taking of the particular kind of property in question larceny, and in cases where equitable relief was therefore appealed to because of the absence of any adequate remedy at law.

The principle involved is far-reaching, especially in that it carries the scope of equitable jurisdiction into matters frequently considered to be purely the result of business competition, and which, even if in themselves morally or financially wrong, are supposed to be without remedy where no contractual relations have existed from which suits for damages could arise. Various statutes have been passed in an attempt by legislation to protect certain classes of rights, such as the recording Acts of the various States, and the lien laws of different jurisdictions. The patent, trademark, and copyright laws of different governments and the history of legislation as well as law, prove that where an act is admittedly wrong in the eyes of the public, and where the interests of individuals are being interfered with by commissions of the acts in question, legislation in the appropriate jurisdiction usually follows, and a legal remedy is created; but such legal remedies must be with relation to a specific class of acts. The jurisdiction of a Court of equity has always been invoked to prevent the continuance of acts of injury to property and to personal rights generally, where the law had not provided a specific legal remedy, and it would seem that the appropriation of what has come to be recognized as property rights or incorporeal interests in material objects, out of which pecuniary profits can fairly be secured, may properly, in certain kinds of cases, be protected by legislation; but such intangible or abstract property rights would seem to have claims upon the protection of equity, where the ground for legislation is uncertain or difficult of determination, and where the principles of equity plainly apply. The so-called "common-law right" in literary property before its publication has long been recognized in the law. After the passage of legislation, literary property was secured, even in the published article, by the various copyright statutes of the different nations. When such a copyright statute has been passed, all property rights in the published article must be secured and controlled by strict compliance with the statute.

It has been held that under the copyright law in effect prior to the 1st day of July, 1909, musical compositions, unless transcribed in print or musical characters, upon paper, were incapable of copyright (WhiteSmith Music Pub. Co. v. Apollo Co., 209 U. S. 1, 28 Sup. Ct. 319, 52 L. Ed. 655). Since the beginning of the present action, the copyright law has been amended, and since the 1st day of July, 1909, any form of recording or transcribing a musical composition, or rendition of such composition, has been capable of registration, and the property rights therein secured under the copyright statute (Act March 4, 1909, c. 320, 35 Stat. 1075).

It would seem therefore that the questions raised in the present case may be avoided as to future compositions by copyrighting the original

rendition of the song, provided the singer has the right to use it for that purpose, and the disc record by which the rendition is preserved; but question will still remain as to the records produced prior to the present copyright law, and serious discussion may arise over the right obtained, for instance, by a grand opera singer who files a copyright for the resinging of a song already recorded by him or her, and sold to the public upon a disc record. With that we have nothing to do here, and the relief asked in this case would protect those who have already sung or played compositions having a pecuniary value, because of their musical excellence, and also the persons who have invested capital and labor in putting a valuable product upon the market. The education of the public by the dissemination of good music is an object worthy of protection, and it is apparent that such results could not be attained if the production of the original records was stopped by the wrongful taking of both product and profit by any one who could produce sound discs free from the expense of obtaining the original record. . . .

Reference has been made to the rights of a photographer who should make a film for moving pictures, of some historical or unique occasion, and should sell the film to parties who should reproduce it in a movingpicture machine. Other parties might make pictures from the film, or from the exposures, and a question, in some respects, similar to the present, might be involved. A dressmaking establishment might employ high-priced designers, and their product might be copied, and the designs thus appropriated. Architects might build houses and utilize extremely valuable methods and ideas, and others building houses might follow these ideas. Sculptors might carve statues of great commercial value, and stone carvers might copy these sculptures.

It cannot now be determined how far such appropriation of ideas could be prevented; but it would seem that where a product is placed upon the market, under advertisement and statement that the substitute or imitating product is a duplicate of the original, and where the commercial value of the imitation lies in the fact that it takes advantage of and appropriates to itself the commercial qualities, reputation, and salable properties of the original, equity should grant relief.

