CHAPTER V

PERFORMING RIGHTS

SECTION I.--NATURE OF PERFORMING RIGHT.

As copyright is the exclusive right of making copies of a book, so performing right is the exclusive right of representing or performing in public dramatic or musical works. In a dramatic or musical work, the two rights--the copyright and the performing right--exist side by side; but they are quite distinct from one another, and may pass into different hands. The copyright can only be infringed by copying, the performing right by representation or performance. It is no infringement to dramatize and represent on the stage a copyright novel, since the only exclusive right as to non-dramatic work is the multiplication of copies;[664] but a drama on which a novel has been founded may be infringed by another drama taken from the novel.[665] A writes and publishes a novel. He then dramatizes it, but does not publish the drama. B represents a drama founded on the novel. Such a representation is no infringement either of A's drama[666] or of his novel. It makes no difference even if A has published his drama.[667] In dramatizing a copyright novel, however, the making of a single copy of the drama may be an infringement of the copyright in the novel.[668] It is no infringement of performing right to print and publish as a book a play which has been publicly performed,[669] but it may be an infringement of the common law right in the MS.,[670] or the statutory copyright in the book if already printed and published, or it may be a breach of implied contract.[671] If a dramatic piece or musical composition is first published as a book, this does not take away the performing right. This was decided in _Chappell_ v. _Boosey_[672] in respect of music, and is equally applicable to dramatic work. Conversely the representation or performance of a dramatic piece or musical composition in public does not deprive the author of his common law right to publish as a book, or of his copyright when he so publishes.[673] Performing right extends throughout the British dominions.[674]

SECTION II.--PERFORMING RIGHT AT COMMON LAW.

It is doubtful whether there ever was any performing right at common law. The only case from which it could be gathered that there was is _Morris_ v. _Kelly_,[675] where an injunction was granted by Lord Eldon restraining the performance of a comedy. The play was apparently in manuscript, but it does not appear whether it had been performed or not. The ground of the decision is very uncertain. From the fact that the Lord Chancellor asked for proof that the assignment was in writing, it might almost appear that protection was given under the statute of Anne, which would certainly have been unsound. The decision may also have been on the ground of common law right in unpublished manuscript, _i. e._ the right to prevent any one but the owner from interfering with it in any way, or it may have been on the ground of breach of implied contract. Altogether the decision is unsatisfactory; the application seems to have been _ex parte_, and the law hardly to have been considered, so that it is impossible to base any definite proposition of law on the case. On the other hand Erie, C. J., stated in the course of the argument in _Marsh_ v. _Conquest_,[676] that there was no performing right at common law. For his authority, however, he cites _Murray_ v. _Elliston_,[677] which is hardly sufficient to support the proposition. In _Murray_ v. _Elliston_ a tragedy by Lord Byron was printed and published for sale. The defendants abridged it and represented it on the stage in the abridged form. It was argued for the defendant that the tragedy having been printed and published as a book, must depend for protection entirely on the statute of Anne in accordance with the decision in _Donaldson_ v. _Beckett_.[678] The statute of Anne gave no performing right, and therefore there was no protection. The Court gave judgment for the defendant, but the ground of their judgment is not quite clear. Some stress seems to be laid on the fact that the tragedy was abridged, and it is therefore left doubtful whether the judges would have considered the representation of an unabridged version to be an infringement of the plaintiff's rights. In either view it is not a decision that there was no performing right at common law. Another case which may be relied on for the contention against performing right at common law is _Coleman_ v. _Wathen_,[679] but on examination it will be seen that all that case decides is that the statute of Anne gave no performing right, and that representation on the stage was not an infringement of copyright.

It is submitted that the history of the law of performing right is this: At common law there was no performing right in the proper sense of the term, but an unpublished manuscript was protected from performance as from any other invasion of the author's exclusive right to it. If it was performed on the stage without being published as a book, there would be a remedy on breach of implied contract, the public only being admitted for the purpose of hearing the performance. Once, however, it was published as a book, all exclusive right of performance was gone. The statute of Anne gave no performing right, and performing right proper was first created by 3 & 4 Will. IV. c. 15. This statute and 5 & 6 Vict. c. 45 govern the performing right in dramatic pieces. The performing right in musical compositions is governed by these two Acts, as modified by the Copyright (Musical Compositions) Acts of 1882 and 1888.

SECTION III.--WHAT IS A DRAMATIC WORK.

