In _Morris_ v. _Ashbee_,[590] Giffard, V_A Treatise Upon the Law of Copyright in the United Kingdom and the Dominions of the Crown, and in the United States of America Containing a Full Appendix of All Acts of Parliament International Conventions, Orders in Council, Treasury Minute and Acts of Congress Now in Force.

a business directory had been infringed in so far as the compilation

and arrangement of the advertisements and names of traders were taken

from the plaintiff's directory. In giving judgment he commented on

_Kelly_ v. _Morris_,[591] pointing out that the decision in that case

was not based solely on the fact that the information was reprinted

bodily by the defendants and then verified when possible:

"The decree is general in its terms, following _Lewis_ v.

_Fullarton_,[592] and the substance of the judgment is that in a

case such as this no one has a right to take the results of the

labour and expense incurred by another for the purposes of a rival

publication, and thereby save himself the expense and labour of

working out and arriving at these results by some independent

road."

In reference to the case before him the Vice-Chancellor said:

"It is plain that it could not be lawful for the defendants

simply to cut the slips which they have cut from the plaintiff's

directory and insert them in theirs. Can it be lawful to do so

because in addition to doing this they sent persons with the slips

to ascertain their correctness? I say, clearly not. Then, again,

would their acts be rendered lawful because they got payment and

authority[593] for the insertion of the names from each individual

whose name appeared in the slips? And to this again I answer,

clearly not. They had no right to make the results arrived at by

the plaintiff the foundation of their work or any material part of

it, and this they have done."[594]

In _Morris_ v. _Wright_,[595] another case of alleged infringement of

the same business directory, Giffard, L. J., distinguished it from

_Kelly_ v. _Morris_[596] and _Morris_ v. _Ashbee_,[597] inasmuch as

the plaintiff's work had only been used by the defendant as a guide to

original sources. He held that there was no infringement. Referring

to the passage quoted above from the judgment of Page Wood, V. C., in

_Kelly_ v. _Morris_,[598] he said:

"This passage does not mean that a subsequent compiler may not

look into the book for the purpose of ascertaining whether it was

worth his while to call upon that person or not, but it means that

he may not take that particular slip and show that to the person

and get his authority as to putting that particular slip in."[599]

So also quotations from and references to previous authors must not be

taken bodily from a rival work. They may be used as a guide and as a

guide only. Lord Hatherley, L. C., in _Pike_ v. _Nicholas_,[600] a case

of rival historical works on the same subject, said:

"Although the defendant might have been led to look more minutely

into _Prichard_ than he otherwise would have done by referring

to the plaintiffs work, still the plaintiff could not say, 'I,

having found these passages in _Prichard_, will prohibit all the

world who may find the same passages from making use of them.'

The moment he had given that degree of light to the defendant

which led him to refer to that common source, if the defendant did

really and _bonâ fide_ look at that common source, he did all that

this Court required him to do. He must not simply copy the passage

from the plaintiffs book, but, having been put on to the track,

and having looked at that particular part of the book which the

plaintiff led him to, he was entitled to make use of every passage

from that author which the plaintiff had made use of."[601]

In this case the quotation was proved to have been taken directly from

the plaintiff's work, but this was considered to be so small a taking

that the bill was dismissed, though without costs, the Court being

satisfied "that the book of the defendant was his own composition in

this sense, that wherever he got the materials from they were worked

up by him into his own language."[602]

It is no excuse for piracy to say that with a little labour the

copyist could have produced identically the same result.[603] The fact

that the result may be identical is a reason for not making a new

book, but it is no reason for copying another's book.

_Work with a Different Object._--An author is much less restricted in

the use which he may make of a previously published copyright book if

such book is of an entirely different nature or has a different scope

or object from his own work. Considerable portions may then be taken

for the purpose of comment, criticism, or illustration. Lord Eldon

suggested in one case[604] that a copyright map might be taken bodily

for the purpose of insertion in a book giving an historical account

of all the different maps of a particular district. In _Bradbury_

v. _Hotten_,[605] Kelly, C. B., suggested that a picture might be

reproduced amongst a large collection published for an entirely

different object from that which the first publisher had in view.

"We must consider in each case the intent of the copyist and the

nature of the work. A traveller publishes a book of travels about

some distant country like China. Amongst other things he describes

some mode of preparing food in use there. Then the compiler of a

cookery book republishes the description. No one would say that

was a piracy. So, again, an author publishes a history illustrated

with woodcuts of the heads of kings, and another person writing

another history of some other country finds occasion to copy one

of these woodcuts. That again would not be a piracy."[606]

These _obiter dicta_ illustrate sufficiently well the distinction

between taking for a rival work and taking for an entirely different

object; it is probable, however, that some of them go too far and

tend to follow the mistake of the older view of infringement in

looking more to the value of the work done by the plagiarist than to

the value of the material taken. As authoritative _dicta_ they must,

therefore, be accepted with caution. The best test of infringement

or no infringement in a taking of this kind is to inquire whether

the subsequent work by reason of the taking provides a substitute

for the whole or any substantial part of the prior publication. In

_Bradbury_ v. _Hotten_,[607] nine cartoons, illustrative of the career

of Napoleon III., were published in _Punch_ in nine several weekly

numbers. The defendants published a volume entitled "Story of the

Life of Napoleon, as told by popular Caricaturists of the last thirty

years," which contained among numerous other illustrations taken from

French and English comic journals the nine cartoons first produced

in _Punch_. This was held to be an infringement of the copyright in

_Punch_. In _Nicols_ v. _Pitman_[608] the defendant published in an

educational work for the purpose of instruction in shorthand writing

a lecture delivered by the plaintiff on "The Dog as the Friend of

Man." The Court held there was an infringement, because although the

lecture was reproduced in shorthand characters, it might by those

who could read shorthand be reasonably used as a substitute for the

lecture printed in ordinary characters. A compiler of an encyclopædia

or similar work would probably be allowed to quote to a certain

extent from copyright monographs, but this must not be carried to

such an extent as to supersede the original work.[609] Several cases

have been before the Courts on the verbatim copying of law reports

in whole or in part into legal treatises of various kinds. The

collection of all the reports on a particular branch of law such as

"Poor Law"[610] or "Registration of Voters,[611] is an infringement

of copyright if they are copied verbatim from previously published

from the reports of many different reporters.[612] In _Sweet_ v.

_Benning_,[613] a digest compiled by taking verbatim the head notes

from copyright law reports and arranging them under appropriate titles

was held to be an illegal publication, the Court being of opinion

that the defendant had been guilty of an abuse of the fair right of

extract, which the law allows for the purpose of comment, criticism,

or illustration. No doubt in text-books large portions of the head

notes, arguments of counsel, and judgments may be taken verbatim.

In an ordinary legal text-book it would require a very free use of

verbatim quotation to found the necessary argument that the text-book

provided even to the smallest extent a substitute for the original

reports. A more difficult question arises where volumes of leading

cases are published, the cases being reproduced verbatim from the

original reports but with extensive notes and comment. In _Saunders_

v. _Smith_,[614] the Court refused to decide whether "Smith's Leading

Cases" constituted an infringement of the original reports, judgment

going for the defendants on the ground of acquiescence. In the Irish

case of _Hodges_ v. _Welsh_[615] a similar problem was suggested but

not decided. The better view probably is that such a wholesale taking

is an infringement of the copyright of the original reporters.

_Extract for Purpose of Criticism._--Lord Eldon, in _Mawman_ v.

_Tegg_,[616 says:

"Quotation is necessary for the purpose of reviewing, and

quotation for such a purpose is not to have the appellation of

piracy affixed to it; but quotation may be carried to the extent

of manifesting piratical intention."

Considerable quotation may be made for the _bonâ fide_ purpose of

criticising a copyright book;[617] in one case[618] nearly a quarter

of a controversial article in a magazine was quoted in a reply

thereto published in another magazine, and the Court held that this

constituted no infringement, as the extracts were clearly inserted

for the purpose of criticism and argument. The question is whether so

much of the original work is extracted that the review substantially

communicates the same knowledge as the book reviewed.[619] Thus in

_Campbell_ v. _Scott_,[620] the defendant published "The Book of

Poets" containing, _inter alia_, an essay and biographical notice of

the poet Campbell, and, as the defendant said, by way of illustrating

the poet's works, a large number of his poems and extracts therefrom

were appended to the biographical notice without any particular

observations in the way of notes to individual pieces or extracts.

