a play of Shakespeare, with certain changes made by Kean, and with costumes, properties, scenery, dances, and music prepared by others under his direction. The plaintiff had been employed to compose the music, and afterward claimed that the property in it belonged to him. The court found that the defendant was the author and designer of an entire dramatic representation, and that the plaintiff had been hired to compose the music with the distinct understanding, and on the terms, that it should become a part of the entertainment, and that the defendant should have the sole liberty of performing it. It was therefore held that the music became the property of the defendant. It could not have been successfully maintained that the defendant, though the designer of the entire representation, was the author of the music. Nor does music become a mere accessory or inseparable part of a drama merely because it is specially composed for such drama. It may have an independent existence and a value apart from the literary composition, as in the case of Locke's music to Macbeth, and Mendelssohn's music to the Midsummer Night's Dream. The true ground on which the decision rests is that the composer had been employed with the understanding and on the con

17 C. B. N. s. 268.

'It appears to me," said Erle, C. J., upon the facts thus admitted upon the record, that the defendant was the author and designer of an entire dramatic representation or entertainment, with respect to part of which, a small accessory, viz., the music, he employed the plaintiff upon the terms set out in the plea, that, in consideration of certain reward paid by the defendant to the plaintiff, the music should become part of such dramatic piece as designed and adapted for representation by the defendant, and that the defendant should have the sole liberty of representing and performing, and causing and permitting to be represented and performed, the said musical composition with the said dramatic piece, and as an accessory thereto, and as part thereof. I am of opinion that the music so composed by the direction and under the superintendence of the de

fendant, and as part of the general plan of the spectacle, must, as between him and the plaintiff, become the property of the defendant; and that, consequently, the defendant has violated no right of the plaintiff in causing it to be represented in the manner alleged. One cannot but perceive, that, if the plaintiff were right in his contention, the labor and skill and capital bestowed by the defendant upon the preparation of the entertainment might all be thrown away, and the entire object of it frustrated, and the speculation defeated, by any one contributor withdrawing his portion. As between these parties, and under the circumstances, it seems to me very clearly that the musical composition in question became the property of the defendant, and that the plaintiff never was within the language of the statute the owner or proprietor thereof." Ibid. 279, 280.

dition that the music should be the property of his employer.

Wallenstein v. Herbert Criticised. The doctrine of Hatton v. Kean was misunderstood and misapplied by the Queen's Bench in the following case of Wallenstein v. Herbert.1 The governing principle was the same in both cases; but the controlling. facts were so vitally different that the decisions could not rightly be alike. It appeared in evidence that Matthews, the manager of St. James's Theatre, in London, had employed Wallenstein to furnish music for that theatre. The latter engaged and paid the musicians, supplied the instruments and compositions, and conducted the orchestra. Besides playing general orchestral music for the theatre, it was his duty to provide incidental music for dramas, when necessary; and such music he might either select or compose. In performance of this duty, he composed incidental music for Lady Audley's Secret, a drama brought out by Matthews, but of which the latter was in no sense the author, and at that time was not even the owner. In composing the music, the plaintiff had received no assistance from the manager, and had himself found the paper on which the music was written and employed a person to copy the various orchestral parts from the original score. These parts the composer kept in his own possession; nor did the theatre have a library of music. When the engagement . between Matthews and Wallenstein had ended, the former obtained from the latter a duplicate copy of the music, with permission to use it "on a provincial tour." Afterward, when the defendant, Miss Herbert, had succeeded Matthews in the management of St. James's Theatre, and Wallenstein had ceased to be the musical director, she obtained permission from Matthews to represent Lady Audley's Secret, of which play he was now the owner, and received from him the duplicate copy of the music which Wallenstein had made for him. The original score was still in the possession of the composer, who had given no consent either to Matthews or to Miss Herbert to use the music in London.

The court, without deciding in whom the copyright vested, held that the controlling facts in this case were not different

115 L. T. N. s. 364, on ap. 16 Id. 453.

from those in Hatton v. Kean; that the music became an inseparable part of the drama, and was not an independent composition; that Matthews, by virtue of the contract of employment, had acquired an unlimited right to use the music; and that the defendant, as the licensee of Matthews, was also entitled to use it.

