By this section, it is enacted "that no assignment of the copyright of any book, consisting of or containing a dramatic piece or musical composition shall be holden to convey to the assignee the right of representing or performing such dramatic piece or musical composition, unless an entry in the said registry book shall be made of such assignment, wherein shall be expressed the intention of the parties that such right should pass by such assignment." It has been said that this section was enacted to correct the law as expounded in Cumberland v. Planché,2 where it was held that an assignment of the copyright in a farce carried the right of representation; and that Parliament intended to declare that a general assignment of copyright should not be construed to have that effect, unless the assignment should be registered, and the intention to transfer the right of representation clearly expressed. The provision applies, however, only to cases where the copyright in a dramatic or musical composition is assigned without any mention of the playright, and where, consequently, it may be doubtful whether the latter right was intended to be passed. When the playright alone is assigned, or when in the instrument that conveys the copyright it is expressly declared that the right of representation is also passed, registration is not required.3 Thus, it was not necessary to register an assignment of “the whole copyright and acting right without reservation," since the intention to pass both rights was here plain.1

There is no reason why the same rule should not apply to cases wherein the assignment of the copyright shows unmistakably the intent of the assignor to convey also the playright, although the latter right is not expressly named in the instrument. Thus, an absolute conveyance in general terms of all the author's "right, title, and interest" in a dramatic composition can only mean, in the absence of words or circumstances to the contrary, that the parties agreed that the entire property, playright as well as copyright, should pass.5

TRANSFER OF PLAYRIGHT. - UNITED STATES.

In the United States, the statutory right of exclusive representation can exist only in a dramatic composition which has been copyrighted as a book. To this extent, playright is dependent on copyright. But there appears to be no reason why the two rights in the same composition may not be held separately by different persons, or why one right may not be transImitted with or without the other.

Mode of Transfer. In considering the question whether copyright may be assigned by parol, or whether a writing is necessary, it has been shown1 that the only provisions in the Revised Statutes which can be cited in favor of the latter view are sections 4955, which enacts that "copyrights shall be assignable in law, by any instrument of writing;" and section 4964, which imposes a penalty on any person who shall republish a book without the written consent of the owner of the copyright, signed by two witnesses. The latter section clearly does not apply to the performance of a play. Unlicensed representation is prohibited by section 4966, which declares that any person who publicly performs a dramatic composition without the consent of the owner shall be liable to damages; but it does not require such consent to be in writing. There is nothing in the statute which can rightly be construed as regulating the mode of assigning playright, excepting section 4955. This mentions assignments of "copyright" alone. As the statute does not expressly prescribe any form of transferring the right of representing a dramatic composition, it might be claimed that the question is governed by the common law, and hence that a parol transfer is good. But it is more probable that the courts will hold that, as playright is embraced within the grant of copyright, any regulations prescribed concerning the transfer of the latter right are by implication equally applicable to the former. If this view shall be adopted, and section 4955

This question has not been judicially considered. It may be urged with much reason that, in making the provision, Parliament had in view only those assignments made by entry in the register at Stationers' Hall, since this is

the only mode of assigning copyright expressly prescribed by the statute; and that the effect of a transfer otherwise made should be left to judicial construction.

1 See ante, pp. 319–321.

be construed to require an assignment of copyright to be in writing, it will follow that the same form must be observed in assigning playright.

Transfer before Playright Secured.- When a play is sold in manuscript, and the buyer afterward secures the statutory copyright and playright in his own name, there is nothing in the statute requiring the assignment, thus made before the statutory right attaches, to be in writing.1

The ques

Does Assignment of Copyright Carry Playright? tion may arise, whether a general assignment of the author's rights in a copyrighted dramatic composition will carry both the right of publication and that of representation; and whether an assignment of the "copyright" without mention of the playright will impliedly embrace the latter. This would doubtless depend on the agreement, and the intention of the parties to be determined by the words of the contract, and such facts and circumstances as would be admissible to show its meaning. An absolute conveyance of all the author's "right, title, and interest" in a play would, in the absence of controlling circumstances to the contrary, be naturally understood to pass the entire property, including the rights both of publication and of representation.2 And so an assignment in which the copyright, but not the playright, is mentioned may be shown to have the same effect; or its meaning may be properly restricted to the former right. It is a question of construction depending on the agreement and the circumstances in each case. But a clear intention to transfer both rights should be shown in order to give the agreement that effect.

