conceive but to write dramas and to do everything necessary for that purpose, including the making of a copy for the Lord Chamberlain. In my opinion that is a fallacious mode of stating the right. The statute confers on the author of a book and his assigns. "the sole and exclusive liberty of printing or otherwise multiplying copies" of the book. By implication every person other [* 81] than * the author and his assigns is prohibited from printing or otherwise multiplying copies of the book. But this is the only restriction imposed on the public, and, subject to it, every person is free to make such use of the book as he pleases. So long, therefore, as he does not print or otherwise multiply copies of the novel, any person may dramatize it, and may cause his drama to be publicly represented. But if, for the purpose of dramatization, he prints or otherwise multiplies copies of the book, he violates the rights of the author no less than if the copies were made for gratuitous distribution. The authorities appear to me to be consistent with this view. In the early cases of Coleman v. Wathen, 5 T. R. 245, and Murray v. Elliston (p. 868, ante), 5 B. & Ald. 657 (24 R. R. 519), (which established that the representation in public of a drama previously printed and published was not an infringement of the author's copyright), the point raised in the present action could hardly have arisen, for they were decided at a time when the statutes in force conferred only the exclusive right of printing. It is unlikely that any copies (other than manuscripts) were used for the purpose of the representation of the plays which were the subject of those actions; and such manuscript copies would not have been infringements of the author's rights. The case most relied upon for the defendant was Reade v. Conquest, 9 C. B. (N. S.) 755; 11 C. B. (N. S.) 479; 30 L. J. C. P. 209. It was decided on a demurrer to a count of the declaration which alleged that the defendant without the consent of the plaintiffs dramatized the plaintiffs' book, and publicly represented and performed or caused to be represented and performed as a drama the said book. The declaration did not allege that the defendant printed or otherwise multiplied copies of the book. In the course of the argument the defendant's counsel said (9 C. B. (N. S.) 764, 765): "It is not suggested here that the defendant multiplied copies of the plaintiffs' book. The complaint is, that the defendant has dramatized the story and caused it to be represented at his theatre." In giving judgment, Mr. Justice WILLIAMS said: "The right claimed

No. 3. - Warne v. Seebohm, 39 Ch. D. 81–83.

by the plaintiff was two-fold. First, he contended that his statutable right was infringed by the act of the defendant. It was held, however, in the case of Coleman v. Wathen that representing a public dramatic piece of the plaintiffs' upon the [*82] stage was not a publication within the meaning of the

8 Anne, c. 19, so as to subject the defendant to the penalty imposed by the statute. And the 2nd section of the 5 & 6 Vict., c. 45, defining copyright' to mean the sole and exclusive liberty of printing or otherwise multiplying copies of any subject to which the said word is herein applied,' seems to furnish a complete answer to the plaintiff's claim under the statute." That case, therefore, seems to me to have been decided on the ground that the plaintiff's statutory right of multiplying copies of his book was not infringed. In the present case I am of opinion that if the defendant had caused his play to be printed and published there would have been as substantial an infringement of the plaintiff's right as occurred in the case of Tinsley v. Lacy, 1 H. & M. 747, and, for the reasons already given, I think that what has been done and is intended to be done by the defendant constitutes an infringement of the plaintiffs' legal rights no less than if the defendant had printed and published his play; and, notwithstanding the smallness of the damage, I consider myself bound by the authority of Tinsley v. Lacy to grant a perpetual injunction to restrain the defendant from printing or otherwise multiplying copies of his play containing any passages copied, taken, or colourably altered from the plaintiffs' novel or tale entitled "Little Lord Fauntleroy," so as to infringe the plaintiffs' copyright therein. I have introduced the last words purposely, because, as was pointed out in the course of the arguments, there is a possible mode by which, without infringing the plaintiffs' copyright, the defendant may be able to make copies of the play. The plaintiffs further insisted on an order directing the delivery up for cancellation of the existing copies of the play, and they relied on the decision in Hole v. Bradbury, 12 Ch. D. 886, 48 L. J. Ch. 673, that the Court has power under its general jurisdiction to order delivery up for destruction of all articles created in violation of the plaintiffs' rights. In that case, however, as I understand the facts, the whole of the work complained of was an infringement of the plaintiffs' rights. In the present case, however, upon an examination of the play, I have come to the

*

conclusion that it may not be impossible for the defend- [*83]

Nos. 1-3. Murray v. Elliston; Toole v. Young; Warne v. Seebohm. — Notes.

ant to sever the passages which he has extracted from the novel from the rest of his work, and if he desires it I will give him an opportunity of doing so. He must, however, first state upon oath what copies of the work exist; secondly, extract from those copies which are in his possession or power, and deliver up to the plaintiffs for cancellation, all passages copied, taken, or colourably imitated from the plaintiffs' book; thirdly, produce to the plaintiff's, if required by them for examination, the copies after the pirated passages have been extracted, and there must be liberty for the plaintiffs to apply for a further order if they are dissatisfied with the result. The costs of the action must be paid by the defendant.

ENGLISH NOTES.

The decision in Toole v. Young was followed by KEKEWICH, J., in Schlesinger v. Bedford (11 Dec., 1890), 63 L. T. 762, where the execu tors of Wilkie Collins sought to restrain the representation of a drama called "The Woman in White." It appeared that the novel called "The Woman in White" had been first published by him, and that a drama under the same title had been subsequently brought out by him. It appeared that the defendant did not know of Wilkie Collins' drama, but the defendant's drama was admittedly founded on, and would have been an infringement of the copyright in, the novel, if the representation of such a drama could be legally deemed an infringement of such copyright. Mr. Justice KEKEWICH, following the authority of Toole v. Young, gave judgment for the defendant.

