cation of the dramatization is an infringement of the copyright in the novel.1 If it were lawful for any one without authority to translate a copyrighted work, a translation would be, in the language of Lord Ellenborough, "a recipe for completely breaking down literary property."2 For not only does a published translation tend to supersede the original, and thereby lessen its sale; not only does it serve as a substitute for the translation which the rightful author has made, as in Mrs. Stowe's case, or is entitled to make, but if the unauthorized translation does not infringe the copyright in the original, nor in the author's translation, as was held in Stowe v. Thomas, a retranslation of either the authorized or the unauthorized translation into the original language would be no infringement of any copyright in the work. So that in Mrs. Stowe's case any person might have retranslated into English either of the German translations of Uncle Tom's Cabin, without infringing the copyright in such translations or in the original work. In this way, any number of editions and copies of that great work of fiction might have been issued against the protest of the author entitled to protection, and one of the most valuable of American copyrights made worthless. If this is law, there is no protection. for literary property; for any copyrighted work may be republished without authority through the medium of a translation. Such a theory is wrong in principle, and was rightly condemned in Murray v. Bogue. It is contrary to the statute, which has been wisely construed to extend protection, not merely to the words, but the substance, of a literary production.* Tinsley v. Lacy, 1 Hem. & M. 747. See also Reade v. Lacy, 1 Johns. & H. 524. 2 Roworth v. Wilkes, 1 Camp. 98. 31 Drew. 367. Of the reported copyright decisions of England and America, there is none which is more clearly wrong, unjust, and absurd than that in Stowe v. Thomas. The law has been expounded repeatedly and emphatically to the effect, that the object of copyright legislation is to protect the substantial fruits of genius, learning, and honest labor, and that he is guilty of DRAMATIZATIONS. It has already been shown that the statute of the United States provides that authors may reserve the right to dramatize their works; but that this provision does not affect the question whether, in the absence of such reservation, a work protected by the statute may be dramatized by any person without the consent of the author. The 5 & 6 Vict. c. 45, is silent on this point. Publication of Unlicensed Dramatization not Lawful. - Whether the author has or has not expressly reserved the right to dramatize it, the publication in print of an unauthorized dramatization of a copyrighted work is a clear case of piracy. For then a material part of a work entitled to protection is taken without license, and printed in violation of the statute and against principles judicially established. That extensive changes are made by the skill of the dramatist, that the original work may thus be brought into a changed and improved form, is immaterial. The test is, whether a material part, verbatim or in substance, of a work entitled to protection, is published without the consent of the owner of the copyright. Unauthorized Dramatization for Performance. Law as Ex pounded in England. - The question now arises, whether it is the whole. We concede and we boast that we have taken every syllable, comma, and i dot of the original. The question cannot be how much we have taken, for we have taken all; nor how much we have added, for we have added nothing; but only how we have taken, and what we have done with it?" 2 Wall. Jr. 560. The court seems to have taken the same view of the law, and solemnly declared that the publication of an unlicensed literal translation of one of the most remarkable works of the imagination produced in this century is no invasion of the author's property, because it is not a "copy." If this is the proper construction of the statute, the copyright law of the United States is worse than useless, worse than a mockery. It is a fraud, by declaring that authors shall have protection, when there is no protec tion. But, fortunately, such is not the intention of the legislature, nor the effect of the statute. As wisely construed by the courts, the meaning of the word copy in the section of the act relating to infringement cannot be restricted to a literal transcript of language, but applies equally to a reproduction of the substance of a work. If the above language is strong, there is justification for it. For a wrong deci sion followed as a precedent, without examination into its soundness, may remain firmly established in our jurisprudence for a century. 1 See ante, pp. 445-446. 2 Tinsley v. Lacy, 1 Hem. & M. 747. See also Reade v. Lacy, 1 Johns. & H. 524. piratical to dramatize, for public representation, without authority, a copyrighted work in which the author has not expressly reserved to himself the right of dramatization. This subject has been judicially considered in England, but not in the United States. The essential facts in Reade v. Conquest were these: Charles Reade had written the drama Gold, and registered it as a dramatic piece, thereby securing the exclusive right of representing it on the stage. He had also registered it as a book, and published it in print. Afterward, he put the drama into the form of a novel, which contained substantially the same plot, incidents, characters, and dialogue as were in the play. The novel was copyrighted as a book, and published with the title, It is Never too Late to Mend. While both novel and drama were thus under the protection of the statute, the defendant publicly represented a play named It is Never too Late to Mend, which was a dramatization of Reade's novel. The person who dramatized the novel had not at the time of doing so seen the drama Gold, and was