That is the particular proposition presented in the present case, and to that extent it seems to the Court that the principles applied in the stock-ticker and similar cases above recited should be followed, and relief by injunction granted.1

1 [NOTES:

"Infringement: musical composition." (C. L. R., V, 615.)

"Infringement: of musical composition by perforated roll." (H. L. R., XIX,

134.)

"Common law rights: Musical composition." (H. L. R., XX, 327.)

"Copyright: Mimicry as infringement of musical composition." (M. L. R., II, 480.)]

SUB-TOPIC D. STAGE-RIGHT

212. TOMPKINS v. HALLECK

SUPREME JUDICIAL COURT OF MASSACHUSETTS. 1882

133 Mass. 32

DEVENS, J. This is a bill in equity to restrain the defendant from representing at his theatre in Boston a drama called "The World," and for further relief.

It appears from the report of the judge who heard the case that this drama was originally composed in England, where, after being presented, it was sold to one Colville in New York, who caused it to be altered and amended, to suit the presumed taste of an American audience, by one Stevenson. It was successfully represented at Wallack's Theatre in New York, and was then assigned to the plaintiffs, with the exclusive right to represent the same in the New England States. The drama does not appear ever to have been copyrighted or printed. While represented at Wallack's Theatre, one Byron and one Mora attended the representation, on three or more occasions, with the intent of copying and reproducing the drama as there enacted. Byron committed as much of the play as he could to memory, and, after each performance, dictated it to Mora until the copy was completed. It was not shown that either took any notes or written memoranda in the theatre. Byron subsequently made an agreement with the defendant to produce the same; and, against the remonstrance of the plaintiff's, who informed him of their ownership, it was advertised and produced by the defendant at his theatre, known as the Alhambra. As produced by the defendant it was called "The World," and is found to be in all substantial particulars identical with the plaintiff's drama of the same

name.

It being found by the judge who heard the cause that the dialogue and incidents of the drama were acquired by memory by Byron, who visited Wallack's Theatre sufficiently often for that purpose, that no written or stenographic minutes were made either by him or Mora in the theatre, and that there was no violation of any trust or confidence reposed in them by the plaintiffs or their assignors, he ruled that no injunction could issue; but, at the request of the plaintiffs, reported the case for the consideration of the full Court. If the ruling is sustained, the bill is to be dismissed; otherwise, an injunction is to issue, and the case to be referred to a master for the assessment of damages. These facts bring the case clearly within the principles decided in Keene v. Kimball, 16 Gray, 545; and it is frankly admitted by the counsel for the plaintiffs that, unless that decision shall be reconsidered and reversed, no injunction can issue according to the prayer of the

bill. The question decided in Keene v. Kimball had never until then been directly determined in any reported case. It had been discussed with great ability by Judge Cadwalader in the Circuit Court of the United States for the Eastern District of Pennsylvania, where a decision of it was not necessary in order to dispose of the case before him. Keene v. Wheatley, 9 Am. Law Reg. 33. Adopting the views there expressed, it was held in Keene v. Kimball

"that the literary proprietor of an unprinted play cannot, after making or sanctioning its representation before an indiscriminate audience, maintain an objection to any such literary or dramatic republication by others as they may be enabled, either directly or secondarily, to make from its being retained in the memory of any of the audience."

The case of Keene v. Kimball has not since been reaffirmed here, nor, so far as we are aware, elsewhere. . . .

...

An examination will show various and conflicting opinions expressed by jurists, as well as by text-writers of high respectability, upon the question involved. Keene v. Clarke, 5 Rob. (N. Y.) 38. Palmer v. De Witt, 2 Sweeny, 530; 7 Rob. (N. Y.) 530; 36 How. Pr. 222; and 47 N. Y. 532. Crowe v. Aiken, 2 Biss. 208. Shook v. Rankin, 6 Biss. 477. Boucicault v. Fox, 5 Blatchf. (C. C.) 87. Drone on Copyright, 558-564.

