shows, sleight-of-hand performances, acrobatic or circus tricks of any kind; descriptions of moving pictures or of settings for the production of moving pictures. (These, however, when printed and published, are registrable as 'books.")

"9. Dramatico-musical compositions include principally operas, operettas, and musical comedies, or similar productions which are to be acted as well as sung.

'Ordinary songs, even when intended to be sung from the stage in a dramatic manner, or separately published songs from operas and operettas, should be registered as musical compositions, not dramaticomusical compositions.

"10. (e) Musical compositions, including other vocal and all instrumental compositions, with or without words.

"But when the text is printed alone it should be registered as a 'book,' not as a 'musical composition.'

To dramatic and musical authors are given (sec. 1) Rights in addition to the general right, granted in subsec- assured tion "(a) To print, reprint, publish, copy and vend the copyrighted work," the specific exclusive rights:

"(b) . . . to dramatize it if it be a non-dramatic work; to convert it into a novel or other non-dramatic work if it be a drama; to arrange or adapt it if it be

a musical work; . . .

"(d) To perform or represent the copyrighted Dramatic work publicly if it be a drama or, if it be a dramatic rights work and not reproduced in copies for sale, to vend any manuscript or any record whatsoever thereof; to make or to procure the making of any transcription or record thereof by or from which, in whole or in part, it may in any manner or by any method be exhibited, performed, represented, produced, or reproduced; and to exhibit, perform, represent, produce,

Musical rights

or reproduce it in any manner or by any method whatsoever;

(e) To perform the copyrighted work publicly for profit if it be a musical composition and for the purpose of public performance for profit; and for the purposes set forth in subsection (a) hereof, to make any arrangement or setting of it or of the melody of it in any system of notation or any form of record in which the thought of an author may be recorded and from which it may be read or reproduced"; -to which provision of subsection (e), in respect to copyright control of mechanical records, are added provisos that such control shall not extend to compositions published and copyrighted before July 1, 1909, and works of foreigners whose state does not grant similar right to American citizens, and shall be subject to compulsory license arrangements, requiring that if the author permits any mechanical reproduction, he shall license any manufacturer under conditions stated in detail in the act, all of which exceptions and conditions are fully stated in the chapter on mechanical music provisions.

Excepted An exception to these exclusive rights is, however, performance made in the proviso (sec. 28) "Provided, however : That nothing in this Act shall be so construed as to prevent the performance of religious or secular works, such as oratorios, cantatas, masses, or octavo choruses by public schools, church choirs, or vocal societies, rented, borrowed, or obtained from some public library, public school, church choir, school choir, or vocal society, provided the performance is given for charitable or educational purposes and not for profit."

This proviso is singularly defective in phraseology, as the phrase "octavo choruses" has no musical significance and uses a music-trade term to designate

choruses usually but not necessarily published in octavo form; and the duplication of the words "public school," etc., is probably a verbal error in the bill which mistakenly became part of the law. The proviso is doubtless intended and would fairly be construed to permit gratuitous unauthorized performance of religious or secular works such as oratorios, cantatas, masses, and choruses by public schools, church choirs, school choirs or vocal societies, from copies rented, borrowed, or obtained from some public library, provided the performance is given for charitable or educational purposes and not for profit. Curiously the letter of the proviso would seem to provide that the beneficiary organization cannot perform from a purchased copy, but only from copies rented, borrowed or "obtained from" some public source; but this also is an evident error.

It should be noted that the omission from subsec- Performance tion (d) as to drama and the inclusion in subsection "for profit" (e) as to music, of the words "for profit," - doubtless with the intent of assuring to the individual purchaser of music the right to perform it privately, have significance here, and serve, it would seem, to give the dramatic author absolute control even over gratuitous performances and to limit the control of the musical author to performances which are not gratuitous, a negative provision covering, and giving much wider latitude than, the proviso (sec. 28) above cited. But as dramatico-musical compositions are classified (sec. 5, d) with dramatic compositions, and an oratorio and possibly a cantata might be considered as a dramatico-musical composition, the proviso (sec. 28) may have a specific effect as to this kind of dramatico-musical compositions. The law is unfortunately defective and confusing by reason of this proviso and will be so difficult of judicial construc

Works not reproduced

Copyright notice

Dramatico

musical

works protected from mechanical

tion as to suggest the omission, by amendment, of this proviso. The use of the word "public" in both cases implies that the author cannot control private representation and opens other questions difficult of judicial interpretation.

It is provided (sec. 11): “That copyright may also be had of the works of an author of which copies are not reproduced for sale, by the deposit, with claim of copyright, of one complete copy of such work if it be ... a dramatic or musical composition"; provided that the required deposit of two copies shall be made, as in the case of books, on publication thereafter by the multiplication and public sale or distribution of copies.

99 66

The notice of copyright must be printed (sec. 18) on each copy, as in the case of a book in the form "Copyright" or the abbreviation "Copr.," accompanied by the name of the copyright proprietor" and "the year in which the copyright was secured by publication." In the case of a published dramatic work the notice must be placed, as in the case of a book, upon the title-page or the page immediately following, but in the case of a published musical work the law provides that the notice "shall be applied . . . either upon its title-page or the first page of music," and this specification makes the copyright notice of doubtful validity if applied in a musical work on the page following the title-page, unless this is the first page of music.

The classification of dramatico-musical compositions under subsection (d) as dramatic works and not under subsection (e) as musical compositions, defines an opera and possibly an oratorio or cantata as a reproduction dramatic rather than a musical composition. As the dramatic author is given (sec. 1, d) the comprehensive rights over reproduction "in any manner or by

any method whatsoever" while the musical author is limited (sec. I, e) in respect to mechanical reproductions, it would seem to follow that the author of an opera may retain absolute control over mechanical reproduction, as the author of a non-musical drama retains absolute control over phonographic or other reproduction of his drama. This would seem to confine the requirements that the author of a musical composition permitting mechanical reproduction should license any manufacturer, to musical compositions which are not dramatic, i. e., to instrumental compositions or to songs and other vocal music not associated with drama. As an overture to an opera is an integral part of the dramatico-musical composition, it would even seem that an overture which is part of an opera, or possibly an orchestral introduction or interlude in an oratorio or cantata, would not be subject to the mandatory license provided as to musical compositions. But this question has not yet come before the courts.

sions

Dramatic and musical works are not mentioned Dramatic in the manufacturing and affidavit provisions (secs. and musical 15, 16, 17) which are specifically confined to "the works excepted from printed book or periodical specified in section 5, manufactursubsections (a) and (b),” while dramatic and musical ing provicompositions are classified in subsections (d) and (e). It might be alleged that dramatic or musical compositions in book form or produced as books from type or by lithographic or photo-engraving process should be classified as books and subjected to the manufacturing provisions; but this is distinctly not the letter of the law. This exception was specifically upheld for music in the case of Littleton v. Ditson in 1894, by Judge Colt in the U. S. Circuit Court in Massachusetts, where the defense that there was no copyright in certain songs because the music sheets