were dramatic compositions and that consequently he had by virtue of subsection (d) of section 1 the sole right of public performance. But the court ruled that the poems were not dramatic works; that under the existing Copyright Act protection against public performance or delivery of copyrighted works is afforded only in the case of a lecture, sermon, address, or similar production, a drama, or a musical work, and that "other copyrighted works may be recited in public for profit without infringement"; adding that "the point is of some moment, now that radio broadcasting of novels, poems, and so on is widespread . . . Nevertheless, it is recognized that except as to the classes of copyrighted works referred to above, the author under the existing statute cannot complain of public performance of his copyrighted works."

Upon re-argument (22 USPQ 248), the plaintiff contended that the poems were "similar productions" to lectures, etc., but upon this point the court remarked: "A lecture, sermon, address have this in common, that they are intended primarily for oral delivery to an audience. In its mention of a production similar to or like a lecture, sermon, or address, Congress plainly meant a production likewise intended in the first instance (italics supplied) for oral communication. A speech, argument, debate, interview, perhaps even an informal talk, would be a similar production. There may be cases where a poem would be a lecture, sermon, address or similar production. If a poem were first spoken or rendered at a gathering . . . it would be an address in poetry and if copyrighted would be secure against unauthorized delivery later on by others. But usually a poem nowadays is first made public in printed form, through book, magazine, or newspaper, and is in form to be read in the first instance, though of course it may later be recited or rendered vocally. It is made evident by the bill in this case that the plaintiff's poems were first published in book form. They do not therefore correspond to or resemble a lecture, sermon, or address. The adoption of the plaintiff's argument would broaden the scope of this subsection so as to comprehend almost every form of literary composition, instead of the narrower class of works specified by Congress. If changes in the Copyright Act were called for because of abuses which have sprung up since the enactment of the law in 1909, it is for Congress rather than the courts to make them."

Section 1(d)

"To perform or represent the copyrighted work publicly if it be a drama"

This applies also to dramatico-musical works, Herbert v. Shanley Co., 229 F. 343 (CCA 2, 1916), and is, of course, the primary right attaching to such works; but, strange to say, the performing right was not granted until the amendatory Act of 1856, prior to which only the right to print and publish was accorded.

It will be observed that the right is not restricted to performance "for profit" as in the case of oral works and music. The right is violated if the drama is performed "publicly", irrespective of pecuniary profit; but sometimes it is difficult to determine whether the performance was public or private. If it takes place in one's home, where only a few invited guests are present, this would clearly be purely a private affair. But supposing the potential audience is enlarged, as in a private club to which only the members and their guests are admitted? A case in point is Metro-Goldwyn-Mayer v. Wyatt and Maryland Yacht Club, involving a photoplay (oral opinion, not reported, DC Md., April 14, 1932). Here Judge Coleman, following his opinion in Tiffany Productions v. Dewing, 9 USPQ 545 (1931) that photoplays were "dramatic works" and therefore governed by this subsection (d), said further that he failed to see any substantial difference between the exhibition at the yacht club and a showing in a private house. "We cannot," he said, "measure the question by numbers of persons. The public is not admitted to a social club of this kind, as we understand the term 'public'. The members enjoy these privileges and have the right to bring in their friends. No one profits financially. That is substantially what takes place when one of those same members has an entertainment at home and asks friends to come to his home." (The rule seems to be different in England. See Jennings v. Stephens, 154 L.T.R. 479).

However, as already noted, Patterson v. Century Productions, Inc., 35 USPQ 471 (CCA 2, 1936), ruled that the flashing upon the screen of the picture results in making an enlarged copy thereof, and therefore constitutes a violation of the right to copy granted in subsection (a) regardless of the public or private character of the performance.

Of course the particular manner in which the actors perform their parts (gestures, facial expressions, etc.) is personal to the individual actors and incapable of copyright protection. Savage v. Hoffman, 159 F. 584 (1908). This is analogous to the case of "personal rendition" of music, of which more anon.

Section 1(d) (continued)

"or if it be a dramatic work and not reproduced in copies for sale, to vend any manuscript or any record whatsoever thereof"

This clause seems superfluous, for the right to vend the copyrighted manuscript is already covered by subsection (a), and the right to vend any record in the first instance follows from the right to make such records granted in the next clause. The reason for inserting it was that certain old cases had ruled that the owner of a play was not protected against anyone who might witness the first exhibition and reproduce it from memory or shorthand notes and sell his copy for public performance. port No. 2222 accompanying the bill; see Appendix). But this ruling was clearly without sound basis even under the old law and was subsequently repudiated in the case of Tompkins v. Halleck, 133 Mass. 32 (1882).