This was clearly an infringement of the poet's copyright. In a similar

case, _Smith_ v. _Chatto_,[621] the defendants published a book

entitled "Thackerayana." It purported to be a critical essay on the

life and works of Thackeray, and contained extensive quotations from

his writings, prefaced and interspersed with comments by the writer of

the book. Hall, V. C., held in fact that the defendants had inserted

the extracts for the purpose of increasing and enhancing the value of

their book, and that they had therefore infringed the copyright in

Thackeray's works.

_Improvement or Addition of New Matter no Excuse._--In the earlier

cases of taking material from a rival publication if it was shown

to have been greatly improved and added to, this was accepted as an

excuse for the piracy, on the ground that a new and more useful work

had been given to the public. Thus in _Sayre_ v. _Moore_[622] Lord

Mansfield said:

"If an erroneous chart be made, God forbid it should not be

corrected even in a small degree if it thereby become more

serviceable and useful for the purposes to which it is applied."

In _Cary_ v. _Kearsley_,[623] Lord Ellenborough said:

"While I shall think myself bound to secure every man in the

enjoyment of his copyright, one must not put manacles on science."

In _Martin_ v. _Wright_,[624] Shadwell, V. C., says:

"Any person may copy and publish the whole of a literary

composition provided he writes notes upon it so as to present it

to the public connected with matter of his own."

The theory of these early cases on infringement seems to have

been--colourable alteration is not to be allowed, but no check must

be put on the taking of material when it is taken _bonâ fide_ in the

interests of scientific or literary knowledge. Gradually, however,

the Courts in questions of infringement came to look more to the

interests of the author than to those of the public, and regarded the

law of copyright more as a means of securing rights of property to

the individual than as an unnatural monopoly created for the purpose

of encouraging and developing literary effort. Thus in _D'Almaine_ v.

_Boosey_,[625] in 1835, it was held to be an infringement to publish

the music of an opera in the form of waltzes and quadrilles, and this

notwithstanding that these waltzes and quadrilles would, if taken from

the music of a non-copyright opera, have been protected as original

works.[626] Since then many cases have followed on the same lines,

and no addition, correction, or improvement will now be accepted as

an excuse for taking a material part of a copyright publication.[627]

But although improvement and addition is no excuse for taking a

substantial portion of another author's work, the fact that there

has been such improvement and addition is not to be entirely ignored

in questions of infringement. It may be an important factor in

determining whether or not there has been a taking of a substantial

part.[628] We have seen that to determine that question the two

works must be taken as a whole and their relation to one another

considered, and particularly the relative value of the material

taken.[629]

_Dramatization of a Novel._--The representation on the stage of

a dramatized version of a copyright novel is not in itself an

infringement of copyright in such novel, since copyright only

prohibits the reproduction of copies, and representation on the stage

does not necessarily imply that a copy of the whole or any material

part of the novel has been made.[630] But if in dramatizing any

substantial passages are taken from the novel, it is an infringement

of copyright to print and publish the drama,[631] and in _Warne_

v. _Seebohm_[632] Stirling, J., held that the making of four

manuscript or typewritten copies of a drama taken from a copyright

novel--one for the Lord Chamberlain and the other three for use in

representation--constituted an infringement of the copyright in the

novel. In this case, as in _Tinsley_ v. _Lacy_,[633] considerable

passages in the play had been extracted verbatim from the novel.

Whether if no actual sentences be taken it is an infringement of

in short, the plot, is doubtful. In _Warne_ v. _Seebohm_ it was

suggested by Stirling, J., in his judgment, that a novel might be

lawfully dramatized if a few copies of the novel were purchased and a

drama compiled therefrom by cutting out and pasting in the passages

which it was thought desirable to take. This, however, would involve a

copying of the arrangement of scenes and events, and it is suggested

that even that might be an infringement.

_Abridgments._--Probably an abridgment in the ordinary sense of the

word, that is, the reproduction of a book in a shorter form, retaining

the general scheme and arrangement, and the sequence of ideas, would

now be held to be an infringement.[634] In the earlier cases, which

tend to excuse a taking by reason of the utility of additional work

bestowed upon the material taken, an abridgment is recognised as

a lawful use of a copyright book. In 1740 Lord Hardwicke, L. C., in

dealing with an alleged abridgment of Sir Matthew Hale's _Historia

Placitorum Coronæ_,[635] said:

"Where books are colourably shortened only they are undoubtedly

within the meaning of the Act of Parliament, and are a mere

evasion of the statute and cannot be called an abridgment. But

this must not be carried so far as to restrain persons from

making a real and fair abridgment, for abridgments may with great

propriety be called a new book, because not only the paper and

print but the invention, judgment, and learning of the author is

shown in them, and in many cases are extremely useful though in

some instances prejudicial by mistaking and curtailing the sense

of an author."

It will be noticed how completely this argument is founded on the

idea that an author may take the materials of another so long as he

sufficiently modifies it by such addition, extraction, or correction

as to give it the character of a new work. It is a good argument in

favour of a plaintiff who has dealt with a non-copyright work and

desires protection, but it would not now be considered a sound answer

to a charge of infringement. Since _Gyles_ v. _Wilcox_[636] it seems

to have been accepted as law that what was called a fair abridgment

would be allowed.[637] In _Dodsley_ v. _Kinnersley_[638] the Court

went so far as to admit as a fair abridgment a magazine article

containing about one-tenth of Dr. Johnson's "Prince of Abyssinia."

Selections were, it appears, taken and reproduced verbatim. The

same doctrine as to abridgments was repeated in _D'Almaine_ v.

_Boosey_:[639]

"It is a nice question what shall be deemed such a modification

of an original work as shall absorb the merit of the original in

the new composition. No doubt such a modification may be allowed

in some cases, as in that of an abridgment or digest. Such

publications are in their nature original. Their compiler intends

to make of them a new use, not that which the author proposed to

make. Digests are of great use to practical men, though not so,

comparatively speaking, to students. The same may be said of an

abridgment of any study, but it must be a _bonâ fide_ abridgment,

because if it contains many chapters of the original work or such

as made that work most saleable, the maker of the abridgment

commits a piracy."[640]

When the view as to plagiarism being excusable on account of its

utility began to alter, and the Courts began to look more to what

was taken and the value of it than to what labour was expended on it

afterwards, the view taken of abridgments began to change too. In

1844 one of Dickens' Christmas stories was abridged evidently much in

the same way as Dr. Johnson's tale in _Dodsley_ v. _Kinnersley_.[641]

Knight Bruce, V. C., held that there was an infringement:[642]

"The defendant has printed and published a novel, of which

fable, persons, names, and characters of persons, the age, time,

country, and scene are exactly the same, the style of language in

which the story is told is in many instances identical, in all

similar, except where certain alterations by way of extension or

substitution have been made, as to which whether they improve or

do not improve upon the original composition it is not necessary

for me to express any opinion. Now this has been said to be an

abridgment, and as an abridgment to be protected. I am not aware

that one man has the right to abridge the works of another. On

the other hand, I do not mean to say that there may not be an

abridgment which may be lawful, which may be protected; but to

say that one man has the right to abridge and so publish in an

abridged form the work of another without more is going much

beyond my notion of what the law of this country is."

In 1864 Lord Hatherley, then Sir William Page Wood, said:[643]

"The Court has gone far enough in the direction of sanctioning

fair abridgments; and it is difficult to acquiesce in the reason

sometimes given that the compiler of an abridgment is a benefactor

to mankind by assisting in the diffusion of knowledge."

_Translations._--There are two recent decisions in India to the effect

that the translation of an English book into an Indian language is

not an infringement of the author's copyright.[644] If we are to

be guided by the general principles of the law of copyright now

accepted by our Courts, I think these Indian decisions must be held

to be wrong. A translation takes everything in a book but the actual

words; it takes the selection of material and its arrangement, and is

certainly a very material taking of the work and labours of another.

