Landmark litigation in the American theatre.


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Landmark litigation in the American theatre.
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x, 352 leaves. : ; 28 cm.
Filippo, Ivan Joe, 1941-
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bibliography   ( marcgt )
theses   ( marcgt )
non-fiction   ( marcgt )


Thesis--University of Florida.
Bibliography: leaves 343-350.
Statement of Responsibility:
by Ivan J Filippo.
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Full Text

Landmark Litigation in the American Theatre






I wish to express my appreciation to Mr. Ray Jones,

graduate librarian, and Mr. David Weiss, law librarian, for

their helpful research suggestions, and to Dean Thomas

Cobb, Assistant Dean of the University of Florida College

of Law, for his beneficial legal observations. My gratitude

is also extended to Dr. Paul Moore, Dr. Walter Herbert,

and Dr. Richard Green for their aid in reading the study

and offering valuable criticism.

Finally, I extend my warmest appreciation to the

chairman of this work, Dr. L. L. Zimmrerman.


The purpose of this study is to examine three major

areas of theatrical litigation which have significantly

affected the development of the American theatre, and to

establish the basis on which landmark cases in these areas

have been decided. The areas studied are those of dramatic

copyright, theatre censorship, ad mnnopoly. By virtue of

this detailed study of critical court cases involving the

theatre, it is possible to determine whether the reasoning

of the courts has maintained any structured method or

approach to this type of litigation, and wThether subsequent

decisions have ermor~strated a-n c.onsiste=nc--y ith prior

judgments in each of the above three areas.

An e:&.ination of the relfziorehis between t-heatre and

la. is -alu.iabie because it prot--.des uniq-je i.sigh into

th, way _-mericac~ vrie'.w th eir: theatre. It also provides cor;ncerning the' e-te'-.:. to whic;ch tic-aion has

;advanced r .ip-ded .the progrc:s ef the Aericar: theatre.

Sarefu" w of exv ti l li-erature has revealed

that th,-arc:r no dt-.led W-....t of n'acr l-i-cation in

i i

the areas of copyright, censorship, and monopoly. Ad-

nittedly, the subject has been treated in a work by J.

Albert Brackett entitled Theatrical Law.1 The book, how-

ever, was published in 1907, the year in which the first

significant monopoly case came to court, and it fails to

provide coverage of recent litigation. As a consequence,

Brackett's study says nothing of the major effects of anti-

trust litigation on theatre. Due to its antiquity, im-

portant decisions in the other two areas under investigation

have also been omitted. The major difference between The-

atrical Law and this study, however, is that Brackett's book

is designed primarily to cite laws and list cases; it does

not analyze major cases in the areas under examination.

While studies, such as Bruce Strait's "Dramatic Censor-
shisz in the United States, 1900 to 1950"2 and Florence Day's

"History of Censorship of the New York Stage,"3 have con-

sidered the field of dramatic censorship, they too have

uJ. Gilbert BracKiet-, fTheatrical Law (Boston: C. M.
Clark Publishing Co., 1907).

Bruce Strait, "Draimaeic Censorship in the United
Stte3, 139)00 to 1950" (Master's thesis, University of North, 1952).

3Florence May Day, "Hito-.y of Cernsorshi of the New
York Stage" (Master' thesis, Univve:r-ity of Washington,

limitations. The former is too bounded in time; the latter

is too limited geographically; and neither considers land-

mark decisions in the areas of copyright and monopoly.

In the area of theatrical antitrust legislation there

is no definitive work dealing with major legal decisions.

Dorothy Gillam Baker has written a work entitled Monopoly

in the American Theater,4 but, in it, she uses a cultural

approach,rather than a legalistic one. It is apparent,

therefore, that the need for a study which details major

litigation in the American theatre does, indeed, exist.

Only two limitations have been imposed on this study.

First, only litigation involving the American theatre is

analyzed. Second, the litigation under examination con-

sists entirely of landmark decisions. By "landmark," it

is meant those decisions which have reason to be cited

continually in subsequent legal opinions, and/or which

ha.-)e been given considerable recognition in legal peri-

ocicals. It should be mentioned that preliminary research

indicates the obvious--that all landmark theatre litigation

is located in the three aforementioned fields of copyright,

Dorothy Gi.ll.a'ln Pazker, Monpo;-olv in :he Ariimerican rThc-ater
(A.n r.rbor: Universi-y M cr films, i62) .

censorship, and monopoly. Since only landmark decisions

are being examined, and since litigation is being restricted

to America, it is unnecessary to impose time limitations on

the study. The examination of each area will proceed from

the time a problem area is treated under the law or handled

by the courts to the present day.

To facilitate this study, a standard procedure has

been followed. The analysis of each landmark case is con-

structed so as to deal, sequentially, with (1) the facts,

(2) the issuess., (3) the reasoning of court and counsel,

(4) the decision, (5) the rulings in each case, (6) con-

curring and/or dissenting opinions, if rendered, and (7)
comments on the case. In order to meet adequately the

needs of the study, it has been necessary to describe the

nature of copyright, censorship, and monopoly prior to the

chapters which analyze the actual litigation.