In view of this contrariety of opinion, it is not an unreasonable request on the part of the plaintiffs that the question involved should be re-examined, in order that the Court may consider whether the decision in Keene v. Kimball expresses correctly the rights of parties, and gives to the proprietors of unpublished plays the full protection to which they are entitled.

The St. of 8 Anne, c. 19, which is the foundation of the English copyright law, while it included plays and dramatic compositions, protected the author in his exclusive right to publish in print, but not in that of public representation of his work. It has since been modified by the St. 3 & 4 Will. IV, c. 15, and subsequently by that of 5 & 6 Vict., c. 45. The U. S. St. of February 3, 1831, was similar in this respect to the original English law, and, like it, has been so changed by the U. S. St. of August 18, 1856, that protection in the exclusive representation is now afforded where the play is published in print. It is perhaps somewhat remarkable that protection in the right of exclusive representation was not afforded by the St. of 8 Anne, c. 19, which is said in D'Almaine v. Boosey, 1 Y. & C. Ex. 288, by Lord Lyndhurst, to have been one of the most laboriously considered Acts ever passed by the British Parliament. Although the result of the petitions of the English booksellers, it was submitted to, and carefully examined and passed upon by, committees of which many distinguished literary men were members. When it is remembered that among them were such dramatic writers as Addison and Steele, it would seem that this right would have been carefully guarded.

Dramatic compositions differ from other literary productions not intended for oral delivery in this, that they have two distinct values, each worthy of protection; that which they have as books or publications for the reader, and that which they have by reason of their capacity for scenic representation. They are works, in prose or poetry, in which stories are told or characters represented both by conversation and action. Some are poems cast in a dramatic form, capable of representation upon the scene rather than adapted to it, and whose most valuable characteristic is their purely literary merit. Others, of but slight literary pretensions, and affording but little satisfaction in the perusal, are found agreeable in representation from the spirited development of the story which is told in action, the vivacity and interest of the events displayed, even if the conversations of the imaginary characters, out of this connection, would appear tame and unattractive. The most perfect are those which, like some of the tragedies of Shakespeare, as Hamlet or Macbeth, are adapted alike to the library and the stage, and which address themselves more agreeably to those who read or those who hear, as such persons themselves differ in their respective capacities for enjoyment.

That the right of property which an author has in his works continues until by publication a right to their use has been conferred upon or dedicated to the public, has never been disputed. If such publication be made in print of a work of which no copyright has been obtained, it is a complete dedication thereof for all purposes to the public. Wheaton v. Peters, 8 Pet. 591. Stevens v. Gladding, 17 How. 447. If of a work of which a copyright has been obtained, it is so dedicated, subject to the protection afforded by the laws of copyright, the author accepting the statutory rights thereby given in place of his common-law rights. But the representation of an unprinted work upon the stage is not a publication which will deprive the author or his assignee of his rights of property therein. Roberts v. Myers, U. S. C. C. Mass. Dist. 23 Law Rep. 396. It will not interfere with his claim to obtain a copyright therefor. Keene v. Kimball, ubi supra. Nor will it deprive him of his power to prevent a publication in print thereof by another. Macklin v. Richardson, Ambl. 694.

Nor can we perceive why it should deprive him of his right to restrain the public representation thereof by another. . . . ... Postponing for a moment the question as to what is unlawfully obtaining a copy of a play which has not been copyrighted, and which has been exhibited for money, and whether there is a distinction between the representation from a copy obtained by memory and from one obtained by stenography or similar means, the proposition that the representation of such a play, the copy of which has been unlawfully obtained, will be restrained by injunction, is certainly supported by much authority since the case of Keene v. Kimball was decided, nor has it been controverted by the adjudication of any case. Boucicault v. Fox, ubi supra. Shook v.