to be an infringement.

Protection against "fly by night" companies State legislation

In the prevention or punishment of unauthorized performances by irresponsible private companies, the chief obstacle in the United States was the difficulty of reaching the "fly by night" companies, as they were called, as they flitted from state to state, and from one court jurisdiction to another. To remedy this difficulty, an important protection of the performing right in dramatic works was assured by the act of January 6, 1897, obtained largely through the efforts of Bronson Howard, as president of the American Dramatists Club. This act provided penalty of $100 for the first and $50 for each subsequent unlawful performance, and imprisonment for not exceeding one year, when such unlawful performance was willful and for profit; and also that an injunction issued in any one circuit might be enforced by any other circuit in the United States. This was in consonance with successful efforts to obtain the passage of state laws to protect dramatic and musical works, aside from the federal copyright law, obtained by the Dramatists Club between 1895 and 1905 in the states of New Hampshire, New York, Louisiana, Oregon, Pennsylvania, Ohio, New Jersey, Massachusetts, Minnesota, California, Wisconsin, Connecticut, and Michigan. These varied in form in the several states, though of the same general purport. The New York statute, for instance, adds to the penal code a new section as follows: "Sec. 729. Any person who causes to be publicly performed or represented for profit any unpublished, undedicated or copyrighted dramatic composition, or musical composition known as an opera, without the consent of its owner or proprietor, or who, knowing that such dramatic or musical composition is unpublished, undedicated or copyrighted and without the consent of its owner, or proprietor, permits, aids or takes part in such a performance or representation shall be guilty of a misdemeanor." The texts in all the states are given in full in Copyright Office Bulletin No. 3, 1906, "Copyright enactments of the United States," pages 105-115.

Remedies under present law

The American code of 1909 enacts (sec. 28) that "any person who willfully and for profit shall infringe any copyright ... or who shall knowingly and willfully aid or abet such infringement, shall be deemed guilty of a misdemeanor," punishable by "imprisonment for not exceeding one year or by a fine of not less than one hundred dollars nor more than one thousand dollars, or both, in the discretion of the court"; and provides (sec. 25, fourth) damages "in the case of dramatic or dramatico-musical or a choral or orchestral composition, one hundred dollars for the first and fifty dollars for every subsequent infringing performance; in the case of other musical compositions, ten dollars for every infringing performance"; and also provides (sec. 36) for injunction operative throughout the United States.

Musical protection in England Acts of 1902-1906

In England the protection of musical properties under the acts of 1833-42 and 1882-88, had become so difficult that English music publishers threatened to cease printing new original works because of the freedom with which they could be pirated. Under the provisions of 1833, as reënacted in 1842, every infringing performance of a musical composition, as of a dramatic piece, involved liability to "an amount not less than forty shillings or the full amount of the benefit or advantage arising from such representation, or the injury or loss sustained by the plaintiff therefrom, whichever may be the greater damage," in addition to costs. The "copyright (musical compositions) act" of 1882 (45 & 46 Victoria, c. 40) had required that the right of public performance should be reserved by printed notice on each published copy and provided for a penalty of twenty pounds where the proprietor of the publishing copyright neglected, after requirement from the owner of the performing right, to print such notice. The "copyright (musical compositions) act" of 1888 (51 & 52 Victoria, c. 17) provided that the penalty or damages for every unauthorized performance of any musical composition shall, in the discretion of the court, be "reasonable" and may be less than forty shillings for each such performance, or nominal, and that the proprietor, tenant or occupier should not be liable unless "willfully" causing or permitting such unauthorized performance, "knowing it to be unauthorized,"—but the act specifically excepted "any opera or stage play" from its provisions. The protest of the musical composers and publishers led to the passage of the "musical (summary proceedings copyright) act" of 1902, which authorized a constable to seize without warrant pirated copies hawked or otherwise offered for sale, on the written request and at the risk of the copyright owner or by direction of the court, and provided for their forfeiture and destruction or delivery to the owner on the decision of the court. A Musical Copyright Committee, for the consideration of these vexed questions, was appointed by the Home Office and made a report in 1904; and a further "musical copyright act" of 1906 continued the provisions stated and provided also for the seizure of plates as well as copies of pirated musical compositions and for the summary punishment of the offender by fine not exceeding five pounds and, for a repeated offense, by fine not exceeding ten pounds or imprisonment not exceeding two months, possession being proof of fraudulent intent unless the copies bore the name of a printer or publisher. Both these acts were applicable only within the United Kingdom. These provisions, in addition to those for injunction and adequate costs, have bettered the condition of musical properties in England, and they remain unrepealed, except as to requirement of registration, under the new British code as adopted by the House of Commons.