-'Thomas C.. Cobb, Assistant Professo;r c Law and Assist-
ant Dean cf the University of Florida: CcIlege of Law, ob-
serves tha-. th"- above rmt-thodc is a va-l:i n'.c~-ans T-hrough which
one may describe a case.



ACY~N;OWLED3IME~lTS S...............














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. 38


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. 285
* 235

. 301

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* fr *

Abstract of Dissertation Presented to the Graduate Council
of the University of Florida in Partial Fulfillment
of the Requirements for the Degree of Doctor of Philosophy



Ivan Joe Filippo

March, 1972

Chairman: Dr. L. L. Zimmerman
Major Department: Speech

This study provides a review and analysis of signifi-

cant theatrical litigation involving matters of copyright,

censorship, and monopoly, litigation which has had a

decided effect on the development of the American theatre.

The cases chosen for study are those most frequently used

by the courts in litigation involving the theatre, and

which are cited as significant decisions in legal periodi-


The overwhelming majority of the landmark litigation

involving dramatic copyright occurred in the late nineteenth

and early twentieth centuries after the passage of the

Ccplyright Act of 1856. It was found that the courts used

various criteria in determining whether a substantial

similarity between two dramatic works existed and, hence,

wh-etrner a work had been unlawfully copied or produced.

Th:e b--E for th0 courts' tests -ranged from Aristotle's


definitional elements of tragedy to similarities in genre

or emotion.

It was found that, in the cases involving dramatic

censorship, the major issue was that of obscenity. When

applying censorship law, the courts used two basic methods

to curtail questionable dramatic activities. In some

cases, it camee a matter of legally indicting the play as

an obscene work. In other cases, dramatic productions were

closed by virtue of the fact the courts upheld the right of

authorities to refuse to renew theatre licenses. In virtu-

ally all cases, the primary consideration was the propriety

of the production. As in the case of copyright, the cri-

teria the courts used as a basis of judgment varied. As

a result of several significant Supreme Court decisions,

there has been less variation in the courts' decisions in

recent years.

The most significant finding with respect to cases

involving theatrical monopolies is that, throughout the

storyy of the American theatre, only two major monopoly

violations have been recorded--one in the area of vaudeville

blocking and the other involving restrictive playwright-

producer contracts. In all other cases, the plaintiff was

either found not guilty, or he submitted to a consent decree

judgment which eliminated the necessity of a court decision.

In all of the monopoly cases studied, the major issue was

whether the business in question was involved in interstate

commerce. The tests for interstate commerce in theatre

were found to be based on the nature of contractual agree-

ments, or on the quantity of theatrical properties being

transported across state lines.

An analysis of the landmark cases in copyright, censor-

ship, and monopoly indicates that Americans frequently have

tended to view their theatre as a source of immorality, as

a detriment to religion, as a strictly economic product,

and as a political tool. It also indicates that the growth

of the theatre was not governed exclusively by the country's

artistic climate, but also by the fact that laws and their

interpretations have tended to be restrictive as well as




The concept of protection embraced by the term, "copy-

right." a concept which entails "the right not to have one's

mental work, as expressed in written or other objective

form., copied or commercially used by another," has remained

virtually unchanged despite its extensive history. Black's

Law Dictionary views copyright as

the right of literary property as recognized and
sanctioned by positive law. An intangible, incor-
poreal right granted by statute to the author or
originator of certain literary or artistic pro-
ductions, whereby he is invested, for a limited
period, with the sole and exclusive privilege of
multiplying copies of the same and publishing-and
selling them.2

Samuel Spring, Risks and Rights in Publishin, Tele-
visio, -adio, Motion Pictures, Advertising, and the 1Theater
(Nei. York- W. W. Norton and Co., 1952), p. 75.

2cIcnry Campbell Black, Black's Law Dictionary, ed.
editorial staff of West Publishing Co. (4th ed.; St. Paul:
West Publishing Co., 1951), p. 406.

In other words, a copyright is distinct and separate from
that which it protects, i.e., paper, writing, etc.

The contention exists, however, that copyright is not

really a "right" at all, and that it would be more accurate

to consider copyright as a statutory grant. Since the

government grants a franchise to the author of a work only

when he has completed all requirements specified by United

States copyright law, and the protection associated with the

term is not automatically in effect at the moment a literary
work is created, some prefer not to call it a "right."

The history of copyright law, its principle notwith-

standing, has been a long and frequently complex chronicle

which may well have had its origin in a decision by King
Diarmed, who reigned in Tara's halls in 567 A.D. Although

King Diarmed's decision may have reflected the basic con-

cept of copyright, that of protection, and although the

concept's total history is an interesting and impressive

Spring, Risks and Rights, p. 76.

4Ralph R. Shaw, Literary Prorerty in the United States
(Washington, D.C.: Scarecrow Press, 1950), p. 15.

5Philipr Wittenberqg, Tie Protection of Literary Property
(Boston; The Writer, Inc., 1968), p. 7. Upon issuing the
verdict, legend has it that the noble king declared, "To
every cow her calf, and accordingly to every book its
copy. "

one, the purposes of this study are best served by a review

of the old English charters and statutes which provide the

foundations of early United States copyright law.