The subject of dramatic performing right must be--

1. An original composition. 2. Of a dramatic nature.

The amount of original composition required is probably the same as in a literary work claiming the protection of the Copyright Act, 1842, as a "book." As has been seen the standard is extremely low, no literary merit or great skill being essential.[680] Adaptations, translations, and the like, are protected _quoad_ their transformation.[681]

As to what amount of dramatic element is required is not clear from the statutes, and not much clearer from the decisions. It is now well decided that in order to secure a performing right there must be some dramatic element. That is to say, one cannot compose a non-dramatic work, and after publishing it in its non-dramatic form, claim the exclusive right to represent the non-dramatic work on the stage in dramatic form.[682] But the difficulty is to define what is "dramatic form." The dramatic works protected by 3 & 4 Will. IV. c. 15 are "any tragedy, comedy, play, opera, farce, or any other dramatic piece or entertainment." In 5 & 6 Vict. c. 45 "dramatic piece" is defined as including every tragedy, comedy, play, opera, farce, or other scenic, musical, or dramatic entertainment. Neither definition is very satisfactory. In _Lee_ v. _Simpson_[683] it was held that an introduction to a pantomime, being the only written part, and intended to be followed by "comic business," was a dramatic piece. This case as reported, however, is of little assistance, as it does not show what the exact nature of the "introduction" was, and the judgment of the Court does not contain any definition of a dramatic piece. In _Russell_ v. _Smith_[684] the question was more carefully considered. The work in which a performing right was claimed was a song called "The Ship on Fire." It was founded on the loss of _The Kent_ by fire in the Bay of Biscay. According to the judgment--

"It represents a storm at sea, the burning of the ship, and an escape by boat to another ship, and so a safe return to land. It moves terror and pity and sympathy, by presenting danger, and despair, and joy, and maternal and conjugal affection. A witness of great experience in publishing music deposed that this was considered a dramatic song."

The Court held that it was a "dramatic piece." Lord Denman, C. J., said:

"The nature of the production places it rather in the representative than the narrative class of poetry, according to Lord Bacon's division of dramatic from epic; and the evidence states it to be known as dramatic among those who are conversant with such things. The interpretative clause of 5 & 6 Vict. c. 45, sec. 2, declares that 'dramatic piece' within the Act includes 'tragedy, comedy, play, opera, farce, or any other scenic, musical, or dramatic entertainment.' These words comprehend any piece which could be called dramatic in its widest sense, any piece which on its being presented by any performer to an audience would produce the emotions which are the purpose of the regular drama, and which constitute the entertainment of the audience."

In _Clark_ v. _Bishop_[685] an original song, "Come to Peckham Rye," was composed and set to an old air. It was sung at music halls with appropriate character dress, gesture, and expression. The Court were of opinion that it was a dramatic piece, within the meaning of 5 & 6 Vict. c. 45. Kelly, C. B., said:

"The plaintiff, by his powers of singing, acting, and characterisation, had made this song a thing of value, not as a song merely, but as acted by him in character, and so as a dramatic piece."

In _Wall_ v. _Taylor_[686] it was suggested that by reason of the interpretation clause in 5 & 6 Vict. c. 45, sec. 2, every musical entertainment whatsoever was a "dramatic piece," but Brett, M. R., refused to accept this view. In _Roberts_ v. _Bignell_,[687] a very imperfectly reported case, a divisional court (Day and Wills, JJ.) held that a music hall song, "Oh, Jenny Dear!" the exact nature of which is not apparent, was a "dramatic piece." The leading case on this subject is now _Fuller_ v. _Blackpool Winter Gardens_,[688] and in this the doctrine which seemed to have been growing up that every literary production with the least dramatic flavour was a dramatic piece received a check. The subject of this action was a popular music hall song called "Daisy Bell." The song was sung in character costume, and the inference to be drawn from the song itself and from the evidence was that it was a composition intended for the stage either of the theatre or of music halls. The Court of Appeal, sustaining the judgment of Kennedy, J., held that the song was not a dramatic piece. Lord Esher, M. R., said:

"The fact that it is sung in costume does not make it a dramatic piece. If the dress of the singer could have that operation, the singer and not the author of the song would be the person who caused it to be a dramatic piece. The same may be said of the manner in which the singer treats the song. The question must be what was the character of the composition when it was first written and published. I can quite understand that it is possible that a thing to be performed by one person only may be a dramatic piece. But whether the composition is to be sung by one or more persons, if a song is sung, and only a song, there is no performance of a dramatic piece."

A. L. Smith, L. J., after reviewing the previous cases, says:

"It is not necessary to determine whether each of these cases was rightly decided or whether the reasons given in each for holding the song to be a dramatic piece are satisfactory. Every case must depend upon its own attendant circumstances. In each case it is a question of fact. I think that to constitute a song a dramatic piece it must be such a song that for its proper representation,

## acting, and possibly scenery, formed a necessary ingredient,

and that if neither of these be a requisite to the efficient representation of the song it is not a dramatic piece. It is an entire misnomer to call a mere common, ordinary, music-hall song, which required neither acting nor scenery for its production, a dramatic piece, for it is in truth nothing of the kind."

The result then seems to be that "dramatic" must not be used in the widest sense of the term as suggested by Lord Denman, C. J., in _Russell_ v. _Smith_,[689] and that the test is not that of dramatic or epic in the sense in which Lord Bacon applies the words to poetry. There must be more than the dramatic flavour, there must be the dramatic form; that is to say, the work must be so constructed as to be obviously intended for reproduction by means of acting with scenic effect. This test will apply equally to non-musical as to musical works. A case in point is that of the novel in _Toole_ v. _Young_.[690] The facts as stated in the judgment are:

"that Mr. Hollingshead wrote a story which he published in a work called _Good Words_, and having in his mind at the time he wrote and published it the intention of afterwards dramatizing the story, he composed it very much of a dramatic character."