The translator is making a profit from the author's work by using it

in a manner in which the author might have himself used it and made

a similar profit. The only real answer which the translator has is

that he has expended a great deal of skilled labour in putting the

author's book into another form. This might have been a defence fifty

years ago, but I do not think it is a good defence now. In England

there is no direct decision; although there are several _obiter

dicta_ to the effect that a translation is not an infringement. In

_Burnett_ v. _Chetwood_,[645] in 1720, there is a _dictum_ of Lord

Chancellor Macclesfield, in which he expressed his opinion that a

translation might not be within the prohibition of the Act (8 Anne

c. 19), "on account that the translator had bestowed his pains upon

it." In _Millar_ v. _Taylor_,[646] Yates, J., and in _Prince Albert_

v. _Strange_,[647] Knight Bruce, V. C., suggest that a translation

is not an infringement. In _Wyatt_ v. _Barnard_[648] it was held

that a translation would be protected as a new work, but it does not

follow that it is not an infringement of an old one. I think that

these English _dicta_ are practically useless as authorities, since

it cannot now be maintained that the translator will be permitted to

take the work of an original author merely because he "bestows his

pains upon it." In _Murray_ v. _Bogue_,[649] Kindersley, V. C., said

that if an English book were translated into a foreign language and

then retranslated into English without authority such translation

would be an infringement of the original work. If this is so, it is

difficult to see why the translation into the foreign language is not

also an infringement if done without authority. The translation and

the retranslation appear to be exactly on the same footing, both take

the substance of the book, the plot, the arrangement, the selection of

material; neither takes the author's words. If it is said that one

competes with the original which the other does not, the answer is

that it is no defence to say that an infringement is made for a wholly

different market from that which the original commands.[650] An author

is entitled not only to the uses which he does make of his work, but

also to the uses which he might make of it.

=Licence.=--A licence in writing[651] granted by the plaintiff to

the defendant is a good defence to an action for infringement. The

licence need not be written or signed by the proprietor himself. It

may be granted by an agent having authority.[652] It would seem that

a licence might be valid without being signed by any one. The onus

of proving a written licence lies upon the defendant in an action.

An assignee of the copyright is not bound by the licence granted by

his assignor, unless at the date of assignment he has notice of the

licence.[653] A licence, unlike an assignment, may be given before

the copyright has come into existence, or even before the work is

composed.[654] A licence from the Dramatic Authors' Society was held

to include the dramas composed by the members of the society after the

date of the licence.[655]

If an oral licensor were to sue in respect of acts done by the

defendant under his oral licence, the plaintiff's conduct would

probably be considered fraudulent, with the result that he would

be refused an injunction, get nominal damages, and have to pay the

defendant's costs.[656]

It need hardly be said that when the use for which a book is published

and sold includes a copying of the whole or part of it, such copying

is not an infringement, even although no express consent in writing

is obtained from the author, for instance, in the case of copy-books,

school maps, precedents of conveyancing. This, however, does not

entitle any one who uses the book to make a larger use of it in the

way of multiplying copies than that which must be presumed from the

nature of the publication.[657]

It has been suggested that a foreigner resident abroad, who had

obtained a copyright in the United Kingdom, could grant an oral

licence, if by the law of copyright in his own country an oral licence

would be valid.[658] I do not think this is sound.

=Abandonment.=--Copyright may be abandoned by giving a general

licence to print. Probably, however, this could only be done by some

declaration in writing.[659] The Common Law right in an unpublished

manuscript might be abandoned by leaving it for a long time in the

hands of others.[660] Copyright would not be lost or abandoned by the

fact of a book, during the life of the author, being allowed to remain

out of print.[661]

=Acquiescence and Delay.=--This is no ground of defence, unless in

the view of the Court it would make it a fraud afterwards to insist

on the legal right. It would seem that the defendant must show some

act on the part of the plaintiff inducing the defendant to infringe

or continue an infringement of the copyright.[662] At the best,

the defence is only an equitable one, and will avail no more than

to prevent the plaintiff from getting an injunction or substantial

damages, and as the costs are always in the discretion of the Court,

he might be ordered to pay the defendant's costs.

=Provision against the Suppression of Books.=--After the death of an

author, if the proprietor of his published work refuses to republish

it, and the book is thereby withheld from the public, the Judicial

Committee of the Privy Council may, on complaint, grant a licence to

the complainant to publish such book on such conditions as they may

think fit.[663] There is no record of any attempt to put in force the

provisions of this section.

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

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

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

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

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

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

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

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]

CHAPTER VI

SECTION I.--WHAT WORKS ARE PROTECTED.

The following works are protected under the Engraving Acts:

1. Every original engraving or print:[785]

2. [Made within the British dominions:][786]

3. First published within the British dominions:[787]

4. Which bears the date of first publication and the

proprietor's name thereon:[788]

5. And is innocent.[789]

The protection endures for twenty-eight years from publication.[790]

The protection is limited to the United Kingdom.[791]

=What is an Original Engraving.=--By 8 Geo. II. c. 13 (1734) copyright

is given to "every person who shall invent and design, engrave, etch,

or work in mezzotinto or chiaro oscuro, or from his own works and

invention shall cause to be designed and engraved, etched, or worked

in mezzotinto or chiaro oscuro any historical or other print or

prints."

In _Blackwell_ v. _Harper_[792] (1740) it was decided that the above

Act was not limited to works of invention such as an historical group,

but extended to the "designing or engraving anything that is already

in nature."

In _Jefferys_ v. _Baldwin_[793] (1753) it was held that prints of

herring fishing-boats were not within the protection of the Act.

By 7 Geo. III. c. 38 (1766), which was passed in consequence probably

of the doubt thrown upon the earlier Act by the above and other

decisions, the copyright in engravings is given to "all and every

person or persons who shall invent or design, engrave, etch, or work

in mezzotinto or chiaro oscuro, or from his own work, design, or

invention shall cause or procure to be designed, engraved, etched, or

worked in mezzotinto or chiaro oscuro any historical print or prints,

or any print or prints of any portrait, conversation, landscape,

or architecture, map, chart, or plan, or any other print or prints

whatsoever," and "to all and every person who shall engrave, etch,

or work in mezzotinto or chiaro oscuro, or cause to be engraved,

etched, or worked any print taken from any picture, drawing, model, or

sculpture either ancient or modern."

Notwithstanding this widely worded protection, doubts arose as to

whether lithographs and certain new processes of reproducing prints

came within the Acts, and in consequence a clause was inserted in

the Copyright Act of 1852[794] whereby it was declared that the

provisions of the Engraving Acts were intended to include prints taken

by lithography or any other mechanical process by which prints or

impressions of drawings or designs are capable of being multiplied

indefinitely.

Prints of every description, therefore, are protected under the

Engraving Acts, and it is immaterial whether the design produced is:

1. The imaginative invention of the maker,

2. Taken from some object in nature, or

3. Taken from some other work of art, such as a picture

or model.

_Originality._--The only originality required is an originality in

execution, _i. e._ the work must not be taken from some other print and

reproduce from that other print those characteristics of execution

wherein the peculiar merit of the engraver's art lies.

"The engraver produces his effects by the management of light

and shade, or as the term of his art expresses it, the _chiaro

oscuro_. The due degrees of light and shade are produced by

different lines and dots; he who is the engraver must decide on

the choice of the different lines or dots for himself, and on

his choice depends the success of his print. If he copies from

another engraving he may see how the person who engraved that has

produced the desired effect, and so without skill or attention

become a successful rival."[795]

_Map, Chart, or Plan._--It will be remembered that maps, charts, and

plans are included under the definition of books in the Copyright Act,

1842,[796] and receive protection as such. Doubt has consequently

been raised as to whether a map must comply with both the Engraving

Acts and the Literary Act in order to obtain protection, or whether

it will be sufficient to comply with the requirements of one only,

and if so, which. The decided cases are unsatisfactory. In _Stannard_

v. _Lee_[797] protection was claimed for a "Panoramic Bird's-eye view

of France and Prussia," with the railway and strategic positions

illustrating the Franco-Prussian War of 1870. This was not registered

as a book under the Copyright Act, 1842, and the objection was held to

be fatal. The judges in the Court of Appeal seemed to be of opinion

that the Act of 1842 had taken maps, charts, and plans out of the

protection of the Engraving Acts and placed them under the protection

of the Literary Act, consequently that the requirements of the latter

and not of the Engraving Acts must be observed. James, L. J., said:

"It was reasonable and proper to take a map out of the class of

artistic copyrights and to give to it the better and more complete

there would be, as I have pointed out clearly, great inconvenience

in having two laws of copyright as to two sets of maps or as to

the same set of maps."[798]

Mellish, L. J., said:

"I think it is a perfectly rational enactment that maps shall no

longer be included among works of art but be classed in future

with literary works."[799]

After this case had been decided a petition was brought to the Court

praying that another case, _Stannard_ v. _Harrison_,[800] in which

the same map had been copied, and to which the defendants had

consented to a decree for injunction and damages, should be reheard.

Bacon, V. C., refused the petition, and indicated in the course of

his judgment that a map not registered as a book might be protected

as an engraving if the claim was properly stated. The judgment in

_Stannard_ v. _Lee_,[801] he said, had gone on a question of pleading,

the plaintiffs having voluntarily brought their map under the category

of books. This is by no means a satisfactory explanation of the

decision in the Court of Appeal, as it is abundantly clear from the

judgments as reported that in the view of the Lords Justices the

of artistic works and placed them in the category of literary works.

