Chap. XII. subject to this, that they must not borrow from his drama but only from his novel (s). Where, however, the owner of copyright in a play wrote a novel founded upon it, to which he transferred several scenes from the play, and afterwards another person dramatised the novel, taking the same scenes from the novel, this was held to be an infringement of the copyright in the play (t). Printing and publication is. Limitation of action. Notice of objections, s. 16. Importing for sale, and "selling know. ingly," s. 17. Although it is no infringement of copyright to represent a play dramatised from a novel written by another author, yet it is an infringement to print and publish a play so constructed (u). The 26th section of the Copyright Act, 1842, which limits the time for bringing actions in respect of offences committed against the statute to twelve months after the commission of such offence, does not apply to an action to restrain a piracy of copyright by sale of a book published more than twelve months before writ issued (x). The notice of objections required under s. 16 of the Statute is sufficiently complied with, by alleging a definite publication of the disputed work at some particular place, by some definite party either before or simultaneously with, the publication by the plaintiff, or with a publication in another place (y). The 17th section of the Copyright Act, 1842, mentions two offences, that of "to import for sale," and that of "to sell knowingly" unauthorised publications, and therefore ignorance of the nature of the imported copies is not a defence where the offence charged is "importing for sale," but only where the offence charged is "selling knowingly." Thus, the proprietors of an English copyright magazine brought an action against the agents in England of an American firm of publishers for an injunction to restrain them from selling or importing for sale in this country a magazine published by the American firm, and containing matter pirated from the plaintiffs' copyright. The defendants, by statement of defence, stated that they had determined not to sell the copies complained of in consequence of a notice received from the plaintiffs shortly before the commencement of the action, and before the defendants themselves had had the opportunity of inspecting such copies. It was held that this was no defence to a charge of "importing for sale " (z). (s) Toole v. Young, L. R. 9 Q. B. 523. (x) Hogg v. Scott, L. R. 18 Eq. 444. (y) Boosey v. Purday, 10 Jur. 1038; see also Coote v. Judd, 23 Ch. D. 727. (z) Cooper v. Whittingham, 15 Ch. D. "Person ag Upon an application under 5 & 6 Vict. c. 45, s. 14, to expunge Chap. XII. entries in the register at Stationers' Hall, representing A. to be the proprietor of the right to perform certain songs published grieved," s. 14. before the Act, it appeared that the applicants, who were music publishers, claimed under a general grant of the copyright in the songs written by the composer after the Act, and that A. claimed under a subsequent grant by the composer which purported to convey separately the right of performing them. A., under colour of this grant, had threatened to take proceedings against persons performing the songs without his consent. It was held that the application to expunge the entries must be granted; for the applicants were "aggrieved" by the existence of the entries, which were calculated to prejudicially affect their literary copyright in the songs by diminishing the number of copies sold (a). Books piratically printed before registration by the proprietor Forfeiture of of the copyright, become his property after registration (b). The copies, s. 23. registered owner of a copyright in a work is entitled to have all the unsold copies of a printed edition delivered up to him for his own use, without making any compensation for the cost of production or publication; but as to copies which have been sold, he is not entitled to the gross profits, but only the net profits which the party has made by their sale (c). Dramatic Copyright Act, 1833, 3 & 4 Wm. 4, c. 15. The Dramatic Copyright Act, 3 & 4 Wm. 4, c. 15 (s. 1), gives the author of any tragedy, comedy, play, opera, farce, or any dramatic piece or entertainment, composed and not printed and published by the author thereof, or his assignee, the sole right of representing Sole right of representation it or causing to be represented at any place of dramatic entertain- in author or ment in the United Kingdom (d). Sect. 2 enacts that if any assignee. person shall during the continuance of such right represent or cause to be represented, at any place of dramatic entertainment within the United Kingdom, any of the aforesaid productions without having first obtained the consent in writing of the author or his assignee, he shall be liable for every such representation to Penalty for a payment of forty shillings, or to the full amount of the benefit performing pieces contrary or advantage arising from such representation, or the injury or to the Act. 501; 49 L. J. Ch. 752. (a) Ex parte Hutchings v. Romer, 4 Q. B. D. 483; 48 L. J. Q. B. 505 (C. A.). (b) Isaacs v. Fidemann, 49 L. J. Ch. 412. (c) Delf v. Delamotte, 3 Kay & J. 581. (d) See 5 & 6 Vict. c. 45, s. 20; by which it is enacted that the term copyright, as used in that Act, is to be applied to the liberty of dramatic representation, and that the first public representation shall be deemed equivalent to first publication. Chap. XII. loss sustained by the plaintiff therefrom, whichever shall be the greater damages, to the author of such production, or his assignee (e). "Author" within the statute. Joint authorship of play. A person who employs another to adapt a foreign dramatic piece for representation upon the English stage, and who has no other share in the design or execution of the work than that of suggesting the subject, is not "the author" within the meaning of this statute; and, therefore, when such employment is by parol, the employer has not the right of representing it without an assignment in writing from the author (f). The manager of a theatre, having designed to bring out an old play, with new scenery, dresses, and musical accompaniments, hired the plaintiff to compose the requisite music, who did so, and was paid for it. It was held that the sole right to the representation or performance of such musical compositions, as part of the whole, was vested in the manager, without assignment or the consent in writing of the plaintiff; as the terms of the contract