Yet it was held that it was no infringement of the author's right to put this novel into dramatic form and represent it on the stage. If the novel could have been considered a dramatic piece on account of its "dramatic character," it ought to have been protected against the performance of an adaptation. Mr. Scrutton in his book on copyright considers that "the dramatic character consists in the representative as opposed to the narrative element:" but this seems rather a return to the older theory in _Russell_ v. _Smith_[691] and contrary to _Fuller_ v. _Blackpool Winter Gardens_.[692] For instance, a poem, song, or piece for recitation may be representative in that it depicts

## action and dialogue rather than narrates events: this according to

_Russell_ v. _Smith_[693] would constitute it a "dramatic piece," but according to _Fuller_ v. _Blackpool Winter Gardens_[694] we must find not only the "representative element" but an element which requires

## acting in order to represent it adequately.[695]

SECTION IV.--WHAT DRAMATIC WORKS ARE PROTECTED: DURATION OF PROTECTION.

It has been suggested by some writers that there is no statutory protection of performing rights until first representation in public.[696] It has also been suggested that the duration of performing right is in every case for the period laid down by 5 & 6 Vict. c. 45, _i. e._ forty-two years from first performance or the author's life plus seven years. It is difficult to concur in these views, which seem to imply that 5 & 6 Vict. has taken away from the dramatic author certain rights given to him by 3 & 4 Will. IV. c. 15.

The law appears to stand thus. Before the statute of 3 and 4 Will. IV. c. 15 there was no statutory performing right. Whether there was a common law performing right _quære_.[697] By the Act of 3 & 4 Will. IV. c. 15 the author of a dramatic piece not printed and published in book form is given a perpetual performing right. This presumably dates from the composition of the dramatic piece. If the dramatic piece is printed and published as a book, the protection is then limited to twenty-eight years from publication or for the life of the author, whichever be the longer period. In neither case is the performing right dependent for its existence on public performance.[698] Then comes the Act of 5 & 6 Vict. c. 45, which enacts in section 20--

"that the provisions of the said Act of His late Majesty (3 & 4 Will. IV. c. 15) and of this Act shall apply to musical compositions, and that the sole liberty of representing or performing or causing or permitting to be represented or performed any dramatic piece or musical composition shall endure and be the property of the author thereof and his assigns for the term in this Act provided for the duration of copyright in books; and the provisions hereinbefore enacted in respect of the property of such copyright and of registering the same shall apply to the liberty of representing or performing any dramatic piece or musical composition as if the same were herein expressly re-enacted and applied thereto 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."

As regards dramatic pieces which have been publicly performed it is clear that the Act of Victoria gives them protection from that date for forty-two years, or for the life of the author and seven years.[699] But does 5 & 6 Vict. c. 45 take away the protection given by 3 & 4 Will. IV. c. 15 to such dramatic pieces as do not come within the provisions of the later statute, _i. e._ unperformed dramatic pieces? It is submitted that it does not, and this appears to be the view of Hawkins, J., in _Reichardt_ v. _Sapte_,[700] the only decision on the point. In that case A wrote a dramatic piece, B subsequently wrote one very similar: B's drama was first performed, and a few days afterwards A's drama was performed. In an action by B against A for infringement of performing right, Hawkins, J., held that A had acquired his performing right under 3 & 4 Will. IV. when he wrote his drama. He says:

"In none of the enactments in 5 & 6 Vict. c. 45 will be found anything which prejudicially affects the right of sole representation conferred by the statute of 3 & 4 Will IV. c. 15. The first production of a dramatic piece mentioned in section 20 of the statute of Victoria confers no priority upon the first producer, nor does it confer a title to the sole liberty of representation. That is conferred by the statute 3 & 4 Will. IV. c. 15 upon the author or his assignee: it[701] only fixes the first production as the point from which (if entitled to it) the endurance of the sole liberty of representation is to be calculated."

What Hawkins, J., decided was that there is a vested statutory interest in a dramatic piece immediately it is composed, and although it is not quite clear from his judgment, it seems necessarily to follow that the whole rights and remedies given by 3 & 4 Will. IV. c. 15 still attach immediately on composition, and that there is nothing in 5 & 6 Vict. to divest the author of that right. When a dramatic work is performed, no doubt the protection to performing right is restricted as well as extended to the period given by 5 & 6 Vict. c. 45, _i. e._ forty-two years from the date of first performance, or life and seven years: but as regards unperformed works, it is submitted that the performing right is given by 3 & 4 Will. IV. c. 15 on composition, and is perpetual if the work be not printed and published as a book within the British dominions, or if it be printed and published as a book, then for forty-two years from the date of publication as a book, or for the author's life and seven years.

Extremely difficult questions may arise as regards performing rights when a dramatic or musical work has been published as a book or publicly performed outside the British dominions before the first publication or the first public performance within the British dominions.

