from him, it cannot, I think, be successfully contended that, if he chooses to take the risk, he may not leave it exposed without mark or other sign to designate it as his property; or that, by thus exposing it, he would lose his title, and could not afterwards recover it, or its value, from one who tortiously took it. A wrong-doer cannot get title to property, or escape the responsibility of his tortious or felonious act, merely because the owner has failed to give public notice or warning that it was not to be stolen. If carrying away in the memory of a spectator, or otherwise surreptitiously obtaining the contents of a play, is without the consent of, or unauthorized by, the owner, and therefore an infringement of his property in the play, the act is not excused by the omission of the owner to notify the audience that they will not be allowed or are forbidden to carry it away in that manner." 1 It has also been declared unsound in the United States Circuit Court by Mr. Justice Drummond, who said that "it is not easy to see, however, how a notice can have any effect upon the rights of the owner or of the auditor. If the latter had the right to carry away the play in his memory, or take it down phonographically, and in either case to use or publish it, the notice prohibiting it could not affect or change that right." 2 Result of Authorities. It has now been shown that, although the novel theory relating to memory has been approved or recognized in several recent American cases, yet in every one, excepting Keene v. Kimball, the approval was wholly extrajudicial. In Keene v. Wheatley, and Keene v. Clarke, it was expressly shown that the authorized performance was not the means of the alleged piratical representation. Neither in Crowe v. Aiken, nor in Palmer v. De Witt, did it appear that the defendant had been aided by the memory of any person in getting possession of the play; and, in both cases, the court 1 Palmer v. De Witt, 2 Sweeny, 558. 2 Crowe v. Aiken, 2 Biss. 212. In determining the effect of the public exhibition of an uncopyrighted paint ing on the owner's rights, the Irish Chancery Court gave much consideration to the inquiry whether there had been a restrictive notice; and on the existence of such notice and the fact that the exhibition had been for the qualified purpose of obtaining subscribers for an engraving of the picture was based the decision that exhibition was not such a publication as would destroy the owner's common-law rights. Turner v. Robinson, 10 Ir. Ch. 121, 510. assumed that it had been obtained by other means. There is, then, no direct authority in support of the theory that any person may publish in print a dramatic composition obtained by memory from its authorized public performance; and none that unlicensed representation on the stage under such circumstances is not piracy, except the single case of Keene v. Kimball, decided by the Supreme Court of Massachusetts in 1860. Against this authority is the judgment of the New York Superior Court, in French v. Conolly. What is settled by the American authorities is: 1. The public performance of a manuscript dramatic composition by the author is not such a publication as will defeat a copyright afterward secured.1 2. No person without leave may publish in print or publicly represent the play, if obtained by fraud or through a breach of contract or confidence,2 or if got from its lawful performance by any other means than memory.3 REFUTATION OF THE THEORY THAT THE RIGHT TO USE A PLAY MAY BE ACQUIRED BY MEANS OF MEMORY. Of all the vagaries and erroneous notions that have gained judicial currency in construing the law of literary property, the most absurd is the theory that the unlicensed publication or representation of a manuscript play is lawful when effected. by means of the memory of any witness of its authorized performance. Proclaiming it for the first time in this country, the Court said, in Keene v. Wheatley, that "the doctrine of the dictum of Buller, J., as to repetition from the memory of the audience, may be regarded as established," and that "Macklin v. Richardson, if to be followed as an authority, is decisive of the present case. A like remark might be made as to Morris v. Kelly."4 At that time, there was no decision in the English or American reports to give the shadow of support to this theory. On the contrary, Vice-Chancellor McCoun, of New York, had declared as early as 1843, that to 3 Conceded by all the authorities on this point. 49 Am. Law Reg. 90, 95. carry off a manuscript drama, with intent to perform the piece on the stage against the author's will, was an invasion of his common-law rights." So far from being settled in England, the question had neither arisen nor been discussed. No reference to it was to be found in any reported English opinion, except the ambiguous dictum of Judge Buller in the obscurely. reported case of Coleman v. Wathen, decided, under the statute of Anne, in the last century.2 In Macklin v. Richardson, it was expressly found that the farce had been obtained by stenography; and there is nothing in the report of Morris v. Kelly 4 to show that the performance complained of was due to the memory of any person, while there are sufficient reasons for believing that it had been effected solely by means of an unauthorized printed copy. Mr. Justice Hoar rightly said in 1860, after the decision in Keene v. Wheatley had been made, “the precise question which the case at bar presents has never been determined, so far as we are aware, in any reported case." 6 The theory is as unsupported by principle or reason as it is by authority. No reasonable grounds have been given in its support, and it is difficult to conceive any. In Keene v. Wheatley, it was said that "the manager of a theatre may prevent a reporter from noting the words of such a play phonographically or stenographically or otherwise. As one of the audience, he would, in doing so, transgress the privileges conceded in his admission. But the privileges of listening and of retention in the memory cannot be restrained. Where the audience is not a select one, these privileges cannot be limited in either their immediate or ulterior consequences." In Keene v. Kimball, the court said that Miss Keene had " em 1 Jones v. Thorne, 1 N. Y. Leg. Obs. 409. 