England's first important step toward copyright law

was taken in 1557, when Queen Mary chartered a group called

the Stationers' Company and endowed it with virtually the

exclusive right to print books for the realm, the only

exceptions being those which she reserved the right to grant

in special instances. This act not only provided the

Stationers' Company with monopolistic rights, but it also

invested the company with the power to act as the suppressor

of seditious and heretical books. The rights of the

Stationers' Company were enforced by an assemblage known as

the Star Chamber.7 It should be noted, however, that under

the 1557 charter, the stationer's copyright did not extend

to the work itself. The right to publish the work had

nothing to do with its ownership; that remained in the hands

of its author. The stationer's copyright can best be ex-

plained as "a perpetual lease of personal property, a

6Benjamin Kaplan, An Unhurried View of Copyright (New
York: Colurbia University Press, 1967), p. 3.

'P. F. Carter-Ruck and E. P. Skone James, Co_~ richt:
Modern Law and Practice (London: Faber and Faber, 1965),
n. 28.

manuscript or copy, as it was called, for one specific

purpose, that of publishing." The Stationers' Company

finally became an illegal power in 1640, and printing

literary works without the owner's consent was prohibited.

A slightly different concept of copyright law was

introduced in England by the Statute of Anne, in 1709.

Under its terms, two major changes were instituted. First,

instead of existing in perpetuity, the statutory copyright

was restricted to a fourteen-year term, with a provision for

its renewal for another fourteen-year period. Second,

instead of assigning virtually exclusive rights to the

stationers, the act provided that a statutory copyright

could be obtained by anyone for the initial fourteen-year

period. The optional fourteen-year renewal, however, was

made available only to the author. Both regulations were

obviously aimed at completing the destruction of the
previous monopoly. The major impact of the Statute of

Anne derived from its stipulations concerning rights;

Lyman Ray Patterson, Copyright in Historical Perspec-
tive (Nashville: Vanderbilt University Press, 1968), p. 10.

9Carter-Ruck and James, Copyright: Modern Law, p. 28.

1jPatterson, Copyright in Historical, p. 13.


"instead of being a limited right in connection with a

work for an unlimited period of time, it became an

unlimited right for a limited period cf time."ll

In addition to the monumental alterations of the

copyright concept noted above, the Statute of Anne set

forth other interesting regulations. For example, it

provided for an infringement procedure under which the

offender was compelled to forfeit his books to the copy-

right proprietor, whose duty it was to destroy them. In

addition, the infringer was penalized a penny for each

sheet which the unauthorized work contained, with "one

moiety to the Queen and the other to the person suing for

the same."12 It was stipulated, however, that both the

forfeiture and the penalty were contingent upon registra-

tion of the title of the copy by the copyright proprietor

at the Hall of the Stationers' Company.3 It will be

shown, subsequently, that virtually all of the regulations

of the Act of 1709 affected the design of early United

States copyright law.

lIbid., p. 18.

12Kaplan, An Unhurried View, p. 7.


Despite its innovations, the Statute of Anne left

English copyright law with a number of gaping holes, and its

ambiguity is reflected in some of the early and most impor-

tant cases in English copyright history. In the cases in

question, the major problems stemmed from the uncertain

nature of common law copyright and the relationship between

it and statutory copyright. When viewed as common law,

copyright was an inherent right operative immediately upon

completion of a work. When viewed as statutory law, copy-

right involved published works, and consisted of a right

granted to an author after he had met the registration

requirement stipulated by the Statute of Anne. Those who

wished strong protection for their published works applied

for a statutory copyright. However, a major question arose:

Did the copyright in published works cease at the
expiration of the limited periods specified in
the statute, or was there a nonstatutory, common-
law copyright of perpetual duration, with the
statute merely furnishing accumulative special
remedies during the limited periods?14

This question was raised in English courts as early as 1769

in the case of Millar v. Taylor, and again, in 1774, in the

4Ibid., p. 12.

case of Donaldson v. Becket. The two cases were related

inasmuch as Becket had bought the deceased Millar's copy-

right from his executors.6 The rules of the cases provided

1. That atcommon law an author had the absolute
property in his unpublished manuscript and the
sole right first to print and publish.
2. That at common law this right was not lost by
publication, but that after publication the author
had a perpetual copyright.
3. But that by the enactment of the Statute of 8th
Anne, the previously existing common law right was
extinguished, and that the author was precluded
from every remedy not founded upcn the statute.17

In a subsequent decision, Jeffreys v. Boosey (1854), the

second rule of the previous cases, that which granted the

author "perpetual" rights, was reversed.18 As a consequence

of that decision, authors of published works lost all rights

to that work after the period of time allotted to them

under the Statute of Anne. As a result of the two courts'

actions, the English concept of copyright law evolved to a

In each case the plaintiff will be the first named,
followed by the defendant, except in special instances, as
in a case involving a writ of error, wherein the plaintiff
in error may have previously been the defendant. Such cases
will be clearly marked in the study.

16Edward S. Rogers, "The Law of Dramatic Copyright,"
Part 1, Michigan Law Review, 1 (1903), 102.

'Ibid., p. 104.

18Ibid., p. 105.

point at which the common law copyright proprietors were

not afforded the guarantees or protection given to statutory

copyright proprietors.

