Whether the part taken by a person in the representation of a play is such as will render him liable to an action for the penalties or damages, is a question sometimes attended with difficulties. Where the defendant had let a room or hall in his tavern, and had furnished the platform, benches, and lights for a public performance, and had allowed bills to be put up in the tavern, and tickets to be sold at the bar, it was held that these facts "afforded no evidence that the defendant represented, or caused to be represented, the musical composition in question within the meaning of the statute;" and that a person is not liable, "unless, by himself or his agent, he actually takes part in a representation which is a violation of copyright. And if it were to be held that all those who supply some of the means of representation to him who actually represents are to be regarded as thereby constituting him their agent, and thus causing the representation, within the meaning of the act, such a doctrine would, we think, embrace a class of persons not at all intended by the legislature."1 In Lyon v. Knowles, it appeared that the defendant had let his theatre to Dillon for certain dramatic performances, paid for the printing and advertising, and furnished the lights, doorkeepers, scene-shifters, supernumeraries, and musicians. Dillon engaged and paid the company, selected the plays, and had the entire management of the performance, and exclusive control of all persons employed in the theatre. The money paid for admission was taken at the doors by servants of the defendant, who retained one half of the gross receipts as his remuneration for the use of the theatre, &c., and gave the other half to Dillon. On these facts, it was held that the defendant had transferred to Dillon, for the time, the entire control and management of the theatre; that the arrangement between them did not amount to a partnership; and hence that the latter, and not the former, was the person who had caused the representation.2 This judgment was affirmed on appeal.3 1 Russell v. Briant, 8 C. B. 836, 848. defendant, he might be considered as 2 3 Best & S. 556. 8 5 Id. 751. "If Dillon," said Chief Justice Cockburn in the lower court, "and his company could be in any sense regarded as the company of the representing, or causing to be repre sented, the piece in question. But the facts are quite otherwise. As I understand the evidence, the defendant made over to Dillon the use of this theatre, The facts in Marsh v. Conquest showed that the defendant was the owner and manager of the Grecian Theatre in London; and that, for £30, he had let for one night to his son, who was stage-manager, the use of the theatre, company, and all persons employed. The son selected and brought out a play, for whose representation the court held the defendant liable. This judgment was based on the fact, whether assumed or proved does not appear from the report, that the defendant had the control and management of the theatre and the company during that performance. If such was the fact, the law was doubtless interpreted correctly. But it may be doubted whether the circumstances and the relations of the parties warranted that assumption. The natural inference would be that, by the letting of the theatre and the company for one night, the entire control and management for that time passed to the lessee; and, to perform therein with his company such pieces as he should be minded to represent there. All that the defendant did was to stipulate that his servants should receive the proceeds, in order that the remuneration which he contracted for should be secured to him. But the theatre with its accessories, lights, band, &c., was under the direction and control of Dillon, and the defendant had divested himself both of the right to interfere in the choice of the piece to be represented, and of any veto to be exercised by him as to providing, acting, or representing any particular piece. The defendant is nothing more than the proprietor of the theatre, who has transferred for the time the exercise of all his rights in it as such to Dillon. "It therefore appears to me that Dillon is the person who represented any pieces represented there while he had the sole possession. If it had been made out that there was a joint action or control over the performances by the defendant and Dillon, so that they could be considered partners, that might have been a very different matter. But here there was nothing in common between them except that the gross proceeds were shared. Does that make them partners? In order to constitute a partnership between two persons, there must be a participation of profits between them as such, whereas here the stipulation was that the defendant should have half of the gross profits of the theatre in lieu of being paid any sum as rent for the use of it." 3 Best & S. 562. 1 17 C. B. N. s. 418. "I think," said Erle, C. J., "the defendant is responsible for that representation. He was the proprietor of the theatre, and had entire control over the estab lishment and all belonging to it; and what was done by his son was done by his permission. The case of Lyon v. Knowles seems to me to recognize that distinction. There the defendant merely let his theatre with the scenery, scene-shifters, band, lights, &c., to Dillon, who brought his own company to represent pieces of his own selection, the plaintiff having no control whatever over any person employed in the representation. Here, however, the piece is performed by the defendant's own corps dramatique, his son being one of them; and the performance takes place for the defendant's profit to the extent of 301. I think, therefore, it is impossible to say that the defendant did not cause the piece to be represented." Ibid. 431. in that case, the defendant was no more liable for the representation than was the defendant in Russell v. Briant, or in Lyon v. Knowles.1 In Daly v. Palmer, the court ruled that the unlicensed sale of the infringing drama," with a view to its public representation, makes the seller a participant in causing the play to be publicly represented;" and the defendants were enjoined, not only from performing the play, but also from selling it for public representation.2 WHAT AMOUNTS TO PIRACY. In the case of playright, piracy is determined by the same general principles that govern in the case of copyright. The unauthorized performance, not only of the whole, but of a material part of a dramatic composition, will amount to piracy.3 1 In Lyon v. Knowles, Blackburn, J., said: "I do not think that, by furnish ing servants to another, a man can be said to do all that is done by those servants while under the command of that other. A familiar example may be found in the case of a man letting a ready-furnished house, leaving an old servant in it. Suppose the tenant gave a dinner, which was cooked by that servant, who also attended on him at it, and for which the plates and furniture of the landlord were used, no one could say that in any sense of the words the landlord gave that dinner." 