Section 19 of 7 & 8 Vict. c. 12, provides:

"That neither the author of any book, nor the author or composer of any Dramatic Piece or Musical Composition ... which shall, after the passing of this Act, 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."[702]

The whole difficulty lies in the meaning of the words "first published" as applied to the performing right. In _Boucicault_ v. _Delafield_,[703] and _Boucicault_ v. _Chatterton_,[704] it was held that when an unpublished play was first performed outside the British dominions the performing right in this country was extinguished. "First published" was held to include the "first performance" of a drama. This, however, only provides for one possible contingency. As the literary exchange with America, with which we have no international convention, is becoming larger every year, it may be useful to consider some of the other contingencies which may arise, and the difficulties of which are not yet judicially solved. The cases suggested are in connexion with the United States, but apply equally to any foreign country, except in so far as rights may be acquired under International Convention.

_Dramatic or Musical Work unpublished, first performed in America._--This has been decided as above. The performing right in this country is lost.

_Dramatic or Musical Work first published in America, subsequently first performed within the British Dominions._--This problem is not solved by the above cases. The alternative views are that "publication" in the section means: (i) a putting before the public in any form, whether by representation or in print, or (ii) as regards copyright, a publication in print, as regards performing right, a publication by representation. I am inclined to think that the second alternative is the correct one, and that the performing right in this country is not lost. The contrary, however, seems to have been assumed in _Boucicault_ v. _Chatterton_,[705] both by the bench and bar.

_Dramatic or Musical Work first published in the British Dominions, subsequently first performed in America._--This problem depends on the same two alternatives as the last. I therefore think that the performing right here would be lost, even although there was first publication as a book within the British dominions.

_Dramatic or Musical Work first performed in America, subsequently first published in the British Dominions._--The performing right in this country would be lost, but probably not the copyright.

_Dramatic or Musical Work first performed in the British Dominions, subsequently first published in America._--The performing right in this country would be secured, but the copyright lost.

SECTION V.--WHAT IS A MUSICAL COMPOSITION.

The necessary originality in a musical composition consists either in a new air or melody, or in the new arrangement and adaptation of an old air. Thus an arrangement of an opera for the pianoforte is an original work separate and distinct from the opera itself.[706] So the adaptation of new words and accompaniment to an old air is a musical composition entitled to protection.[707] It must always be remembered, however, that a new arrangement or adaptation will only be protected _quoad_ its novelty. In so far as the new work is taken from a non-copyright work, an unauthorised taking of that part is not an infringement of the new work.

SECTION VI.--WHAT MUSICAL WORKS ARE PROTECTED: DURATION OF PROTECTION.

As in the case of dramatic works, so in the case of musical compositions it is submitted that the statutory protection dates from composition, not from first public performance. Musical compositions are protected under the same provisions which protect dramatic works. The protection is therefore identical, except as to the two amending statutes noticed below which do not apply to dramatic works. It was contended in one case that the extension of 3 & 4 Will. IV. c. 15 to musical compositions was only applicable to musical compositions of a dramatic nature.[708] This, however, is not the case, and all musical compositions are protected.[709]

By the Copyright (Musical Compositions) Act, 1882, the performing right in musical compositions which have been published in "book" form is conditional[710] on a notice reserving the performing right, and printed on every published copy. If the copyright and performing right are in different hands the owner of the performing right must give notice in writing to the owner of the copyright, requiring him to print such notice, and if the latter after due notice fail to do so, he shall forfeit to the owner of the performing right the sum of £20.

Even if the musical composition is also a dramatic piece or part thereof, it comes within this requirement as to notice of reservation on published copies.[711]

Once a musical composition has been printed and published without notice of reservation, it will probably be impossible to obtain any protection for the performing right afterwards by publishing copies with reservation.[712]

A limited reservation is constantly made, and is probably effectual, _e. g._ reserving the right to sing in music halls, but permitting public performances elsewhere without fee or licence.[713]

SECTION VII.--REGISTRATION OF PERFORMING RIGHTS.

Section 20 of 5 & 6 Vict. c. 45 enacts that "the provisions hereinbefore enacted" in respect of registering the copyright in books shall apply to the liberty of representing or performing any dramatic piece or musical composition; provided that in the case of a dramatic piece or musical composition in manuscript it shall be sufficient to register--

1. The title. 2. The name and place of abode of author or composer. 3. The name and place of abode of the proprietor. 4. The time and place of first representation.

In the case, therefore, of a dramatic piece or musical composition which has been published as a book, the proper registration in respect of both copyright and performing right would seem to be that provided by section II, viz.:

1. The title. 2. The time of first publication. 3. The name and place of abode of the publisher.[714] 4. The name and place of abode of the proprietor.[715]

This is probably correct, although it may not strictly be in accordance with the proviso in section 20, viz.: "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." If, however, the provision as to registration in section 11 were strictly construed in accordance with this proviso, the result is that the proper registration would be:

1. The title. 2. The time of first representation. 3. The name and place of abode of the person who first represented it. 4. The name and place of abode of the proprietor.

