instrumental piece, whether written for the orchestra, organ, piano, or other instrument, may have in it not only copyright, but playright; not only the exclusive right of printing it, but the sole liberty of playing it in public.1 And, as in the case of dramatic compositions, statutory playright is secured not only in printed, but also in manuscript musical compositions.

cal works?" 12 Q. B. 231. In Russell v. Smith, in chancery, 15 Sim. 181, 182, Vice-Chancellor Shadwell said that "the words of the songs were protected by the former copyright acts and the music of them by the act of Victoria." This language implies that

the music of a dramatic composition was not protected by 3 & 4 Will. IV. c. 15. But this does not appear to be the natural construction of that statute.

1 See Hatton v. Kean, 7 C. B. N. s. 268; Wallenstein v. Herbert, 15 L. T. N. s. 364, on ap. 16 Id. 453.

CHAPTER XV.

STATUTORY PLAYRIGHT IN DRAMATIC AND MUSICAL COMPOSITIONS.

Playright and Copyright Distinguished. Under the statute, playright and copyright are treated as two independent and distinct rights. The former is secured only in dramatic or musical compositions. In a printed production of this kind, both rights may exist together; and, in general, the principles governing the vesting and the ownership of each are the same. But an invasion of one right is not a violation of the other, and the penalties of piracy prescribed in one case are different from those in the other. Copyright may be infringed by publication in print, but not by public performance; playright, by representing but not by printing the play. The copyright in a dramatic composition is in no respect different from the copyright in any other literary production.

In England, the statute grants the exclusive right of publicly performing both printed and manuscript plays. In the United States, the right is secured only in published compositions; the statute affords no redress for the unlicensed representation of manuscript plays.

GREAT BRITAIN.

Duration of Playright in Printed and Manuscript Compositions. -The first statute giving to dramatists the exclusive right of performing their plays was the 3 & 4 Will. IV. c. 15, passed in 1833. By this act and the 5 & 6 Vict. c. 45, passed in 1842, British playright is now governed. The first section of the statute of William declares that the author of any unpublished tragedy, comedy, play, opera, farce, or other dramatic piece or entertainment shall have the sole liberty of representing it at any place of dramatic entertainment in Great Britain; and

that the author of a published production of this kind shall have the same right for twenty-eight years from the time of publication. Protection is here provided for two classes of compositions, 1. Manuscript. 2. Those published in print. The statute plainly declares that playright in printed plays shall begin at the time of publication and continue for twenty years. But there is nothing in the act showing when the right in an unpublished play shall begin or when it shall end. The term of protection is in no wise limited. The only sound construction of which the statute is capable is that the owner of a manuscript play, provided he does not publish it in print, and complies with the conditions on which protection is granted, has for ever the exclusive right to perform it in public, and is entitled to the statutory remedies provided for the invasion of that right.

It is now necessary to inquire what changes have been made. in the provisions of this statute by the 5 & 6 Vict. c. 45. Section 20 of the latter act, after citing the 3 & 4 Will. IV. c. 15, and declaring that "it is expedient to extend the term of the sole liberty of representing dramatic pieces given by that act to the full time by this act provided for the continuance of copyright," and also to provide protection for musical compositions, enacts, "that the sole liberty of representing or performing, or causing or permitting to be represented or performed, any dramatic piece or musical composition, shall endure and be the property of the author thereof, and his assigns, for the term in this act provided for the duration of copyright in books; and the provisions hereinbefore enacted in respect to the property of such copyright, and of registering the same, shall apply to the liberty of representing or performing any dramatic piece or musical composition, as if the same were herein expressly enacted and applied thereto, save and except that the first public representation or performance of any dramatic piece or musical composition shall be deemed equivalent, in the construction of this act, to the first publication of any book."

