CHAPTER XVI. INFRINGEMENT OF PLAYRIGHT. THE remedies for the unlawful performance of a dramatic composition are of two kinds: those in equity and those at law. The unlicensed representation of a play may be prevented or restrained by injunction; and an action at law lies for the damages sustained by such performance. The remedies in equity, including the injunction, account of profits and discovery, are governed by the same general principles which have been considered in the case of copyright.1 Statutory Remedies for Violation of Playright different from those for Invasion of Copyright. The remedies in law prescribed by the statute for the violation of playright are different from those provided for the infringement of copyright. The modes of violating the two rights are entirely distinct. Statutory copyright is infringed by publication, but not by any oral use of the composition. Playright is invaded by performing the play, but not by printing it or selling printed copies. The 3 & 4 Will. IV. c. 15, secures no other right and prohibits no other act than that of representation. The right secured by this statute is reaffirmed, its duration enlarged, and its application extended to musical compositions, by section 20 of 5 & 6 Vict. c. 45. But the remedies prescribed by the latter statute for the unlawful publication of a book do not apply, and are not extended, to the unlicensed representation of a play. For the latter wrong, the penalties given by the statute of William are re-enacted by section 21 of 5 & 6 Vict. c. 45. The only remedies then provided by any English statute for the protection of playright are those prescribed by 3 & 4 Will. IV. c. 15, and these do not apply to the unlawful printing of a play. Of course, a dramatic composition may be copyrighted as a book 1 See Chap. XI. under the statute of Victoria; and, in that case, unlawful printing is a violation of the copyright. But copyright vests only in printed books, while playright is secured in both published and manuscript productions. Hence, in England, a dramatist has no statutory remedy for the unlicensed printing of an unpublished play. In the United States, playright, as well as copyright, is secured by the statute only in published works. When a dramatic composition is printed without authority, the wrong must be treated as an infringement of copyright. When the complaint is of unlicensed performance, the only remedies are those prescribed for the invasion of playright. Section 4967 of the statute, which prohibits the unauthorized publication of a manuscript, applies to the printing, but not the public performance, of an unpublished play.1 Remedies Prescribed by English Statute. In England, the statutory remedies for the violation of playright are provided by section 2 of 3 & 4 Will. IV. c. 15, which declares that if any person shall "represent, or cause to be represented, without the consent in writing of the author or other proprietor first had and obtained, at any place of dramatic entertainment," any dramatic piece entitled to protection, or any part thereof, "every such offender shall be liable for each and every such representation to the payment of an amount not less than forty shillings, or to the full amount of the benefit or advantage arising from such representation, or the injury or loss sustained by the plaintiff therefrom, whichever shall be the greater damages.' Remedies Prescribed by American Statute. The statute of the United States provides that "any person publicly performing or representing any dramatic composition for which a copyright has been obtained, without the consent of the proprietor thereof, or his heirs or assigns, shall be liable to damages therefor, such damages in all cases to be assessed at such sum, not less than one hundred dollars for the first, and fifty dollars for every subsequent performance, as to the court shall appear to be just."2 1 Boucicault v. Hart, 13 Blatchf. 47; Keene v. Wheatley, 9 Am. Law Reg. 33; Boucicault v. Fox, 5 Blatchf. 97. 2 U. S. Rev. St. s. 4966. WHAT IS AN UNLAWFUL PERFORMANCE. Public and Private Performances Distinguished. The statute of the United States prohibits only unlicensed public performances. The word public or its equivalent is not used in the English act. But there can be no reasonable doubt that a strictly private performance is not within the prohibition of either statute. Cases may arise in which it will not be easy to determine whether the representation is a public or a private one. That it is called private does not make it so. Without regard to what it is called, or where it may be given, that may generally be regarded as a public performance which is open. to the public without discrimination. But it would seem that a representation may also be regarded as a public one, although the privilege of admission is denied to the general public, and is extended only to certain persons. "Private theatricals" are sometimes given by amateur performers in a place of public amusement, to which a charge is made for admission. Only invited persons, or members of a certain society or class, are privileged to buy tickets of admission. There appears to be no reason why such entertainments should not be treated as public performances within the meaning of the law, notwithstanding the public indiscriminately are not admitted. In a case of doubt as to whether an entertainment is a public or a private one, the fact that no charge is made for admission may aid in removing the doubt. But when it is found that a