Playright in other countries

In most countries playright in the case of dramatic or musical works is specifically covered in the copyright statutes or protected in connection with copyright, although in Austria, Russia, Denmark and Norway, in the case of music, special notice of reservation is required, while in Australia special reservation of the performing right must be made on publication in print of drama or music.

International provisions

In general, performance is differentiated from publication, and while in some countries, as above indicated, publication in printed form, especially of a musical work, may waive the exclusive right of performance, performance is generally held not to constitute publication. This view is expressly set forth in the interpretation made at Paris, 1896, of the Berne convention of 1886, whereby section 2 of the interpretative declaration defines "published works" as "works actually issued to the public." "Consequently, the representation of a dramatic or dramatico-musical work, the performance of a musical work ... do not constitute publication." The Berlin convention of 1908 repeats the same language in article 4, prefacing it with the definition that "by published works ('œuvres publiées') must be understood, according to the present convention, works which have been issued ('œuvres éditées')"—the English text here given being the official translation of the U. S. Copyright Office.

Foreign protection of arrangements

In most foreign countries which include musical compositions under subjects of copyright either as covered under "literary and artistic works" or by specific mention, the general principles as to arrangements and adaptations hold in such countries. Several countries, as Belgium, specify however "the exclusive right of making arrangements on motives of the original composition," Brazil, Luxemburg, Mexico, Nicaragua and Tunis following this precedent in nearly identical language. Germany specifically protects the "sole right of making extracts from musical works and arranging for orchestra or in parts." Spain specifies among its prohibitions "the total or partial publication of melodies, with or without accompaniment, transposed or arranged for other instruments or with different words." Hungary specifies that "every arrangement of a musical work, published without the consent of the author, which cannot be considered as a composition in itself," is an infringement. Where, however, the author of a work permits or licenses an adaptation or arrangement, or an original adaptation or arrangement is made from a work in the public domain, that is properly a separate subject of copyright, as is specified in the statutes of Colombia, to the effect that "variations, etc., on a theme or air which is public property, constitutes property. Transpositions are similar to translations of literary subjects."

International definitions

Dramatic and musical works were specifically included under the protection of the International Copyright Convention of Berne, 1886, by the definition in article IV of "literary and artistic works" as including "dramatic or dramatico-musical works; musical compositions with or without words." In the Berlin convention, 1908, the same general term was defined in article 2 as including "dramatic or dramatico-musical works; choregraphic works and pantomimes, the stage directions ('mise en scène') of which are fixed in writing or otherwise; musical compositions with or without words." "Adaptations, arrangements of music, etc., are specially included," in the phraseology of article X of the convention of 1886, "amongst the illicit reproductions to which the present convention applies, when they are only the reproduction of a particular work, in the same form, or in another form, with non-essential alterations, or abridgments, so made as not to confer the character of a new original work"; and practically the same language is repeated in article 12 of the convention of 1908. On the other hand, "adaptations, arrangements of music," etc., are protected as original works without prejudice to the rights of the author of the original work, in article 2 of the convention of 1908.

