PART I CHAPTER IX. Prints engraved and struck off abroad, but published here, are not within the protection of the Copyright Acts.(a) For the law relating to the assignment of copyright in prints see the chapter on the "Transfer of Copyright," post; and as to the piracy of prints, and the remedies for piracy, see the chapters on "Piracy," and "Remedies for Infringement," post. Property twofold. c. 15. CHAPTER X. DRAMATIC AND MUSICAL COMPOSITIONS. THE property in a dramatic or musical composition is of a twofold nature. It embraces the copyright in the composition itself, considered simply as a literary production, and also the right of representing the drama or performing the musical composition at any place of dramatic entertainment in the British dominions. Of the two rights the latter, which is the more valuable, was secured to authors and composers at a later period than the former. From the passing of the Copyright Act of Anne, the authors of dramatic, as well as other literary productions, have enjoyed a copyright in their works; but it was not till the statute of 3 & 4 Will. 4, c. 15, that the right of controlling the representation of their dramas in any part of the British dominions was conferred on the authors of dramatic compositions. Before the passing of that Act the author could not prevent anyone that liked to do so from publicly performing on the stage any drama in which the author possessed the copyright. He could only prevent the publication of his work by multiplication of copies of it; and it was held that repeating the piece from memory on the stage was no publication of it. (b) The author's composition might also be altered and abridged to make it more suitable for theatrical representation, and might be so represented for profit by whoever pleased. (c) The Legislature at length intervened to remedy this defect 3 & 4 Will. 4, in the law. 3 & 4 Will. 4, c. 15, commonly called Sir Bulwer Lytton's Act, gave to the author or his assignee of any tragedy, comedy, play, opera, farce, or any other dramatic piece or entertainment composed, and not printed (a) Page v Townsend (5 Sim. 395). (b) Coleman v. Wathen (5 T. R. 245); Macklin v. Richardson (Amb. 694). (c) Murray v. Elliston (5 Bar. and Ald. 657). d published, the sole right of having it represented in part of the British dominions, and to the author or his nee of any such dramatic production, printed and ablished within ten years before the passing of the Act, or hich might be printed and published after the passing of the Act, the sole liberty of representing or causing to be represented the same at any place of dramatic entertainat in the British dominions during the same period of e that copyright then subsisted in books. A proviso added saving the rights of parties to whom before the ssing of the Act the author or his assignee had given thority to represent his piece. (a) PART L CHAPTER X. The right of the author is further secured by sect. 2, Sect. 2. which inflicts a penalty on persons performing pieces con trary to the Act. The foregoing provisions were extended to musical comPositions by sect. 20 of 5 & 6 Vict. c. 45. right The duration of the author's right to restrain or authorise Duration of the The performance of his dramatic or musical compositions by sect. 20 of 5 & 6 Vict. c. 45, made of equal length with he term of an author's copyright in books, i.e., the author's fetime, and seven years more if they together amount to or eeed forty-two years: if they do not, the right endures for e term of forty-two years from the period of first publicaon in the case of books, or of first public representation performance in the case of dramatic pieces or musical mpositions. The section enacts that "the sole liberty of representing or rforming, or causing or permitting to be represented or rformed, any dramatic piece or musical composition, shall dure and be the property of the author thereof, and his signs, for the term in this Act provided for the duration copyright in books; and the provisions hereinbefore acted in respect of the property of such copyright, and registering the same, shall apply to the liberty of repreating or performing any dramatic piece or musical nposition, as if the same were herein expressly reacted and applied thereto, save and except that the first blic representation or performance of any dramatic ce or musical composition shall be deemed equivalent, the construction of this Act, to the first publication of v book." tration. As to the manner of registration, the same section provides Mode of regishat in case of any dramatic piece or musical composition manuscript, it shall be sufficient for the person having (a) Sect. 1. PART I CHAPTER X. Remedies for infringement. Assignment of copyright does the sole liberty of representing or performing, or causing to be represented or performed the same, to register only the title thereof, the name and place of abode of the author or composer thereof, the name and place of abode of the proprietor thereof, and the time and place of its first representation or performance." As to remedies for infringement of the rights, sect. 21 enacts "that the person who shall at any time have the sole liberty of representing such dramatic piece or musical composition shall have and enjoy the remedies given and provided in the said Act of the third and fourth years of the reign of his late Majesty King William the Fourth, passed to amend the laws relating to dramatic literary property, during the whole of his interest therein, as fully as if the same were re-enacted in this Act." See the chapter on "Remedies for Infringement," post. The right of representation is now so distinct from the copynot convey right right in a dramatic or musical piece, that the assignment of the latter does not convey the former without an express assertion on the register of an intention to do so. to represent or perform. Definition of "dramatic piece " Musical compositions. Sect. 22 enacts "that no assignment of the copyright of any book consisting of