Whether this is a correct view is another matter, but at present it

would seem to be law. It is submitted that the true view probably

is that a map may be protected under either Act if the requisite

formalities are observed. The Literary will probably give a wider

protection than the Engraving Acts. The Engraving Acts will protect a

map from infringement of the method of execution, that is to say, the

work which is the peculiar work of the engraver; while the Literary

Act will protect it not only from that, but from a piratical taking

of information imparted. Thus suppose a map of India giving battles

and dates and, say, the principal products of the various districts

marked with printed letters on the surface. It is difficult to see how

the taking of all these dates and products and placing them perhaps

printed in different letters on the new map could be an infringement

of the engraving copyright in the map; there is nothing in the nature

of a design or drawing taken; and yet it is quite clear it will be an

infringement under the protection afforded by a literary copyright,

because there is a taking of the particular expression by which

information is imparted.

_Engravings in a book_ are protected by the Copyright Act, 1842, as

part of the book, and, as such, do not require to comply with the

requirements of the Engraving Acts.[802] The protection of a print

forming part of a book is probably a double one, and if it had the

name and date inscribed would be protected without registration or

notwithstanding faulty registration of the book.

=Must the Engraving be made within the British Dominions.=--The Act

17 Geo. III. c. 57 giving a remedy by action for damages is expressly

confined to works made in Great Britain. The other two Acts, 8 Geo.

II. c. 13 and 7 Geo. III. c. 38, are not expressly limited to works

there made, but it has been held that the limitation is to be supplied

in them.[803]

"It is plain that the object of the legislature was to

protect those works which were designed, engraved, etched, or

worked in Great Britain, and not those which were designed,

engraved, etched, or worked abroad, and only published in Great

Britain."[804]

The Act 6 & 7 Will. IV. c. 59 extends the application of the Engraving

Acts to Ireland, and in section 2 there is a general proviso

protecting "any engraving or print of any description whatever ...

which may have been or which shall hereafter be published in any part

of Great Britain or Ireland." It is quite arguable that this extends

the protection to engravings wherever made if published in the United

Kingdom; but probably it would be held to be only applicable to

engravings made in the United Kingdom, and is merely a proviso that

there will be no copyright until publication in the United Kingdom.

The point, however, is one of great uncertainty.

Under the International Copyright Act, 1886,[805] works first produced

anywhere within the British dominions are protected equally with those

first produced in the United Kingdom. The doubt still remains whether

the engraving must not be made as well as first published within the

British dominions.

=The Engraving must be first Published within the British

Dominions.=--There is no protection until publication[806] except

at common law. Publication is an act which gives to the public an

opportunity on payment or otherwise of viewing the print. There

may probably be publication without offering copies for sale or

distribution. See as to publication of books[807] and pictures;[808]

but the analogy is not complete with either. There seems to be no

direct authority as to what constitutes publication of an engraving.

Before 1886 the work had to be published in the United Kingdom.[809]

Now first publication anywhere within the British dominions will be

sufficient to secure the copyright.[810]

=Date of First Publication and Proprietor's Name.=--It is a condition

precedent to protection that there must be truly engraved on each

plate, and printed on every print or prints[811]--

i. The name of the proprietor;

ii. The day of first publication.

This qualification of the engraver's right is only inserted in 8 Geo.

II. c. 13, and not in the subsequent Acts which extend the protection

to works not there included and give remedies not there given. It has

been held, however, that as the Acts are _in pari materia_ they must

be taken together, and the qualification in the first read into the

others.[812]

The proviso as to the name and date is a condition precedent to

protection, and not merely directory.[813] In one case Lord Hardwicke

thought that, although no action for penalties would lie unless the

name and date were correctly published, an injunction might be granted

even although the name and date were not published at all.[814] He was

probably wrong.

_Name of Proprietor._--There is some little doubt as to whether this

must be the name of the person who was proprietor at the date of

first publication or at the date on which protection is claimed. In

_Thompson_ v. _Symonds_[815] Lord Kenyon said:

"The name of the proprietor should appear in order that those who

wish to copy it might know to whom to apply for consent. It seems,

therefore, necessary that the date should remain, but that the

name of the proprietor should be altered as often as the property

is changed."

But Buller, J., in the same case, thought the proprietor always meant

the inventor and first proprietor, notwithstanding the property had

passed to his assignee. The point is certainly doubtful, but the

latter view that the name of the first proprietor only need be on

the print seems the more reasonable, and not contrary to the wording

of the Act. The proprietor need not be described as such on the

plate.[816] If his name is there it is sufficient, even if there is

more than one name and it is uncertain which is the proprietor.[817]

The proprietor need not be described by his full name, his surname

is sufficient.[818] When a partnership firm are proprietors of an

engraving the trading name of the firm is a sufficient designation,

inasmuch as it enables parties to know whom to apply to for

information.[819] If a single proprietor trades under the designation

of A. B. & Co. that is a sufficient designation.[820]

=Immoral Works.=--There will be no copyright in profane, libellous, or

indecent prints.[821]

=Duration of Protection.=--The statutory right begins on publication,

and runs for twenty-eight years from the day of first publishing.[822]

After publication protection will depend entirely on the statute.[823]

Before publication there is a common law right to prevent all

interference with what is a man's private property,[824] and to

protect this the formalities prescribed by the statute need not be

complied with.

SECTION II.--THE OWNER OF THE COPYRIGHT.

=The Engraver.=--The persons to whom the copyright is given by the

Acts are, "Every person and persons who shall invent or design,

engrave, etch, or work in mezzotinto or chiaro oscuro, or from his own

work, design, or invention, shall cause or procure to be designed,

engraved, etched, or worked in mezzotinto or chiaro oscuro any prints

... and every person who shall engrave, etch, or work in mezzotinto or

chiaro oscuro, or cause to be engraved, etched, or worked any print

taken from any picture."

The engraver, therefore, is the first owner of the copyright when

he does the work on his own behalf, or, if he does it on behalf of

another, executes it entirely from his own work, design, or invention.

=The Employer.=--When one man employs another to execute an engraving

it would seem that by the Acts[825] the copyright vests _ab initio_ in

the employer:

1. In the case of an engraving taken from another work of

art.

2. In the case of an engraving with an original design,

if it is executed from the employer's own work,

design, or invention.

An employer may be the inventor of a design even although he is unable

to draw, and would himself be unable to execute it. For instance, in

the case[826] of a war map for the Franco-Prussian war in 1870, it

was held that a publisher who had employed an engraver, giving him

material and instructions from time to time was the inventor, and

therefore the first owner in the copyright in the map. Bacon, V. C.,

said:

"As to whether the design or invention is that of the plaintiff

or not is a mere matter of character.... The compiler has proved

that it is the design of the plaintiff; that the plaintiff brought

to him his rough sketch or draught, a drawing of the same size

as the stone on which it was to be engraved, pointing out, as

the compiler has said, 'a rough sketch of the forts and towns to

give me an idea; he furnished me also with a large French map,

and some maps published in the _Times_ and _Daily Telegraph_; he

gave me notice also daily of the earthworks that were made and

produced, besides a picture published in the _Illustrated London

News_.' That the plaintiff cannot draw himself is a matter

wholly unimportant if he has caused other persons to draw for

him. He invents the subject of the design beyond all question.

He prescribes the proportions and the contents of the design;

he furnishes a part of the materials from which the drawing has

to be made in the first instance, and afterwards collects daily

from the proper sources, and even, if it be necessary to say so,

from official sources, the decrees, the reports, the bulletins

and accounts contained in the newspapers of the different phases

of the war, and especially of the places in which earthworks are

thrown up. These he communicates to the man whom he has employed

to make a drawing for him.... It is clear to my mind that this

is a work of diligence, industry, and for aught I know of genius

on the part of the plaintiff, for the notion never seems to have

occurred to the compiler himself."

If the person employed is the servant of the employer and not an

independent contractor, the whole right in the engraving will

probably, irrespective of the Acts, vest _ab initio_ in the

employer.[827]

=The Assignee.=--In one case[828] it was contended that there could

be no assignment under the Engraving Acts enabling an assignee to sue

in his own name, since these Acts only provide for the licence and

exemption from liabilities of a purchaser.[829] It was held, however,

that there could be an assignment, and that the assignee could sue in

his own name.[830]

As a licence is required to be in writing, signed by the proprietor

and in the presence of two or more credible witnesses,[831] so must

the assignment which passes a greater right.[832]

The sale of plates will not in itself operate as an assignment;[833]

but, if it were clearly intended to pass the whole right, probably it

would pass with the plates without assignment in writing.[834]

Before publication the whole right in the engraving, _i. e._ the

common law right, may be assigned without writing.[835]

SECTION III.--INFRINGEMENT OF THE COPYRIGHT.