Because of this English influence, America's early

copyright concept was grounded in statutory rather than

common law. Judges who conducted America's early copyright

cases tended to limit themselves to the wording of the

statutes and were content to render decisions based ex-

clusively on statutory law, rather than formulate principles

applicable to common law.19

The United States Congress enacted its copyright law

as a result of the constitutional provision which declares

that "the Congress shall have Power To promote the

Progress of Science and useful Arts, by securing for limited

Times to Authors and Inventors the exclusive Right to their

respective Writings and Discoveries."20 On May 31, 1790,

Congress satisfied that constitutional provision by enacting

a law which gave the copyright proprietor the exclusive

right to print, reprint, publish, or vend maps, charts, and

books. It is interesting to note that, in the Act of 1790,

19Latterson, Copyright in Historical, p. 229.

20.S., Constitution, Art. 1, sec. 8.

Congress established time limitations obviously patterned

after the Statute of Anne--fourteen years with an option to

renew for another fourteen years. It did not, however,

include the English document's stipulation that the renewal

option was only available to the author. America's initial

copyright act did have provisions for forfeiture and penalty

which were to be executed in the same manner as that

prescribed in the Statute of Anne, the only difference being

that the penalty was set at fifty cents for each sheet

contained in the unauthorized work found in the infringer's

possession. The Act of 1790 bore a further resemblance to

its English counterpart by virtue of the fact that, as in

the Statute of Anne, deposit of the title of the map, chart.

or book was requisite to the work's acceptance under the

It is significant that the act passed by the American

Congress on May 31, 1790, made no direct mention of copy-

right protection for the drama, Subsequent acts enlarged

the scope of copyright law, however, and other types of

artistic works were eventually included. For example, the

Act of February 3, 1831, not only included musical

21 ., Statutes at ar 124-125.
U.S., Statutes at Larce, I, 124-125.

compositions as a copyrightable work, but expanded the

copyright proprietor's original term to twenty-eight years,

leaving the renewal term at its previous fourteen-year

Another significant step in the evolution of the

American copyright concept occurred on August 18, 1856. On

that date, an act was passed which further amplified the

scope of copyright law. Specifically, the act provided

that any copyright hereafter granted under the laws
of the United States to the author or proprietor of
any dramatic composition, designed or suited for
public representation, shall be deemed and taken to
confer upon the said author or proprietor, his heirs
or assigns, along with the sole right to print and
publish the said composition, the sole right also
to act, perform, or represent the same, or cause it
to be acted, performed, or represented, on any
stage or public place during the whole period for
which the copyright is obtained; and any manager,
actor, or other person acting, performing, or
representing the said composition, without or
against the consent of the said author or proprietor,
his heirs or assigns, shall be liable for damages
to be sued for and recovered by action on the case
or other equivalent remedy, with costs of suit in
any court of the United States, such damages in
all cases to be rated and assessed at such sum not
less than one hundred dollars for the first, and
fifty dollars for every subsequent performance, as
to the court having cognizance thereof shall appear
to be just: Provided, nevertheless, That nothing
herein enacted shall impair any right to act,
perform, or represent a dramatic composition as

'Ibid., IV, 436.

aforesaid, which right may have been acquired, or
shall in future be acquired by any manager, actor,
or other person previous to the securing of the
copyright for the said composition, or to restrict
in any way the right of such author to process in
equity in any court of the United States for the
better and further enforcement of his rights.23

With the passage of the above measure, the performance of

a duly copyrighted play had finally come under the protec-

tion of American copyright law, and the copyright proprietor

was given the exclusive right to perform his play on the

stage. This was an important addition to the playwright's

previous collection of rights inasmuch as the copyright

proprietor could realize a greater profit through the

production of the play than he could through its publica-

tion. The obvious intent of the act was to prohibit people

from perpetuating the widespread nineteenth century practice

of pirating a play and producing it for their own personal


An almost equally important piece of copyright legisla-

tion wa3 passed by Congress in 1870. By virtue of that act,

authors were granted the exclusive right to translate and
dramatize their own works. This meant that copyright

23 bid., XI, 138-139.

24 X 21
Coid., XV/I, 212.


proprietors could more fully capitalize on their own product.

For example, if an individual wished to transform his novel

into a play, he had the exclusive right to do so. He no

longer had to fear that there would be innumerable,

unauthorized dramatic adaptations of his novel. It meant

an end to injustices such as those cited in an opinion

handed down in the case of Harriet Beecher Stowe's novel,

Uncle Tom's Cabin.

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
or Cervantes. Uncle Tom and Topsy are as much
public iuris [public domain] as Don Quixote and
Sancho Panza. All her conceptions and inventions
may be used and abused by imitators, play-rights
[sic] and poetasters.25

In addition to curbing the above abuses, the Act of 1870

also granted the copyright proprietor the exclusive right

to translate his own work. It should be noted that the Act

of 1870 applied only to United States copyright proprietors

since the jurisdiction of United States statutes did not

Stowe v. Thomas, 2 American Law Register 210, 231
(C.C.E.D. Pa. 1853) (Philadelphia: D. B. Canfield & Co.,
1854), hereafter cited as Am. L. Reg. The first cited page
marks the beginning of the case and the second gives the
point of reference. Except for Supreme Court litigation,
which uses only the year of litigation, all cases will con-
tain initials for the court, district, state, and year of
litigation. This case was litigated in the Circuit Court,
Eastern District of Pennsylvania, in 1853.

extend to other countries. The Act of 1870, however, did

raise one very difficult question: Could the courts still

distinguish between an author's "idea," supposedly outside

copyright protection, and the "form" or "work" in which it

was developed, and which was copyrightable? Was the act,

in essence, protecting the copyright proprietor's idea?