Limited Assignment of Playright. - It has been shown that copyright cannot be regarded as divisible with respect to locality on account of the impracticability of such division. But this difficulty does not exist in the case of playright. The imprac ticability of there being several exclusive publishers of a book in the same country, and of each restricting the circulation and sale of his publication to a prescribed area, is obvious. It is equally plain that no serious inconvenience will necessarily

1 See ante, p. 319.

2 As in Cumberland v. Planché, 1 Ad. & El. 580.
See ante, p. 335.

result from one person exercising the exclusive right to represent a play in one State or city and another person in another State or city. There is, then, no reason why the owner of a drama, whether it be in manuscript, or printed and copyrighted, may not make an absolute assignment of the right to represent it in any named part of the country, in any State or States, or in any city or cities. The ownership of the playright may thus be divided among many owners, each having the exclusive right of representation within certain boundaries. In Keene v. Wheatley, the court seems to have entertained the contrary opinion. But in the following case of Roberts v. Myers, the law was more correctly expounded to the effect that playright may be transferred independently of the copyright in the same composition, and that the former may be assigned for any part of the country.2

"The author's proprietary rights for England and Scotland," said Mr. Justice Cadwalader, 'had never been transferred to her [the complainant]. The statutes of the United States for the protection of authors do not, like those for the benefit of inventors, expressly sanction transfers of limited local proprietorships of exclusive privileges. A writing, which is in form a transfer by an author of his exclusive right for a designated portion of the United States, would therefore, at law, even under the statutes of copyright, operate as a mere license, and would be ineffectual as an assignment." 9 Am. Law Reg. 46.

This is true of copyright, but not of playright. Miss Keene had bought from an English dramatist the exclusive right of representing the play in the United States. It was held that as the play had not been published, she was entitled to maintain a suit in equity for the protection of her commonlaw rights; but that the transfer to her "cannot be regarded otherwise than as only a partial assignment upon which a suit could not be maintained at law in her own name." Ibid. The doctrine expressed in the language quoted is clearly erroneous. The very essence even of a limited assignment is that the

ownership and the legal title for the time or territory embraced within the assignment must pass to the assignee; otherwise the agreement is but a li

cense.

A good assignment for the United States had been made to Miss Keene. She thereby became vested with the legal title and the absolute ownership in this country, and hence was fully entitled to maintain an action at law as well as a suit in equity.

213 Monthly Law Reporter, 396. In this case it appeared that an assignment had been made to the plaintiff of the exclusive right of representing a play for one year, in all parts of the United States excepting certain cities. The defendant contended that such agreement was not an assignment, but a license, and therefore that the suit could not be maintained in the name of the plaintiff. Mr. Justice Sprague said: "Whatever force this objection might have at law, it cannot prevail in equity. The statute of 1834 sanctions assignments of copyright, by prescribing the instrument by which they are to be made and a mode of recording them. It does not say what interest may be assigned. But there is no sufficient reason for preventing the author from conveying a distinct portion of his right. Divisibility as well as

In this case, the court also expressed the opinion that playright might be assigned for any time less than the full term. But the question whether a transfer of the exclusive right of representation for a limited time will amount in law to an assignment which will vest the assignee with the legal title during that term is attended with the same doubt and difficulties which were pointed out in treating of the limited assignment of copyright.1

Authors Employed.

Joint Authorship The questions as to who is the owner of a play claimed to have been written by two persons jointly, and of a dramatic or musical composition which has been produced by one person in the employment of another, have already been considered.2

assignability enhances the value of his property, for he may find a purchaser able and willing to pay for a part, but not for the whole, of his copyright. The exclusive right of acting and representing is distinct from that of printing and publishing, created indeed by a new statute, which superadds it to those pre-existing rights; and there is no good reason why it should not be assignable, and that too for a limited

time." Ibid. 401. See also Martinetti v. Maguire, 1 Deady, 216.

1 See ante, p. 337.

2 See as to joint-authorship, Levi v. Rutley, ante, p. 237; French v. Maguire, 55 How. Pr. (N. Y.) 471. As to rights of employer and person employed, see Hatton v. Kean, ante, p. 249; Wallenstein v. Herbert, ante, p. 251; Boucicault v. Fox, ante, p. 257; Shepherd v. Conquest, 17 C. B. 427.