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British colonial practice

Entry under proper class

were not from type set or plates made within the United States, was overruled; and for drama in Hervieu v. Ogilvie in 1909, where in the U.S. Circuit Court in New York, Judge Martin cited with approval Judge Colt's decision. This ruling was also embodied in Treasury decision No. 21012 of April 17, 1899, permitting the importation of musical compositions copyrighted in the United States and printed abroad.

The Australian law, on the contrary, specifically includes under the definition of “book," a "dramatic work" and a "musical work," and thus subjects both to the manufacturing clause. Printing and publishing are required in Canada ("within one month after publication or production elsewhere") and in Newfoundland to obtain copyright under the local acts; and as drama is not mentioned but included generically as a book or literary composition, and music is specifically included, both dramatic and musical compositions must be manufactured within each country to obtain local, as distinguished from British or Imperial, protection.

The author of a dramatic, dramatico-musical, or musical composition should therefore be careful to make application in the United States under class (d) or (e) and not as a book under class (b). The fact that the law classifies under subsection (d) dramatic or dramatico-musical compositions and under subsection (e) musical compositions, has caused the Applications Copyright Office to prepare separate application forms and certificates for (D1) a dramatic composition, (D3) a dramatico-musical composition and (E1) a musical composition, "published"; as also for (D2) a dramatic composition (or a dramatico-musical composition) and (E2) a musical composition, “not reproduced for sale." It would seem advisable therefore that the author of an opera, oratorio or the like,

and certificates

to obtain the fullest protection under the law, should enter such work in class (d) as a dramaticomusical composition rather than in class (e) as a musical composition, and thus safeguard himself against the mechanical music proviso applied exclusively to class (e).

tion

In regard to dramatization, the new American code Right of is specific (sec. 1, b) in giving to the author of an dramatizaoriginal work the exclusive right "to dramatize it if it be a non-dramatic work" or "to convert it into a novel or other non-dramatic work if it be a drama. The relations of a maker of a dramatic version of a literary work or of a literary version of a dramatic work, would follow the same rule as in the case of a translator. An author has the exclusive right to dramatize or permit the dramatization of his work, and the dramatization may be copyrighted in the name of the original author or of the dramatizer, but the dramatizer cannot prevent another dramatization of the same work unless by transfer of exclusive right from the original author.

The specific copyright on a published dramatiza- Dramatization dates from the publication of the dramatization, tion term which may extend the protection of the dramatization beyond the copyright term of the original work. But on the expiration of the copyright in the original work rival dramatizations can no longer be prevented. All this holds true as to the novelization of a drama.

In respect to music, the language of the law (sec. I, Musical are) is thoroughly comprehensive in covering the ar- rangements rangement or setting of a musical composition or of a melody in any notation or in any form whatever. This gives to the musical author entire control over the use of any part of his work, as for instance the transcription from an orchestral work for piano use, the instrumentation of a vocal work or the use for a

Copyright Office definitions

Transposition

Works in the public domain

Dramatization right protected by courts

song of any melody in an orchestral work. On the other hand, variations, transcriptions and so forth of a copyrighted work, made under authorization from the copyright proprietor, may be separately copyrighted as to that extent original works.

The Copyright Office Rules and Regulations say specifically: "(10) ‘Adaptations' and 'arrangements' may be registered as 'new works' under the provisions of section 6. Mere transpositions into different keys are not expressly provided for in the copyright act; but if published with copyright notice and copies are deposited with application, registration will be made." In Hein v. Harris in 1910, the U. S. Circuit Court awarded damages where the chorus of a song proved on transposition into the key of the copyright song to be practically a copy of the melody.

It is specifically provided (sec. 6) that "adaptations, arrangements, dramatizations . . . or other versions of works in the public domain, . . . shall be regarded as new works subject to copyright," and in the case of such versions copyright inheres in the dramatizer, adaptor or maker of a version, as in the case of a translator of a book, in the public domain. Thus a dramatic or musical work in the public domain may be dramatized or adapted freely and any individual dramatization or adaptation may be copyrighted by the dramatizer or adaptor, but he cannot prevent other dramatization or adaptation of the same work.

The American courts have fully upheld the control over dramatization under the right "to dramatize specifically given in the law of 1891 and preserved under the new code. In 1895 in Harper v. Ranous, Judge Lacombe, in the U. S. Circuit Court in New York, enjoined a play, "Trilby," on the ground that the drama "presents characters, plot, incidents,

dramatic situations and dialogue appropriated from Du Maurier's copyrighted novel," while denying protection against the mere use of the title. In the same year and in respect to the same novel, in Harper v. Ganthony, the Harpers, as owners of the copyright of "Trilby," also obtained from Judge Lacombe an injunction against Miss Ganthony, who had presented at the Eden Musée a series of monologues in costume following the plot of the story, which the judge held to constitute a dramatic version and therefore an infringement. A story, "The transmogrification of Dan," purchased by the Smart Set for $85, copyrighted as part of that periodical and assigned back to the author, was dramatized by Paul Armstrong and produced by the defendants under the name of "The heir to the Hoorah," retaining the central incident of the story, though with modification and extension of the characters, situation and dialogue. In 1908 Judge Hazel, in Dam v. Kerke La Shelle Co., in the U. S. Circuit Court in New York, awarded the full profits from the dramatic representation as damages to the executor of Dam, the author of the story; which decision was fully upheld in 1910 by the Circuit Court of Appeals through Judge Noyes. Thus the new American code specifically enacts into statute law previous decisions of the American courts.

Under English law, on the contrary, the right of English law dramatization has not been included under copyright; and practice the mere copyrighting of a book could not prevent its dramatization, but the copyrighting of a work in dramatized form before its publication as a novel practically prevented other dramatization of the literary work in so far as the one drama was a reproduction of the features of the other. As stated by Colles and Hardy in their recent work (1906) on "Playright and copyright in all countries," 'a novel is not a

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The new

dramatic piece, ready and fit for representation on
the stage. Consequently, the author of a novel has
the copyright in his book, but he has no playright
according to English law." The general principles
were best stated in 1874 by Chief Justice Cockburn
in Toole v. Young, where Grattan's drama "Glory"
was declared not to be an infringement either of
Hollingshead's novel "Not above his business," on
which it was confessedly founded, nor of the dramatic
version made under the title of "Shop" by Hollings-
head himself, but never printed or performed and
therefore unpublished: "Two persons may dramatize
the same novel, for that is common property. It is
true that a writer cannot produce and represent a
drama, which he has borrowed from a drama written
previously by another person; he would then be re-
presenting the production of the first dramatist. . .
I wish to guard myself against being supposed to lay
down that, if a writer, while dramatizing a novel,
takes the incidents, characters, and dialogue of a
previous drama founded upon that novel, and repro-
duces what is in substance identical with the previous
drama, there might not be an infringement of the
right of the earlier dramatist if the later drama be
represented on the stage."

The new British measure remedies this defect British code by specifically including the sole rights to convert a novel or other non-dramatic work, or an artistic work, into a dramatic work, by way of performance in public or otherwise, and to convert a dramatic work into a novel or other non-dramatic work.

Infringement cases

A curious early case was that of Reade v. Conquest in 1862, in which the son of Charles Reade had made and sold to the defendant, who produced it at his theatre, a dramatic version of "It is never too late to mend" in ignorance of the fact that his father had

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