between the plaintiff and defendant were that the compositions should become part of the entire dramatic piece, and that the manager should have the sole right of representing and performing the compositions with the dramatic piece (g). If two persons undertake jointly to write a play, agreeing in the general outline and design, and sharing the labour of working it out, each would be contributing to the whole production, and they might be said to be "joint authors" of it. But to constitute joint authorship, there must be common design. Mere alterations, additions, or improvements by another person, whether with or without the sanction of the author, will not entitle such person to claim to be "joint author." Thus the plaintiff, the lessee of a theatre, employed one W. to write a play for him, suggesting the subject. W. having completed the play, the plaintiff and some members of his company introduced various alterations in the incidents and in the dialogue, to make the play more attractive, and one of them wrote an additional It was held that these circumstances did not make the plaintiff "joint author" of the play with W. (h). scene. (e) Such damages, together with double costs, to be recovered by action in any court having competent jurisdiction. (f) Shepherd v. Conquest, 17 C. B. 427; 25 L. J. C. P. 127; Levy v. Rutley, L. R. 6 C. P. 523. (g) Hatton v. Kean, 7 C. B. N. S. 268; 29 L. J. C. P. 20. (h) Levy v. Rutley, supra. The publication in this country of a dramatic piece, as a book, before it has been publicly represented or performed, does not deprive the author of such dramatic piece or his assignee of the right of representation (i). The author of a dramatic work which has been first represented in a foreign country, is not entitled to any exclusive right of representation in this country, the representation of a dramatic work being a publication of it within 7 Vict. c. 12, s. 19 (k), which puts British subjects and foreigners on the same footing in respect of a publication abroad (1). The introduction to a pantomime, which is the only written part Introduction to of the entertainment, comes within the protection of the statute (m). pantomime, A deed, subsequently to 5 & 6 Vict. c. 45, assigning all the tection of Act. right, title, and interest in a dramatic piece, both copyright and Assignment. acting right, does not require registration under that Act, in order to entitle the assignee to the exclusive right of representation, and to all the other rights and remedies conferred by 3 & 4 Wm. 4, c. 15, on the author of a dramatic piece and his assignee. The 5 & 6 Vict. c. 45, s. 22, applies only where the copyright alone is assigned, and not the exclusive right of representation (n). It is competent for an assignee of the sole right of representing a dramatic piece to sue for penalties under 3 & 4 Wm. 4, c. 15, s. 2. Notwithstanding the assignment is not by deed, or registered under 5 & 6 Vict. c. 45. The assignment of the copyright of a book consisting of or containing a dramatic piece does not, in the absence of an expressed intention that it should do so, pass the right of representing or performing it. That may be the subject of a subsequent assignment to a third person (o). author. The consent in writing of the author, or other proprietor of Consent in the right of representation required by s. 2 of the Dramatic writing of Copyright Act, need not be in the handwriting or signed by such author or proprietor, the statute is satisfied if it is given in writing, though only the agent of the author. Thus, in an action (i) Chappell v. Boosey, 21 Ch. D. 232; 51 L. J. Ch. 625. (k) International Copyright Amendment Act, 1844. (1) Bovcicault v. Chatterton, 5 Ch. D. 267; 46 L. J. Ch. 305 (C. A.); Boucicault v. Dele field, 1 H. & M. 597; 35 L. J. Ch. 38; see Murray v. Elliston, 5 B. & Ald. 657. As to the American law on this subject, see Palmer v. Dewitt, 23 L. T. 823 (Supreme Court of New York). (n) Lacy v. Rhys, 4 B. & S. 873; 33 (0) Marsh v. Conquest, 17 C. B. N. S. 418; 33 L. J. C. P. 319. Chap. XII. by a dramatic author for a penalty under s. 2 of the statute, it appeared that he was a member of a society of dramatic authors, the secretary of which had given the defendant a consent in writing to play dramas belonging to the authors forming such society, upon his punctual transmission of the monthly bills, and payment of the prices for the performance of such dramas. The society published a prospectus, showing the terms on which permission might be obtained from the secretary for the performance of pieces, the property of its members, and that supplementary lists would be annually published of the plays of its members which should from time to time be added to the stock of the society. It was held that such consent exempted the defendant from any penalty under the statute for the performance of dramas of the plaintiff, which had been composed by him subsequently to such consent, and belonged to the stock of the society, although the same had not been published by the society in any supplementary list, and although the defendant had not complied with the terms of transmitting monthly bills and paying the prices for such performances (p). License by part owner of right. Infringement of dramatic copyright. A license to represent cannot be granted by one part owner of a dramatic entertainment without the consent of the other owners (q). To support an action for infringement of dramatic copyright under 3 & 4 Wm. 4, c. 15, s. 2, it must be proved that the defendant has taken a substantial and material part of the plaintiff's production. The words in the statute, "production or any part thereof," must receive a reasonable construction, and are to be treated as implying some part that is substantial and material. Thus, the plaintiff had produced a drama on the tale as written, and the play as acted of "The Wandering Jew," the authorship of M. Eugène Sue, but had introduced two scenic representations in his production not to be found in the French original; the defendant afterwards produced a drama on the same subject, in which these two scenic representations were also introduced; an arbitrator had found "that two scenes or points had been taken direct from the drama of the plaintiff, but that the drama of the defendant is not, except in these respects, a copy from or a colourable imitation of the drama of the plaintiff," and had (p) Morton v. Copeland, 16 C. B. 517; 24 L. J. C. P. 517. (1) Powell v. Head, 12 Ch. D. 686; 48 L. J. Ch. 731. |