244 Reporting any thing from memory can never be a publication within the statute. Some instances of strength of memory are very surprising; but the mere act of repeating such a performance cannot be left as evidence to a jury that the defendant had pirated the work itself." 5 T. R. 245. 3 Amb. 694. 5 O'Keefe says: "My five Haymarket pieces, locked up in manuscript, have been repeatedly printed and published surreptitiously;" also, that the Agreeable Surprise and Young Quaker were not printed by authority. Recollections of the Life of John O'Keefe, written by himself. (2 vols. in one, Phila. 1827), Vol. II., pp. 167 200. 616 Gray (82 Mass.), 550. ployed actors to commit the various parts to memory; and, unless they are restrained by some contract, express or implied, we can perceive no legal reason why they might not repeat what they have learned before different audiences and in various places. If persons, by frequent attendance at her theatre, have committed to memory any part or the whole of the play, they have a right to repeat what they heard to others. We know of no right of property in gestures, tones, or scenery, which would forbid such reproduction of them by the spectators as their powers of imitation might enable them to accomplish." The Chief Justice argued, in Keene v. Clarke, that "where the audience is not limited, as in the case of a public theatrical performance, the public are held entitled to make use of that faculty, which is necessarily addressed by such representation, to wit, the memory, for the purpose of repeating the contents of the play, even in performing it elsewhere, when the owner has laid no restraint upon such use of the knowledge so obtained and retained by memory only. . . . Remembering to a certain extent is the natural consequence of hearing, and using such recollection naturally flows from possessing it. The right of taking notes is not one of the privileges necessarily conceded by a public performance, and the use of any such artificial aids to, or substitutes for, memory may be restrained by a court as a violation of the terms of admission, or may be made part of the police of the place of performance, so as to justify not only its prevention, but even the expulsion of the offender."2 The effect of this reasoning is that, memory being given to man to be used, any use which can be made of it is legitimate, and that, if a spectator at a public performance is able to carry away in his memory the contents of a play unrestrained by "police" arrangements, he has acquired a lawful right to make any use of such play he chooses, however harmful it may be to the owner. This fallacy is too apparent to need serious consideration. It would be as wise to argue that because a man has hands for legitimate uses he is justified in putting them into his neighbor's pockets. Memory may be employed as a means of improvement, enjoyment, and profit, but not to 116 Gray (82 Mass.), 551. 25 Rob. (N. Y.) 59, 60. invade the rights of another, or to acquire, without consideration, title to the property of another. In paying for admission to a public performance, a spectator is entitled to such instruction and enjoyment as he may derive from witnessing and hearing the performance and from recollecting it. In other words, he is entitled to just what he pays for. This is the consideration for the price of admission. But there is no agreement express or implied, no consideration, no understanding, that the spectator shall acquire any title to the property in the play, or make of it any use against the rights of the owner. To argue that a lawful title to a play may be acquired through the exercise of memory, but not by the use of writing, on the ground that any one of the audience, by taking notes during the performance, "would transgress the privileges conceded in his admission," but that "the privileges of listening and of retention in the memory cannot be restrained," is the shallowest sophistry. In admitting the public to a dramatic performance, the owner no more transfers or concedes to any one of the audience the right to exercise his memory in getting possession of the play for subsequent use, than he does the privilege of using stenography. Nor is it easy to understand why writing notes in a theatre, even to the extent of reporting by short-hand the language of the play, is any more unlawful than exercising the memory; or why the manager has any more authority to prevent a person from taking notes during the performance, or to put him out of the theatre for so doing, than he has to exercise the same powers in the case of any one found writing a criticism of the acting or an original poem. The unlawful act is to be found in the actual or attempted use of the play; and, until unlawful use is shown to have been made or threatened, no rights have been violated. But even conceding that taking notes in a theatre may be prohibited, the fact that a spectator cannot be prevented, by police arrangements or otherwise, from retaining in his memory a knowledge of the contents of a play, does not invest him with a right of property in it, and is no reason why a court should not restrain him from taking such property of another to which he has acquired no title, or should not require him to make good the damage caused by such unlawful appropriation. |