International Copyright by Judicial Decision

In the first case [Keene v. Wheatley, 9 Am. Law Reg., 33.] it was at the outset decided that Laura Keene had no rights under the United States statutes relating to copyright, and the only remaining inquiry was whether her suit could be maintained independently of any such statutes; in other words, the old question of literary property at common law and the effect of publication upon such property came up. It was decided that by her purchase from Taylor she had acquired the full ownership of the play; that she also owned the changes incorporated in it by Jefferson, who had acted in the matter as her employee. But as to the question of publication, it may be inferred from what has gone before that considerable difficulty was found. Here was a case in which a play, not protected by any statute, had been publicly represented to indiscriminate audiences in New York, night after night. Is there any method of making a play more public than this? If, as Mr. Justice Yates had argued in 1770, there were a legal resemblance between intellectual ideas and wild animals, could there be a clearer case of escape from the control of their owner than this? But here, strange as it may seem, the suggestion of the court of King's Bench, in 1793, on the subject of the astonishing performances of the human memory made its appearance again, this time, however, not to impair but to strengthen the foundations of literary property. Laura Keene had clearly made a publication of the play; and in the opinion of the court, in such a case, "other persons acquire unlimited rights of republishing in any modes" in which the publication "may directly or secondarily enable them to republish." Therefore, "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 having been retained in the memory of any of the audience." But if the republication is made, not through retention in the memory, but through a surreptitious copy, it is not a republication in a mode which the original publication had directly or secondarily made possible. On the strength, therefore of the old principle with regard to memory, Miss Keene maintained her suit.

We must be permitted to doubt whether this reasoning is not in a vicious circle. The question is whether the dedication to the public by representation is complete (so as to entitle all the world to represent it) or limited (so as to entitle only those persons who have carried it away in their memories to the right); and it is said to be limited, because only those persons who have carried it away in their memories are entitled to reproduce it, while the sole reason that the right is restricted to them is that the dedication was limited. The idea that the owner had any intention of making either a limited or unlimited dedication is of course out of the question.

But it will be seen that this case introduced a very important modification or restriction of the doctrine of "dedication" of unpublished plays. And the other suit brought by Miss Keene to prevent an infringement of Our American Cousin, though decided against her, recognized this modification as sound. The suit against Wheatley had been decided when the suit against Kimball was tried. The Massachusetts supreme court expressly refer to it in their opinion. But owing to the fact that in the one case the court found that the surreptitious copy had been the means of reproduction, while in the second the court felt itself constrained to exclude all considerations of the kind, one suit was decided in miss Keene's favor, and the other against her.

The result of these two last cases would be, practically, that the author of an unpublished play could produce it on the stage whenever he pleased, and sell the right to produce it in different places (as patent rights are sold), and that he, or those to whom he might sell such rights, could protect their property against unlicensed representations so long as it could be shown that these had not been the result of an exercise of the memory; but that if it could be shown that it was by memory that the unlicensed representations had been produced, the protection ceased. In 1879, however, a case was decided in the United States circuit court for the northern district of Illinois which showed that the position assigned to memory as a faculty peculiarly consecrated to piracy was to be still further weakened. It had been decided or conceded in a dozen cases, which it is unnecessary to cite here, that the purchase of a theatre ticket gave the buyer no right to take down phonographically the words of a play, for use elsewhere; and yet he could, if he confined himself to his memory, use as much as he could carry away. Here were two principles of law difficult to reconcile. In Illinois, the questions which arose turned upon the representation of another of Tom Taylor's dramas, entitled Mary Warner. The play was written by Mr. Taylor for Miss Kate Bateman, an actress of note, and after it was written he transferred all his right in the play and the manuscript, together with the exclusive right to its representation in the United States, for five years, to Miss Bateman's husband. The play was always kept in manuscript. One Aiken, the manager of a theatre in Chicago, produced Mary Warner there, and Crowe, the husband, brought a suit against him. In order to bring the question of memory before the court, it was alleged, on the plaintiff's behalf, that the defendant did not produce the play by that means, but by a surreptitious copy. It does not appear that the plaintiff succeeded in proving the use of any such copy; but the judge who decided the case was inclined to look at the question of memory from a new point of view. "There are cases," he said, "in some of the courts of this country, which hold that the representation of a play is a qualified publication, namely, to the extent in which the memory of the auditors can retain its language, scenery, or incidents, and if it is reproduced only in that way the author of the work has no remedy. Of these cases it may perhaps be said that, in some instances, the court has not looked very rigidly into the proofs, considering the intrinsic difficulty of the subject. Indeed, as some of the affidavits in this case show, and as all experience proves, to write out a play from memory alone is well-nigh impossible. . . . I am of opinion that upon principle and authority the author, or his assignee, of an unpublished play has a right of property in the manuscript and its incorporeal contents; that is in the words, ideas, sentiments, characters, dialogue, descriptions, and their connection, independent of statutes, and that a court of equity can protect it. I am also of opinion that, as the law now exists in this country, the mere representation of a play does not of itself dedicate it to the public, except, possibly, so far as those who witness its performance can recollect it, and that the spectators have not the right to secure its reproduction by phonographic or other verbatim report, independent of memory. . . . I cannot doubt that De Witt obtained the copy of the play of Mary Warner, which he furnished to the defendant in this case, either in whole or in part, through a short-hand reporter, or in some other unauthorized or wrongful way, and not by memory only." [Crowe v. Aiken, 2 Biss. 208.] It will be noticed that the substantial difference between the case in Massachusetts and this is that in the former the court declined to assume that the means of representation was anything but memory; in the latter, the court declines to assume that the means of representation was memory. There can hardly be a doubt as to which of the two positions is more in accord with the actual probabilities.