Was the act saying, "You may not reproduce the copyright

proprietor's idea in another, albeit different, form"? The

latter interpretation would not only have protected the

artist's work, but his idea. Heretofore, the idea had been

regarded as uncopyrightable since its protection would

impinge on another author's constitutional rights to promote

the progress of science and useful arts.

While American copyright acts, including the Act of

1870, established significant protective terms, the fact

remained that they had been rather haphazardly assembled.

It became necessary, therefore, to review and strengthen the

existing acts, clarify protection and copyright procedure,

and more firmly structure copyright law. In 1905, at the

request of the President of the United States, a Senate

committee instructed the Librarian of Congress to meet with

representatives of numerous organizations, including

dramatists and theatre managers, for the purpose of revising

existing copyright laws. Simultaneously, a congressional

committee discussed and debated the merits of copyrighting

dramatic works. In its deliberations, the committee gave

considerable attention to copyright protection of a public

performance of a play. Eventually, the committee decided

to continue protecting the public performance of a play by

retaining the same safeguards established in the Act of

August 18, 1856. The committee further stipulated that

"if an author desires to keep his dramatic work in unpub-

lished form and give public representations thereof only,

this right should be fully secured to him by law."26

Following the above committee actions, the Register of

Copyrights drafted a bill for presentation to Congress.

The bill underwent several revisions which Congress failed

to pass. Eventually, a revision which was known as the

Currier Bill was enacted in 1909. This legislation, offi-

cially published as the Copyright Act of 1909,27 repre-

sents the last major change in dramatic copyright law

26Stanley Rothenberg, Copvright Law: Basic and Related
Materials (New York: Clark Boardman Co., 1956), pp. 50-51.

SU.S., Senate, Committee on the Judiciary Subcommittee
on Parents, Trademarks, and Copyrights, Copyright Law
Revision, 86th Cong., 1st sess., 1959, Study 1, pp. 1-2.


in America. Its terms remain virtually unchanged in 1972.

The Copyright Act of 1909 not only incorporated the Act

of 1856, but also the Act of 1870, which provided the copy-

right proprietor the exclusive right to translate and drama-

tize his own work. In terms of this study, it is particu-

larly significant that the Act of 1909 not only provided

rights of protection for a dramatic composition, but it es-

tablished a separate category for that type of creative work.

The 1909 Copyright Act's alterations of previous copy-

right laws were also significant. For example, the renewal

period for a copyrighted work was changed from fourteen
years to twenty-eight years.29 Perhaps more important,

since dramatic literature was specifically encompassed by

the act's provisions, the act afforded protection to the

component parts of a work:

That the copyright provided by this Act shall pro-
tect all the copyrightable component parts of the
work copyrighted, and all matter therein in which
copyright is already subsisting, but without ex-
tending the duration or scope of such copyright.30

28Alexander Lindey, in his Entertainment, Publishinc
and the Arts, Vol. I, 1971 Cumulative Supplement (New York:
Clark Boardman Co., 1971), p. xviii, details recent, past,
and present efforts to pass a new copyright bill as a re-
placement for the outmoded Copyright Act of 1909.

29U.S., Statutes at Large, XXXV, Part 1, 1080.

30Ibid., p. 1076.


In other words, the Act of 1909 provides that some parts of

a work are copyrightable and protected, while other portions

of the work are public domain. As a result of the addition

of this section to copyright law, the American courts have

greater reason to divide plays into parts and analyze the

work on the basis of separate units, particularly in

infringement cases. As a result, the court bases its

decisions on the premise that "the degree of protection

afforded by the copyright is measured by what is actually
copyrightable in it." These changes represent the last

significant alterations in American dramatic copyright law.

As copyright law exists today, there are a number of

protective provisons; however, it is only necessary to

remember a select few to effectively deal with landmark

litigation. One important provision is that the copyright

proprietor may be protected for twenty-eight years, with

an option to renew for another twenty-eight years. Original

dramatic compositions may be copyrighted with the under-

standing that some of the work may be copyrightable while

other portions of the play may be in public domain. In

addition, the copyright proprietor still has the exclusive

1Shaw, Liter 84.
Shaw, Literary Property, p. 84.


right to translate and/or dramatize his work. Finally, and

perhaps most important, the public representation of a

dramatic composition continues to be protected by copyright


Having established certain basic principles of copy-

right and the rights of the copyright proprietor, it is

possible to focus attention on the manner in which dramatic

works are classified, and thus protected, in the course of

the law's application. A work must qualify as a dramatic

or dramatico-musical composition to obtain the rights

afforded such works under copyright law. The Code of

Federal Requlations, which governs the procedure of the

United States Copyright Office and other federal offices,

offers directions for registration of claims to dramatic

copyright by declaring that

this class [dramatic and dramatico-musical] includes
published or unpublished works dramatic in character
such as the acting version of plays for the stage,
motion pictures, radio, television and the like,
operas, operettas, musical comedies and similar
productions, and pantomimes. Choreographic works
of a dramatic character, whether the story or
theme be expressed by music and action combined or
by actions alone, are subject to registration in
Class D.32

32U.S., Office of the Federal Register, Code of Federal
Regulations, Title 37 (1971), p. 137.

