PART I

on each plate" are not merely directory, but make such CHAPTER IX. engraving part of the thing to be protected. And in reply to an argument of counsel that 17 Geo. 3, c. 57, passed for the purpose of enlarging the privileges of the artist, gave him a right of action for injuries to his copyright, without any such restriction or condition as is supposed to attach under the previous statute of Geo. 2, Lord Denman, C.J., remarked: "The statutes are evidently connected with each other;" and Littledale, J. added: "the Stat. 17 Geo. 3, c. 57, was intended only to give the proprietors of plates a further remedy. Before that Act, the person infringing the copyright was liable only to forfeit his plate and prints, and five shillings for each print. As many engravings are published at a great expense, this was an insufficient remedy for their being pirated, and, therefore, the Act of 17 Geo. 3, c. 57, was passed enabling the proprietor to recover damages in an action on the case." (a)

Publication line,
What is suffi-

cient disclosure
of proprietor-
ship.

All the cases agree that the penalties at least cannot be recovered, unless the conditions laid down in the Act of Geo. 2 are complied with.

The statute requires that the "name of the proprietor" shall be truly engraved on each plate, as well as "the day of the first publishing thereof." The name of the publisher is not required, but only that of the proprietor. The Act does not, however, say that he shall be called the proprietor on the plate; he may even be described on the plate as the publisher, provided he be in fact the proprietor. Thus, where the publication line contained the words-" London: Published by Henry Graves & Co., May 1, 1861, Printsellers to the Queen, 6, Pall Mall," Henry Graves & Co. being the actual proprietors of the engraving, it was held to be a sufficient compliance with the requisites of the Act. In that case (b) Kelly, C.B., delivering the judgment of the Court of Exchequer Chamber, said, "The question is, whether the Legislature, when they required the name of the proprietor to appear, required that he should be expressly described as being the proprietor. They certainly have not said so in terms, and we must put a reasonable construction upon the words they have used. Every one who is at all conversant with these things looks at what is called the 'publication line' for the name of the proprietor. The name which appears on the face of the print must be assumed to be that of the proprietor, and it cannot alter the effect or be less a compliance

(a) Cf. Colnaghi v. Ward (6 Jur. 970).

(b) Graves v. Ashford (L. Rep. 2 C. P. 421; 16 L. T. N. S. 98 36 L. J. 139, C. P.).

PART I.

with the Act because he is called the publisher. I think the statute has been substantially and literally complied CHAPTER IX. with."

A further objection was urged in the case last referred to -that the words "Henry Graves and Company " imported that Henry Graves had a partner, who prima facie would be a part proprietor of the engraving, and that, as his name was not given the Act was not complied with. It appeared, however, from the evidence, that the person indicated by the words "and company" was a person to whom Mr. Graves paid a fixed sum per month out of his business; and the court held that the payment to a person of a fixed sum periodically did not constitute that person a partner or part proprietor; that Henry Graves, therefore, was the sole. proprietor of the engravings in question, and that as his name appeared thereon, the requirement of the statute had been sufficiently complied with.

In Blackwell v. Harper (a) Lord Hardwicke held the words "Elizabeth Blackwell, sculpsit et delineavit" to be a sufficient disclosure of proprietorship.

In the case just referred to only one name appeared on the print, and so no mistake could arise. But even where more than one name appears on the engraving, if one of them is the name of the proprietor, the requirement of the statute is sufficiently complied with. Thus, where the publication line ran "Newton, del., 1st May, 1826; Gladwin, sculp.," the Court of Common Pleas held it to be sufficient. (b) "The words on these prints," said Best, C.J., "do not directly designate that the plaintiff is the proprietor, nor do I believe that it has ever been stated on any print that was ever published who was the proprietor. Nor in any one of the cases which have been decided in favour of engravers has the word proprietor ever appeared upon the print. . . . . The words of the Act are satisfied by the disclosure of the proprietor's name; this is a sufficient indication of the person who is to be applied to for leave to copy the print; coupled with the date, it shows how long the designer has had the monopoly, and fully accomplishes the two objects of the Act." (c)

It is not necessary to register engravings or prints under the Act of 5 & 6 Vict. c. 45, in order to sue for piracy. Registration is not required even in the case of lithographic prints of a map. (d)

(a) 2 Atk. 93; Barn. 210, s. c. Newton v. Cowie (4 Bing. 234). N. S. 306). (c) Ib. 240.

I

See also Stannard v Lee (23 L. T. (d) Stannard v. Lee (ubi supra).

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).

and published, the sole right of having it represented in any part of the British dominions, and to the author or his assignee of any such dramatic production, printed and published within ten years before the passing of the Act, or which 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 entertainment in the British dominions during the same period of time that copyright then subsisted in books. A proviso was added saving the rights of parties to whom before the passing of the Act the author or his assignee had given authority to represent his piece. (a)

PART I.

CHAPTER X.

The right of the author is further secured by sect. 2, Sect. 2. which inflicts a penalty on persons performing pieces contrary to the Act.

The foregoing provisions were extended to musical compositions by sect. 20 of 5 & 6 Vict. c. 45.

The duration of the author's right to restrain or authorise Duration of the the performance of his dramatic or musical compositions right. is by sect.20 of 5 & 6 Vict. c. 45, made of equal length with the term of an author's copyright in books, i.e., the author's lifetime, and seven years more if they together amount to or exceed forty-two years: if they do not, the right endures for the term of forty-two years from the period of first publication in the case of books, or of first public representation or performance in the case of dramatic pieces or musical compositions.

The section enacts 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 hereinbefore enacted in respect of the property of such copyright, and of registering the same, shall apply to the liberty of representing or performing any dramatic piece or musical composition, as if the same were herein expressly reenacted 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."

tration.

As to the manner of registration, the same section provides Mode of regis"that in case of any dramatic piece or musical composition in manuscript, it shall be sufficient for the person having

(a) Sect. 1.

PART L 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).