rent of authorities, which affirm the principle that there can be no copyright without a compliance with the requisites prescribed by the statute.1 The true doctrine was affirmed by the Circuit Court of the United States in the recent case of Boucicault v. Hart, though it is noticeable that the court in its opinion, though citing and in effect overruling Roberts v. Myers, Boucicault v. Fox, and Boucicault v. Wood, did not comment on these authorities.2 Boucicault v. Hart, as well as the two cases of Shook v. Rankin, was governed by the statute now in force; but its provisions on the point under consideration are substantially the same as those of the acts of 1856 and 1831, under which the three other cases were decided. The controlling facts and principles were essentially the same in all of the cases. In Boucicault v. Hart, the plaintiff claimed to be entitled under the statute to the exclusive right of representing the Shaughraun, of which he was the author. The title-page of this play had been duly recorded on Oct. 26, 1874, after which the piece was publicly represented by the author. It was, how

1 The opinion of the court, in Boucicault v. Wood, seems to have been based chiefly on the construction of section 6 of the act of 1831, which imposes penalties on any person who "from and after the recording the title of any book" shall publish such book without due authority. But this section did not enable a person to maintain an action at law for the violation of copyright until that right had been completely secured. See ante, p. 267.

In Roberts v. Myers, Sprague, J., said: "The third objection is that no copy of this book was ever deposited in the clerk's office. The statute requires that such copy shall be deposited within three months after publication. That time has not arrived. There has been no publication." 13 Monthly Law Reporter, 396. In answer to the objection that the drama had not been printed, the court, having quoted the language of the first section of the act of 1831, which provides that a copyright may be secured for any book "which may now be made or com

posed, and not printed or published, or shall hereafter be made or composed," said: "Here it is clearly expressed that a book may exist without printing; and such book, when made or composed, is to be entitled to copyright. The objection, therefore, cannot prevail." Ibid. 399.

It is plain that the court failed to comprehend the true meaning of the language quoted from the statute. It was not that a book might be protected by copyright while in manuscript; but that copyright might be obtained only for such books as had not been published, excluding all those which were published before being copyrighted. The object of the statute was to provide protection for unpublished works, but it contemplated their publication as a condition precedent to copyright. The language above quoted is not used in the act now in force.

2 Boucicault v. Hart appears not to have been reported when the two later cases of Shook v. Rankin were decided.

ever, kept in manuscript, and the bill, verified in February, 1875, did not allege any publication of the composition, or any delivery of copies as required by the statute. The law was rightly interpreted by Mr. Justice Hunt of the United States Supreme Court, to the effect that there could be no exclusive right under the statute of representing a dramatic composition, unless it was protected by copyright; and that valid copyright could not be secured without publication of the piece in print, and a compliance with the requisites prescribed by the statute. "I hold," he said, "that to secure copyright of a book, or a dramatic composition, the work must be published within a reasonable time after the filing of the title-page, and two copies be delivered to the librarian. These two acts are by the statute made necessary to be performed, and we can no more take it upon ourselves to say that the latter is not an indispensable requisite to a copyright, than we can say it of the former."1 As the plaintiff had not complied with these conditions, his title was held to be invalid.

How Playright is Secured.

To acquire under the statute the exclusive right to perform a play in public, the owner

113 Blatchf. 47, 54. " Any person," said Mr. Justice Hunt, "shall be entitled to a copyright, who, before publication, first, shall deliver to the librarian a printed copy of the title of the book, and second, shall, within ten days after the publication thereof, deliver to the librarian two copies of the

same.

The book may not be printed or published when the title-page is filed, and some right (inchoate perhaps) seems intended to be secured as of that date, although an actual printing or publication is not then made. But the expression before publication' is based upon the idea that a printing or publishing will soon occur. This is put into clear meaning by the next clause of the section, that the author shall not be entitled to copyright, unless, within ten days from the publication' he shall deliver two copies to the librarian. It is not a fair interpretation of this section to hold, that the filing of the title entitles to a

copyright fully and absolutely, and that this may be defeated by a publication and failure to deliver two copies, but, as long as there is no publication, although it continue indefinitely, there is no lapse of the right. This construction is not permitted either by the idea which secures benefits to the author or inventor, upon the theory that the public is to be benefited, as well as himself, by his works, or by the principle pervading all this branch of the laws of patents, trade-marks, and copyrights, that an author or inventor must put his claim into the form of a welldefined specification, work or composi tion, and so place it upon record that he cannot alter it to suit circumstances, and so that other authors may know precisely what it is that has been written or invented." Ibid. 54.