The German law of 1901 permits, however, extract from or other use of musical compositions in adaptations or arrangement under specified circumstances, as for family, social or other gratuitous performance, under the limitations of the law, which exception seems to be permitted also under the law of 1910.

National formalities

Throughout the countries of the International Copyright Union, first publication in any of these countries and compliance with its formalities entitle the author to playright as well as copyright in all the other countries within the Union, with some exceptions to be noted. Thus in Switzerland the conditions of performance must be given at the head of the printed play; and the law stipulates that the author may not require as royalty more than two per cent of the gross profits, and a performance at which the admission fee is reckoned to cover only cost of production or a performance for charitable purposes, is not considered an infringement of playright. In Italy a play performed, but not printed and published, must be submitted in manuscript for inspection within three months of first performance, together with a declaration reserving the playright; a printed book or play should be deposited with accompanying notice of reservation within three months, or the proprietor cannot obtain damages until such deposit, and failure to deposit within ten years abandons copyright protection. Italian proprietors of music sometimes refrain from printing and publishing music, with the intent of maintaining copyright and playright indefinitely.

Specific reservations or conditions

In Luxemburg and Sweden, reservation of playright must be stated on printed copies, as is also the case as to music in these countries and in the other countries elsewhere cited. In Sweden, the term for playright is less than for copyright in the printed work, being for life and thirty years only. In Sweden and Norway, the author protecting his rights by first publication in these countries, must be a citizen of one of the countries within the International Copyright Union or must acquire rights through a publisher therein; though in the other countries of the Union, this question of nationality is immaterial. In Norway and Denmark, there must be reservation of right of recitation, but in Norway this lapses in any event at the end of three years, provided the recitation does not take the shape of a dramatic performance. In Holland and the Dutch Indies, reservation of playright must be given, and printing within the country has hitherto been required to protect a published work. In Hungary, the author of a play must give his name on the title-page or in the announcement of the play, and protection is extended to foreigners who have been for two years rate-payers and residents in Hungary, as well as those whose countries have reciprocal relations. In Finland, the author's name and reservation of playright must be given on the printed copy, and protection is extended to foreigners on condition of residence and publication in Finland.

Most of the smaller European countries and many South American countries, including playright under copyright, base protection on reciprocal protection of their citizens in other countries, while protection of performing rights in Brazil requires notice on printed plays of the reservation of royalty for performance. In many oriental countries, as Egypt, China, etc., protection is afforded to some extent in the consular courts.

Pan American Union

In the Pan American Union, the Buenos Aires convention of 1910 specifically includes dramatic and musical works as literary works, without special provisions.

XII

MECHANICAL MUSIC PROVISIONS

"Canned music" contest

As the international copyright provision with the manufacturing clause was the central feature of the copyright campaign culminating in the law of 1891, so the provision for the control of mechanical music with the compulsory license clause was the central feature of the contest culminating in the act of 1909. This came to be known as the "canned music" fight, and arguments pro and con consumed the greater part of the hearings before the Committees on Patents. The solution finally reached was in the provisos added to the musical subsection (e) of section 1 of the bill, which in full is as follows:

Mechanical music provisos Compulsory license

"(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: Provided, That the provisions of this Act, so far as they secure copyright controlling the parts of instruments serving to reproduce mechanically the musical work, shall include only compositions published and copyrighted after this Act goes into effect, and shall not include the works of a foreign author or composer unless the foreign state or nation of which such author or composer is a citizen or subject grants, either by treaty, convention, agreement, or law, to citizens of the United States similar rights: And provided further, and as a condition of extending the copyright control to such mechanical reproductions, That whenever the owner of a musical copyright has used or permitted or knowingly acquiesced in the use of the copyrighted work upon the parts of instruments serving to reproduce mechanically the musical work, any other person may make similar use of the copyrighted work upon the payment to the copyright proprietor of a royalty of two cents on each such part manufactured, to be paid by the manufacturer thereof; and the copyright proprietor may require, and if so the manufacturer shall furnish, a report under oath on the twentieth day of each month on the number of parts of instruments manufactured during the previous month serving to reproduce mechanically said musical work, and royalties shall be due on the parts manufactured during any month upon the twentieth of the next succeeding month. The payment of the royalty provided for by this section shall free the articles or devices for which such royalty has been paid from further contribution to the copyright except in case of public performance for profit: And provided further, That it shall be the duty of the copyright owner, if he uses the musical composition himself for the manufacture of parts of instruments serving to reproduce mechanically the musical work, or licenses others to do so, to file notice thereof, accompanied by a recording fee, in the copyright office, and any failure to file such notice shall be a complete defense to any suit, action, or proceeding for any infringement of such copyright.

