PART L

CHAPTER XVL

Knowledge not necessary to piracy.

The licence given by the secretary was held to apply to the dramas composed by members of the society after the date of the licence, as well as to those composed before.

A written introduction to a pantomime is, as we have already stated, within the protection of this Act. (a)

It was made a question in Russell v. Smith (b) whether the Acts of 3 & 4 Will. 4, c. 15, and 5 & 6 Vict. c. 45, prohibited the unauthorised performance of musical compositions if they were not dramatic in their nature, or performed at a place of dramatic entertainments; but the court did not find it necessary to decide the point, as they were of opinion that the musical composition in question in that case was of a dramatic nature. It was a song relating the burning of a ship at sea, and the escape of those on board, and describing their feelings in vehement language-sometimes expressing them in the supposed words of the suffering parties. The court held that it was dramatic. Sect. 2 of 5 & 6 Vict. c. 45, declares that "dramatic piece" within that Act includes "tragedy, comedy, play, opera, farce, or" any "other scenic, musical, or dramatic entertainment." "These words," said Lord Denman, C.J., "comprehend any piece which could be called dramatic in its widest sense; any piece which, on 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. They comprehend, therefore, the production in question. The absence of scenes and appropriate dresses and a regular theatre has been urged for the defendant. But we should take away a part of the protection conferred on authors if we held that there could be no public representation without these accompaniments."

To establish the offence prohibited by these statutes it is not necessary to show or to aver in the declaration that the offender knowingly invaded the proprietor's right.

"The object of the registration," said Wilde, C.J., in Lee v. Simpson, (c) "was to protect authors against the piratical invasion of their rights. In the sense of having committed an offence against the Act, of having done a thing that is prohibited, the defendant is an offender. The plaintiff's rights do not depend upon the innocence or guilt of the defendant : ... the allegation and proof of a scienter were not necessary to entitle the plaintiff to such protection. The statute would altogether fail to effect its object if it were necessary (a) Lee v. Simpson (3 C. B. 871). (b) 12 Q. B. 217.

(c) 3 C. B. 883.

to show that the defendant had a knowledge of the plaintiff's right of property."

PART I.

CHAPTER XVI. What is a place

entertainment

The answer to the question, What is a place of dramatic entertainment within the statutes 3 & 4 Will. 4, c. 15, and of dramatic 5 & 6 Vict. c. 45? is given by the Court of King's Bench in Russell v. Smith. (a) Any place in which a piece of a dramatic character is represented is, for the time being, a place of dramatic entertainment within the meaning of those statutes. "The use for the time in question," says Lord Denman, C.J., in that case, "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 those purposes would become for the time being a theatre, if used for the representation of a regular stage play." (b)

pation in repre

It was decided in Russell v. Briant (c) that no person can Actual particibe made liable to an action for an offence against these Acts, sentation necesat the suit of the author or proprietor of a dramatic or sary. musical composition, unless that person by himself or his agent actually takes part in a representation which is a violation of the copyright.

In that case the defendant had let a room in his tavern to a person who gave a musical entertainment there. After the entertainment had been continued for some nights, the defendant received a formal notice from the plaintiff's attorneys that certain of the pieces performed were the copyright property of the plaintiff, and warning him against causing or permitting them to be performed at his house. The defendant, notwithstanding this, permitted the entertainment to be continued, furnished the platform and lights for the performances, allowed bills of them to be put up in the tavern, and tickets of admission to be advertised to be sold at the bar, and he himself sold one ticket. The question for the decision of the Court was, did this conduct on the part of the defendant amount to a representing or causing to be represented" within the meaning of the Acts? and the Court of Common Pleas held that it did not. "If it were to be held," said Wilde, C.J., "that all those who supply some of the means of representation to him who actually represents, are to be regarded as thereby constituting him their agent, and thus causing the representation within the meaning of the Act, such a (a) 12 Q. B. 217.

(b) The court guarded itself against saying that the performance of such a dramatic song as that in question would be unlawful, without a theatrical licence, within the statute 6 & 7 Vict. c. 68.

(~) * C. B. 836.

PART I.

doctrine would, we think, embrace a class of persons not at CHAPTER XVI. all intended by the Legislature."

The doctrine laid down in Russell v. Briant was carried a step further in Lyons v. Knowles by the Court of Queen's Bench, the decision of that court being confirmed on appeal by the Exchequer Chamber. (a) In the former case it appeared that the defendant received a fixed sum per night for the room in which the performance took place, and derived no other profit from it. In the latter case the defendant who was the licensed proprietor of a theatre, received as his remuneration for the use of the theatre, onehalf of the gross receipts, which were taken by his own servants at the doors, the remainder being handed to one Dillon, to whom the defendant let the use of the theatre for the purpose of dramatic entertainments. Dillon provided the company, and had the selection of the pieces to be represented, together with the entire management of their representation, and exclusive control over the persons employed in the theatre. The defendant, on his part, paid for printing and advertising, furnished the lighting, door keepers, scene shifters, and supernumeraries, and hired the band, music being a necessary part of the performance. Certain of the copyright pieces of the plaintiff having been performed without his consent, an action was brought against the defendant. It was held that the defendant was not liable, the Court being of opinion that he was nothing more than the proprietor of the theatre, who had transferred for the time the exercise of all his rights in it, as such, to Dillon, and that Dillon was the person who "represented, or caused to be represented," any pieces performed there while he had the sole possession. With regard to the scene-shifters, &c., supplied by the defendant, Blackburn, J., said, "Even apart from authority, I do not think that, by furnishing servants to another, a man can be said to do all that is done by those servants while under the command of that other." And with respect to the division of profits, Crompton, J., said, "The question is whether, looking at the present case fairly, it amounts to more than this-that the rent of the theatre is to be paid by part of the profits. In one respect, I do not agree with my brother Pigott; (b) I do not think (a) 3 B. & S. 556; 10 L. T. N. S. 876; 12 W. R. 1083.