or containing a dramatic piece or musical composition shall be holden to convey to the assignee the right of representing or performing such dramatic piece or musical composition, unless an entry in the said registry book shall be made of such assignment, wherein shall be expressed the intention of the parties that such right should pass by such assignment." A "dramatic piece" is defined by sect. 2 "to mean and include every tragedy, comedy, play, opera, farce, or other scenic, musical, or dramatic entertainment." From the preceding statutory definition of "dramatic piece," it will be seen that musical compositions are embraced under that head, and that the statutory provisions relating to the performance of ordinary plays apply also to musical entertainments. Sect. 20, indeed, after reciting that it is expedient to extend to musical compositions the benefits of the Act 3 & 4 Will. 4, c. 15, enacts that the provisions of the said Act, as well as of the Act of 5 & 6 Vict. c. 45, shall apply to musical compositions, and then proceeds to confer on the authors the sole right of representing or performing them in the terms already cited, p. 115. Long before this enactment it had been held that written music was within the Copyright Act of Anne ;(a) but up to the time of the passing of 5 & 6 Vict. c. 45, the author was (a) Bach v. Longman (Cowp. 623). PART L nable to restrain the unauthorised public performance of his compositions by others. Lord Mansfield, in the very CHAPTER X. hase which decided that music was within the Act of Anne, said: "A person may use the copy by playing it; but he has no right to rob the author of the profit by multiplying pies, and disposing of them to his own use." The author snow placed on a level, in this respect, with the author of dramatic pieces commonly so called. An introduction to a pantomime, which is the only ritten part of such an entertainment, is a dramatic piece within the protection of this Act. (a) It is not correct to say that such an introduction is not an entire and complete piece. (b) musical compo Where a person is employed by another to write for Authorship of reward paid to him a musical composition, to be used as sition accessory Part of the representation of a dramatic piece, and as a to a play. tere accessory to such dramatic piece, the composer of the musical accessory has no copyright therein. The property music so composed becomes vested in the employer, and he does not require the consent of the composer in order to represent it. This was decided by the Court of Common Pleas in the case of Hatton v. Kean, (c) where the plaintiff had been employed by the defendant to compose certain music to be performed during and as part of the representation of three of Shakespeare's plays. The musical composition was held to have become the property of Mr Kean, and the plaintiff was held never to have been, within the lanuage of the statute, the owner or proprietor thereof. This ase was followed and approved in Wallerstein v. Herbert, (d) where the composer of the musical accessories was employed find an orchestral band, to procure and pay all the musical erformers, and furnish all the musical instruments, to proide, lead, and perform overtures and entr'acte music, and the music incidental to the dramatic performances. In perforance of his duties under this engagement he composed (a) Lee v. Simpson (3 C. B. 871). (b) 3 C. B. 881, 882. As to what is a dramatic entertainment within PART I. CHAPTER X. Pianoforte score of an opera. the music for a drama called "Lady Audley's Secret," and it was held that he had no copyright in such music. A pianoforte score of an opera is an independent musical composition separate and distinct from the opera itself; and where such pianoforte score has been arranged by a person other than the composer of the opera, it is incorrect to register the score as the composition of the composer of the opera. (a) "It seems impossible," says Cockburn, C.J., "to believe that any musician, however great his talent, whether as a composer or as an executant, from the mere circumstance of having the opera in its entirety before him, that is to say, with all the score for all the instruments, which neither eye nor mind could take in at the same time, could be able to play the accompaniment while singing the music of the opera at the piano. requires time, reflection, skill and mind so to condense the opera score as to compose the pianoforte accompaniment. I cannot therefore bring myself to think that the pianoforte arrangement of the music of an opera, which originally consisted of vocal music and instrumentation to be executed by some half hundred instruments can be said to be anything else than a specific, separate, and distinct work from the opera itself."(b) Whether a pianoforte arrangement of the score of an opera executed without the consent of the composer of the opera would be an infringement of his copyright therein, has not been expressly decided. In Wood v. Boosey, (c) Cockburn, C.J., carefully guarded himself against being understood to decide that it would not, and Blackburn, J., was of opinion that it would. Kelly, C.B., on appeal (d) says, "No doubt it is a piracy of the opera, and the composer may maintain an action against the adapter or the publisher of the adaptation;" but it was not necessary to decide the point in that case. As to the assignment of the rights treated of in this chapter, the infringement thereof, and the remedies for infringement, see the chapters on "Transfer," "Piracy," and "Remedies for Infringement," post. (a) Wood v. Boosey (L. Rep. 2 Q. B. 340; 7 B. & S. 869; 15 L. T. N. S. 530; 36 L. J. 103, Q. B.; affirmed on appeal, L. Rep. 3 Q.B. 223; 9 B. & S. 175; 37 L. J. 84, Q. B. ; 18 L. T. N. S. 105.) (4) L. Rep. 2 Q. B. 350; 15 L. T. N. S. 530; 36 L. J. 103, Q.B. ; 15 W. R. 309. (c) L. Rep. 2 Q. B. 350, 354. See the remarks of Lord Abinger, C.B., in D'Almaine v. Boosey (1 Y. & C. 288). (4) 18 L. T. N. S 108; L. Rep. 3 Q. B. 223; 37 L. J. 84, Q. B · 16 W. R. 485. |