Damages

"In case of the failure of such manufacturer to pay to the copyright proprietor within thirty days after demand in writing the full sum of royalties due at said rate at the date of such demand the court may award taxable costs to the plaintiff and a reasonable counsel fee, and the court may, in its discretion, enter judgment therein for any sum in addition over the amount found to be due as royalty in accordance with the terms of this Act, not exceeding three times such amount.

Public performance

"The reproduction or rendition of a musical composition by or upon coin-operated machines shall not be deemed a public performance for profit unless a fee is charged for admission to the place where such reproduction or rendition occurs."

This provision, though somewhat involved in form, tells its own story, and there has thus far been no occasion for judicial construction.

The compromise result

In the series of discussions before the Committees, the friends of copyright argued for the exclusive and unrestricted right of the musical composer to control absolutely the mechanical reproductions of his work, while the representatives of "canned music" argued at first that mechanical reproduction should be permitted without reference to copyright, and later that there should be entire liberty to make reproductions of a musical work on the sole condition of a specified payment to the copyright proprietor. The provision as actually adopted was a compromise upholding the negative right of the author to prevent mechanical reproduction, but requiring him, in the event of a grant of authority to any one manufacturer to reproduce his work mechanically, to extend that privilege to any other manufacturer on payment of the specified royalty. This scheme is practically modeled on what was known as the Pearsall-Smith royalty plan, which, as proposed for books, was stoutly fought by the proponents of the copyright act of 1891, throughout that memorable copyright campaign.

Judicial construction

In the case of the White-Smith Music Pub. Co. v. Apollo Co., in which the Æolian Co. was supposed to be the real complainant, the representatives of the musical author were, in 1906, denied protection against the mechanical music rolls made by the defendant, by the Circuit Court of Appeals, where the judges considered themselves "constrained" by the necessity of strict construction to decide that "a perforated roll is not a copy in fact of complainant's staff notation," while saying "that the rights sought to be protected belong to the same class as those covered by the specific provisions of the copyright statutes." It was presumed by many during the copyright campaign that the Supreme Court would make a broad construction of the statute, but that court held, February 24, 1908, in an opinion written by Justice Day, that the considerations adduced "properly address themselves to the legislative and not to the judicial branch of the Government" and that "as the act of Congress now stands, we believe it does not include these records as copies or publications of the copyright music involved in these cases." Justice Holmes, while not dissenting, added a memorandum to the effect that "the result is to give to copyright less scope than its rational significance and the ground on which it is granted seems to me to demand.... On principle, anything that mechanically reproduces that collocation of sounds ought to be held a copy, or if the statute is too narrow, ought to be made so by a further act, except so far as some extraneous consideration of policy may oppose." While the judges thus felt "constrained" to deny relief, their strong language in defense of copyright control doubtless had its effect upon the legislative authorities in the framing and the passage of the new code.

This decision was confirmatory of an earlier decision, in Stern v. Rosey in 1901, of Judge Shepard in the Court of Appeals in the District of Columbia, that the mechanical reproduction of two copyrighted songs could not be prevented under the existing law.