3 Best & S. 564. 26 Blatchf. 256, 271. 3 Br. Planché v. Braham, 8 Car. & P. 68, on ap. 4 Bing. N. C. 17; Reade v. Conquest, 11 C. B. N. s. 479, 492; Boosey v. Fairlie, 7 Ch. D. 301; Chatterton v. Cave, Law Rep. 10 C. P. 572, 1st ap. 2 C. P. D. 42, 2d ap. 3 App. Cas. 483. Am. Daly v. Palmer, 6 Blatchf. 256; Shook v. Rankin, 6 Biss. 477. In Chatterton v. Cave, Lord Coleridge, C. J, said: "I concur in the opinion of the rest of the court. What I meant to convey by my finding was that in two points or situations there had been an imitation of the plaintiff's drama by the defendant. These points 80 copied were not parts of the dialogue or composition of the plaintiff's drama, but were in the nature of dramatic situations or scenic effects. It appeared to me that, looking to the general character of the two dramas respectively, the extent to which the one was taken from the other was so slight, and the effect upon the total composition was so small, that there was no substantial and material taking of any one portion of the defendant's drama from any portion of the plaintiff's. Therefore, though I felt bound to find that there was a taking of these two small points, I decided to enter the verdict for the defendant, and the question now is whether I was entitled to do so in point of law." After considering Planché r. Braham, Bramwell v. Halcomb, Bradbury v. Hotten, and D'Almaine v. Boosey, he continued: "All these authorities satisfy me that the answer to the question whether there has been an infringement of copyright, does not follow as a necessary logical consequence from Offender Liable to Penalties under English Statute when Material Part Taken. -The 3 & 4 Will. IV. c. 15, s. 2, by express words, subjects to the penalties prescribed any person who shall unlawfully represent the whole or "any part" of a dramatic piece. But a person is not liable to the penalties, unless a material part has been taken. "The question in every case," said Lord O'Hagan, "must be a question of fact; and a jury cannot be constrained to find every infinitesimal taking to be the taking of a 'part' of a dramatic production within the purview of the statute. 'Part,' as was observed, is not necessarily the same as 'particle;' and there may be a taking so minute in its extent, and so trifling in its nature, as not to incur the statutable liability."1 When the part taken is material, the plaintiff, according to the opinion expressed by Chief Justice Tindal, in Planché v. Braham, is not bound to prove actual damage. "The positive enactment," said that Judge, "that every offender shall be liable to an amount not less than 408., or to the full amount of the benefit derived or loss sustained, shows that damage to the plaintiff is not the test of the the mere fact of there having been a taking from a previous work, but that it is a question of fact and of common sense, whether the part taken is of such a substance and value, or used in such a way, as to amount to an infringement of the plaintiff's right. Here the plaintiff's play was taken from a French original, and the plaintiff would have a literary copyright in the translation and the right of representing it; but this could not prevent another person from going to the original and making another version in which he also would have a copyright. The defendant had made what in all but two points was an entirely distinct and independent version of the original drama. The two points in question related to two appearances of the Wandering Jew. I must confess that there is a difficulty to my mind in referring the substance of the two points taken to the original French drama as my learned brethren have done. In the French drama these appearances of the Jew form part of the prologue and epilogue respectively, and have not much reference to the action of the drama. They are introduced into the English dramas more as part of the machinery or story of the play than in the French original. The end of the French play is quite different from that of the English, and the appearance of the Jew in the latter at the end of the play is connected with the alteration of the plot. I think that the idea of these appearances was not taken by the defendant from the French original, but from the plaintiff's play. But notwithstanding this I think the effect of them is so very small on the total result of the play, and they form such an utterly unimportant part of the scenic representation as a whole, that the defendant's drama cannot be said to be taken in any material or substantial part from the plaintiff's." Law Rep. 10 C. P. 580–582. 1 Chatterton v. Cave, 3 App. Cas. 483, 498. See also same case in lower courts, 2 C. P. D. 42, Law Rep. 10 C. P. 572. defendant's liability, but that 40s. is to be paid, even if there be no actual damage." 1 How Far Offender Liable under American Statute when only Part Taken. The statute of the United States prohibits the unlicensed performance of "any dramatic composition," and fixes a minimum limit to the assessment of damages.2 Above this limit, the amount is left to the discretion of the court.3 The question may be raised whether the minimum of damages specified by the statute is not in the nature of a penalty; and, if so, whether such penalty may be recovered for the unlawful performance of a part of a play.5 But there can be no doubt that the unlawful performance of a material part of a dramatic composition will amount to piracy, against which an injunction will be granted, and for which an action for the damages sustained may be maintained." Substantial Identity Test of Piracy. It is not essential that the representation complained of shall be an exact copy of the whole or part of a protected play. enough to constitute piracy.7 Substantial identity is 14 Bing. N. C. 19. This opinion play: in the first instance, not less 2 U. S. Rev. St. s. 4966. 3 In considering the statute of 1856, Mr. Justice Drummond said: "That law prescribes a particular penalty for the unauthorized performance of a 5 This question in the case of copy 6 Daly v. Palmer, 6 Blatchf. 256; Shook v. Rankin, 6 Biss. 477. 7 Br. Reade v. Conquest, 11 C. B. N. s. 479; Chatterton v. Cave, Law Rep. 10 C. P. 572, 1st ap. 2 C. P. D. 42, 2d ap. 3 App. Cas. 483; Boosey v. Fairlie, 7 Ch. D. 301. Am. Daly v. Palmer, 6 Blatchf. 256; Boucicault v. Wood, 2 Biss. 34; Martinetti v. Maguire, 1 Deady, 216. |