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No. 4. — Chappell v. Boogey, 21 Ch. D. 233, 234.
forming the same. By the second paragraph of the defence he alleged that the song, with the music accompaniment thereto, was published as a book within the meaning of that term in the Act, long before any public performance or representation thereof.
The plaintiffs demurred to the second paragraph of the statement of defence, alleging that the same was bad in law, on the ground that the publication of the song, with the music accompaniment, as a book before any public performance or representation thereof, did not affect the plaintiffs' sole liberty of representing or performing the same, and was no defence to the plaintiffs' claim in respect of the infringement of their rights by the defendant.
By s. 1 of the Act 3 & 4 Will. IV. c. 15, it is enacted that “from and after the passing of this Act, the author of any tragedy, coinedy, play, opera, farce, or any other dramatic piece or entertainment, composed and not printed and published by the author thereof or his assignee, or which hereafter shall be composed and not printed or published by the author thereof, or his assignee, or the assignee of such author, shall have as his own property 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 of Great Britain and Ireland, in the Isles of Man, Jersey, and Guernsey, or in any part of the British dominions, any such production as aforesaid, not printed and published by the author thereof, or his assignee, and shall be deemed and taken to be the proprietor thereof; and that the author of any such production, printed and published within ten years before the passing of this Act by the author thereof, or his assignee, or which shall hereafter be so printed and published, or the assignee of such author, shall from the time of passing of this Act, or from the time of such publication respectively, until the end of twenty-eight years from the day of such first publication of the same, and also, if the author or authors, or the survivor of the authors, shall be living at the end of that period, during the residue of his natural life, have as his own property * the sole liberty of representing, or causing to be [* 234] represented, the same at any such place of dramatic entertainment as aforesaid, and shall be deemed and taken to be the proprietor thereof : Provided, nevertheless, that nothing in this Act contained shall prejudice, alter, or affect the right or authority of any person to represent or cause to be represented, at any place
or places of dramatic entertainment whatsoever, any such production as aforesaid, in all cases in which the author thereof, or his assignee shall, previously to the passing of this Act, have given his consent to or authorized such representation ; but that such sole liberty of the author, or his assignee, shall be subject to such right or authority."
By sect. 2 of the Act of 5 & 6 Vict. C. 45, it is amongst other things enacted “that in the construction of this Act the word 'book' shall be construed to mean and include every volume, part or division of a volume, pamphlet, sheet of letter press, sheet of music, map, chart, or plan separately published: that the words 'dramatic piece' shall be construed to mean and include every tragedy, comedy, play, opera, farce, or other scenic, musical, or dramatic entertainment; that the word 'copyright' shall be construed to mean the sole and exclusive liberty of printing or otherwise multiplying copies of any subject to which the said word is herein applied."
The 20th section of the last-mentioned Act is as follows:
“ And whereas an Act was passed in the third year of the reign of his late Majesty to amend the law relating to dramatic literary property, and it is expedient to extend the term of the sole liberty of representing dramatic pieces given by that Act to the full time by this Act provided for the continuance of copyright: Be it therefore enacted that the provisions of the said Act of his late Majesty and of this Act shall apply to musical compositions, and that the sole liberty of representing or performing, or causing or permitting to be represented or performed, any dramatic piece or musical composition, shall endure and be the property of the author thereof, and his assigns, for the term in this Act provided for the duration of copyright in books; and the provisions herein before
enacted in respect of the property of such copyright and of [* 235] registering the same, shall apply to the liberty * of repre
senting or performing any dramatic piece or musical composition, as if the same were herein expressly re-enacted and applied thereto, save and except that the first public representation or performance of any dramatic piece or musical composition shall be deemed equivalent in the construction of this Act to the first publication of any book: Provided always, that in case of any dramatic piece or musical composition in manuscript, it shall be sufficient for the person having the sole liberty of representing or
No. 4. — Chappell v. Boosey, 21 Ch. D. 235, 236,
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."
By the 22nd section of the same Act, it is enacted “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."
Romer, Q C., and Cripps, in support of the demurrer:
The very object of publishing a song as a book is that the public may buy it and sing it, and the author cannot afterwards be heard to say that the person buying the song from him must not put it to the use for which it was bought. The exclusive right of representing or performing a dramatic piece or musical composition cannot be gained if such dramatic piece or musical composition has been printed and published as a book before the first representation or performance. That is the view of the law taken by Mr. Justice STEPHEN, and so enunciated by him in his Digest to the Law of Copyright annexed to the Report of the Copyright Commissioners made it 1878. If that view of the law is correct, which we submit it is, then this demurrer must be overruled.