This authority was followed in Carillo v. Shook, 22 Int. Rev. Rec. 152. See also Benn v. Le Clercq, 18 Id. 94.

must first publish and copyright it as a literary composition. Playright can be secured in no other way. Copyright in a dramatic composition carries with it playright. No special conditions or requirements are prescribed for securing playright. If the production be a "dramatic composition,' copyright and playright attach simultaneously in the same manner and on the same conditions. Both rights begin with publication in print, and continue for the same term. Neither is affected by public performances of the play before its publication in print. If the copyright be valid, the playright is valid. The owner of the copyright has the sole liberty both of publishing the composition and of representing it in public. If the copyright fails, the playright fails with it.

TRANSFER OF PLAYRIGHT. GREAT BRITAIN.

Held, that Assignment must be in Writing. The mode of· transmitting the right to print a dramatic or musical composition, that is the copyright, is not different from that to be observed in the case of a book. But a conveyance of the right to publish a dramatic or musical composition does not necessarily carry the right to represent or perform it. The mode of transferring playright is, however, regulated by the same general principles that govern in the case of copyright. Hence, in England, the construction given to the 8 Anne, c. 19, and the 54 Geo. III. c. 156, has been applied to the 3 & 4 Will. IV. c. 15; and accordingly it has been held that an assignment of the right to represent or perform a dramatic or musical composition must, under the last-named statute, be in writing,2 though it need not be attested3 nor sealed. This is the law as it has been judicially interpreted. But it is open to the same criticisms that have been made on the law relating to the assignment of copyright.5

Is Law Settled that Assignment must be in Writing? -The law regulating the transfer of playright cannot rightly be determined without considering what effect, if any, the 5 & 6 Vict. c. 45, has on this question. Can this statute be construed to govern the mode of transferring the right of representing a dramatic composition, so that, if copyright may be passed by parol, playright may be assigned in the same manner? This important question does not appear to have been judicially considered. It has been shown in another part of this work that the question whether copyright may be assigned by parol, under the statute of Victoria, cannot be regarded as judicially settled; but the opinion has been expressed that the weight of authority is in favor of the construction that an assignment is not required to be in writing.1

In Cumberland v. Copeland, the Exchequer Chamber, overruling the judgment of the Court of Exchequer,2 held that an unattested writing was sufficient, under the statute of William ;3 but the question whether a writing was necessary was not before the court. Moreover, the assignment in controversy had been made before the statute of Victoria was passed. And so, in Marsh v. Conquest, the court simply decided that the assignment need not be by deed. Shepherd v. Conquest is the only case yet reported in which it has been directly held that an assignment of playright must be in writing.5 This judgment was based on the construction of 3 & 4 Will. IV. c. 15, and it does not appear that the court considered the bearing of 5 & 6 Vict. c. 45, on the question. The doctrine affirmed in this case was questioned in Lacy v. Toole, where a letter was held to be a valid assignment of the property in a play. These decisions cannot rightly be regarded as settling what form of transfer is admissible under the statute of Victoria.

Section 20 of this act, after securing to the author and his assigns the sole liberty of representing or performing a dramatic or musical composition, for the same term as that provided for copyright in books, declares that "the provisions herein

1 See ante, pp. 311-316.
27 Hurl. & N. 118.

31 Hurl. & C. 194.

4 17 C. B. N. s. 418.

,5 17 C. B. 427.

6 15 L. T. N. s. 512. See language of Byles, J., ante, p. 311, note 1.

before 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 as otherwise provided. The object and effect of this section, considered in connection with the general scope of the entire statute, appear to be to put playright on the same footing as copyright, as far as the vesting and the ownership of the rights are concerned. Moreover, the definition of assigns contained in section 2 doubtless gives the meaning of that word wherever used in the statute, and hence is as applicable to an assignee of playright as to one of copyright. It would seem, therefore, that any mode of transferring copyright recognized by the statute would be equally available in the case of playright; that, if the former may be assigned by parol, so may the latter; and that a writing, if required in one case, is essential in the other.

Transfer before Playright Secured. -It has been maintained elsewhere that, whatever may be the proper form of assignment after the copyright has been secured, the statute cannot rightly be construed to regulate transfers made before the statutory right has vested.1 The statutory right of representation in the case of a manuscript dramatic composition attaches when the play is first publicly performed. Assuming the principle just expressed to be sound, the rights in a manuscript drama which has not been publicly performed may be passed by a verbal agreement; for in such case the form of transfer is governed by the common law.

But it should be borne in mind that the questions here raised have not been determined by the courts; hence the law remains for judicial interpretation.

Registration.Nor has it been decided whether section 13 of 5 & 6 Vict. c. 45, which provides for the transfer of copyright by registration, but does not mention playright, and section 25, relating to the transmission of copyright by bequest and in case of intestacy, are applicable to the right of representation. But, for the reasons given above, it would seem that they are. This view in the case of transfer by registration appears to be confirmed by section 22 of the statute of Victoria.

1 See ante, pp. 306, 307.