This decision was avowedly based on the authority of Hatton v. Kean. But the difference between the governing facts in the two cases is vital. The only ground, as has been seen, on which the decision in Hatton v. Kean can be sustained, is that the music was composed under an agreement that it should be the property of the employer; and this is the principle by which the judgment in Wallenstein v. Herbert is to be tested. It was not seriously claimed that Matthews was the author of the music; and the judgment of the court cannot be defended on the ground that the music became an inseparable part of the play, and could have no independent existence. Music and literature cannot be so closely blended but that the former may exist and have a value independently of the latter. In Hatton v. Kean, the plaintiff was not in the regular and general employment of the defendant, but had been expressly engaged to compose certain music; and there was a special agreement, as the court found, that the property therein should belong to the defendant. In Wallenstein v. Herbert, the plaintiff had written the music in the discharge of his ordinary duties, and there was no distinct agreement as to whose property it should be. It is conceded that it might have become the absolute property of the employer by an implied agreement, or a mutual understanding to that effect, created by the terms and conditions of the general employment, and without the necessity of an express or a special agreement. But such implied agreement or mutual understanding is not necessarily created by the mere circumstance of employment; and the facts established by the evidence in this case do not support the conclusion that there was any agreement or understanding between the parties that the music should become the property of the manager. Mr. Justice Shee said that it was "incumbent upon the plaintiff to show that he retained an independent right to the music."1

116 L. T. N. s. 454.

But the property was in the person who created it, until he' consented to part with it; and it was for Matthews to show that such consent had been given.

Wallenstein had agreed to play the usual orchestral music for the theatre, and also such music as might be specially required in the production of any drama. He was not bound to compose the latter, but was at liberty to make selections for that purpose. The theatre owned no musical compositions, and, it appears, paid no money for the purchase of any. Those which were not original were bought by Wallenstein, and it appears were kept by him as his own property; and no interest in their ownership was claimed by the theatre. It was the playing of the music and the use of the compositions, not the property in them, for which the manager contracted and paid; and, when Wallenstein had played the required music, he had performed his part of the contract. If Wallenstein had bought selections for, or paid another composer to write, the incidental music for Lady Audley's Secret, it would hardly have been contended that the manager had any rightful claim to the property in such music. Yet the principle is the same whether Wallenstein composed or selected the music. The manager acquired by the contract of employment no more property in the music composed by Wallenstein than in that bought by him; and he had no better title to either than to the instruments, with which the music was played. Wallenstein was bound to furnish music for the drama, and Matthews was entitled to the use of it while the former was in his employment. But the property remained in the composer.

Nor did Matthews, as the court held, acquire the unlimited. right to use the music. While the engagement lasted, the conductor was bound to supply the necessary music for the theatre, and the manager was entitled to the use of his compositions. But, when the former ceased to be employed, the latter had no more claim to the use of his music than to his services as conductor.

The controlling principle in this case is the same as in Boucicault v. Fox, where it appeared that the plaintiff had been

1 5 Blatchf. 87. See post, p. 257.

employed to write a play under an agreement that it should be performed at a certain theatre as long as it would run. The Circuit Court of the United States soundly construed the law to the effect, that, while the manager of the theatre might be entitled to the use of the play for the time contemplated in the agreement, he had no claim to its use beyond that time, and no interest in the property in the play, for the reason that there was no agreement, express or implied, to that effect.1

Works of Art in Great Britain. By the 7 Geo. III. c. 38, copyright is secured to any person "who shall invent or design, engrave, etch, or work, . . . or from his own work, design, or invention shall cause or procure to be designed, engraved, etched, or worked," prints, engravings, &c.2 Where a person had designed a map, and furnished the materials for preparing it, but had employed another to make the drawing, the former was held to be the author within the meaning of the statute.3

1 In harmony with this doctrine are Roberts v. Myers, 13 Monthly Law Reporter, 396; Shepherd v. Conquest, 17 C. B. 427; Levy v. Rutley, Law Rep. 6 C. P. 523.

2 The language of the American statute of 1802 was similar; 2 U. S. St. at L. 171. See Binns v. Woodruff, 4 Wash. C. C. 48.

3 Stannard v. Harrison, 24 L. T. N. s. 570. "Then," said Vice-Chancellor Bacon, "as to whether the design or invention is that of the plaintiff or not is a mere matter of character. Mr. Concanen has been examined. He has proved that it is the design of the plaintiff; that the plaintiff brought to him his rough sketch or draft, a drawing of the same size as the stone upon which it was to be engraved, pointing out, as Mr. Concanen had said,A rough sketch of the forts and town 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. Not having the skill to do it himself, he stands by, and, as Mr. Concanen says, comes to him daily with materials from which the lithograph is to be compiled. Can there be any thing more plainly within the words of the act of Parliament than that Mr. Stannard did himself invent, that he did procure another person to design and draw for him, and do that which he himself could not do?" Ibid. 572. See also Stannard v. Lee, 23 L. T. N. s. 306, on ap. Law Rep. 6 Ch. 346.