(b) Pigott, Serjt., had argued, on behalf of the defendant, that a person who could neither prevent nor control the representation of a piece could in no sense be considered the party representing it, and that a man who lets a house to another is not responsible for an illegal act done in it by the person who has hired it.

that the defendant's divesting himself of control over the theatre would divest him of liability if he and Dillon were partners. Suppose there had been an agreement of partnership between the defendant and Dillon that each should contribute so much money, or that each should contribute so much capital, though of a different kind, and the theatre were taken between them. I should think the act of either was the act of both. But the authorities clearly show that two persons merely receiving payment out of the gross profits of a business does not make a partnership between them, even as against the world." Blackburn, J., added, "If the receipt of the money in this way was only a colourable pretence to escape the consequence of a partnership, I do not say that that would not have made a difference."

If the proprietor of the theatre were also the proprietor of the scenery, lights, &c., and the employer of the actors and actresses, he would be liable for an unauthorised representation of a dramatic piece, even although on the occasion of its representation he had for a fixed sum let his theatre to another person who was to have all the profits and to select the pieces to be performed. Thus, in Marsh v. Conquest (a) the defendant granted to his son, who was also his stagemanager and one of his actors, the use of the company of actors, with the scenery, &c., for a benefit night, in consideration of a fixed sum paid, the son to choose the pieces to be played. A piece belonging to the plaintiff having been played without his consent, the defendant was held liable to pay the statutory penalty. The Chief Justice (Erle) distinguished this case from Lyons v. Knowles: "There Dillon, to whom the defendant in that case had let his theatre, brought his own company of actors and actresses; whereas here the defendant was the owner of the dramatic company, with whom the son performed the piece. The defendant, therefore, I think, in this case, caused such piece to be performed."

PART I. CHAPTER XVI.

sentation is a

What is a representation within the Acts is a question What is a reprefor the jury. Where the jury found that the singing of two question for the or three songs of the plaintiff's libretto to Weber's opera of jury. "Oberon," was a representation of part of the plaintiff's composition, the Court of Common Pleas refused to grant a new trial.(b) "It is difficult" said Tindal, C.J., "to say what is or is not a representation of part of a dramatic production: the subject patitur majus et minus, and it must (a) 10 Jur. N. S. 989; 33 L. J. 319, C. P.; 10 L. T. N. S. 717; 12 W. R. 309. (b) Planche v. Braham (4 Bing. N.C. 17).

PART I. CHAPTER XVI.

be left to a jury to determine the fact." Vaughan, J., added, "We should be interfering with the province of the jury, if we did not leave it to them to say whether this was a representation of a part of the plaintiff's production."

Remedies twofold.

Copyright in unpublished works.

CHAPTER XVII.

REMEDIES FOR INFRINGEMENT OF COPYRIGHT.

THE remedies for infringements of literary property are of a twofold nature, those existing at law and those for which recourse is had to courts of equity. At law there is an action for damages or for the penalty imposed by statute, and further, in the case of engravings and other works of the fine arts, a summary mode of proceeding before justices. To equity peculiarly belongs the remedy by injunction, though Courts of Law are now empowered under certain circumstances to apply that remedy also.(a)

UNPUBLISHED WORKS.

We have already seen (b) that the author of every unpublished work of an innocent nature has a common law right of property in it-a right to give or withhold publication. Now, if a man has a right, he must have a means to vindicate and maintain it, and a remedy if he is injured in the exercise and enjoyment of it: for, as has been observed, it is a vain thing to imagine a right without a remedy; for want of right and want of remedy are reciprocal. (c)

An action is the peculiar mode pointed out by the law for enforcing a remedy, or for prosecuting a claim or demand in a court of justice, (d) and so an action at law will lie to recover damages for the infringement of copyright in unpublished works.

Courts of Chancery will aid by injunction the proprietor of unpublished innocent works, and restrain the authorised publication of them. In the leading case of Prince Albert v. Strange(e) the Court of Chancery granted an injunction

(a) 17 & 18 Vict. c. 125, ss. 79-82; 25 & 26 Vict. c. 68, s. 9.

(c) Ashby v. White (2 Lord Ray, (Willes, 577).

23 & 24 Vict. c. 126, ss. 32, 33; (b) Ante, p. 48.

953); Winsmore v. Greenbank (d) Co. Lit. 285, a.

(e) 2 De G. & S. 652; 1 M. N. & G. 25; see the facts of this case,

ante, pp. 50-54.