=Prohibited Acts and Remedies.=--It is an offence "for any

print-seller or other person whatsoever"[836]--

1. To engrave, etch, or work, or in any manner copy and

sell the protected work.

2. To print, reprint, or import for sale any pirated copy.

3. Knowingly to publish, sell, or expose for sale, or in

any other manner dispose of any pirated copy.

4. To cause or procure any of these acts to be done.

For any such offence the remedy is an action in the High Court for--

i. Forfeiture of plates and sheets to proprietor for destruction.

[837]

ii. Penalty of 5s. for every published copy.[838]

iii. Damages.[839]

iv. Injunction.[840]

v. Inspection and Account.[841]

Further it is an offence--

5. Innocently to publish, sell, or expose for sale, any

pirated copy.[842]

6. To make a copy or copies, whether for sale or not.[843]

7. To cause or procure any of these acts to be done.

For any such offence the remedy is an action in the High Court for--

i. Damages.[844]

ii. Injunction.[845]

iii. Inspection and Account.[846]

Penalties and delivery of plates or copies may also be recovered by

summary proceeding before any two justices having jurisdiction where

the party offending resides.[847]

_Guilty Knowledge._--It will be noticed that in order to recover

penalties and forfeiture of copies under 8 Geo. II. c. 13, for the

offence of selling a piratical copy, it must have been committed

knowing the copy to have been produced without consent. In 17 Geo.

III. c. 57, however, the offence for which an action for damages lies

is merely "selling," thus not requiring proof of guilty knowledge. It

has been contended that the requirement of guilty knowledge in 8 Geo.

II. c. 13, should be read into 17 Geo. III. c. 57, and the action of

damages provided by the latter statute applied to guilty selling only.

This contention has been rejected as erroneous.[848]

_Limitation of Action._--Actions for penalties under the Acts must

be brought within three months of the discovery of the offence sued

on[849] and within six months after the committal of such offence.[850]

There is no express limitation in the Acts in respect of actions for

damages under 17 Geo. III. c. 57, and therefore such action will not

be barred for six years.[851]

_Costs._--The litigant if successful in an action for infringement

is to recover "full costs."[852] This proviso, however, has been

construed to mean nothing more than ordinary costs taxed as between

party and party.[853] Probably, however, they may be claimed as of

right and are not in the discretion of the Court under Rules of the

Supreme Court, o. 65, r. 1.[854]

_Copying for Private Use_ will probably be actionable under 17 Geo.

III. c. 57;[855] but no penalties could be recovered under 8 Geo. II.

c. 13, as under that Act the making must be a making for sale.

=What is a Piratical Copy.=--The right under the Acts is "the sole

right and liberty of printing and reprinting the same,"[856] and the

prohibition is against "engraving, etching, or working in mezzotinto

or chiaro oscuro or otherwise, or in any manner copying, in the whole

or in part, by varying, adding to or diminishing from, the main

design."[857]

The taking of a material part is a piracy;[858] the copy which

contains a material part of a copyright engraving is a piratical copy,

and it is an offence to import or sell it.[859]

The copyright in an engraving may be infringed otherwise than

by another engraving. Thus a photograph of an engraving is an

infringement of the copyright in it.[860]

It is doubtful how far the Engraving Acts protect the design in

an engraving. It is clear that when an engraving is taken from a

work of art previously existing, such as a pen and ink drawing or

a painting, the engraving is only copyright so far as the work of

the engraver[861] is concerned; that is to say, apart from the

the engraver acquires no monopoly[862] of the right to engrave the

picture; the fact of his being the first engraver does not prevent

others from doing the same, they can only be prevented from copying

from his engraving the peculiar execution of the design. In _Dicks_ v.

_Brooks_[863] a printed pattern for Berlin wool work was taken from

an engraving of the well-known picture "The Huguenot," by Millais.

The owner of the copyright in the engraving sued for infringement.

It was held that the printed pattern constituted no infringement of

his engraving; it contained no reproduction of that which was the

engraver's meritorious work in the print. But if the whole invention

and design of the engraving is the engraver's own do the Engraving

Acts protect the engraver in such design and invention? There is no

authority where the point has been expressly considered and decided.

It is suggested that the Engraving Acts protect that part of an

engraving only which is the result of the engraver's peculiar art;

for the rest, for the design, for the invention, for the grouping of

the figures, protection can only be obtained under the Act protecting

drawings, or (in the case of maps) under the Literary Copyright Act,

or at common law. In _Roworth_ v. _Wilkes_[864] Lord Ellenborough

considered a copying of the design was an infringement of copyright

under the Engraving Acts. The action was in respect of an alleged

infringement of certain plates in a treatise on fencing. These plates

had been copied in so far as the position of the figures went, but

they were represented as differently dressed. His Lordship, in

directing the jury, said:

"As to the prints, the question will be whether the defendant has

copied the main design ... it is still to be considered whether

there be such a similitude and conformity between the prints that

the person who executed the one set must have used the others as

a model. In that case he is a copyist of the main design. But if

the similitude can be supposed to have arisen from accident, or

necessarily from the nature of the subject, or from the artist

having sketched designs merely from reading the letterpress of

the plaintiffs work, the defendant is not answerable. It is

remarkable, however, that he has given no evidence to explain the

similitude or to repel the presumption which that necessarily

causes."

In _Martin_ v. _Wright_[865] it was held that when an artist had from

sketches of his own produced an engraving, and the defendant had it

copied on canvas in colours on a very large scale, with dioramic

effect, and publicly exhibited it, such a copying and exhibiting was

no infringement of the engraving. The ground of this decision seems

to have been partly that the merit of the new work had absorbed the

merit of the old. Thus Shadwell, V. C., prefaces his judgment with the

remark that "any person may copy and publish the whole of a literary

composition provided he writes notes upon it, so as to present it to

the public connected with matter of his own."[866] Another ground of

the decision seems to have been that the diorama was produced for

purposes of exhibition and not of sale. The real point, whether the

Acts protected more than that which was peculiar to the engraver's

art, does not appear to have been considered either in the argument

or judgment. In _Dicks_ v. _Brooks_[867] James, L. J., appears to have

been of opinion that 8 Geo. II. c. 3, in protecting the work of an

engraver where the invention and design was his own, protected not

only the work peculiar to the engraver's art, but the invention and

design of the pictures as well.

"These words were intended to give protection for the genius

exhibited in the invention of the design, and the protection was

commensurate with the invention and design."[868]

Bramwell, L. J., however, seems inclined towards the opposite view. He

says:

"I do not say that if this were an ordinary engraving with no

picture, a lithograph taken from it would not be a copy. I think

that a photograph taken from it would be a copy. I do not say that

if this were an original engraving with no picture, and a copy

were made of it and afterwards coloured there might not be some

ground for saying that there was a piracy of the art and skill of

the engraver. I should have very great misgiving about it, because

I doubt whether the statutes were not intended to protect the

artist's skill as an engraver only, and not as a draftsman."[869]

It is no defence to an action for infringement that the work has been

extensively added to or improved.[870]

Striking prints from the proprietor's own plate has been held not

to be an infringement, although it was clearly an unauthorised act

and a breach of contract.[871] Thus a printer who had plates in his

possession would not infringe the copyright and be liable to penalties

by striking copies for his own use, but he would be liable in damages

for breach of contract.

_Licence a Defence._--A licence in order to be a defence must be

in writing signed by the proprietor in the presence of two or more

credible witnesses,[872] but a licensee who is also a purchaser

of any plates for printing may presumably without any document in

writing print from the said plates without incurring penalties[873]

under 8 Geo. II. c. 13 or 7 Geo. III. c. 38, but _quære_ whether such

purchaser would not technically be liable to damages under 17 Geo.

III. c. 57. A bare licensee, although a purchaser of plates, could not

authorise third persons to print from the plates except as his agent

and on his behalf.[874]

CHAPTER VII

SECTION I.--WHAT WORKS ARE PROTECTED.