This language taken in connection with the statute of 1833 is confusing, and its effect on playright as governed by that statute is doubtful. The declared object of section 20, just

cited, is to extend the term of protection granted by the act of William. But we have seen that the latter statute makes a distinction between manuscript and published plays, and that in the case of the former the term of protection is unlimited, and hence incapable of extension. The preamble, therefore, of section 20 of 5 & 6 Vict. c. 45, is intelligible only when applied to printed plays. It may be contended with much reason that, in the absence of language expressly or by clear implication repealing or restricting the unlimited duration of playright in unpublished productions granted by the statute of William, that right must remain unchanged. But the important distinction drawn by the statute of William between published and unpublished plays has been wholly overlooked or disregarded in the enacting part of section 20 of 5 & 6 Vict. c. 45; and it may be urged that the provisions of that section are such that they cannot reasonably be construed as applying exclusively to printed plays.

Whether this section must be interpreted as making the duration of playright in both published and unpublished compositions the same as that of copyright in a book, or as leaving it unlimited in manuscript dramas, as it was under the statute of William, is a question which has been carelessly left in much doubt for judicial determination.

Conditions on which Playright may be Secured. The correct reading of 5 & 6 Vict. c. 45, appears to be that the same conditions and requirements prescribed concerning the registration of copyright were intended to be applied to playright. But the courts have held that registration is essential neither to the vesting of playright nor to the right of the owner to maintain an action for infringement.1

1 Russell v. Smith, 12 Q. B. 217; Clark v. Bishop, 25 L. T. N. s. 908. See also Lacy v. Rhys, 4 Best & S. 873; Marsh v. Conquest, 17 C. B. N. s. 418.

This construction of the statute is open to criticism. There is nothing concerning registration in 3 & 4 Will. IV. c. 15. Section 20 of 5 & 6 Vict. c. 45, enacts that "the provisions hereinbefore enacted in respect of the property of such copyright, and of registering the same, shall apply to the

liberty of representing or performing any dramatic piece or musical composition," except that the first performance of a play shall be equivalent to the publication of a book. Then follows a proviso prescribing how dramatic and musical compositions in manuscript may be registered. Section 24 then enacts that no action for the infringement of copyright in a book shall be maintained unless the book has been registered before the

The statute of William mentions no requirement to be performed by the author or owner of a dramatic composition in order to secure playright; and none are prescribed by the act of Victoria, except that relating to registration. The latter statute declares that "the first public representation or performance of any dramatic piece or musical composition shall be deemed equivalent, in the construction of this act, to the first publication of any book." It cannot be determined with certainty precisely what effect this provision was designed to have, or what judicial construction will or should be given to it. It was doubtless intended to apply to compositions not published in print. The relation which the public performance of a manuscript drama has to the playright therein is analogous to that which the publication of a book bears to the copyright in it. Printing and acting are but different modes of publication. It would seem that Parliament intended simply to affirm this principle.

Applying to publication by representation the same general principles which are recognized as governing publication by printing, and giving effect to the statutory provision above cited, it will follow that, as copyright in a book dates from the time of first publication, so playright in a manuscript play begins with its first public performance. As first publication of a book in the United Kingdom is a condition precedent of copyright, so the first representation of a manuscript drama must be in the United Kingdom in order to secure playright. As an alien author may acquire copyright by being on English soil when his work is published in Great Britain, so playright may be secured by a foreign dramatist who is anywhere within the

beginning of the suit, and contains a proviso" that nothing herein contained shall prejudice the remedies which the proprietor of the sole liberty of representing any dramatic piece shall have by virtue of the act passed in the third year of the reign of his late Majesty King William the Fourth, to amend the laws relating to dramatic literary property, or of this act, although no entry shall be made in the book of registry aforesaid."

concerning registration in the case of playright is worse than bewildering, unless the language last quoted be taken to refer exclusively to composi tions in which rights had already vested under the statute of William, and to mean that such rights only were not to be defeated by want of registration.

1 s. 20.

2 Boucicault v. Delafield, 1 Hem. & M. 597; Boucicault v. Chatterton, 5

The meaning of these provisions Ch. D. 267.