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ment, especially of playright, is one of some diffi- Persons culty. In general, while any one participating in a liable for infringement piratical performance, as an actor, is technically guilty of infringement, it is usually the person or persons responsible for and profiting by the performance who should be sued. The question of responsibility is one of fact, and the early English decisions seem confused and even contradictory. The person who Principal in has the initiative and control of a performance, par- control ticularly if he is directly the employer of the performers and has authority to discharge them, may be, par excellence, the infringer even if he does not know that the performance is piratical. In 1886, in Monaghan v. Taylor, the defendant was held liable for infringement because a singer employed in his music hall sang a copyright song, though the defendant did not choose or pass upon the number. Thereafter in the "copyright (musical composition) act" of 1888, it was provided that "the proprietor, tenant or occupier of any place of dramatic entertainment" shall not be liable, "unless he shall willfully cause or permit" a performance, "knowing it to be unauthorized." The courts seem disposed to acquit a mere agent of responsibility. In 1893, in French v. Day, Gregory, et al., it was held by Justice Kennedy as to a performance of "The miner's wife" asserted to be an infringement of "Lost in London," that the proprietor of the theatre, Day, "who merely used Gregory," the manager, "as his mouthpiece," was the responsible defendant. The new British code holds liable any person who for profit permits a place of entertainment to be used for an infringing performance unless he were not aware and had no reasonable grounds for suspecting it to be an infringement.

In the prevention or punishment of unauthorized performances by irresponsible private companies, the

Protection

by night"

companies

chief obstacle in the United States was the difficulty against "fly of reaching the "fly by night" companies, as they were called, as they flitted from state to state, and from one court jurisdiction to another. To remedy this difficulty, an important protection of the performing right in dramatic works was assured by the act of January 6, 1897, obtained largely through the efforts of Bronson Howard, as president of the American Dramatists Club. This act provided penalty of $100 for the first and $50 for each subsequent unlawful performance, and imprisonment for not exceeding one year, when such unlawful performance was willful and for profit; and also that an injunction issued in any one circuit might be enforced by any other circuit in the United States. This was in consonance with successful efforts to obtain the passage of state laws to protect dramatic and musical works, aside from the federal copyright law, obtained by the Dramatists Club between 1895 and 1905 in the states State legis- of New Hampshire, New York, Louisiana, Oregon,

lation

Pennsylvania, Ohio, New Jersey, Massachusetts, Minnesota, California, Wisconsin, Connecticut, and Michigan. These varied in form in the several states, though of the same general purport. The New York statute, for instance, adds to the penal code a new section as follows: "Sec. 729. Any person who causes to be publicly performed or represented for profit any unpublished, undedicated or copyrighted dramatic composition, or musical composition known as an opera, without the consent of its owner or proprietor, or who, knowing that such dramatic or musical composition is unpublished, undedicated or copyrighted and without the consent of its owner, or proprietor, permits, aids or takes part in such a performance or representation shall be guilty of a misdemeanor." The texts in all the states are given in full in Copyright

Office Bulletin No. 3, 1906, "Copyright enactments of the United States," pages 105-115.

under

The American code of 1909 enacts (sec. 28) that Remedies "any person who willfully and for profit shall infringe any copyright... or who shall knowingly and will- present law fully aid or abet such infringement, shall be deemed guilty of a misdemeanor," punishable by "imprisonment for not exceeding one year or by a fine of not less than one hundred dollars nor more than one thousand dollars, or both, in the discretion of the court"; and provides (sec. 25, fourth) damages "in the case of dramatic or dramatico-musical or a choral or orchestral composition, one hundred dollars for the first and fifty dollars for every subsequent infringing performance; in the case of other musical compositions, ten dollars for every infringing performance"; and also provides (sec. 36) for injunction operative throughout the United States.

In England the protection of musical properties Musical under the acts of 1833-42 and 1882-88, had become protection in England so difficult that English music publishers threatened to cease printing new original works because of the freedom with which they could be pirated. Under the provisions of 1833, as reënacted in 1842, every infringing performance of a musical composition, as of a dramatic piece, involved liability to "an amount not less than forty shillings or the full amount of the benefit or advantage arising from such representation, or the injury or loss sustained by the plaintiff therefrom, whichever may be the greater damage," in addition to costs. The "copyright (musical compositions) act" of 1882 (45 & 46 Victoria, c. 40) had required that the right of public performance should be reserved by printed notice on each published copy and provided for a penalty of twenty pounds where the proprietor of the publishing copyright neglected, after require

Acts of 1902-1906

ment from the owner of the performing right, to print such notice. The "copyright (musical compositions) act" of 1888 (51 & 52 Victoria, c. 17) provided that the penalty or damages for every unauthorized performance of any musical composition shall, in the discretion of the court, be "reasonable" and may be less than forty shillings for each such performance, or nominal, and that the proprietor, tenant or occupier should not be liable unless "willfully" causing or permitting such unauthorized performance, "knowing it to be unauthorized," — but the act specifically excepted "any opera or stage play" from its provisions. The protest of the musical composers and publishers led to the passage of the "musical (summary proceedings copyright) act" of 1902, which authorized a constable to seize without warrant pirated copies hawked or otherwise offered for sale, on the written request and at the risk of the copyright owner or by direction of the court, and provided for their forfeiture and destruction or delivery to the owner on the decision of the court. A Musical Copyright Committee, for the consideration of these vexed questions, was appointed by the Home Office and made a report in 1904; and a further “musical copyright act" of 1906 continued the provisions stated and provided also for the seizure of plates as well as copies of pirated musical compositions and for the summary punishment of the offender by fine not exceeding five pounds and, for a repeated offense, by fine not exceeding ten pounds or imprisonment not exceeding two months, possession being proof of fraudulent intent unless the copies bore the name of a printer or publisher. Both these acts were applicable only within the United Kingdom. These provisions, in addition to those for injunction and adequate costs, have bettered the condition of musical properties in England, and

they remain unrepealed, except as to requirement of registration, under the new British code as adopted by the House of Commons.

in other

countries

In most countries playright in the case of dramatic Playright or musical works is specifically covered in the copyright statutes or protected in connection with copyright, although in Austria, Russia, Denmark and Norway, in the case of music, special notice of reservation is required, while in Australia special reservation of the performing right must be made on publication in print of drama or music.

In general, performance is differentiated from International publication, and while in some countries, as above in- provisions dicated, publication in printed form, especially of a musical work, may waive the exclusive right of performance, performance is generally held not to constitute publication. This view is expressly set forth in the interpretation made at Paris, 1896, of the Berne convention of 1886, whereby section 2 of the interpretative declaration defines "published works" as "works actually issued to the public." "Consequently, the representation of a dramatic or dramatico-musical work, the performance of a musical work . . . do not constitute publication." The Berlin convention of 1908 repeats the same language in article 4, prefacing it with the definition that "by published works ('œuvres publiées') must be understood, according to the present convention, works which have been issued ('œuvres éditées')" the English text here given being the official translation of the U. S. Copyright Office.

of arrange

In most foreign countries which include musical Foreign compositions under subjects of copyright either as protection covered under "literary and artistic works" or by specific mention, the general principles as to arrangements and adaptations hold in such countries. Sev

ments

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