defendant, have been placed there. That case, however, does not arise. The material here is substantially worthless, except for that in which the defendant has no property. There consequently can be no reason why the effectual destruction of the subject should not be directed by the court; in doing which, I repeat, I abstain from giving any opinion as to the particular mode of proceeding which the court ought to adopt in a similar case in all points except as to the intrinsic value of the material."1

It was here decided that the plaintiff was by the common law entitled to the piratical copies of his unpublished production, and that a court of equity had the jurisdiction to order them to be delivered to him. But the important principles involved in the case are either not mentioned or are merely referred to in the extended opinions of the judges. Admitting that the owner of an unpublished work is entitled to piratical copies wherever found, it is by no means clear on what principle the subject of their delivery is within the jurisdiction of a court of equity. "It is a universal rule in equity," says Story, "never to enforce either a penalty or a forfeiture." It has been seen that both in Colburn v. Simms, and in Stevens v. Gladding, the latter decided by the Supreme Court of the United States, it was held that a court of equity has no jurisdiction in the case of forfeitures and penalties, unless such jurisdiction is expressly conferred by statute.3

"The general rule undoubtedly is," said the court in the former case, "that, where a party seeking equitable relief is incidentally entitled to the benefit of a penalty or forfeiture, the court requires him, as a condition of its assistance, to waive the penalty or forfeiture. If, therefore, this court is bound to order the delivery of the copies, the right to that relief must be found in some common-law right of the proprietor of the copy, independently of the penal provisions of the statutes, or it must be found in those words of the statute which relate to suits in equity.

"Now, I am not aware that the title of the plaintiff to the exercise of the jurisdiction of this court, to compel the delivery

1 2 De G. & Sm. 716.

3 See also Monk v. Harper, 3 Edw.

2 2 Eq. Jur. § 1319. See also fol- Ch. (N. Y.) 109. lowing sections.

up of the copies of the work in question to the proprietors of the copyright, has been, or can be, founded upon any commonlaw right anterior to or independent of the statute of Queen Anne. There would be great difficulty in applying to this subject the principles of the common law, which, in certain cases, give to the owner of an original material the right of seizing it, in whatever shape it may be found, if he can prove it to be his own, or which relate to what is termed confusion of goods, by which if one man voluntarily mixes his property with that of another, so that the two become inseparable, the entirety is held to belong to him whose property has been invaded. It may be true, that, if one writes or prints upon the paper of another, the writing or printing becomes his to whom the paper belongs; but it does not necessarily follow that the converse of that proposition would be true, that one who writes or prints upon his own paper the composition of another, has thereby so mixed his property with the property of the author whose work he has copied, that he has lost his original title to the material which he has so employed. . . . I think, therefore, the case for the plaintiff on this point must be placed on another ground, and that his right to a decree of this court for the delivery up of the copies, if that right exists, must be found within the provisions of the statute, and not upon any common-law right independent of them." 1

It is true that, both in Colburn v. Simms and in Stevens v. Gladding, the question related to the statutory penalties, and that, in the former suit, the Vice-Chancellor intimated that a different principle might perhaps be held to apply in a case governed not by the statute, but by the common law.2 The statute, which imposes penalties and forfeitures, settles the question that the wronged person is entitled to the penalties and forfeitures. But unless the legislature has expressly declared in what tribunal they shall or shall not be recovered,

1 Wigram, V. C., 2 Hare, 554, 555. 2 Continuing the remarks quoted in the text, he said: "There might indeed have been some countenance for such a principle before the judgment of the House of Lords, in the case of Donaldson v. Becket, 4 Burr. 2408, had confined the exclusive right of

authors within the limits prescribed by the statute, and thereby negatived the existence of that absolute common-law right in their works which had been previously supposed to exist, and which the decision in the Court of King's Bench, in the case of Millar v. Taylor, 4 Burr. 2303, had tended to affirm."

this question is left to be determined by the general principles which distinguish equity jurisdiction from that of courts of law. And, in the absence of such statutory direction, the jurisdiction of courts of equity, in the matter of penalties and forfeitures, is the same whether the right to them exists by the common law or is conferred by statute. Hence, if a court of equity, as was held in Colburn v. Simms, and Stevens v. Gladding, has no jurisdiction of statutory penalties and forfeitures, except by express authority of the legislature, it can have no cognizance of the same matter under the common law.

CHAPTER XIII.

COMMON-LAW PLAYRIGHT IN UNPUBLISHED DRAMAS.

Playright Defined. distinct public uses.

A dramatic composition is capable of two

It may be printed as a book and represented as a drama. With respect to the former use, there is no distinction in law between a dramatic and any other literary composition. The exclusive right of multiplying copies is called copyright. But this does not embrace the right of representation. As these two rights are wholly distinct in nature, it is not only important but necessary that they should be distinguished in name. The property in a dramatic composition is often called dramatic copyright. But this expression is faulty and inaccurate. If it refers to the exclusive right of printing a drama, it would be equivalent to the name poetic copyright, prose copyright, or historical copyright, as applied to works in poetry, prose, or history. If its use is restricted to the right of representing a drama, it is not accurate; because this is not a right to multiply copies in the proper meaning of that expression, and cannot therefore strictly be called copyright. If it is intended as a name for both rights together, it can serve only to increase the confusion which should be wholly removed. The sole liberty of publicly performing a dramatic composition might more properly be called dramatic right or acting right. The expression, stage right, coined by Charles Reade, is not uncommon. But there are objections to this word with respect both to its formation and the purpose which it is required to serve. I have adopted playright as being, in my judgment, the best name for the purpose. It is a convenient euphonious word, and its formation is analogous to that of copyright. As the latter word literally means the right to copy a work, or the right to the copy, so playright means the right to play a drama, or the right to the play. And it may properly be used to mean

not only the right of representing a play, but also the right of performing a musical composition.

In the United States, playright is secured by the statute in published, and exists by the common law in unpublished, dramatic compositions. The English statute secures the right of performing both printed and manuscript dramas, and will probably be construed to have taken away common-law playright in unpublished as well as in published plays. In this chapter, the common-law rights of dramatists will be considered.

ARE THE OWNER'S COMMON-LAW RIGHTS LOST BY THE PUBLIC PERFORMANCE OF A MANUSCRIPT DRAMA?

It has been shown that the author of any intellectual production, whether it be a literary, dramatic, or musical composition, or a work of art, has in it by the common law a property which is absolute and complete until lost by some act of the owner or by the operation of some statute. This property secures the owner in the exclusive enjoyment of any and every use of his production which does not in law amount to a forfeiture of his exclusive rights. The law has been settled to the effect that, by publication in print, the owner's common-law property is lost, and that in a work so published he has no other rights than those secured by statute. Hence, a dramatist may have a statutory but no common-law right to the exclusive representation of a drama which he has published in print. But the exclusive right of the owner publicly to represent a manuscript play exists by the common law, unless such public representation, by operation of the common law or by force of some statute, works an abandonment of the right.

The question, then, is raised whether the common-law property in a manuscript play is lost or prejudiced by the public performance of the play.

Public Performance not a Publication which Defeats Copyright. -It may be regarded as settled that the authorized public performance of a manuscript drama is not such a publication as will defeat a copyright afterward obtained. Where it

1 See Chap. 1.

Roberts v. Myers, 13 Monthly Law 2 Boucicault v. Fox, 5 Blatchf. 87; Reporter, 396; Keene v. Kimball, 16