tions, no one can lawfully take this liberty with a copyrighted drama without the author's consent. The principle is not different in the case of a work of fiction which may not be in name, but is in substance, a dramatic composition. In other words, the changes necessary to prepare an undisputed drama for performance are sometimes not less extensive or less radical than are required to adapt a novel for the stage. To make this unlicensed use of a copyrighted drama is piracy. Is it less so when the original is a work of fiction? So, a drama, besides the main plot and characters, may contain a subordinate, or "side," series of incidents, which are entirely independent of the principal action, and may in themselves constitute a complete farce or play. In other words, the work may contain a drama within a drama. To separate one from the other, and represent it on the stage as an independent play without license, would be a clear case of piracy. In what respect is it different in principle to evolve a play from a novel? If the latter contains a drama, or the essence of a drama, it is a dramatic composition; and the author is entitled to the sole liberty of taking out such drama and representing it on the stage.

The judgment both in Reade v. Conquest and in Toole v. Young turned solely on the point whether the story in question was a dramatic piece within the meaning of the law. This principle was the key to the decision in each case; and in each it was entirely overlooked or disregarded by the court. If the novel was a dramatic composition, there vested in it both copyright and playright. The former right was violated by the printing, and the latter by the representation, of an unlicensed dramatization. It was immaterial whether or not substantially the same production had been published also as a drama by the author, or whether or not the original had been dramatized by him. Was, then, Reade's novel, Never too Late to Mend, or Hollingshead's story, Not Above his Business, a dramatic piece? When it is considered that the former was simply a drama reproduced as a novel, and that the latter had been written in dramatic form with a view to its representation on the stage, there would seem to be little doubt that both were dramatic pieces within the meaning of the law, which had been

construed to embrace even a simple song, and, in the language of Chief Justice Denman, "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 a regular drama, and which constitute the entertainment of the audience.” 1

If the performance of an unauthorized dramatization is an infringement of the right secured in a novel, it is a violation of the playright in an authorized dramatization of the novel. This fact has little practical importance, when the same person, as in Reade's case, is the owner of both the novel and the dramatization; but it removes an apparent difficulty in a case like that of Toole v. Young, when the owner of the dramatization and the owner of the work dramatized are different persons. In such case, it might be contended that the owner of the play is not the proper person to maintain an action for the unlawful dramatization of the novel. This may be an apparent, but is not a real, objection. To dramatize a novel for public performance is no infringement of the copyright in the novel. Such a dramatization can be unlawful only on the ground that it is a violation of the owner's exclusive right to the public representation of the work. I have maintained that the author has this right before he has dramatized his novel, and that he has it afterward. But the right, whether lodged in the novel or in the dramatization, is one and the same; and it is equally violated whether the novel or the dramatization is made the means of its invasion. When the author has himself dramatized the novel, and made an absolute assignment of the play, he has parted with, and the buyer has acquired, the exclusive right of representing that work; and this, as said above, embraces the entire right of representation, whether lodged in the novel or in the dramatization. Having thus divested himself of this right, the author is barred from making. or authorizing another to make, a second dramatization of his novel. And any unauthorized adaptation of the novel for public performance is a violation of the right to represent what is contained in the novel. This right is vested in the buyer of

1 Russell v. Smith, 12 Q. B. 236. See also Clark v. Bishop, 25 L. T. x. s.

the authorized dramatization; and hence he is the proper person to maintain an action for its violation, whether the novel or the dramatization is made the means of such violation. The same is true when the author has made an absolute assignment of the right to dramatize his work and the dramatizing is done by the buyer. But of course the case is different when the author has not absolutely parted with the right of representation, but has merely licensed another to use the dramatization. In such case, the ownership of the right of representation continues in the author.

CHAPTER X.

REMEDIES IN LAW FOR THE INFRINGEMENT OF COPY

RIGHT.

GREAT BRITAIN. Books.

THE 8 Anne, c. 19, provided that the printer, publisher, importer, or seller of a pirated book should forfeit every copy or sheet to the owner of the copyright, by whom it was to be destroyed, and should further be liable to a penalty of one penny for every copy or sheet found in his possession, — one half to go to the queen, and the other half to any person who should sue for it. But there was a proviso which allowed any person to import or sell "any books in Greek, Latin, or any other foreign language, printed beyond the seas."2 This provision, as far as it permitted the importation of books first printed in Great Britain and reprinted abroad, was annulled in 1739, by the 12 Geo. II. c. 36, which, in the case of the importing of such works, provided for a forfeiture of the copies which were to be destroyed, and imposed a heavy penalty, to be sued for by any person, and to be divided between the king and the person suing. This act, which was to remain in force for a limited time, was continued by several succeeding statutes. Until 1801, there was no statute giving to the owner of the copyright an action for damages sustained by the piracy of his book. But such action would lie on the principle that, when a statute secures a right and makes no specific provision for its protection, the common-law remedy is available. In 1801, however, the 41 Geo. III. c. 107, gave to the owner of the copyright a special action on the case for damages, increased the penalties to threepence for each pirated copy, and provided for the for

8 20 Geo. II. c. 47; 27 Geo. II. c. 18; 33 Geo. II. c. 16.

feiture of copies. It also re-enacted penalties and forfeitures in the case of the importation of books first published in Great Britain and reprinted abroad.2

Remedies Provided by Existing Statute. From 1801 to 1842, the law continued substantially the same with respect to the penalties and forfeitures imposed on the offender, and the remedies given to the owner of the copyright. But by the 5 & 6 Vict. c. 45, passed in the latter year, an important change was made. From the reign of Anne till that of Victoria, the forfeitures and penalties were intended as a punishment of the offender, rather than a direct benefit to the owner of the copyright; since any person might sue for the penalties, and the forfeited copies were required to be destroyed. By the statute of Victoria, the penalties, except in the case of the importation of books originally published in England and reprinted abroad, are abolished. The action for damages is continued; and piratical copies of a book are declared to be the property of the author, who is empowered to recover them, or damages for their detention. The provisions of this statute apply to all literary productions, musical compositions, maps, charts, and plans.5

Action for Damages against Unlawful Printing, Importing, or Selling. By section 15, it is enacted, "that if any person shall, in any part of the British dominions, after the passing of this act, print or cause to be printed, either for sale or exportation, any book in which there shall be subsisting copyright, without the consent in writing of the proprietor thereof, or shall import for sale or hire any such book so having been unlawfully printed from parts beyond the sea, or, knowing such book to have been so unlawfully printed or imported, shall sell, publish, or expose to sale or hire, or cause to be sold, published, or exposed to sale or hire, or shall have in his possession, for sale or hire, any such book so unlawfully printed or imported, without such consent as aforesaid, such offender shall be liable to a special action on the case at the suit of the proprietor of such copyright."

This section prohibits the unauthorized printing of a copy