The following works are protected under the Sculptures Act:

1. Every original sculpture:[875]

2. First published within the British dominions:[876]

3. [The author of which is a British subject or resident within the

British dominions]:[877]

4. Which bears the proprietor's name and the date [of first

publication] thereon:[878]

5. And is innocent.[879]

Protection endures for fourteen years from publication, and another

term of fourteen years if the author is then alive and retains the

Protection is probably limited by implication to the United

Kingdom.[881]

=What is an Original Sculpture.=--The work protected is "any new and

original sculpture, or model, or copy, or cast of the human figure or

human figures, or of any bust or busts or of any part or parts of the

human figure clothed in drapery or otherwise, or of any subject being

matter of invention in sculpture, or of any alto or basso-relievo

representing any of the matters or things hereinbefore mentioned, or

any cast from nature of the human figure or of any part or parts of

the human figure, or of any cast from nature of any animal or of any

part or parts of any animal, or of any such subject containing any

of the matters or things hereinbefore mentioned, whether separate or

combined."[882]

In one case it was contended that the Act only applied to

representations of human figures and animals. North, J., however, held

that "any new and original sculpture" applied to any subject "being

matter of invention in sculpture," and that casts of fruit and leaves

used for instruction in drawing were protected.[883]

Carefully modelled toy soldiers have been protected as works of

sculpture.[884]

=The Sculpture must be First Published within the British

Dominions.=--The Act provides that protection shall run from the

first publication of the work.[885] Before 1886 it is possible that

first publication within the United Kingdom was required, now first

publication anywhere within the British dominions will vest the

destroy it.[887]

_Publication._--A work of sculpture is published when the "eye of

the public"[888] is allowed to rest upon it, that is to say when the

sculpture itself and not merely a photographic copy or sketch is so

exhibited that the general public have an opportunity of viewing

it.[889] Exhibition in any public gallery such as the Royal Academy

would be publication; but a private view in the artist's studio would

not be publication.

=Author's Nationality.=--It is extremely doubtful whether the author

must not at the time of first publication bear some allegiance to the

crown by virtue of nationality or residence. If this is so in the case

of books,[890] there seems to be no good ground for saying that the

statute as to sculpture[891] was intended to be more generous to the

foreigner than that as to books.[892]

=Proprietor's Name and Date.=--The protection given by the Sculpture

Act is conditional on the proprietor or proprietors having caused his,

her, or their name or names with the date to be put on every sculpture

before the same shall be put forth or published.[893]

_Proprietor's Name._[894]--As to what will probably be a sufficient

statement of the proprietor's name, see the cases on engravings[895]

on which also the proprietor's name is required. As to this provision

the two statutes seem to be _in pari materia_ and the cases equally

applicable to both.

_Date._--It is not stated what date: but there can be no reasonable

doubt but that the date of first publication is intended. The older

statute governing sculptures[896] (now repealed) required the

proprietor's name and "date of publication." The International Act,

7 & 8 Vict. c. 12, in reciting the provisions as to sculptures,

runs "and by the said Acts[897] it is provided that the name of the

proprietor, with the date of first publication thereof, is to be put

on all such sculptures." It should be noticed, however, that both

statutes were then in operation and 38 Geo. III. c. 71 had not yet

been repealed, so that the recitation in 7 & 8 Vict. c. 12 may apply

only to the provision in 38 Geo. III. c. 71, and is not necessarily

explanatory of 54 Geo. III. c. 36. There can be no doubt, however,

that the omission in 54 Geo. III. c. 56 to state what date was

required was an oversight, and everything points to its being the

date of first publication that is meant. The statutory protection

begins then, and from then the duration of the copyright is measured

so that there is strong reason for the public being apprised of the

date of first publication, while the date of making, which is the only

other conceivable date, is of no importance. When the date affixed

was a date a few days before publication, Wright, J., held it was

immaterial, as it would only shorten the term of the copyright.[898]

=Immoral Works.=--Profane, libellous, or indecent works will not be

protected. There are no direct authorities in respect of unlawful

works of sculpture, but as in books,[899] paintings,[900] and

engravings[901] the general policy of the law not to take an account

between wrong-doers will apply.

=Duration of Protection.=--Statutory protection commences on

publication.[902] Before publication the unpublished work will

be protected at common law from any use which may be made of it

without the permission of the owner. After publication the statutory

protection alone exists and subsists for fourteen years[903] with a

further term of fourteen years if at the expiration of the first term

the person who originally made or caused the sculpture to be made is

alive and has not parted with the copyright.[904]

SECTION II.--THE OWNER OF THE COPYRIGHT.

=The Artist.=--If a work of sculpture is made by an artist on his own

behalf he becomes on publication the proprietor of the copyright if

before publication he has not assigned his interest in the work.

=The Employer.=--If one procures an artist to make a work of sculpture

for him the employer will be _ab initio_ the owner of the copyright

without any necessity for assignment from the artist. In order so to

vest the work the employer, it would seem, requires to take no part in

the invention or design of the work. If he causes the work to be done,

he comes within the Act. No valuable consideration need be shown.

=The Assignee.=--Assignment must be under seal, _i. e._ by a deed in

writing signed by the proprietor in the presence of and attested by

two or more credible witnesses.[905]

SECTION III.--INFRINGEMENT OF THE COPYRIGHT.

=Prohibited Acts and Remedies.=--The Act (54 Geo. III. c. 56) gives to

the proprietor "the sole right and property" of works in sculpture.

The prohibited Acts are[906]--

1. Making a pirated copy.

2. Importing a pirated copy.

3. Exposing for sale or otherwise disposing of a pirated copy.

4. Causing any of these acts to be done.

The remedy is an action at the suit of the proprietor for[907]--

i. Damages.

ii. Injunction.

iii. Costs--"a full and reasonable indemnity."[908]

_Guilty Knowledge._--Ignorance is no defence to an action in respect

of any of the prohibited Acts, even that of selling.

_Limitation of Action._--All actions under the Act must be commenced

within six months of the discovery of the offence sued on.

_Copying for Private Use._--Either making or importing a single copy

for private use would technically be an infringement. The prohibition

is not limited to making or importing for sale, hire, exhibition, or

distribution, as in the case of paintings, &c., under 25 & 26 Vict. c.

68, sec. 6.

=What is a Piratical Copy.=--A pirated copy may be "produced by

moulding or copying from or imitating in any way any of the matters or

things put forth or published under the protection of the Act ... to

the detriment, damage, or loss of the proprietor."[909]

The prohibition is against "imitating in any way." This prohibition

does not seem so wide as that in 25 & 26 Vict. c. 68, which prohibits

the multiplication of a painting or drawing or the design thereof.

It is more similar to the prohibition in the Engraving Act 8 Geo.

II. c. 13, viz., against engraving, &c., "or in any manner copying"

a copyright print. It seems therefore to be open to question as with

engravings whether a piece of sculpture can be infringed except by

some work of art which reproduces the peculiar art of the sculptor.

Would a piece of sculpture be infringed by a picture, sketch, or

engraving copying the design of the work?

Licence would be a defence, and it probably does not require to be in

writing. There is nothing in the Act from which the necessity for a

licence to be in writing could be implied.

CHAPTER VIII

SECTION I.--WHAT WORKS ARE PROTECTED.

The following works are protected under the Fine Arts Copyright Act,

1862:

1. Every original painting, drawing, and photograph:[910]

2. Not first published outside the British Dominions:[911]

3. The "author" of which is a British subject, or is resident

within the dominions of the crown [when the

work is made]:[912]

4. Which has been registered before infringement:[913]

5. And is innocent.[914]

Protection vests at the date of making, and endures for the author's

life and seven years.[915]

Protection is limited to the United Kingdom.[916]

=Every Original Painting, Drawing, and Photograph.=--There is no

attempt to define what is a painting, drawing, or photograph within

the meaning of the Act.[917] The substances used in the making are no

doubt immaterial, so long as the result is _ejusdem generis_ with what

is ordinarily meant by a picture, drawing, or photograph. A painting

on the wall of a house would doubtless be protected, but not a design

created by grouping figures in a _tableau vivant_.[918]

_Originality_ as an essential of protection means that there must be

something either in the design or execution of the work which is not

merely copied from some other artistic work. The whole work need not

be original. Thus the execution may be original but not the design,

as in the case of a photograph of an old picture;[919] or part only

of the design may be original, as in the case of the design of an

old drawing added to or altered. In so far as the work is new there

will be protection, but in so far as it is old there will be no

protection.[920]

_Artistic Merit._--The Court will not inquire as to whether a

painting, drawing, or photograph is good, bad, or indifferent. If it

consists in the representation of some object by means of light and

shade or colour, it will suffice, and even the coarsest or the most

commonplace, or the most mechanical representation of the commonest

object would be protected so that an exact reproduction of it, such

as photography, for instance, would produce, would be an infringement

of copyright.[921] Probably there must be a representation of some

concrete object, real or imaginary. Protection, for instance, was

refused to a label for Eau de Cologne,[922] which merely bore the

legend "Johanna Maria Farina gegenüber dem Julichs Platz," written in

copperplate with sundry dots and flourishes. It was held that any one

who had a right to sell Farina's Eau de Cologne might manufacture and

use the label, since although the label was a trade mark there was no

it would undoubtedly be copyright, as the use to which a work of art

is put is immaterial, but it is doubtful whether a label containing

merely geometrical figures and fancy dots and lines would be protected

under the Act of 1862. Probably it would not.