Punishment of infringement

Specific and elaborate provision is made for the punishment of infringers under the mechanical music proviso (sec. 1, e) by sec. 25, e:

Notice to proprietor of intention to use

"Whenever the owner of a musical copyright has used or permitted the use of the copyrighted work upon the parts of musical instruments serving to reproduce mechanically the musical work, then in case of infringement of such copyright by the unauthorized manufacture, use, or sale of interchangeable parts, such as disks, rolls, bands, or cylinders for use in mechanical music-producing machines adapted to reproduce the copyrighted music, no criminal action shall be brought, but in a civil action an injunction may be granted upon such terms as the court may impose, and the plaintiff shall be entitled to recover in lieu of profits and damages a royalty as provided in section one, subsection (e), of this Act: Provided also, That whenever any person, in the absence of a license agreement, intends to use a copyrighted musical composition upon the parts of instruments serving to reproduce mechanically the musical work, relying upon the compulsory license provision of this Act, he shall serve notice of such intention, by registered mail, upon the copyright proprietor at his last address disclosed by the records of the copyright office, sending to the copyright office a duplicate of such notice; and in case of his failure so to do the court may, in its discretion, in addition to sums hereinabove mentioned, award the complainant a further sum, not to exceed three times the amount provided by section one, subsection (e), by way of damages, and not as a penalty, and also a temporary injunction until the full award is paid."

The Copyright Office provides a special form (U) on a blue card for registration of "notice of use on mechanical instruments," in which the copyright owner of a musical composition gives notice that he "has used or has licensed the use of said composition for the manufacture of parts of instruments serving to reproduce mechanically such musical work." The recording fee for such notice, as fixed by the statute (sec. 61), is twenty-five cents for the first fifty words and twenty-five cents additional for each additional hundred words.

For recording and certifying the license referred to (sec. 1, e) the statute provides (sec. 61) for a fee of one dollar for not over three hundred words, two dollars if not over one thousand words and one dollar for each additional one thousand words or fraction thereof over three hundred words.

The constitutional question

The actual fixing of a specified price, as that of two cents or a halfpenny on each reproduction, is a feature quite new in law, American or English, and involves a serious constitutional question. Congress has granted to the Interstate Commerce Commission, and state legislatures to specified authorities, as public service commissions, power to regulate prices; and the U. S. Supreme Court, in 1909, confirming the N. Y. Court of Appeals in the Consolidated Gas Co. cases, upheld the application of the sovereign power of the state to limit the price of gas to 80 cents per 1000 cubic feet, as sold by a corporation enjoying a public franchise. In this compulsory license provision of the copyright code, Congress has gone further in two directions: it has fixed a royalty price, not by definition or limitation of a "reasonable" price, but absolutely, and it has applied this provision not to a corporation enjoying franchise privileges, but to the individual owner of property created by his own labor.

English law

The English laws had not mentioned mechanical reproduction up to the musical copyright act of 1906, which in section 3 expressly provided that "'pirated copies' and 'plates' shall not, for the purposes of this Act, be deemed to include perforated music rolls used for playing mechanical instruments, or records used for the reproduction of sound waves, or the matrices or other appliances by which such rolls or records respectively are made." The test case meanwhile on this question was that of Boosey v. Whight, which was finally decided in the Court of Appeal in 1900, with respect to the use of copyrighted songs on the perforated rolls of the Æolian. Justice Sterling in the lower court had decided that the perforations were not an infringement of the copyright but that the marginal directions for playing might be such; Justice Lindley, M. R., held with him that the perforated roll was not a "copy" of the sheet music, but overruled him on the second point, holding that the directions, though copied from the printed page, were neither music nor a literary composition.