We now come to the case of Palmer v. DeWitt, in which the infringement complained of, instead of being the reproduction of an unpublished play on a rival stage, was the printing of an edition of the unpublished manuscript. In 1868, T.W. Robertson, the English dramatist, sold to Henry D. Palmer the right of performing Play upon the stage, and of printing and publishing it within the United States. Play was first brought out on the 15th of February, 1868, in London. The defendant, Robert M. DeWitt, without Palmer's knowledge or consent, published and offered for sale printed copies. The defense to the action was that the play had been dedicated to the public by frequent representations; that the tickets admitting spectators to the performance "contained no notice or prohibition against carrying the said comedy away by memory or otherwise, and using, printing, or publishing the same;" that no notice to that effect was "posted in any of the theatres, in view of the spectators;" and that the defendant procured the play "from one or more persons, who obtained the same from its performance on the stage at such public representations, while witnessing the same as such spectators." The case came up in the New York superior court, but the judge who tried it dismissed the complaint. It was then appealed, and a decision was rendered reversing this action. It was again taken up to the New York court of appeals, the highest court of the State where the same conclusion was reached. Here again the question of memory was discussed, and the remarks of the court which reversed the first decision are interesting. After admitting that in previous cases learned judges had inclined to the opinion that an auditor might "use his memory as a means of procuring a represented play," and might then "lawfully print and publish it," the court says: "The reason seems to be that as there can be no power over or restriction of the use of memory, therefore such use is not unlawful. It is enough however, perhaps, for the present case to say that even if it is true that an auditor at a public representation may lawfully carry away the play in his memory, and afterwards put it in writing, and from such writing print and publish, there was no evidence in this case to bring it within that rule. The finding of the court is that the defendant received the words of the comedy, etc., from one or more persons who had seen or heard it performed. That finding is not enough to justify the conclusion that the person or persons who saw or heard the public performance had brought it in their memories from the theatre. The burden of proving the manner in which the play was procured was upon the defendant, and he was bound to show that he had obtained it in a lawful way. There are no presumptions in his favor. The right of the plaintiff as owner before publication was absolute, and could be defeated only by showing that the defendant had obtained the play through the memory of auditor." The judge who delivered the opinion then went on to say that he felt compelled to dissent from the doctrine that a spectator may, "upon witnessing the public performance of a play, rightfully commit it to memory, and then publish it to the world." He proceeded to give his view of the law of the subject in the following: "It seems to me that any surreptitious procuring of the literary property of another no matter how obtained, if it was unauthorized and without the knowledge or consent of the owner, and obtained before publication by him, is an invasion of his proprietary rights, if the property so obtained is made use of to his injury." He then pointed out that it is admitted that "a play cannot lawfully be taken down by a short-hand writer from the lips of the actors during a public performance," and asked, "If taken thus by a stenographer, is it different in its legal effect and resulting consequences from committing to memory and afterwards writing it out? In principle it is not. They are not only different modes of doing the same thing, and if without the author's consent are alike injurious to his interests. The objection is not to the committing a play to memory, for over that no court can exercise any control, but in using the memory afterwards as the means of depriving the owner of his property. Such use, it seems to me, is as much an infringement of the author's common-law right of property as if his manuscript has been feloniously taken from his possession. I can see no difference." With regard to the fact that no warnings against infringement were printed on the tickets or posted in the theatre, he said: "Whatever means a prudent man may adopt to prevent his property from being feloniously taken from him, it cannot, I think, be successfully contended that if he chooses to take the risk he may not have it exposed without mark or other sign to designate it as his property; or that by thus exposing it he would lose his title, and could not afterwards recover it, or its value, from one who tortiously took it. A wrong-doer cannot get title to property, or escape the responsibility of his tortious or felonious act, merely because the owner has failed to give public notice or warning that it was not to be stolen. If carrying away in the memory of a spectator, or otherwise surreptitiously obtaining the contents of a play, is without the consent of, or unauthorized by, the owner, and therefore an infringement of his property in the play, the act is not caused by the omission of the owner to notify the audience that they will not be allowed or are forbidden to carry it away in that manner."