The privilege of dramatic copyright given by the Act 3 & 4 Will. IV. c. 15 is (by s. 1) "the sole liberty of representing, or causing to be represented, at any place or places of dramatic entertainment whatsoever, in any part of the United Kingdom in Great Britain and Ireland, in the Isles of Man, Jersey and Guernsey, or in any part of the British Dominions, any such production, &c." By art. 2 of the Berne Convention "Authors of any of the countries of the union, or their lawful representatives, shall enjoy in the other countries for their works, whether published in one of those countries or unpublished, the rights which the respective laws do now or may hereafter grant to natives."

In the "Morocco bound" Syndicate v. Harris (22 Feb., 1895), 1895, 1 Ch. 534, 64 L. J. Ch. 400, 72 L. T. 415, 43 W. R. 393, Mr. Justice KEKEWICH held that under these provisions, the Court here has no jurisdiction to restrain the representation in Germany by a British subject of a play alleged to be an infringement of the rights of the author, being also a British subject. The plaintiff's rights under the Act are expressly limited to a representation within the British Do

Nos. 1-3. - Murray v. Elliston; Toole v. Young; Warne v. Seebohm. - Notes.

minions; and, although it appeared that German law would under the Convention protect the rights of the author in Germany, that did not give the Court here jurisdiction to interfere.

AMERICAN NOTES.

The first two principal cases are cited and reviewed in Drone on Copyright (1879), who says (pp. 456, 457), that the question "whether it is piratical to dramatize, for public representation, without authority, a copyrighted work in which the author has not expressly reserved to himself the right of dramatization, . . has been judicially considered in England, but not in the United States." Mr. Drone criticises Toole v. Young and Reade v. Conquest as being in direct conflict with each other, and disapproves their general holding, instancing the dramatization of "Uncle Tom's Cabin," as an example of the hardship of such a doctrine.

By Statute (1856), playwright exists in dramatic compositions for which a copyright has been secured.

Mr. Morgan (2 Law of Literature, p. 346), cites Murray v. Elliston, and says, "We doubt if this case would be followed to-day." But he assumes that the dramatization was protected on the ground that it was an abridgment. He observes: "But it would be manifestly unfair to allow an author's romance or fiction to be deliberately appropriated by another author merely because the second happens to be a writer of plays."

The right of translation of a copyrighted book stands upon a similar footing as the right to dramatize and act it, and unless this right is reserved on publication of the book, a translation is no infringement. In Stowe V. Thomas, 2 Wallace Junior (U. S. Circ. Ct.), 547, Mr. Justice GRIER said: "By the publication of her book, the creations of the genius and imagination of the author have become as much public property as those of Homer and Cervantes. Uncle Tom and Topsy are as much. publici juris as Don Quixote and Sancho Panza. All her conceptions and inventions may be used and abused by imitators, playwrights, and poetasters. They are no longer her own; those who have purchased her book may clothe them in English doggerel, or in German or Chinese prose. All that now remains is the copyright of her book; the exclusive right to print, reprint, and vend it, and those only can be called infringers of her rights or pirates of her property, who are guilty of printing, publishing, importing, or vending, without her license, ‘copies of her book."" Mr. Drone pronounces this decision "contrary to justice, recognized principles, and the copyright statutes of the United States as judicially construed;""clearly wrong, unjust, and absurd" (pp. 454, 455).

The author may reserve the rights of dramatization and translation. Drone on Copyright, p. 445.

In Carte v. Ford, 15 Federal Reporter, 439, the "Iolanthe " case, it was held that where a vocal score of an opera is published, with a piano-forte accompaniment embodying the substantial elements of the orchestration, without any reservation of the orchestration, any one may reproduce and perform the work with new orchestration.

THE author of a dramatic or musical composition does not lose the sole right (under the Acts 3 & 4 Will. IV. c. 15, and 5 & 6 Vict. c. 45 s. 20) of representing or performing it in public by selling copies of it prior to such representation or performance.

[232]

Chappell v. Boosey.

21 Ch. D. 232–242 (s. c. 51 L. J. Ch. 625 ; 46 L. T. 854 ; 30 W. R. 733).

Dramatic and musical Representation. — Publication as a Book.

The publication in this country of a dramatic piece, or musical composition, as a book, before it has been publicly represented or performed does not deprive the author of such dramatic piece, or musical composition, or his assignee, of the exclusive right of representing or performing it.

On the 14th of December, 1881, the defendant, as the director of the London Ballad Concerts, represented or performed, or caused or permitted to be represented or performed, at one of the London Ballad Concerts at St. James's Hall, Piccadilly, being a place of dramatic entertainment, a musical composition, or dramatic piece entituled, "The Bellringer," without first obtaining the consent in writing of the plaintiffs, who as assignees of one John Oxenford, were the registered proprietors of a subsisting copyright in "The Bellringer," and as the plaintiffs by their claim alleged, contrary to the statutes 3 & 4 Will. IV. c. 15, and 5 & 6 Vict. c. 45.

The plaintiffs' claim was for damages and an injunction to restrain the defendant from representing or performing "The Bellringer," or causing the same to be represented or performed, at any place of public or dramatic entertainment.

The defendant by his statement of defence denied that the song with musical accompaniment called "The Bellringer," was [* 233] a* dramatic piece, or that it was such a musical composition as is mentioned or referred to in the 20th section of the Act 5 & 6 Vict. c. 45, or that the plaintiffs had the sole liberty of per