The Code of Federal Regulations further stipulates that

physical gestures, descriptions of dance steps, and dances

"which do not tell a story, develop a character or emotion,

or otherwise convey a dramatic concept or idea, are not

subject to registration in Class D (dramatic and dramatico-

musical compositions)."33 In the event of misclassification,

i.e., registering a musical composition (Class E) as a

dramatico-musical composition (Class D), the law makes

allowance by providing that failure to correctly classify
a work does not invalidate the copyright.

A dramatic or dramatico-musical composition may be

protected under any one of three classes of copyright--

common law, statutory, and international.35 An inter-

national copyright gives the author virtually world-wide

copyright protection through a multilateral treaty known

as the Universal Convention. This protective agreement was

drafted and approved by fifty countries in 1952, then

enacted in 1955. Each country subscribing to the Universal


SU.S., Library of Congress, Cooyright Law of the
United States of America, Bulletin No. 14 (1967), p. 5.

3Sprjing, Risks and Rights, p. 75.

Convention grants a foreign work virtually the same pro-

tection that it grants to a native work. In essence, the

power of the Universal Convention rests primarily in the

copyright laws of the member countries.36 While inter-

national copyright must be taken into consideration when

surveying the extensiveness of the protection afforded under

the contemporary copyright concept, it should be noted that

it does not apply to the actual cases examined for purposes

of this study. The concepts of common law and statutory

copyright, on the other hand, are of major importance in

considering American copyright cases. "Common law copy-

right" and "statutory copyright" are terms which do not

convey their true meaning. For example, the term "common

law" does not mean, and should not be taken to mean, that

no statutes are involved. In "common law" cases, state

law applies. It could be more properly termed "state law

copyright" inasmuch as the rights involved are always those

granted via the general common law concept embraced or

provided by individual state laws.37 The protection

36Arpad Bogsch, The Law of Copyright Under the Uni-
versal Convention (Netherlands: A. W. Sythoff, 1964), p. 5.

37Mclville 1-, Nimmr-, ICVs and Materials on Corht
and Otheir- Aspec ts of Law P rtairiinc to Literary, Musical
and Artistic WorKs (St. Paul: West Publishing Co., 1971),
p. 24.

afforded by "statutory copyright" is that provided by, or

under the jurisdiction of, federal law.

Common law copyright is acquired by the author or

copyright proprietor of a work at the moment of its crea-

tion. There are absolutely no requirements except that the

author create his work. The author need not even know that

the right exists, although lack of that knowledge could

cause the author to overlook the possibility of redress

through legal action. The greatest advantage of common law

copyright to the author is that this right can exist in


There are, however, basically five ways in which an

author may lose his common law copyright. First, he may

simply sell the manuscript with all cf the rights that

accompany it. Second, he may authorize publication of the

manuscript with notice of statutory copyright, and upon

receiving statutory copyright, he automatically loses his

common law rights; they may not coexist. Third, an author

may register for statutory copyright without publication,

as in the case of a dramatic script. Once again, however,

the author's common law rights terminate the moment he

Spring, Risks and Rights, p. 77.

obtains a statutory copyright on the unpublished work.

Fourth, an author may dedicate the work to the public, in

which case the work becomes public domain. Finally, a work

may simply be abandoned after its creation. For example,

in the case of drama, a playwright may knowingly allow his

play to be produced on numerous occasions without protest-

ing.39 It should be noted that in only two of the above

instances is the author provided continued protection

through statutory copyright. The other methods cause the

author to lose all rights to his work.

Should it become necessary for the common law copyright

proprietor to file suit due to a violation of his rights,

he may seek any necessary litigation through state court


The states and their state courts still have exclu-
sive court jurisdiction over common law copyrights,
except where diversity of residence by the liti-
gants, in different states, is involved, which
diversity of state citizenship confers juris-
diction on the Federal courts. .. .40

Margaret Nicholson, A Manual of Cooyright Practice
for Wri ters, Publishers, and Agents (2d ed.; New York:
Oxford University Press, 1956), p. 80.

40ring ks and Rihts, p. 6.
S-ring, Risks and Riqhts, p. 86.

Although federal courts have jurisdiction in common law

copyright cases involving a plaintiff and a defendant who

are citizens of different states, the federal court applies

the law of the state in which the alleged violation occurs

when rendering its decision. In other words, the federal
court uses state law to determine the case.

