The absurdity of this distinction between the exercise of memory and the use of the pencil becomes still plainer when we consider that it is within the range of practicability to get a copy of a play from its public performance as promptly, and as effectually, by the former as by the latter method. Instances of memories remarkable by nature are not rare; and the memory, not less than the hand, can be trained to do wonders. Older than the system of stenography, and as old as Simonides, who lived about 500 B. C., is the art of mnemonics, whose teachers have shown it capable of wonderful results.1 With entire success can the memory be so trained as to become the means of securing a copy of a play from its public performance with the promptness and ease of a stenographer. Wherein then is the principle different, whether in getting the play one person uses this means or another his skilful hand? The mnemonic faculties of actors are in constant practice; and it is practicable for a rival manager to enlist in his service men and women whose trained memories would enable them to reproduce a play after witnessing its performance but two or three times. But does this give them the right to do so? Can the ownership of valuable property be thus acquired? The proposition should need no refutation.2 1 About 1609, Lambert Schenkel astonished all classes in France, Germany, and the Netherlands, by his mnemonic performances, which were so wonderful that they were pronounced by some the devil's doings. 2 The following instances of remarkable memories are cited by Sir William Hamilton: “For intellectual power of the highest order, none were distinguished above Grotius and Pascal; and Grotius and Pascal forgot nothing they had ever read or thought. Leibnitz and Euler were not less celebrated for their intelligence than for their memory, and both could repeat the whole of the Æneid. Donellus knew the Corpus Juris by heart, and yet he was one of the profoundest and most original speculators in jurisprudence. Muratori, though not a genius of the very highest order, was still a man of great ability and judgment; and so powerful was his retention, that, in making quotations, he had only to read his passages, put the books in their place, and then to write out from memory the words. Ben Jonson tells us that he could repeat all he had ever written, and whole books that he had read. Themistocles could call by their names the twenty thousand citizens of Athens; Cyrus is reported to have known the name of every soldier in his army. Hortensius, after Cicero the greatest orator of Rome, after sitting a whole day at a public sale, correctly enunciated from memory all the things sold, their prices, and the names of the purchasers. Niebuhr, the historian of Rome, was not less distinguished for his memory than for his acuteness. In his youth he was em ployed in one of the public offices of Denmark; part of a book of accounts having been destroyed, he restored it The distinction making the acquisition of a drama by stenography unlawful, but proclaiming it the legitimate spoil of from his recollection." Lectures on Metaphysics and Logic (ed. by Mansel and Veitch, 4 vols Edinburgh, 187074), Vol. II., p. 223. The story narrated by Muretus in his Varia Lectiones of the wonderful memory of a young Corsican who had gone to Padua to study civil law is thus told by Hamilton: "He was a frequent visitor at the house and gar dens of Muretus, who, having heard that he possessed a remarkable art, or faculty of memory, took occasion, though incredulous in regard to reports, of requesting from him a specimen of his power. He at once agreed; and, having adjourned with a considerable party of distinguished auditors into a saloon, Muretus began to dictate words, Latin, Greek, barbarous, sig. nificant and non-significant, disjoined and connected, until he wearied himself, the young man who wrote them down, and the audience who were present; we were all,' he says, 'marvellously tired.' The Corsican alone was the one of the whole company alert and fresh, and continually desired Muretus for more words, who declared he would be more than satisfied if he could repeat the half of what had been taken down, and at length he ceased. The young man, with his gaze fixed upon the ground, stood silent for a brief season; and then, says Muretus, Vidi facinus mirificissimum. Having begun to speak, he absolutely repeated the whole words in the same order in which they had been delivered, without the slightest hesitation; then, commencing from the last, he repeated them backwards till he came to the first. Then, again, so that he spoke the first, the third, the fifth, and so on; did this in any order that was asked, and all without the smallest error. Having subsequently become familiarly acquainted with him, I have had other and frequent experience of his power. He assured me (and he had nothing of the boaster in him) that he could recite in the manner I have mentioned to the amount of thirty-six thousand words. And what is more wonderful, they all so adhered to the mind, that after a year's interval he could repeat them without trouble. I know, from having tried him, he could do so after a considerable time (post multos dies). Nor was this all, Franciscus Molinus, a patrician of Venice, was resident with me, a young man ardently devoted to literature, who, as he had but a wretched memory, he sought the Corsican to instruct him in the art. hint of his desire was enough, and a daily course of instruction commenced, and with such success that the pupil could, in about a week or ten days, easily repeat to the extent of five hundred words or more in any order that was prescribed.'" Ibid. 219. The Fauvel-Gouraud tells the story that when Voltaire was at the Court of Frederick the Great, he spoke enthusiastically to the king one evening of a new poem of considerable length on which he was at work. On its completion, the brilliant literary society of Berlin was assembled at the Prussian court to hear the new poem read by its author. When the reading was finished, the king was as lavish with his praises as were his learned guests, but laughingly remarked to the philosopher that the same composition had been submitted to his criticism a few months before by one of his officers. Here the king summoned a young officer, and asked for the manuscript. He replied that it had been lost, but that he could recite the poem from memory, which he did with strict accuracy, to the great astonishment of the company and the confusion of Voltaire. Frederick now explained to the French wit that the officer, stationed behind a curtain, had heard the poem read by the author, and was thus enabled to repeat it. Phreno-Mnemotechny (N. Y. 1845), 35. In the same book, other instances of remarkable memories are given. tenacious memories, is one merely between the modes or means of getting a play; and it is not easy to see why one method should give a better title than the other, since both are without consideration, and without the authority or consent of the owner. The simple manner of getting the play, as long as it is without consideration or authority, cannot affect the fundamental principle at issue. There is a principle of justice, older than the written law, that property can rightly be acquired only by a good consideration. Either the public representation of a play is a publication, so as to work an abandonment of the owner's rights of property therein, or it is not; and in either case the mode of obtaining it is immaterial, as affecting the owner's