performance is public, the penalty of piracy cannot be escaped by the fact that the audience were admitted without charge. The purpose of the law is to protect the lawful owner of a dramatic composition from injury. Ordinarily, no injury will arise from the strictly private representation of a play. But a performance, nominally private, but in reality public, with a charge imposed on those admitted, or public performances to which persons are admitted free of charge, may be harmful to the owner of the drama represented, who thereby becomes entitled to the protection of the law. Neither scenery, ap Scenery, Costumes, &c., not Essential. propriate costumes, nor any of the usual resources of a theatre, are essential to a dramatic performance within the meaning of the statute. "We should take away a part of the protection conferred on authors," said Chief Justice Denman, "if we held that there could be no public representation without these accompaniments.” 1 Place of Performance. Nor is it necessary that the representation shall be given in a theatre. The English statute prohibits unlicensed performances "at any place of dramatic entertainment." According to the judicial interpretation given to this language, any place where a public dramatic representation is given is a "place of dramatic entertainment" within the meaning of the law. "As a regular theatre may be a lecture-room, dining-hall, ball-room, and concert-room, on successive days, so a room, used ordinarily for either of those purposes, would become, for the time being, a theatre, if used for the representation of a regular stage play." "2 Plurality of Actors not Essential. A plurality of actors is not essential to a dramatic representation. In the meaning of the law, the performance is complete when the dialogue or monologue of the drama is repeated with appropriate expression and action before a public audience. It cannot be material whether the various characters in the play are assumed by as many different actors, or are represented by one person appearing in ordinary dress in any place of public entertainment. The whole or a material part of a drama is frequently given as a "dramatic reading" by one person, on a lecture platform, and without special costume or other stage resource. The dialogue is thus recited with appropriate expression and action by a 1 Russell v. Smith, 12 Q. B. 236. 2 Denman, C. J., Ibid. 237. In the same case, Patteson, J., remarked that "the street where Punch is performed is for the time being a place of dramatic entertainment." Ibid. 232. In Russell v. Briant, 8 C. B. 836, the court did not doubt that a room in the Horns Tavern was a place of dramatic entertainment. See also Russell v. Smith (in equity), 15 Sim. 181. 8" When a dramatic composition is represented, in dialogue and action, by persons who represent it as real, by performing or going through with the various parts or characters assigned to them generally, the composition is acted, performed, or represented, and, if the representation is in public, it is a public representation. To act, in the sense of the statute, is to represent as real, by countenance, voice, or gesture, that which is not real. A character in a play who goes through with a series of events on the stage without speaking, if such be his part in the play, is none the less an actor in it than one who, in addition to motions and gestures, uses his voice." Blatchford, J., Daly v. Palmer, 6 Blatchf. 264. single person, who represents the various characters as speaking and acting. Such a reading must be regarded as a dramatic performance within the meaning of the statute. In England, it has been held that the singing in public of a dramatic song, by one person sitting at a piano, is a dramatic representation.1 Public Reading may Amount to Performance. There is no reason why the public reading or recital of any dramatic composition may not amount to a performance within the meaning of the law. The object of the statute may rightly be taken to be to secure to the owner the profits arising from all public uses of a dramatic composition. It is manifest that the property in the play may be injured, and the owner be deprived of profits to which he is entitled, if he is powerless to prevent the unlicensed use of his production for public readings. But this right does not vest in a literary production which is not a dramatic composition. For in this case only the exclusive right of printing and selling is given by the statute, and only the unlawful printing or circulation of copies is prohibited. Hence, the author has no remedy against any person who publicly reads or recites such production. Of course, this rule applies only to published works. The unauthorized public reading of any unpublished production, whether a dramatic composition or not, is a violation of the owner's common-law rights therein. WHO ARE LIABLE. Under the English statute, any person is made liable to the penalties who shall unlawfully represent, or "cause to be represented," a dramatic piece. The words above quoted are not used in the American act, which prohibits " any person publicly performing or representing any dramatic composition,"3 in violation of the provisions of the statute. This variation in language does not affect the uniformity of the intent and object of the two statutes. In this respect, they are to be construed alike. 1 Russell v. Smith, 12 Q. B. 217. See also Russell v. Briant, 8 C. B. 836; Clark v. Bishop, 25 L. T. N. s. 908. 2 3 & 4 Will. IV. c. 15, s. 2. |