(Re

The remaining clauses of this subsection (d) cover the right to make transcriptions or recordings from which the composition may be exhibited, performed or reproduced; and the right to exhibit, perform, etc., in any manner or by any method devised by the wit of man. In commenting on the last clause, to exhibit, perform, etc., Judge Coleman, in the Yacht Club case cited above, remarked that it must be read in the light of the first clause and is not to be understood as relating only to the methods of reproduction without regard to the place of performance; in other words, that the exhibition, etc., must still be public in order to constitute infringement.

Motion Pictures

In Tiffany Productions, Inc., v. Dewing, 9 USPQ 545 (1931), it was held that a motion picture photoplay was embraced within the term "dramatic work", and since it is an infringement for one without permission to exhibit, perform, represent, produce, or reproduce it in any manner or by any method whatsoever, projecting it upon the screen comes within the prohibition. [So

held also in Metro-Goldwyn-Mayer Distr. Co. v. Bijou Theatre Co., 13 USPQ 147 (CCA 1, 1932), overruling the District Court to the contrary, 50 F.2d 908.] The exhibition of a photoplay at times or places other than those specified in the license contract would be a violation of this right. Twentieth Century-Fox Film Corp. v. Peoples Theatres of Alabama, Inc., 39 USPQ 469 (1938). And of course "sound" pictures are included as representing progress in the motion picture art. Page v. Fox Film Co., 29 USPQ 386 (CCA 2, 1936).

In the Tiffany case the court remarked: "The fact that the construction here adopted excludes motion pictures other than photoplays, and thereby gives the latter protection denied to the former, may produce an undesirable or even inequable result." However, the unfortunate result here feared was obviated by the later ruling in the Patterson case, supra, that the projection of the picture upon the screen was to make a copy thereof for the time being and therefore constitute a violation of the right secured under section 1 (a).

Dramatico-Musical Works

Note that the transcription, recording, and performance rights secured here are restricted to "a drama" or "a dramatic work". While dramatico-musical works are not specifically mentioned, they are grouped in section 5 with dramatic compositions and undoubtedly are covered by the term "dramatic work" if not by the term "drama", and hence the right to perform such works "publicly" attaches, whether for profit or not. [So deemed in Herbert v. Shanley Co., 229 F. 343 (CCA 2, 1916)].

Other literary works, such as essays, stories, non-dramatic poems, lectures, addresses, etc., do not come within the purview of this subsection (though probably the unauthorized delivery of a lecture or similar production by means of a phonographic record would come within the prohibition of subsection (c)).

In Corcoran v. Montgomery Ward & Co., 45 USPQ 114 (1940), aff'd 50 USPQ 274 (CCA 9), it was held to be no infringement under section 1(d) to set an undramatic poem to music and make and sell phonograph records thereof for public use, because the poem in question was not "a dramatic work" but a "book" within the meaning of the copyright law. Such works, however, are fully protected against unauthorized dramatization, whether for broadcasting, motion picture or regular stage performance,

by virtue of subsection (b) covering the exclusive right to dramatize non-dramatic works.

Section 1 (e)

"To perform the copyrighted work publicly for profit if it be a musical composition" *

Performance of Music in Public for Profit

This right lay dormant for many years because its possibilities in the way of profit to the composer were apparently not fully realized; but in more recent times, and especially since the development of the "movies" and the radio industry, it has assumed major proportions.

Prior Law

The right of public performance of musical compositions was first granted by the Act of Jan. 6, 1897, which did not require that it be "for profit", and this continued to be the law until the present Act went into force July 1, 1909, save where the performance was "willful", which constituted a misdemeanor punishable by imprisonment "for a period not exceeding one year." (R.S. 4966 as amended.)

At first it was proposed in the original hearings that a notice of the reservation of the right of public performance be printed on the copies (as under the English law at that time), but in view of the fact that music, like the drama, is intended primarily for performance, there seemed to be no good reason for distinguishing between the two in this respect, and so the requirement for special notice was dropped. Prior to this time the main source of revenue for the composer was by way of royalties for the sale of copies of his work, and sometimes this ran into high figures. Little thought was given to the performing right, notwithstanding that by the Act of 1897 damages for unlicensed performance were collectible "at such sum, not less than $100 for the first and $50 for every subsequent performance, as to the court shall appear to be just." Although copyrighted music was played for years in public places throughout the country,

* In the original draft a semicolon appeared here after the word "composition", but through inadvertence was omitted in the Act as passed and placed immediately after the clause following, "and for the purpose of public performance for profit", and it so appears in the United States Code. That it was due to oversight rather than design seems obvious, for the composer must be assumed to expect all the rights attainable under the Act irrespective of any particular purpose he may have had consciously in mind when composing his work. See in this connection Hubbell v. Royal Pastime Co., 242 F. 1002 (1917).