unaware of its existence; but there was naturally and necessarily a substantial identity between the plays Never too Late to Mend, and Gold. The court held that the unlicensed performance of the dramatization was not a violation of any right in the novel; but that, in dramatizing the novel, the defendant had indirectly copied Gold, and thereby infringed the playright in that drama.2 Substantially the same questions were raised in Toole v. Young. It appeared that John Hollingshead had published in 1863, in the magazine called Good Words, a story entitled Not Above his Business, which he had written in dramatic form, that it might, with slight alterations, be performed on the stage. Soon after, the author adapted the piece for representation, and called the play Shop, which was substantially the same as the published story. In 1865, the play was bought from the author by the comedian Toole; and, when the action was brought, it had not been published or acted. In 1870, Grattan dramatized the story, which had appeared in Good Words, and afterward sold the play to the defendant, by whom it was repeatedly performed on the stage, under the name of Glory. It was admitted that the plays were substantially the same, and that the defendant's had been obtained from the story, and not from the plaintiff's Shop. The judgment of the court was that no rights, either in the work dramatized or in the plaintiff's play, had been invaded by the defendant's dramatization; that, by first publishing his composition as a book, an author forfeits the exclusive right to dramatize and to represent it on the stage; and, though he should afterward dramatize his own published composition, he cannot thereby bar others from exercising the same privilege.1 If the law was correctly interpreted in these cases, the unauthorized dramatization of a work for public performance is not an infringement of the author's rights in that work, nor in a dramatization of it made by the author after the publication of the original. But, when the author's dramatization has preceded the publication of the novel, the latter cannot be dramatized, except by authority, without violating the author's rights in his play.2 If this is a sound exposition of the English law, it must be adopted also in the United States. The statutes of the two countries are substantially the same on this point, and hence should be construed alike. The Law as Construed in England Criticised. The law as it has been judicially declared has now been given. It remains to consider whether it has been soundly interpreted. The American courts are yet untrammelled by precedents on this point; they are not bound to follow the English decisions, unless those decisions are grounded on sound principles. The two doctrines affirmed in Reade v. Conquest, and recog nized in Toole v. Young, that an unauthorized dramatization 1 See also Tinsley v. Lacy, 1 Hem. persons from reciting, or representing & M. 747. as a dramatic performance, the whole or any portion of a work of his composition, is himself to publish his work in the form of a drama, and bring himself within the scope of dramatic copyright." But, according to the authority of Toole v. Young, an author cannot protect his novel from unlicensed dramatization by dramatizing it after its publication. 2 In Reade v. Conquest, 9 C. B. N. s. 759, Erle, C. J., said: "Perhaps the only way in which the author of a novel can protect himself from this sort of infringement is by dramatizing it himself." In Tinsley v. Lacy, 1 Hem. & M. 751, Vice-Chancellor Wood remarked obiter, that "the only way in which an author can prevent other of a novel for public performance is not a violation of any right in the novel, but that it is an infringement of the playright in a dramatization made by the author before the publication of the novel, are wholly inconsistent with each other; and, if the former is sound, the latter is antagonistic to a fundamental principle of the law of copyright. Copyright protects only the thing copyrighted against unlicensed copying. Any number of persons may publish precisely the same thing, provided no one copies the protected work of another. Whatever may be the likeness between two works, each author is entitled to protection for his own production, and is barred only from copying that of the other. The owner of a protected drama cannot prevent another from printing or performing a play essentially or identically the same, provided the latter has not been copied from the former. Two or more persons may translate, adapt, or dramatize any work which is common property; and, notwithstanding the likeness between any two versions, neither will infringe the other, provided each is the result of independent labor. Hence the playright in a drama bars every person without authority from copying that play; but it prevents no one from producing a play substantially the same from any common materials. Now, it is clear that, if the law does not protect a novel from unauthorized dramatization, the novel to this extent becomes common property. As far as dramatization for public performance is concerned, it is in precisely the same position as a novel which is not protected by copyright. This principle is in no wise affected by the question whether the author has or has not dramatized the novel, or whether his own dramatization has preceded or followed the publication of the novel. If an unauthorized dramatization does not violate any right of property in the work itself, it cannot infringe the author's rights in a drama which is formed from, or one which is the basis of, the published work. For the charge of pirating the authorized dramatization is fully met when it appears that the play complained of was obtained from a source open to all; and the novel is common property for this purpose, if the law does not protect it from unlicensed dramatization. In this 1 See ante, pp. 205-208, 399-400. |