It is obviously absurd that this should be the form of registration when the dramatic piece or musical composition has been printed and published, and that the form in section 20 should be the form of registration when it is in manuscript. The distinction between the two forms is meaningless.

Section 24 of 5 & 6 Vict. c. 45, which enacts that no action for infringement of copyright shall be brought unless the book is registered, provides "that nothing herein contained shall prejudice the remedies which the proprietor of the sole liberty of representing any dramatic piece shall have by virtue of the Act 3 & 4 Will. IV. c. 15, or of this Act, although no entry shall be made in the book of registry aforesaid."

The provisions as to registration of dramatic pieces are therefore merely permissive and are in no way a condition precedent either to the performing right itself or to the right of action upon infringement;[716] but registration is _primâ facie_ proof of the right of representation subject to rebuttal by other evidence.[717]

All the provisions as to the keeping of the registry book,[718] making false entries therein,[719] and motion to expunge,[720] apply equally to registration of a dramatic piece for the purpose of protecting performing right as to registration of a book for the purpose of protecting copyright.[721]

=Musical Compositions.=--The requisite registration is the same as for performing rights in dramatic works; but _quære_ whether in the case of performing right in a musical composition it is not a condition precedent to action. This doubt is raised by section 24, which provides that the registration of a book is a condition precedent to an action for infringement of copyright, and it specially excepts "the remedies which the proprietor of the sole liberty of representing any dramatic piece shall have" from the operation of the section. It is curious that "musical compositions" are omitted from this saving clause, whereas in nearly every other part of the Act "dramatic piece and musical compositions" are dealt with together. The arguments against registration being a condition precedent are, (1) the first part of section 24 relates only to copyright which does not include performing right; (2) section 20 does not extend the provisions of section 24 to performing right, since it only applies the provisions "_before_ enacted." There is also a suggestion that "dramatic piece" in the saving clause of section 24 includes "musical composition," since the definition of "dramatic piece" in section 2 includes "musical or dramatic entertainment." There is no authority directly in point. In _Russell_ v. _Smith_[722] the song called "The Ship on Fire" was protected without registration, but then it was held to be a "dramatic piece" and something more than a musical composition. In _Clark_ v. _Bishop_[723] the song protected was also held to be a "dramatic piece." In _Lacy_ v. _Rhys_,[724] where it was held that in the case of a dramatic piece there was clearly no obligation to register, Crompton, J., said that if it had not been for the proviso in section 24, there would have been a doubt whether registration were not necessary.[725]

In registering an unpublished arrangement of dance music taken from an opera, the arranger, not the composer of the original opera, must be entered as composer.[726]

SECTION VIII.--ASSIGNMENT OF PERFORMING RIGHTS.

The performing right in dramatic pieces and musical compositions can only be transferred by a written assignment[727] or by entry on the register.[728] See decisions as to assignment of copyright;[729] but note that as regards performing right the assignment, even if before publication or performance, must be in writing.[730] The performing right will not pass by a mere conveyance of the copyright in a dramatic or musical work[731] unless an entry shall be made of such assignment in the register expressing the intention of the parties that such right should pass.[732] As in the case of copyright, there is no express enactment that assignment must be in writing; but it is inferred from the fact that a licence which is a smaller right cannot be given except by writing.[733] The assignment does not require to be by deed,[734] and if by written document it is valid without registration.[735] Section 22 of 5 & 6 Vict. c. 45 appears at first sight to make registration necessary in every assignment of performing right, at least if the copyright is assigned with it; but this is not so. If in the written assignment there is a specific conveyance of the performing right,[736] or if general words are used such as "all other the estate, right, title, and interest," showing that something else than the copyright was intended to be conveyed, the performing right will pass without registration.[737] Cotton, L. J., in considering this section, says:

"I incline to think that this enactment was not meant to control the operation of deeds of assignment, but only to regulate the effect of entries in the registry book."[738]

In fact it was passed on account of _Cumberland_ v. _Planché_,[739] which decided that the assignee of the copyright took the performing right as well.

If the view is right that the statutory performing right vests immediately on production,[740] there can be no question of assignment of common law rights.[741]

Performing rights can probably be partially assigned so as to make a grantee of provincial rights not only a licensee but an assignee, with full power to sue alone and re-assign.[742]

SECTION IX.--INFRINGEMENT OF DRAMATIC PERFORMING RIGHTS.

By 3 & 4 Will. IV. c. 15, section 1, the author or his assignee has "the sole liberty of representing, or causing to be represented, at any place or places of dramatic entertainment whatsoever" in the British dominions.

=Public Performance.=--It is no infringement of performing right in a dramatic work to represent it otherwise than in a place of dramatic entertainment; but it has been held that any place where a dramatic work is publicly performed is for the time being a place of dramatic entertainment. In _Lee_ v. _Simpson_,[743] Wilde, C. J., says:

"The legislature clearly meant places where dramatic entertainments are represented to which the public are admitted."

