Copyright: Its History and Its Law Part 18

There may be infringement of dramatic copyright in the use of a single scene or situation, as already set forth with respect to novels, provided this is of dramatic character. In 1892, in Daly _v._ Webster, the U. S. Circuit Court of Appeals, through Judge Lacombe, held that the railroad rescue scene in Brady's "After dark" infringed the copyright of Daly's "Under the gaslight," which contained the similar situation of the rescue of a person on a railroad track before an approaching train.

Though there was little dialogue in this scene, the court held that while mechanical appliances are not ent.i.tled to copyright, a series of events dramatically represented are copyrightable. In the subsequent suit for damages, Daly _v._ Brady, the U. S. Supreme Court in 1899, through Justice Peckham, upheld this decision, and held also that such a situation const.i.tuted an integral part of the copyrighted drama and should therefore be protected against infringement. That there may be infringement of a dramatic composition without the use of scenery or costumes was incidentally decided in Russell _v._ Smith, where the song "The s.h.i.+p on fire," sung dramatically without these accessories, was protected as a dramatic piece.

{Sidenote: Protection of t.i.tle}

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

{Sidenote: Names of characters}

In the case of Frohman _v._ Weber in 1903, in the N. Y. Supreme Court, where the proprietor of the play ent.i.tled "Sherlock Holmes" sought to enjoin another play "The sign of the four," in which the name Sherlock Holmes designated the leading character, Judge Clarke held that this did not const.i.tute unfair compet.i.tion and denied a preliminary injunction.

{Sidenote: Persons liable for infringement}

{Sidenote: Princ.i.p.al in control}

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

{Sidenote: Protection against "fly by night" companies}

{Sidenote: State legislation}

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

{Sidenote: Remedies under present law}

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

{Sidenote: Musical protection in England}

{Sidenote: Acts of 1902-1906}

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

{Sidenote: Playright in other countries}

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

{Sidenote: International provisions}

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

{Sidenote: Foreign protection of arrangements}

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

{Sidenote: International definitions}

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

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

{Sidenote: National formalities}

Throughout the countries of the International Copyright Union, first publication in any of these countries and compliance with its formalities ent.i.tle the author to playright as well as copyright in all the other countries within the Union, with some exceptions to be noted.

Thus in Switzerland the conditions of performance must be given at the head of the printed play; and the law stipulates that the author may not require as royalty more than two per cent of the gross profits, and a performance at which the admission fee is reckoned to cover only cost of production or a performance for charitable purposes, is not considered an infringement of playright. In Italy a play performed, but not printed and published, must be submitted in ma.n.u.script for inspection within three months of first performance, together with a declaration reserving the playright; a printed book or play should be deposited with accompanying notice of reservation within three months, or the proprietor cannot obtain damages until such deposit, and failure to deposit within ten years abandons copyright protection. Italian proprietors of music sometimes refrain from printing and publis.h.i.+ng music, with the intent of maintaining copyright and playright indefinitely.

{Sidenote: Specific reservations or conditions}

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

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

{Sidenote: Pan American Union}

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

XII

MECHANICAL MUSIC PROVISIONS

{Sidenote: "Canned music" contest}

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

{Sidenote: Mechanical music provisos}

{Sidenote: Compulsory license}

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

{Sidenote: Damages}

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

{Sidenote: Public performance}

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

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

{Sidenote: The compromise result}

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

{Sidenote: Judicial construction}