The fact that state court procedures are used in secur-

ing judgments in common law copyright cases tends to work to

the disadvantage of the author. The remedies provided

through state courts are not as strong as those which are

founded upon federal court procedure. Generally speaking,

the United States copyright law supplies greater possibili-

ties for recovery than those provided via state law. A

second disadvantage is that common law copyright is so

easily destroyed. For example, even an unintended publica-

tion would result in the loss of the author's common law

copyright. Since the court's interpretation of the term

"publish" has been variously defined, the proprietor may

unknowingly publish his work. Finally, common law copyright

41See Erie Railroad Co. v. Tom tpins, 304 United States
Supreme Court Reports 64 (1937) (Washington: United States
Government Printing Office, 1938), hereafter cited as U.S.

proprietors often have difficulty in proving the date of

their creations. This is important because it is imperative

that the court know without doubt that the allegedly in-
fringed work is the earlier manuscript. While there are

ways to furnish proof of the date of creation, most authors

are unaware of them. For example, many novice authors do

not realize they can mail a copy of the manuscript to them-

selves and retain the sealed envelope with the mailing date

from the post office, or simply have several witnesses sign

the manuscript as well as the sealed flap of its envelope.

Because state court remedies are often weak, because common

law copyright is so easily destroyed, and because authors

are unaware of the ways of safeguarding their common law

rights, the problems or weaknesses of common law copyright

are considerable.

Since common law copyright is generally undesirable,

it is to the author's advantage to consider statutory copy-

right. An author may obtain an American statutory copy-

right by satisfying four requirements. First, he must

publish the manuscript, with the printing, binding, and

42Spring; Risks and Rights, p. 93.
Ibid., p. 277.


illustration work being done in the United States.44 Second,

copyright notice must be placed on each book published or

intended for sale in the United States, except in the cases

of books published abroad which are seeking ad interim
protection.45 In the process of satisfying the requirement

involving printed notice of the fact the work has been

copyrighted, the observance of certain technicalities are

not only mandatory, but critical. For example, the form of

the copyright notice46 and the place it appears in the

publication47 are of utmost importance; a failure to adhere

strictly to these requirements can cause invalidation of

the copyright. A third requirement in the copyright process
involves the submission of two copies of the printed book,

a completed registration form,49 and the copyright fee50

to the Register of Copyrights. Finally, a notarized

U.S., Copyriqht Law (1969), p. 10.

45bTid., p. 8.

46Ibid., pp. 11-12.

47bid., p. 12.

Ibid., p. 9.

49bid., pp. 8.

I0bid., pp. 25-26.

affidavit must accompany the items submitted to the Regis-

ter's Office. The purpose of the affidavit is to certify

that the deposited copies have been printed and bound within

the United States.51

A dramatic composition is one of several works of art

for which a copyright can be obtained without following the

four steps outlined above. It may be copyrighted in manu-

script form before publication, thus eliminating the need

for traditional publication, copyright notice, submission

of two copies of the book, and the notarized affidavit. If

it is published at a later date, however, copies of the work
must be submitted to the Register of Copyrights. In the

case of a dramatic work, the original term for copyright

protection commences with registration of the unpublished
manuscript and continues after its publication. In

considering the special treatment accorded dramatic compo-

sitions, it should be noted they classify as works which may

be exempted from the requirement which stipulates they

5ilbid., p. 11.

52Ibid., p. 8.

53Nicholson, A Manual of Copyriaht Practice, p. 87.

must be printed, bound, and illustrated within the United


As in the case of common law copyright, the statutory

copyright proprietor, including the dramatist, can willingly

or unwillingly forfeit his rights despite the fact the basic

requirements have been met. For example, if a dramatic

copyright proprietor were to ignore numerous unauthorized

productions of his work, that act would constitute abandon-

ment and result in forfeiture of his rights.55 Second, the

proprietor may wish to sell his copyright to someone else.

This type of action would require a clear understanding of

the distinction between "copyright" and "literary property";

in selling the copyright, an author may retain a piece of

literary property (the manuscript), but must forfeit the

right to copy, publish, sell, etc. The latter rights are

accorded exclusively to the copyright proprietor.56

Finally, the most obvious way in which the copyright

proprietor may lose his statutory copyright is via the

54U.S., Copyright Law, p. 10.

55Nicholson, A Manual of Copyright Practice, p. 88.

56U.S., Copyright Law, p. 14.


expiration of the term of copyright,57 in which case he has

no choice in the matter and the work becomes public domain.

Whether the copyright proprietor chooses common law

copyright or statutory copyright, the basic rights intended

remain the same:

The different kinds of exclusive rights granted by
the law to proprietors of copyright in the various
classes of works which have been enumerated may be
conveniently grouped under three heads:
(1) Rights of copying and dissemination of copies.
(2) Rights of modification, or transformation.
(3) Rights of performance, or representation.
Not all of these rights are accorded, or are
indeed applicable, to all classes of copyrighted

The qualifications or exceptions noted in the above citation

do not affect dramatic compositions, however, and litigation

involving the violation of any or all of these rights has

been recorded. Despite the rights afforded, and the judg-

ments which have upheld them, neither common law nor statu-

tory copyright prevent other authors from creating a work

similar to a work which is copyrighted. For example, if two

authors were to write substantially the same work, and if

there were positive proof that each lacked access to the

Ibid., p. 13.

5Richard C. DeWolf, An Outline of Copyriqht Law
(Boston: John Luce and Co., 1925), p. 94.

other's composition, both works would be protected under
common law or statutory copyright.