In _Russell_ v. _Smith_[744] the Court decided that a certain song, "The Ship on Fire," was a dramatic piece. Denman, C. J., said:

"It follows that as Crosby Hall was used for the public representation for profit of a dramatic piece, it became a place of dramatic entertainment for the time, within the statutes now in question. The use for the time in question and not for a former time is the essential fact. As a regular theatre may be a lecture-room, dining-room, ball-room, and concert-room on successive days, so a room used ordinarily for either of these purposes would become for the time being a theatre if used for the representation of a regular stage play. In this sense, as "The Ship on Fire" was a dramatic piece, in our view Crosby Hall, when used for the public representation and performance of it for profit, became a place of dramatic entertainment. In thus deciding we do not declare that the defendant's performances at Crosby Hall were unlawful without a theatrical licence within Stat. 6 & 7 Vict. c. 68."[745]

In the judgment of Brett, M. R., in _Wall_ v. _Taylor_[746] there is a suggestion that although a single item in a programme might be dramatic, that would not be sufficient to render the whole entertainment dramatic or to make the place a place of dramatic performance. In _Duck_ v. _Bates_[747] the defendant represented a dramatic piece without the author's consent. The representation took place in a room of Guy's Hospital, and was provided entirely for the amusement of the nurses and attendants of the hospital. The medical officers of the hospital, the students and some of their friends were present. A reporter to a theatrical newspaper was also present by invitation. It was held by Brett, M. R., and Bowen, L. J. (Fry, L. J., dissenting), that the room was not a place of dramatic entertainment. Neither profit[748] nor habitual use were essential elements, but there must be a representation to which a portion of the public is admitted. Brett, M. R., said:

"Did the legislature intend to forbid a representation without the author's consent by children in a nursery before their parents, or by grown-up persons in a drawing-room? It is clear that something more than that must have been intended; and why should not a representation of that kind be called a dramatic entertainment? Because it is obviously domestic and private. Suppose that the servants of the household are invited to witness the performance; nevertheless it is a domestic entertainment. As I have already intimated, the author wants protection for the pecuniary value of his drama, and a representation in a private room is of no pecuniary value. 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. Suppose that a representation in the presence of friends takes place for the amusement of friends and of the members of the household in an unfurnished house hired for the occasion: that is not an infringement of the statute: 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; otherwise the place where the drama is represented will not be a 'place of dramatic entertainment' within the meaning of the statute. Suppose that a drama is represented in a county town, and that all persons of a certain class throughout the county are free to come: suppose that a member for a parliamentary constituency (I do not mean shortly before or during an election) organises dramatic entertainments to which the inhabitants are admitted without paying: suppose that an amateur company choose to act some drama for a charitable object, with admission upon payment or by tickets issued generally: in each of these instances an infringement of the statute has been committed.... 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."

This case is most instructive as being quite on the border line between a private and public representation. Performing right in a drama may be infringed by a representation without scenery and appropriate dresses.

"We should take away a part of the protection conferred on authors if we hold that there could be no public representation without these accompaniments."[749]

=Substantial Part.=--As in literary copyright the part taken must be material and substantial in order to infringe performing right. In _Chatterton_ v. _Cave_,[750] Lord Chief Justice Coleridge at the trial found as a fact "that two scenes or points of the drama of the defendant had been taken directly from the drama of the plaintiff;" there was no further copying. He thereupon gave judgment for the defendant. On a rule for a new trial, Lord Coleridge, sitting in the Court of Common Pleas, stated orally that what he meant to convey by his finding was, "that looking to the general character of the plaintiff's and defendant's dramas, the extent to which the one was taken from the other was so slight, and the effect upon the total composition was so small, that there was no substantial and material taking of any one portion of the defendant's drama from any portion of the plaintiff's." On this explanation the rule was discharged, and the judgment subsequently affirmed by the Court of Appeal and the House of Lords. Lord Hatherley said that the principle _de minimis non curat lex_ applied to a supposed wrong in taking a part of dramatic works as well as in reproducing a part of a book. He could not read the word "part" in the Dramatic Copyright Act as "particle," so that the crowing of the cock in "Hamlet," or the introduction of a line in the dialogue might be held to be an invasion. In _Planché_ v. _Braham_,[751] Tindal, C. J., directed the jury that if either one song, or more than one song be taken from a piece and be performed on the stage or any place of theatrical entertainment, that would be a "representing" within the Act of Parliament. The jury, having found that the defendant had represented "a part of the plaintiff's opera," a rule for a new trial was refused.[752] In _Beere_ v. _Ellis_,[753] two plays purported to be founded on the same novel. The defendant's play contained some of the dialogue and several dramatic incidents and situations taken directly from the plaintiff's play. Baron Pollock held that a small piece of dialogue would not alone amount to an infringement, but the defendant had taken two dramatic incidents on which the plot of the play depended. He had therefore taken a material part, and although he had done a considerable quantity of work for himself, he had "extracted the plums" from the plaintiff's work, and this he was not entitled to do. An indirect taking is, as in literary copyright, an infringement, _e. g._ to copy and perform passages from a play by dramatizing a novel founded on that play.[754] It is no infringement to produce a play almost identically similar to that of another author, if this is the result of coincidence and not of any piracy direct or indirect.[755] As to the taking of a plan or idea, see the chapter on infringement of literary copyright.[756] There must be more than the taking of a general idea or scheme. Lord Blackburn, in _Chatterton_ v. _Cave_,[757] said:

"An idea may be taken from a drama and used in forming another without the representation of the second being a representation of any part of the first. For example, I have no doubt that Sheridan in composing 'The Critic' took the idea from 'The Rehearsal,' but I think it would be an abuse of language to say that those who represent 'The Critic' represent 'The Rehearsal,' or any part thereof, and if it were left to me to find the fact, I should without hesitation find that they did not. On the other hand, in composing 'The Trip to Scarborough,' Sheridan took so much from 'The Relapse,' that if it were left to me to find the fact, I should find that those who represent 'The Trip to Scarborough' do represent parts of 'The Relapse.'"

=Causing to be Represented.=--The "penalty" prescribed by the Act of 3 & 4 Will. IV. c. 15 is recoverable from those who "represent or cause to be represented" an unauthorised work. Section 20 of 5 & 6 Vict. c. 45 provides "that the sole liberty of representing, or performing, or causing or permitting to be represented or performed, any dramatic piece or musical composition, shall endure," &c. Notice that this section uses the word "permitting," whereas 3 & 4 Will. IV. c. 15 only uses "represent or cause to be represented." The later statute, however, does not purport to extend the nature of performing right, and therefore the word "permitting," if it have any meaning at all, can only be explanatory of the words "cause to be represented" in the earlier statute. When then does a person "cause a dramatic piece to be represented"? Shortly, the answer probably is, that if he does not actually take part as an actor, the defendant must be shown to have had some initiation in or control over the performance. In _Parsons_ v. _Chapman_,[758] an acting manager, who paid the performers' salaries, and was entitled to dismiss them, was held to have caused a dramatic piece to be represented within the meaning of 10 Geo. III. c. 28, sec. 1. In _Russell_ v. _Briant_,[759] the defendant was the landlord of "The Horns" Tavern, at Kennington. His premises included a large assembly room which was hired for evening entertainments. The defendant furnished the platform and the lights, and allowed bills to be put up in the tavern, and tickets of admission to be advertised to be sold at the bar. At one entertainment a song, "The Ship on Fire," which in _Russell_ v. _Smith_[760] was held to be a copyright dramatic piece, was sung. It was held that the defendant had not represented or caused to be represented the dramatic piece in question. Wilde, C. J., said that no one could be considered as an offender unless by himself or his agent he actually took part in the representation. In _Lyon_ v. _Knowles_[761] the defendant let his theatre. He provided and paid for the scenery, lights, printing, advertising, band, doorkeepers, scene-shifters, and supernumeraries. His servants collected the money at the door, and he retained half the gross profits to recoup himself. The lessee brought his own company, and represented pieces of his own choice, the defendant having no control over any person employed in the representation. It was held that the defendant had not caused the piece to be represented within the meaning of the Acts. In _Marsh_ v. _Conquest_[762] the defendant was the proprietor of a theatre, and his son, the acting manager, hired it for a "benefit." The Court held that the defendant came within the statute. Erle, C. J., delivered the judgment of the Court:

"It appears that the defendant is the proprietor of the Grecian Theatre, and the employer of the dramatic corps attached thereto; that his son, the stage manager, hired for his benefit-night the theatre, together with the company of actors, and servants, and lights, for the sum of £30; and that the son, in the defendant's theatre, and with the aid of his actors and actresses, musicians, servants, lights, and other paraphernalia, represented the dramatic piece in question, in violation of the plaintiff's sole and exclusive right of representing or causing it to be represented. I think the defendant is responsible for that representation. He was the proprietor of the theatre, and had entire control over the establishment and all belonging to it, and what was done by his son was done with his permission."

In _Monaghan_ v. _Taylor_[763] the defendant was the proprietor of a music hall, and paid a singer to perform, leaving him his own choice of songs. The singer sang a copyright song. The Court held that the defendant came within the statute. This decision would not now apply to musical performing right, since, by the Musical Copyright Act of 1888, a proprietor is not liable unless he permits the performance knowing it to be an infringement. It is still applicable to dramatic performing rights. Suppose, for instance, the proprietor of a variety theatre hired the services of a troop of players, telling them to fill up twenty minutes on the programme with any dramatic scene they pleased. If they infringed a dramatic copyright, the proprietor would be liable.

