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Dramatic work by employee
published non-copyright piano arrangement, Judge Lowell, in the U. S. Circuit Court in Massachusetts, ruled against this as an infringement of the unpublished work on common law grounds — but this decision has not been considered good law.
Copyright in dramatic work can be obtained, as in the case of encyclopædic and like works, by the employment for hire of a dramatic author, as was fully established in the case of Mallory v. Mackaye in 1898, by Judge Wheeler in the U. S. Circuit Court in New York, where Mackaye had contracted for a salary of $5000, that all inventions and plays by him within the ten years of the contract should belong to Mallory, and was restricted accordingly from the independent production of "Hazel Kirke."
The duration of copyright in dramatic and musical compositions is the same as for books, in the United States (twenty-eight years with renewal for twentyeight years more), in Great Britain (under the new code life and fifty years), in Australia (forty-two years or life and seven years, as hitherto in Great Britain), and in Canada and Newfoundland (twentyeight years with renewal for fourteen years more),
as also in most other countries, the new term for those in the International Copyright Union which have accepted the convention of Berlin, being life and fifty years. But in the case of a "dramaticomusical" work, where the libretto and the music are by different authors, the respective terms may end at different dates, as was held in 1905, and upheld in 1909, by the German courts as to the opera "Carmen" under the Franco-German convention limiting copyright to thirty years after death. Bizet, author of the music, had died in 1875, but one of the three librettists was still living, on which facts the court held that the musical score, but not the libretto, was free from
copyright. Under the new British and Canadian measures, which include the unusual provision that the copyright term in a work of joint authorship shall be determined by the first instead of the last death, the result would be to the contrary effect.
Registration in the United States, as also in Canada Registration and Newfoundland, through the deposit of copies, is entirely the same for a dramatic or musical composition as for a book. Registration in England of a dramatic or musical composition under the act of 1842 (sec. 20) was to be made at Stationers' Hall, as in the case of a book, by recording in statutory form the title, the time and place of first publication, or for performing right, of first public performance, and the name and abode of author and of proprietor. But the same law (sec. 24) provided that protection of performing right in a dramatic piece should not be dependent upon entry in the registry and, by including in the definition of a dramatic piece (sec. 2) a “musical entertainment," evidently included musical compositions in this exemption, and thus made registration optional. This view was upheld in 1848 in Russell v. Smith, when the song “The ship on fire" was protected as a “dramatic piece," though it had not been registered. The new British measure omits all requirements for registration of any works. Registration of any copyright, performing right or assignment is required in Australia as a prerequisite for legal action.
Assignment or grant of a dramatic or musical Assignment composition, as of a book, may be made (sec. 42) by an instrument in writing, acknowledged, if in a foreign country, (sec. 43) before a consular or diplomatic officer, and must be recorded (sec. 44) in the Copyright Office within three months, or if made in a foreign country, six months, in default of which it is
void as against any subsequent purchaser. Assignment in Great Britain must be in writing, and previous to the new code with entry at Stationers' Hall, in the case of performing right as well as of copyright. It should be noted that playright does not pass with copyright ipse facto, though the new code as adopted by the House of Commons has no specific provision on this point. But it is most desirable that in any transfer of copyright or playright the exact nature of the right transferred should be defined in the writing. A partial assignment, or license, of performing right as well as of copyright may be made, and will be protected by the courts. The right to grant a specific license, and to enforce its limitations, was upheld in 1892 in Duck v. Mayen, in an English court by Justice Day, who held that where the defendant had obtained license at the price of one guinea to play “Our boys” for charity at a music hall, but performed it elsewhere, though for the same charity, the usual royalty of five guineas must be paid. Assignment in Canada and Newfoundland must be in writing in duplicate copies, of which one must be deposited in the office of copyright.
The general principles as to infringement and fair use, treated fully in another chapter, apply to dramatic and musical compositions, as already illustrated above, but some special applications may here be noted. That a parody or burlesque may not be an infringement, though including some quotations from the work parodied, was decided in 1903, in Bloom v. Nixon, — where Fay Templeton had given a parody or imitation of another actress's singing of “Sammy" in the "Wizard of Oz," – in the U. S. Circuit Court in Pennsylvania by Judge McPherson, who held that as this was essentially an imitation of personality, it was not an infringement of copyright: "Surely a parody
would not infringe the copyright of the work parodied merely because a few lines of the original might be textually reproduced.” The judge added: “No doubt the good faith of such mimicry is an essential element; a mere attempt to evade the owners' copyright
.. would properly be prohibited” as “doing in a roundabout way what could not be done directly.”
There may be infringement of dramatic copyright Infringement in the use of a single scene or situation, as already by single
situation set forth with respect to novels, provided this is of dramatic character. In 1892, in Daly v. Webster, the U. S. Circuit Court of Appeals, through Judge Lacombe, held that the railroad rescue scene in Brady's "After dark" infringed the copyright of Daly's “Under the gaslight,” which contained the similar situation of the rescue of a person on a railroad track before an approaching train. Though there was little dialogue in this scene, the court held that while mechanical appliances are not entitled to copyright, a series of events dramatically represented are copyrightable. In the subsequent suit for damages, Daly v. Brady, the U. S. Supreme Court in 1899, through Justice Peckham, upheld this decision, and held also that such a situation constituted an integral part of the copyrighted drama and should therefore be protected against infringement. That there may be infringement of a dramatic composition without the use of scenery or costumes was incidentally decided in Russell v. Smith, where the song “The ship on fire," sung dramatically without these accessories, was protected as a dramatic piece.
While the title of a dramatic or musical composi- Protection of tion, like that of a book, cannot be copyrighted as such, the courts seem disposed to emphasize the title as an integral part of a play, perhaps more than in the case of a book because the advertising of another play of
like name, especially in the case of one of long run and wide popularity, may mislead the public and involve unfair competition. This protection was upheld as a matter of common law in Aronson v. Fleckenstein in 1886, by Judge Blodgett in the U. S. Circuit Court in Illinois, when the use of the title “Erminie" was held to be unlawful, though the operetta originally designated by the title had not been copyrighted. But in Glaser v. St. Elmo Co. in 1909, the U. S. Circuit Court denied relief where the title of Miss Evans's novel, then out of copyright, was used for a second and unauthorized dramatization. There may be danger to copyright or playright when a work is published or performed under a title differing from that under which it is copyrighted; but the change of a descriptive sub-title has been held to be immaterial. In the case of Daly's play "Under the gaslight," which in the copyright entry bore the sub-title “A romantic panorama of the streets and homes of New York,” but in printed form the changed sub-title “A totally original picturesque drama of life and love in these times," the defendants in Daly v. Webster alleged that this change made the copyright invalid, which contention was negatived by the U.S. Circuit Court of Appeals, which held in 1892 that the subtitle was merely descriptive and not an essential part of the title - a principle later applied by Judge Lacombe in Patterson v. Ogilvie, in 1902.
In the case of Frohman v. Weberin 1903, in the N.Y. Supreme Court, where the proprietor of the play entitled “Sherlock Holmes" sought to enjoin another play “The sign of the four," in which the name Sherlock Holmes designated the leading character, Judge Clarke held that this did not constitute unfair competition and denied a preliminary injunction.
The question of the person liable for the infringe
Names of characters