=Publication outside the British Dominions.=--Copyright in works of

art under the Act of 1862 begins on the making thereof, and is not

dependent on publication. It is immaterial where the work is made,

whether in the British dominions or elsewhere, and it would be as

immaterial where it was first published, or whether it was published

or not, but for the provision of the International Copyright Act,

1844. Section 19 of this Act provides that the maker of a work of art

which shall be first published out of the British dominions shall not

have copyright therein otherwise than such as he may become entitled

to under the International Acts; which means that where there is no

treaty a work first published abroad is not protected at all. The

result of this section was evidently not contemplated when the Fine

Arts Act, 1862, was framed. There seems to be no doubt that the work,

wherever made, will acquire copyright immediately on the making, but

that that copyright may be lost if the work is published abroad before

it is published in the British dominions.

_Published._--A painting, drawing, or photograph is probably published

when it is so exhibited as to give the public an opportunity of

viewing it. The leading case on publication of works of art is

_Turner_ v. _Robinson_[923] in the Court of Chancery in Ireland. This

case was decided before 1862, and therefore before there was any

statutory copyright in paintings. The subject-matter was a painting

from which certain stereoscopic views had been taken without the

proprietor's consent. The painting had been previously, with the

consent of the proprietor, published in the form of an engraving

in a magazine, and exhibited at the Royal Academy in London and in

Manchester. It was then exhibited with the proprietor's consent

in Dublin for the purpose of obtaining contributors to a proposed

engraving, and while so exhibited the defendant, without consent,

copied it and produced his stereoscopic photographs. The Master of the

Rolls[924] thought that the picture had never been published, because

the exhibitions to the public in the Academies and in Dublin were on

the condition that no copies should be taken, and the engraving in the

magazine was not a publication of the picture, but only of a rough

representation of it. He therefore held that the common law right in

the picture had not been lost by publication, and that the proprietor

could recover against the taker of the stereoscopic views as against

an infringer of common law rights. The Court of Appeal in Chancery

upheld the judgment of the Master of the Rolls, but on different

grounds. They said it was unnecessary to decide whether there had been

publication in London and Manchester since, in their opinion, the act

of the defendant in taking stereoscopic views from the painting was a

breach of faith. He was admitted to the view in Dublin for one purpose

only, _i. e._ to become if he wished a subscriber to an engraving; but

he abused his privilege by taking a copy of the painting which might

well compete with the plaintiff's proposed engraving. The defendant

was, therefore, restrained on the ground of breach of faith or implied

contract. In his judgment the Lord Chancellor disapproved of the

view of the Master of the Rolls that there had been no publication

in London or Manchester. He thought exhibition in the Academy,

even although to a certain extent conditional, would be sufficient

publication to vest the copyright, _e. g._ in a work of sculpture

under the statutes applicable to such works. Exhibition in a public

gallery, therefore, would be publication, but not a private view in

the artist's studio to which only a small and selected portion of

the public are invited. Whether the publication of a print would be

publication of the picture from which it was taken, _quære_; the

Master of the Rolls thought not, and on this point the Court of Appeal

neither approved nor disapproved.

=Nationality or Residence of Artist.=--The protection of the Act

is expressly limited to the works of British subjects and of such

foreigners as are resident within the dominions of the Crown.[925]

There is no direction in the statute as to the time when the author

must possess the requisite nationality or residence. Must it be at the

time of making or at the time of publishing, or both? It is submitted

that it must be at the time of making, since copyright in the work

vests at that time, and there may never be publication at all. There

seems to be no reason for suggesting that the date to be looked at is

the date of publication, except that the next words in the section

provide that the work may be made anywhere, and the proviso as to the

residence of the author, if applied at the date of making, means that--

1. A work by a British subject may be made anywhere; but,

2. A work by an alien must be made within the dominions of the Crown.

There does not seem to be anything absurdly contradictory in this, and

there is, on the other hand, a patent absurdity in not being able to

determine whether the author is an author within the Act until long

after the right has begun to run.

=Registration.=--A condition precedent to protection is registration

in the book kept at the Hall of the Stationers' Company.

_The Requisite Entry._--There must be registered:

1. Name and place of abode of the "author."

2. Name and place of abode of the proprietor.

3. Short description of the nature and subject of the work.

And if desired,

4. A sketch outline or photograph of the work.

The wording of section 4 of the Act of 1862 providing for compulsory

registration is very confused, the requirements on first registration

being unaccountably mixed up with the requirements on subsequent

assignment.

On first registration whenever it takes place it is submitted that the

particulars entered should be as above.[926] The author and proprietor

may very likely be the same individual, in which case the one name

will be entered twice, once under each description. It would probably

not be sufficient merely to enter the author's name once as author

and leave it to be implied that he is the owner. Even if the author

and proprietor are different persons, either because the author has

been employed for valuable consideration or because he has granted

an assignment, the particulars to be entered on first registration

are the same, no entry of the terms of employment or assignment being

necessary.[927] The real proprietor must be on the register, and if

the wrong person is registered as proprietor it will not give a cause

of action to join such person as co-plaintiff with the real proprietor

who is not on the register.[928]

As in the Literary Copyright Act, copyright in the work exists before

registration, but no action is maintainable without registration, and

under this Act even after registration there is no remedy in respect

of infringement committed before registration.[929]

It need hardly be said that the necessity of registration only

applies to an action on copyright proper, and an action will without

registration lie on breach of contract, express or implied,[930] and

probably on the common law right of an author and his assigns in

unpublished work.[931]

If an unauthorised copy is made before the proprietor is registered

but sold afterwards, an action for damages will lie for the offence of

selling such copies, but no action for penalties.[932] No action at

all will lie for making.[933]

If an action is brought by an assignee, such assignee must be on

the register as proprietor,[934] and it will not avail to join as

co-plaintiff an unregistered assignee with the assignor who although

registered has parted with the copyright.[935] An assignee taking

from a registered assignor probably cannot sue in respect of acts of

infringement committed before the registration of the assignment.[936]

It is not necessary that the original proprietor, whether author or

employer, should have been registered,[937] but once registration

has been effected it would seem that all future assignments must be

entered on the register.[938]

The registration by an assignee under an assignment, subsequent to

first registration, must contain the following particulars:[939]

1. Date of assignment.

2. Names of parties to the assignment.

3. Name and place of abode of the assignee.

4. Name and place of abode of the author.

5. Short description of nature and subject of the work.

And if desired,

6. A sketch outline or photograph of the work.

The enactments of 5 & 6 Vict. c. 45 (the Literary Copyright Act) as to

1. Keeping the Register Book;

2. Searches and certified copies therefrom;

3. False entries;

4. Application to expunge,

apply _mutatis mutandis_ to registration of paintings, drawings, and

photographs.

The charge for making an entry is one shilling.

_Name._--The trading style of a firm is a sufficient registration of

the name of a proprietor.

_Place of Abode._--The place where a man can readily be found on

inquiry is sufficient. A business address is a "place of abode" within

the statute.

_Short Description of the Nature and Subject of the Work._--The title

of the work will sometimes be a sufficient description. The following

were held sufficient descriptions of Sir John Millais' well-known

pictures, viz.: "Painting in oil, 'Ordered on Foreign Service'";

"Painting in oil, 'My First Sermon'"; "Photograph, 'My Second

Sermon.'"[940] Blackburn, J., said:

"It is the object of the legislature that enough be stated to

identify the production, and that the registration must be _bonâ

fide_, that a man shall not first claim one thing and then sue

for another. The description must be such as shall earmark the

subject.... The picture 'Ordered on Foreign Service' represents

an officer who is ordered abroad taking leave of a lady, and no

one can doubt that is the picture intended.... There may be a

few instances in which the mere registration of the name of the

picture is not sufficient: for instance, Sir Edwin Landseer's

picture of a Newfoundland dog might possibly be insufficiently

registered under the description of 'A Distinguished Member of the

Humane Society.' So also of a bullfinch and a couple of squirrels

described as 'Piper and a Pair of Nut-crackers.' ... It would be

advisable for a person proposing to register to add a sketch or

outline of the work."[941]

In the learned judge's opinion deficient description although it would

not be sufficient in itself, may be made sufficient by the addition of

a photograph, sketch, or outline. It would seem, however, that there

must be a description of some kind, and that a photograph or sketch

would not by itself be sufficient.