It seems to be doubtful whether if B, acting entirely as the agent of A, causes C and others to perform a dramatic piece, he can be held liable if he took no part in the representation. In _Parsons_ v. _Chapman_[764] Lord Tenterden, C. J., directed the jury that it was sufficient if the defendant caused the piece to be performed; and that it made no difference that he did so as an agent for others. This was a decision under 10 Geo. II. c. 28, and the principle should be the same under 3 & 4 Will. IV., and 5 & 6 Vict; but in _French_ v. _Day_[765] Kennedy, J., took a different view. One of the defendants was the manager of a theatre. He received instructions for the production of the piece in question from the proprietor, and he could not engage or dismiss artistes; he was in every respect bound to conform to his employer's orders. Kennedy, J., said:

"The whole thing was carried on by the proprietor, who merely used the manager as his mouthpiece. I think I ought not to hold that a person in his position 'represented,' or 'caused to be represented,' the piece."

=Knowledge.=--In an action for infringement of dramatic performing right it is unnecessary to prove that the defendant knew the performance was an infringement.[766]

=Innocent Agents.=--All the actors who take part in an unlawful performance are within the section as "representing," and are liable to penalties.[767]

=Licence.=--It is an infringement of performing right to perform "without the consent in writing of the author or other proprietor."[768] See decisions on licence as to copyright in books.[769] The licence must be in writing,[770] but it does not require to be written by the proprietor or signed by him or any one else.[771] The secretary of a dramatic author's society may, if he has authority, grant a good licence on behalf of the authors.[772] A part owner cannot grant a licence without the consent of the other part owners.[773]

SECTION X.--INFRINGEMENT OF MUSICAL PERFORMING RIGHTS.

=Substantial Part.=--The rule that the taking of a part but not of a

## particle in infringement applies equally to musical compositions and

to the performing rights therein. In _D'Almaine_ v. _Boosey_[774] the taking of airs from an opera and arranging them as quadrilles and waltzes was held to be an infringement of the copyright in the opera. Lord Lyndhurst said:

"Substantially the piracy is when the appropriated music, though adapted to a different purpose from that of the original, may still be recognised by the ear."

This test, however, will hardly apply to the piracy of an adaptation where the air or melody is a non-copyright one. A comparison of the actual notes and treatment of the phrases would have to be made.

=Public Performance.=--It has been contended that the protection afforded by 3 & 4 Will. IV. c. 15 to musical compositions is only an exclusive right of performance in places of dramatic entertainment. That is the protection given to dramatic pieces, and it was said that 5 & 6 Vict. c. 45, in applying 3 & 4 Will. IV. c. 15 to musical compositions did not give them a wider protection than dramatic pieces had. In _Wall_ v. _Taylor_[775] the Court held that this view was wrong. Bowen, L. J., said:

"I think the answer is this, that what is called in the argument a 'condition' of recovering a penalty in sec. 2 of 3 & 4 Will. IV. c. 15 is nothing of the kind, but part of the definition of the offence upon which the penalty is to be incurred.... The right granted is the privilege of representing at places of dramatic entertainment.... Now sec. 20 of 5 & 6 Vict. c. 45 creates a new right of property as to a musical composition, and gives the author and his assigns the sole liberty of representing or performing it. That is the right given, and sec. 21 says that the person who shall have that right 'shall have and enjoy the remedies given and provided' in the Act of 3 & 4 Will. IV. c. 15. Why read into that word 'remedies' that the second section of that

## Act is only to be put in force not where there is an infringement

of that right, but where there has been a representation or performance at a place of dramatic entertainment."

The view of Cotton, L. J., in the same case was that the remedies of 3 & 4 Will. IV. c. 15 were not applicable unless the musical composition was performed in a place of dramatic entertainment; but that in every case of public performance there was a remedy under 5 & 6 Vict. c. 45 for damages and injunction. Since the Musical Copyright Act of 1888 the distinction between these opinions has become immaterial, for in every case in which the performance is actionable at all the Court may assess the damages as it thinks proper.

=Causing to be Represented.=--The offence is representing or "causing to be represented." As to what the latter includes see page 139, on performing right in dramatic pieces. The liability for "causing to be represented" differs from that in the case of dramatic pieces in that since the Copyright (Musical Compositions) Act, 1888, "the proprietor, tenant, or occupier of any place of dramatic entertainment or other place at which any unauthorised representation or performance of any musical composition shall take place ... shall not by reason of such representation or performance be liable to any penalty or damages in respect thereof, unless he shall wilfully cause or permit such unauthorised representation or performance, knowing it to be unauthorised."[776] In respect of those who are not proprietors, tenants, or occupiers the liability is the same as in the infringement of dramatic performing right.

SECTION XI.--REMEDIES FOR INFRINGEMENT OF DRAMATIC PERFORMING RIGHTS.

An action for--

1. Penalty[777] of 40s. for each performance, or the defendant's profits, or the actual damage sustained, whichever be the greater. 2. Injunction.[778] 3. A full and reasonable indemnity as to costs.[779]

## Action must be brought within twelve calendar months of the

offence.[780]

SECTION XII.--REMEDIES FOR INFRINGEMENT OF MUSICAL PERFORMING RIGHTS.

An action for--

1. Damages.[781] 2. Injunction.[782] 3. Costs in the discretion of the Court.[783]

## Action must be brought within twelve calendar months of the

offence.[784]

##