In the foregoing quotations from the decisions of the courts on the subject of stage-right, no attempt has been made to ascertain the exact state of the law; but enough has been said to show a prevailing tendency to the complete and absolute protection of a particular kind of literary property. Practically, although it would be difficult for a lawyer to advise a dramatic author exactly what the legal boundaries of his stage-right are, the right is now recognized so generally that, as we have seen, it has become the custom for foreign dramatists to sell the right to act their plays in the United States, unprotected by any international treaty or act of Congress. An American citizen may copyright a play for a limited number of years, under the laws of the United States, and the copyright protects him as well against piracy by the printing of his play as piracy by acting it; but stage-right is a protection above and beyond either of these, which protects the foreign author no less than the domestic, enabling him to prevent the representation of his play for profit in any country in which the common law is recognized, and investing him with a right of property as sacred as any recognized in houses, lands, or chattels.

If Lord Mansfield's view of the subject of copyright had prevailed a hundred years ago in the House of Lords, all literary property would probably now stand upon the same footing that stage-right does. The author of a book would thus enjoy an ownership absolute, exclusive, and perpetual. The English author would be protected in America, and the American author in England. But owing to the decision then arrived at, all property in books is confined in its enjoyment to a limited period of years, while even for this period it is protected only scantily. The right to depredate upon it (which is recognized in reference to no other species of property) has been elevated to the dignity of a national privilege, and piracy to the standing of a respectable branch of trade. By a singular accident of the law, the right of representing a drama on the stage has escaped spoliation, and thus, in the course of a hundred years, a peculiar kind of copyright has well-nigh established for itself a position accorded to no other kind of intellectual property. A successful play is to-day perhaps the most valuable sort of literary property that a writer can produce. Owing to the unqualified protection afforded it, it can be disposed of to far greater advantage than any ordinary copyright, and of course its value must increase with its popularity. On this point the conclusion to which the law on the subject of a dramatic copyright tends is amply confirmed by well-known facts. A curious letter has recently been published in a New York paper, giving an account of an interview of the writer with the head of a dramatic agency in London. It is part of this gentleman's business to sell in the United States the right to act foreign plays, which are, as we have seen, absolutely unprotected except by the decisions of our own courts. The following extracts from the conversation of the correspondent with the agent will be interesting reading to authors of books not capable of being put upon the stage. [New York Times, September 30, 1878.]

CORRESPONDENT. While benefiting your own house, you hold, then, you are a benefactor to authors?

AGENT. Certainly I do. Take the Celebrated Case as an example. It was played over one hundred nights in New York. We paid the author in France several thousand dollars. It was infringed upon by Gilmore in Baltimore; we protected it, and got a decision in our favor. By this success we and others are enabled to make handsome offers to French authors for other plays.

CORR. Who adapted the Celebrated Case for America?

AG. A New York author.

CORR. To what English authors have you paid most for American representations?

AG. Byron, Gilbert, and Wills.

CORR. To what English authors have you paid most for American representations?

AG. Byron, Gilbert, and Wills.

CORR. For what pieces most?

AG. Our Boys, Charity, and Olivia.

CORR. to whom have you paid most?

AG. Byron.

CORR. May I ask what you have paid him in fees for Our Boys?

AG. Over five thousand dollars.

Now it will certainly be admitted that there is no reason for this anomaly, and that it was never anticipated as a desirable or probable consequence of the copyright laws. There can be no reason why dramatic production (no matter how elevated a view we take of the drama) should be favored beyond all other kinds of literary property. If copyright laws are passed for the encouragement of authorship, there can be no good ground for selecting dramatic authors as more deserving than all others, and enabling them to reap a richer harvest than historians, poets, or novelists. Our American Cousin is a very amusing play; but it is certainly not so valuable a contribution to human thought as Macaulay's histories or Lowell's poetry; and the mere accidental fact that one of them can be used in manuscript profitably, while the other must be multiplied in print, surely ought not to make any difference. If perpetual copyright is good for the stage, is it not good for all literature?