The following authorities were cited: Boucicault v. Delafield, 1 H. & M. 597; Boucicault v. Chatterton, 5 Ch. (* 236] D. 267; Russell v. Smith, 15 Sim. 181; Jeffreys v. Boosey, 4 H. L. C. 815.
In this case the plaintiffs claim to be the proprietors of the copyright in a musical composition called “The Bellringer," and also of the sole liberty of performing the same piece, and they sue the defendant for infringing that right by performing this composition without their consent at one of the London Ballad Concerts at St. James's Hall.
The defendant sets up, among others, the defence that the song in question with the music accompaniment therein, was published
No. 4. — Chappell v. Boosey, 21 Ch. D. 236, 237.
as a book within the meaning of that term in the Act of 5 & 6 Vict. c. 45, long before any public performance or representation thereof. It is admitted that the word “published” is equivalent to published and sold.
To this defence the plaintiff demurs; and the neat question thus arises for decision, whether the publication of a dramatic piece or musical composition as a book before it has been publicly represented or performed, deprives the author or his assignee of the exclusive right he otherwise would have of representing or performing it.
The defendant relies upon two points: - First, he says that the very object of publishing a song as a book is that the public may buy it and sing it; and that the author cannot be heard to say that the person buying the song from him cannot put it to the use for which it is bought. His second point is this, that the present law upon the subject is authoritatively put forward in, and is to be found in, a Digest of the Law of Copyright annexed to the report of the Copyright Commissioners made in 1878, and adopted by them, as appears from the 6th and 14th paragraphs of that report. Article 14 of the Digest runs as follows: "The exclusive right of representing or performing a dramatic piece or musical composition cannot be gained if such dramatic piece or musical com. position has been printed and published as a book before the first
representation thereof." [* 237] * This certainly is very much in point for the defendant;
and I should add, while referring to that Digest, that the 16th article runs as follows: “A dramatic piece or musical composition published as a book may (it seems probable) be publicly represented without the consent of the author or his assigns.”
The report, however, is not quite so strong, for the 73rd paragraph says, referring to dramatic pieces and musical compositions: “It is a question what becomes of the performing copyright on the publication of the work as a book; and there is a further question whether the performing copyright can be gained at all if the piece is printed and published as a book before being publicly performed.” I must say at once that I cannot regard this Digest and report as in any way binding me as to the decision to which I ought to come, though I have carefully considered them as an assistance to me in forming my own conclusions on the subject. I may add that the articles I have just read seem not to have been quite in
No. 4. — Chappell v. Boosey, 21 Ch. D. 237, 238.
accordance with the views of the trade; for the present defendant was examined before the commission, and I find in his published evidence
Q. 1983 * p. 101. When you have published a song may people sing it in public without the author's leave ? - A. No, not without the author's leave.
And again, Q. 1986 *. Would a composer have a right to prevent a person from singing his song in public, he having published it ? A. Certainly; he could demand £2 a night.
Now, in my opinion, the law stands thus.
Under the Statute of Anne the author of a dramatic piece or musical composition acquired a copyright in his work so as to be enabled to prevent any other persons from multiplying copies of it; but this did not prevent any one who thought fit to do so from representing or performing it.
The privilege of an author of a dramatic piece was extended by the Act of 3 & 4 Will. IV. c. 15, commonly called Sir Bulwer Lytton's Act, which provided that the author, or assign of the author, of any dramatic piece which was not printed or published, whether then already composed or thereafter to be composed, should have as his own property, and be proprietor of, the sole * liberty of (* 238] representing the same at any place of dramatic entertainment for a period not clearly defined and not at present material; and that the author or assign of the author of any such piece, which was printed and published after or within ten years before the passing of that Act, should have the like sole liberty of representing the same for the term of twenty-eight years from the passing of the Act, or from the publication of the piece if it was first printed and published after the passing of the Act, or until the end of seven years after the author's death, whichever term should prove the longer.
After the passing of this Act, therefore, the author had two different rights: one, that of copyright proper, preventing the multiplication of copies of the piece itself; the other being what may be called the acting right or performing right, conferring upon him the power of preventing other persons from publicly representing or performing the piece without his consent. This Act, however, did not extend or apply to musical compositions except so far as they came within the category of dramatic pieces or entertainments.
By the Act of 5 & 6 Vict. c. 45, commonly known as Talfourd's