The new British code

The new British measure as prepared in 1910 included as incident to copyright the sole right "in the case of a literary, dramatic or musical work, to make any record, perforated roll, cinematograph film, or other contrivance by means of which the work may be mechanically performed or delivered," thus in the simplest fashion completely covering the control of mechanical reproduction in conformity with the convention of Berlin. But in the Parliament of 1911 the bill emerged from committee stage with an elaborate proviso, based on the American precedent, excepting from the definition of infringement contrivances for the mechanical reproduction of sounds on (1) proof that the copyright owner has previously acquiesced in mechanical reproduction, (2) prescribed notice of intention, and (3) payment of royalty of 2-1/2 or 5 per cent with a minimum of a halfpenny for each record, or in the case of different works on the same record, to each copyright proprietor.

The Berne situation, 1886

When the international representatives met at Berne in 1886, the mechanical reproduction of music was confined chiefly if not wholly to Swiss music-boxes and orchestrions and to hand-organs, of comparatively little commercial importance; and, possibly with some thought of the recognition of the hospitality of Switzerland, little emphasis was placed on the protection of musical composers against mechanical reproduction of their works. In fact, the final protocol of the Berne Convention of 1886 contained, as clause 3, the following paragraph: "It is understood that the manufacture and sale of instruments for the mechanical reproduction of musical airs which are copyright, shall not be considered as constituting an infringement of musical copyright."

Lack of action at Paris, 1896

Despite strong representations at the congresses of the International Association for the protection of literary property, held at London in 1890, Neufchâtel in 1891, and Milan in 1892, and a vigorous endeavor in connection with the Paris convention of 1896 to replace this clause, it was not modified until the convention of Berlin in 1908, in preparation for which a strong resolution was passed at the congress of the International Association at Vevey in 1901.

The Berlin provision, 1908

With the increasing development of the phonograph and of the mechanical player, mechanical reproductions became so important a matter to musical composers and publishers, that much of the discussion in respect to the amendatory convention of Berlin of 1908 was upon this subject. In the amended convention, the subject was fully covered by article 13:

"Authors of musical works have the exclusive right to authorize: (1) the adaptation of these works to instruments serving to reproduce them mechanically; (2) the public performance of the same works by means of these instruments.

"The limitations and conditions relative to the application of this article shall be determined by the domestic legislation of each country in its own case; but all limitations and conditions of this nature shall have an effect strictly limited to the country which shall have adopted them.

"The provisions of paragraph 1 have no retroactive effect, and therefore are not applicable in a country of the Union to works which, in that country, shall have been lawfully adapted to mechanical instruments before the going into force of the present Convention.

"The adaptations made by virtue of paragraphs 2 and 3 of this article and imported without the authorization of the parties interested into a country where they are not lawful, may be seized there."

German precedents

In Germany, under the general copyright law of 1870, the higher courts gave to musical composers control over mechanical reproductions from which, as the industry grew, the authors or publishers obtained some little return. But succeeding the adoption of the permissive clause in the Berne convention of 1886, it was proposed in the new copyright law to free mechanical reproductions from the control of the composer. A protest was at once made by musical authors and publishers, which resulted in a modification of the form proposed by the government and the addition of a clause giving control where the reproduction involved personal interpretation. In this form the "unfortunate section 22" became part of the law of 1901 relating to copyright in literary and musical works. Section 22 was in the following language:

"Reproduction is permitted when a musical composition is, after publication, transferred to such discs, plates, cylinders, bands and similar parts of instruments for the mechanical rendering of pieces of music. This provision is applicable also to interchangeable parts, provided that they are not applied to instruments by which the work can, as regards strength and duration of tone and tempo, be rendered in a manner resembling a personal performance."