=Immoral Works.=--There will be no copyright in profane, libellous, or

indecent[942] works of art.

=Duration of Protection.=--The copyright under the Fine Arts Act

endures for the term of the natural life of the "author" and seven

years after his death.[943]

negative of any photograph is sold by the first owner thereof without

either the express reservation in writing of such copyright to the

vendor signed by the vendee or his agent, or the express assignment in

writing of such copyright to the vendee signed by the vendor or his

agent.[944]

The copyright will also cease (probably) if the work is published out

of the British dominions before publication within the dominions.[945]

SECTION II.--THE OWNER OF THE COPYRIGHT.

=The Author.=--The copyright is given to "the author and his assigns,"

except when the work is executed for or on behalf of any other person

for a good or valuable consideration.[946] The author is the actual

artist whose mind has created the work.[947] The giving of ideas and

suggestions to another is not sufficient to constitute an author,[948]

but, on the other hand, there might be an author who had done little

or nothing of the manual work required in the execution. In _Nottage_

v. _Jackson_ the question of authorship in works of art was fully

discussed. Brett, M. R., said:

"The author of a painting is the man who paints it, the author of

a drawing is the man who draws it,... of a photograph the author

is the person who effectively is as near as he can be the cause

of the picture which is produced, that is, the person who has

superintended the arrangement, who has actually formed the picture

by putting the people into position and arranging the place in

which the people are to be--the man who is the effective cause of

that. Although he may only have done it by standing in the room

and giving orders about it, still it is his mind and act, as far

as anybody's mind and act are concerned, which is the effective

cause of the picture such as it is when it is produced."

Cotton, L. J., in the same case, said:

"In my opinion 'author' involves originating, making,

producing, as the inventive or master mind, the thing which is

to be protected, whether it be a drawing or a painting or a

photograph.... It is not the person who suggests the idea but the

person who makes the painting or drawing who is the author."

=The Employer.=--When an artistic work, protected by 25 & 26 Vict. c.

68, is executed by the author for or on behalf of any other person for

a good or valuable consideration, the copyright vests in the employer

and his assigns, unless it be expressly reserved to the author by

agreement in writing signed by the employer.[949] This provision

applies to the everyday case of a person employing and paying a

painter or photographer to take his portrait. The copyright vests

in the customer.[950] The case, however, is not always so simple.

Difficult questions arise where the artist, usually a photographer,

requests the sitter, probably an actress or athlete, to allow his

portrait to be taken on the understanding that the artist may publish

and sell copies.[951] The sitter probably receives free copies or

copies at a reduced price. The difficulties to be solved are purely

questions of fact in each case, viz.:

1. Was the portrait taken for or on behalf of some person

other than the artist?

2. Did the artist receive good and valuable consideration?

As a rule, where a photographer invites celebrities to sit for

him, the understanding will be that the portrait is taken on the

photographer's behalf;[952] but at the same interview some plates

might be taken on behalf of the photographer and some on behalf of the

sitter.[953] The valuable consideration received by the photographer

need not be a money payment, but may consist merely in the right given

to him to publish and sell copies.[954]

When a managing director of a company employed A to make drawings for

a trade catalogue, the letterpress of which he wrote himself, it was

held that he was acting merely as agent for the company, and that as

the drawings were made not on his behalf but on behalf of the company

he was not the proprietor.[955]

=The Assignee.=--Assignment is required to be by some note or

memorandum in writing signed by the proprietor of the copyright or his

agent appointed for that purpose in writing.[956] Registration is not

necessary to effect assignment,[957] although the assignee must be

registered before he can sue.[958]

No particular words are required in an assignment,[959] but there must

be a present grant and not only an executory contract.[960]

_Partial Assignment._--It is doubtful whether a copyright can be

partially assigned, either limited as to a copying of a particular

kind or limited as to place or time.[961] What is called by the

parties an assignment may only amount to a licence. In _Lucas_ v.

_Cooke_[962] the proprietor of the copyright in a picture granted the

following document to an engraver: "I assign to you for the purposes

of an engraving of one size the copyright of the picture painted by

Mr. E. V. Eddie, entitled "Going to Work," and being a portrait of my

daughter." Fry, J., said:

"The result of this instrument in my view was that after the

preparation of the engraving and the registration, Mr. Lucas (the

engraver) became the owner of the copyright of the print or

engraving, and Mr. Halford remained the owner of the copyright of

the painting."

It was held that the engraver, in order to succeed against a copyist,

would have to show that the alleged infringement was a copy of his

engraving, another copy of the picture itself was no infringement of

his rights. The transaction was a licence, and probably a licensee can

never sue in his own name. In one case,[963] however, Mathew, J., held

that a sole licensee for a limited time could sue, and did not require

to be registered. The plaintiff had acquired from the proprietor of

the copyright in a picture the sole right to reproduce it in chromo

for two years. The defendants also produced a chromo of the picture

taken directly from the picture and not from the plaintiff's chromo.

Mathew, J., held that the plaintiff, as sole licensee, was entitled to

prevent any one infringing his right, and that being a licensee and

not an assignee, his name was not required to be on the register. This

is a very doubtful decision.

SECTION III.--INFRINGEMENT.

=Prohibited Acts and Remedies.=--The right given is "the sole and

exclusive right of copying, engraving, reproducing, and multiplying a

painting or drawing and the design thereof, or a photograph and the

negative thereof by any means and of any size."[964]

It is an offence for the author having parted with the copyright, or

for any other person not being the proprietor[965]--

1. To repeat, copy, colourably imitate or otherwise

multiply for sale, hire, exhibition, or distribution.

2. Knowingly to import into the United Kingdom, or sell,

publish, let to hire, exhibit, or distribute, or offer

for sale, hire, exhibition, or distribution any copy

unlawfully made.

And for any of the above offences an action lies at the instance of

the proprietor for[966]--

i. Sum not exceeding £10 on each copy made or dealt

with.[967]

ii. Forfeiture of copies to the proprietor.[968]

iii. Inspection and account.[969]

iv. Damages.[970]

v. Injunction.[971]

Penalties and forfeiture of copies may also be obtained by summary

proceedings before any two justices having jurisdiction where the

party offending resides.[972]

It is further an offence--

3. Innocently to import or sell, publish, let to hire, exhibit,

or distribute, or offer for sale, hire, exhibition,

or distribution any copy made without the

owner's consent.

For any of which an action lies at the instance of the proprietor of

the copyright for[973]--

i. Damages.

ii. Delivery up of copies,

iii. Inspection and account.[974]

iv. Injunction.[975]

In addition to sections 6 and 11, where importing is treated as an

infringement involving penalties and damages, section 10 contains a

direct prohibition against importing copies "made contrary to the

provisions of the Act," and on the declaration of the proprietor such

copies may be detained by the officers of Customs.[976]

_Cause or Procure._--It is equally an offence to "cause or procure"

any of the above acts.[977] It may be sometimes difficult to determine

whether a person has "caused or procured" within the meaning of the

section. In _Bolton_ v. _London Exhibitions_[978] the defendants

ordered a poster for the advertisement of their exhibition at Earl's

Court; they gave the lithographer a general idea of what was wanted,

and told him to do his best. The lithographer, in preparing the

poster, infringed the copyright in the plaintiff's photograph of

a lion. It was held that as the defendants did not authorise the

reproduction of the plaintiff's lion they had not "caused or procured"

the infringement complained of; the action against them was therefore

dismissed, but without costs, as they should have exercised more care

in the matter.

_Innocent Agent._--If a publisher procures a printer to strike off

copies of an infringement, the printer is liable even although

he is entirely innocent. It was argued in _Baschet_ v. _London

Illustrated_[979] that the printer was only liable if he printed for

his own use, and that if another caused or procured him to print, it

was only the person causing or procuring who was liable. It was held

that both the employers and employees were liable for the same offence.

A Treatise Upon the Law of Copyright in the United Kingdom and the Dominions of the Crown, and in the United States of America Containing a Full Appendix of All Acts of Parliament International Conventions, Orders in Council, Treasury Minute and Acts of Congress Now in Force. · 第 14 / 20 章

In _Morris_ v. _Ashbee_,[590] Giffard, V. C., held that the copyright in