rights or the invader's wrong, as long as there is no consideration and no agreement. There is, then, no foundation for the distinction which has been judicially recognized between the different means employed in obtaining a play from its public performance,— making one mode lawful and the other unlawful. The real question is, whether the public performance of a play not published or copyrighted is per se an abandonment of the owner's rights; and whatever may be the true solution, the principle is not affected by the means of reproduction, or by the presence or absence of a restrictive notice. This question may be regarded as virtually settled. It is conceded that the public performance of a manuscript play is not a publication prejudicial to the rights of the owner, except as far as others may become possessed of a copy through the agency of memory. As there is no sound distinction in principle between memory and any other unauthorized means of getting a copy, the doctrine of the courts, carried to its natural and logical extent, must be that, whether the play be obtained by the use of writing or the exercise of memory, or any other means without the consent of the owner, representation is not a publication destructive of the owner's common-law rights. This is the true doctrine. It was affirmed, as has been seen, by the New York Superior Court, in French v. Conolly, and it will doubtless be adopted by the courts hereafter.2 1 See ante, p. 562. following sound views on this subject, * Monell, J., gave expression to the in delivering the opinion of the General Common-Law Rights in United States not Prejudiced by Public Performance of Play. The true principle which governs the question relating to the effect of public representation on the owner's exclusive rights in a manuscript dramatic composition has been wholly overlooked in the recent judicial discussions Term of the New York Superior Court ates that purpose is unlawful." 2. in Palmer v. De Witt :Sweeny, 557, 559. And so in Boucicault v. Fox, although the question as to the distinction between memory and writing was not raised, Mr. Justice Shipman took the strong ground that "there can be no evidence of abandonment to the public of any rights growing out of the authorship of a manuscript drawn from the mere fact that the manuscript has, by the consent and procurement of the author, been read in public by him or another, or recited or represented by the elaborate performances and showy decorations of the stage. If the reading, recitation, or performance is conducted by his direction, by his agents, for his benefit and profit, with the sanction of the law, how can it be said to be evidence of his intention to abandon his production to the public? Suppose Mrs. Kemble were to read in her unrivalled manner a drama of her own production, would the reading be a dedication to the public, and authorize any elocutionist to read it, who could obtain a copy, against the consent of the author? How would it change the matter, if she should, instead of reading the play, have it brought out by a company at Wallack's or the Winter Garden, with all the embellishments which the stage can lend? The true doctrine is, that the literary property in the manuscript continues in the author so long as he exercises control over it, or has the right to control it; and, until its publication, no one has a right to its use, or that of its contents, without his consent. Therefore any special use of it by him in public, for his own benefit, is a use perfectly consistent with his exclusive right to its control, and is no evidence of abandonment." 5 "It seems to me that any surreptitious procuring of the literary property of another, no matter how obtained, if it was unauthorized and without the knowledge or consent of the owner, and obtained before publication by him, is an invasion of his proprietary rights, if the property so obtained is made use of to his injury. Each of the learned justices admits that a play cannot be lawfully taken down by a short-hand writer from the lips of the actors during a public performance. If taken thus by a stenographer, is it different, in its legal effect and resulting consequences, from committing to memory and afterwards writing it out? In principle it is not. They are only different modes of doing the same thing, and, if without the author's consent, are alike injurious to his interests. The objection is not to the committing a play to memory, for over that no court can exercise any control, but in using the memory afterwards as the means of depriving the owner of his property. Such use, it seems to me, is as much an infringement of the author's common-law right of property, as if his manuscript has been feloniously taken from his possession. I can see no difference. . . . Upon a careful consideration, therefore, of the subject, I have not been able to appreciate the distinction which the learned judges, in Keene v. Wheatley and Keene v. Clarke and Crowe v. Aiken, have attempted to draw between different modes of obtaining the contents of a manuscript play from its public performance. They are equally objectionable, and are merely different modes of depriving an author of his literary property; and therefore any mode which effectu- Blatchf. 98. of the subject. If such rights are lost, restricted, or prejudiced by public representation, it must be either by force of the common law or by operation of some statute. It has been shown elsewhere in this work that by the common law no rights in an intellectual production are forfeited by a publication of any kind. The property in a literary work is not, by the common law, prejudiced even by its publication in print. As far as the common law is concerned, the owner's rights are the same after publication in print as they were before. The now settled doctrine that there can be no copyright after publication except under the statute is based on the ground, not that publication is by the common law an abandonment of the author's rights, but that the common-law property in a published work is taken away by operation of the statute.1 It is then clear, both on principle and authority, that the property in a manuscript play is not injuriously affected by authorized public representation, unless by the operation of some statute. Now, in the United States, there is no statute which can have this effect, because there has been no legislation relating to manuscript dramatic compositions. Statutory playright is secured in published compositions alone, and represen tation is not publication within the meaning of the statute. When a dramatic composition is published in print, the owner's common-law rights are destroyed by operation of the statute, to which he must look for protection. But property in a manuscript play is governed exclusively by the common law, and is in no wise affected by any statute. Hence, in the United States, the owner's rights in a manuscript play are not prejudiced by its authorized public representation. Representation made Equivalent to Publication by English Statute. — In England, the question is affected by other considerations. Parliament has granted the exclusive right of representing not only printed, but also manuscript, dramatic pieces.2 The latter, equally with the former, are brought within the operation of the statute. Moreover, it is expressly declared that the public representation of a dramatic composition shall be equivalent to the publication of a book. There 1 See ante, p. 116. 2 3 & 4 Will. IV. c. 15. 5 & 6 Vict. c. 45, s. 20. |