Law of 1910

This had the extraordinary and contradictory effect of giving the author control over the finer reproductions of his works but denying to him any control over the cruder reproductions, as on hand-organs, orchestrions, etc. The opposition which developed against this impossible situation was largely influential in bringing about the modification at Berlin in 1908 of the Berne clause. The law of May 22, 1910, amended the previous general laws in conformity with the Berlin convention, especially by extending protection to the mechanical reproduction of music and cinematograph reproduction of artistic works. Section 22 of the law of 1901 was specifically replaced by an elaborate section, modeled on the American compulsory license provision and requiring a composer who permitted mechanical reproduction to grant similar rights on equal terms to any other manufacturers domiciled in Germany, with provisions for reciprocity and for the treatment of non-German composers through the tribunals of Leipzig. This law became effective coördinately with the Berlin convention on September 9, 1910, and in connection with it an ordinance promulgated by the Emperor July 12, 1910, defined the time during which mechanical reproductions already made of copyrighted works should still be permitted. The use of extracts from musical as from other works, as perhaps in potpourris, seems however still to be permitted as a result of the law of 1901.

Germany and the United States

As a result of the reciprocal provisions of the new German law, the President of the United States on December 8, 1910, proclaimed reciprocal relations between Germany and the United States with reference to mechanical reproductions of music. In the opinion of May 6, 1911, approved by the Attorney-General, a Presidential proclamation is required to determine "the existence of reciprocal conditions" as to the mechanical music provision (sec. 1, e) as in respect to sec. 8; but as the proclamation of December 8 did not recite that reciprocal conditions existed between September 9 and December 8, 1910, it is held that "it would not afford evidence sufficient to sustain an action for infringement between said dates."

French precedents

In France the general copyright act of 1793, as considered to cover mechanical music, was interpreted or modified by the act of 1866, which enacted that "the manufacture and sale of instruments serving to reproduce mechanically musical airs which are still in the private domain, does not constitute musical infringement." In the suit of Enoch v. Société des phonographes et gramophones, the Civil Court of the Seine had decided in 1903 that phonographic instruments were excepted from the protection of the law of 1793 by the "general immunities" concerning the mechanical musical instruments in the act of 1866. But in 1905 the Court of Appeals of Paris reversed this decision, holding that the law of 1866 applied solely to musical airs, that is, those involving no words, on the ground that the law of 1793 was enunciatory of the rights of authors, applying to all modes of publication and distribution, and that the word "publication" should be understood broadly "as jurisprudence has applied it to numerous modes of publication discovered since the law of July 19 and 24, 1793, and the Code of 1810, and as nothing prevents its extension, in consequence of scientific progress"; and it therefore concluded that literary works either by themselves or associated with music were practically under the law of 1793 and not exempted by the law of 1866. A more recent case, in the Court of Commerce of the Seine in 1905, resulted, however, in the dismissal of a suit for infringement. France accepted the Berlin convention, June 28, 1910; but its provision in article 13, that "the limitations and conditions" as to mechanical music protection "shall be determined by the domestic legislation of each country in its own case," makes uncertain whether protection becomes effective in the absence of specific legislation.

Belgian precedents

In Belgium in 1904, in the suit of Massenet and Puccini v. Compagnie Générale des phonographes, et al., it was held by the court of first instance of Brussels that the introduction for sale of discs and cylinders reproducing the musical compositions of the plaintiffs was illegal and liable for damages and punishable as an infringement. This decision was, however, overruled by the Court of Appeals of Brussels in 1905. Belgium accepted the Berlin convention, May 23, 1910, has since protected mechanical reproduction, and was proclaimed as in reciprocal relations with the United States, June 14, 1911.

Italian precedents

In Italy the copyright law was considered in relation to mechanical instruments by several court decisions of which the latest and most important seems to be in the case of the Società Italiana d. Autori v. Gramophone Co. of London, in which, in 1906, the Royal Court of Milan held that reproductions of music by gramophone constituted infringement. This decision held that article three of the Berne convention of 1886 could not derogate from or modify the domestic private law of 1882, and as the Italian law specifically covers publication and reproduction "by any method," it includes gramophone discs. "Publication means a process by which the intellectual concept of the artist is revealed, and brought to the knowledge of others." "What the legislature wanted has been this: that the author be the exclusive owner of the external form in which the creation of the mind has been fixed, and, so to speak, materialized; and that the right be reserved to him to get from his studies and his exertions all the economic benefits which he could derive therefrom."