And this brings us to the important point recently mooted in a European congress. Has not the time come for a new consideration of the question of perpetual copyright in all literary property? It has been tacitly assumed now for a long time that authors ought to derive an advantage from their books only for a limited period of years. The reasons for this limitation are usually stated to be that the public also have an interest which is hostile to that of authors; that "monopolies are odious;" and that the perpetual ownership of copyrights would involve confusion between the rights of rival publishers and the holders of the copyright. These reasons have hitherto seemed sufficient to justify the limitation of copyright to a short period (in this country to twenty-eight years, with a liberty of renewal for fourteen more). As to the first of these reasons, the supposed hostility of interest between the public and authors, the theory appears to be that there is a danger lest an author should suppress his ideas, or lest the copyright of valuable books should be bought up for the sake of driving them out of the market. This argument would be entitled to more consideration if any startling instances of this sort of danger could be adduced. The question is not as to the possibility of such an occurrence, but as to its probability. Against its probability there is the universal motive of authors to derive as much from their books as they can. Without adopting Dr. Johnson's opinion that "nobody but a fool ever wrote for anything but money," it is certainly fair to say that no one ever writes without having money before him as one of the inducements to writing; and it is out of the question that any sane author shall not desire to derive as great a profit as possible from the sale of his works. Therefore, if he were to enjoy a perpetual copyright, he would be no slower in disposing of it to a publisher than he is now; the only difference would be that he would profit more by the arrangement. The price of his book would be regulated, as it is now, by economic laws. The notion that the public has a right, after a certain time, to the ideas of the author without payment, or, to put it in another way, that the author has the right to profit by his intellectual labor only for a limited period, appears to rest on a communistic basis. Why have the public any greater, or the producer any less, rights with regard to this species of property than with regard to any other? If the public have rights hostile to those of the producer of books, have they not the same rights hostile to the accumulator of lands, or houses or grain, or railroad securities? It is impossible that ideas can be of more immediate importance to the public than food and clothing; and if we are entitled to appropriate the ideas of an author after forty-two years, why should we not have the rest of his property? Of course, communists may consistently hold this view of literary as of any other property; but it is difficult to see how any one not a communist can distinguish between property acquired by literary, and that acquired by any other kind of labor.

The second reason, that monopolies are objectionable, would certainly be valid if copyright was a monopoly in the ordinary sense of the word. But it is no more so than all property is. There are of course monopolies which it may be for the interest of the state to grant for a limited time only; but these are privileges which are given to individuals, and secured against competition, where no original property existed. But in the case of literary ownership there is no monopoly at all; there is an accumulation of original ideas, the result of individual labor, and the only question is how far it is to be protected. There is no ground for calling perpetual copyright a monopoly which will not apply to any recognized form of individual property.

The last difficulty, that the perpetual ownership of ideas will be likely to cause practical confusion, may safely be left, one would think, to be dealt with when it arises. Exactly what the nature of the difficulty is to be has never been clearly stated; and an argument in favor of destroying or seriously curtailing a right of property may give rise to difficulties not explained, would probably, if we were not accustomed to seeing literary property treated with savage disregard of right, strike us with amazement.

The attitude of the United States on the subject of copyright is more remarkable than that of any other modern country. Professing a desire to foster science and literature, it has passed innumerable laws giving protection to all kinds of intellectual property. It has at the same time, however, studiously fostered international piracy, and refused to foreigners the benefits of its copyright law; while in the development of stage-right, as sketched above, its courts have shown a tendency to recognize, in a more thorough way than the most advanced reformers could have desired, a kind of literary property which none of those who have discussed the subject have thought deserving of especial protection. It would seem as if the time had come when this country could with advantage engage in the work of a reexamination of the whole subject, such as has been going on in England and Europe.

Perhaps it is too much to hope for just now. But it is the object of the present article to call attention to the facts that in one branch of intellectual property perpetual and universal copyright is now actually in the progress of establishing itself in the American courts; that this is the work of judges, who are simply applying to literary property of a peculiar kind the principles which the enlightenment produced by the copyright discussion of the past century has shown must be applied to all such property; and that therefore those who are opposed to perpetual or international copyright, instead of reproducing the abstract arguments that have been repeated by rote from Mr. Justice Yates's time until to-day, ought to devote all their energies to discovering whether abuses and dangers to the rights of the public grow up from stage-right. If stage-right is a bad thing, it ought itself to be abolished. If it is good, it is difficult to perceive any reason why legislation should not be directed to extending a protection equal to that which it affords to dramatic authors to all literary producers.

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