Other countries

In the laws of Switzerland of 1883, and Monaco and Tunis of 1889, the fabrication and sale of mechanical instruments or devices for reproducing musical airs were excepted from the definition of piracy. But all these countries have ratified the Berlin convention "without reservation." Luxemburg and Norway have applied the Berlin provision and were proclaimed as in reciprocal relation with the United States on June 14, 1911. Russia has followed American precedent in the new law of 1911, but has no reciprocal relations with the United States.

Argument for inclusion

As the opposition to the control by musical composers of mechanical reproductions of their works is still strong in the United States and in several countries, notwithstanding recent conventions and legislation, and is based largely upon restrictive definitions of the words "writings" and "copies" or their equivalent in other languages, it may be well to include here the argument made by the writer as Vice-president of the American (Authors) Copyright League, at the Congressional hearings on the new American code, of which the essential portions are as follows:

"The American Copyright League stands, as it has stood for a quarter of a century, simply and solely for the protection of authors' rights to the fullest extent, and it asserts that a musical composer is as fully entitled as is the author of any other creative work to the exclusive and full benefits of his compositions, in whatever manner reproduced. The opponents of the bill base their objections largely on a restrictive definition of the word 'writings,' and criticise the bill because this word 'writings' is interpreted throughout the bill by the word 'works,' although this accurately reflects the understanding of Congress and the interpretation of the courts. They would, in fact, confine copyright protection specifically, it may be said, to e-y-e-deas, that is, visible records, and exclude as not visible or legible by the eye, copies of musical compositions mechanically made and interpreted.

Inscribed writings Direct sound-writing

"The earliest writing which remains to us is in the Assyrian wedge-shaped inscriptions, made by pressing the end of a squared stick into a soft clay cylinder; the phonograph point inscribes its record in exactly the same manner upon the 'wax' or composition of the cylinder or disc, for the mechanism only revolves the roll, and the point is actuated by the sound vibrations. The words 'phonograph,' 'graphophone' and 'gramophone' literally mean 'sound-writing,' for the Greek form graph-, the Latin form scrib-, and the Saxon form write, equally parts of our language, denote exactly the same meaning. It is even probable that a future development of phonograph impressions (the third dimension being translated into breadth of stroke as can be mechanically done) will give ultimately a visual phonograph alphabet even more natural and logical than Professor Bell's remarkable system of 'visible speech,' which, of course, like all alphabets, can be read only when the reader has mastered the significance of the symbols. Mr. Edison has himself made some experiments in this direction, though the confusion from the overtones, which give quality of speech, has so far prevented result. A large share of literary productivity to-day is by voice-dictation recorded mechanically by a stenographer on the typewriter or directly on the phonograph disc, and I may instance from personal experience a further step. As one of the committee for the Edison birthday dinner, commemorating the twenty-fifth anniversary of his invention of the incandescent lamp, I was asked to supply some original verse, and it occurred to me to put this in shape by help of Mr. Edison's inventions, without direct or indirect hand- or typewriting. Accordingly I completed the verses mentally without use of paper and voiced them into an Edison phonograph, verifying this through the telephone, and the lines were set in type by the printer from the sound-record, and thus printed on the menu for the dinner. Thus my formulated ideas were recorded through the nerves and other mechanism of the vocal organs, instead of through the nerves and other mechanism of the hand, directly by the phonograph point on the phonograph cylinder; and it seems a common-sense inference that if I had caused copies of the phonograph cylinder, though not legible in the ordinary sense, to be published instead of the secondary copies in print, I should be as much entitled to copyright protection in the one case as in the other. The 'telegraphone' directly records on a steel tape the sounds of the human voice as sent through the telephone, and by an absolutely invisible re-arrangement of the magnetized particles of steel, makes a writing in which there is no possibility of visual legibility.