Having established the types of copyright law in effect

in the United States, it is possible to consider how these

laws may be violated. A violation occurs when someone has

substantially copied the work of another without the

latter's permission, thereby committing infringement.

Black's Law Dictionary considers infringement a "breaking

into; a trespass or encroachment upon; a violation of a law,
regulation, contract, or right." There is, then, in-

fringement in various areas, i.e., infringement of patent,

infringement of trademark, etc. When the courts deal with

infringement of copyright, they are obliged to consider the

two works in question and then determine whether the manu-

script which allegedly infringes is "more or less servile,
of a copyrighted work."

While there is protection against infringement, it is

possible to legally borrow from another's work if the

similarity is insubstantial. Such borrowing has been

59Shaw, Literary Property, p. 14.

6Elack, Black's, p. 920.



termed "fair comment," or "fair use," and is not considered

infringement. Any borrowing in excess of fair use consti-

tutes substantial similarity, however, and is grounds for

instituting a suit for infringement, in which case the

judiciary has jurisdiction over whether substantial similar-

ity actually exists. Although many courts choose not to be

limited to a single facet of a work and test fair use

through multifarious methods, others contend that "fair use

arises when there is copying of the theme or ideas, but not

of the expression of ideas."6 The latter contention quite

obviously limits the scope of the concept of fair use.

The process of establishing that there is a similarity

between one author's work and that of another involves the

consideration of vital infringement principles which apply

to both common law and statutory copyright:

Has the work of an author been used, without his
consent, to the author's injury, or to the profit
of some other person? If the answer is yes, a
second question arises: Is the use which has been
made of the work within the limits of "fair use"?
If not we have a prima facie case of infringement.

With a prima facie case of infringement, that is, one which

is adequate to raise a presumption of fact, it is implied

6NimrmeLr, Cases and Materials, p. 368.

3DeWolf, An Outline, p. 140.


that the infringed work has been accessible to the individual

being charged with the violation. In numerous cases, for

example, proof of access has consisted of nothing more than

establishing that the infringed work may be found in

libraries, bookstores, and other such places. In those

instances, there has been no apparent need to prove that

the alleged infringer actually had a copy of the supposedly

infringed work. In some cases, however, judges deem it

necessary to prove that the defendant actually had a copy

of the allegedly infringed work in his possession. The

latter holds especially true in common law cases, since the

work is unpublished and, therefore, far less accessible to
the alleged infringer. It is apparent, then, that cases

may be handled in remarkably different ways, depending on

how judges view fair use and access.

Frequently, there is difficulty in determining whether

a work has gone beyond the limit of fair use. One realistic

method used by the courts to decide whether infringement has

occurred is to find first the degree of similarity between

the two works and the specific nature of those likenesses.

Shaw, Literar Propv er-o y, p. 101.

After the judge eliminates sameness of materials and ideas

in the public domain, he determines the degree of similarity

of expression.65 The expression is the most important

aspect, according to the courts, for copyrightability is

contingent upon that aspect of the composition, and not

upon idea. Although this contention receives virtually

unanimous support, there are some who are willing to

contest it, claiming the idea-expression dichotomy to be a

fallacy.66 Since the courts hold jurisdiction in such

matters, primary consideration should be given by counsel

to the degree of similarity of expression.

The terms "piracy" and "plagiarism," which involve

similarity of materials and of expression, have become

important but puzzling items in the total infringement

vocabulary. There seems to be no unanimity among legal

authorities as to the exact definitions of each. For

example, one authority chooses to use "plagiarism" to

65Spring, Risks and Rights, pp. 121-122.

66Robert Yale Libott, "Round the Prickly Pear: The
idea-Expression Fallacy in a Mass Communications World,"
Copyricht Law_Symposium, ed. American Society of Composers,
Authors, and Publishers (New York: Colurmbia University
Press, 1968), XVI, 31.

describe a moral wrong.67 Under this view, the person who

takes a work whose copyright term has expired and is in

public domain, then substitutes his name for the original

author's, would be considered a plagiarist because he has

committed a moral transgression. In contrast, it is con-

sidered piracy when someone is legally wronged, as in the

case of infringement. A more superficial distinction is

made by other authorities who note, "when one pirates a

work, he reproduces it for sale without permission, perhaps

with due credit to the author; when he plagiarizes, he

adopts another's work as his own."68 Under the latter

concept, piracy may or may not credit the author. Still

another viewpoint is that "plagiarism may be either

infringement of a copyright or noninfringement, in either

case a taking and passing off of an original by ascribing

authorship to the plagiarist,"69 whereas "piracy is just

plain theft."70 Used in this sense, piracy, like plagiarism,

67George A. Warp, "The Position of the Dramatist in
Copyright Law," Boston University Law Review, XXII (1942),

68Patterson, Copyriaht in Historical, p. 215.

69Wittenberg, Protection, p. 105.

70bid_., p. 106.


may or may not infringe. The major distinction between the

two terms appears to hinge on authorship. The view which

connects claim of authorship to plagiarism and theft of

content and creative form to piracy seems to be the most

commonly accepted among legal authorities, and will be used

in subsequent references.

One of the most difficult and unique types of infringe-

ment cases, however, is that involving a parody of an

existing work.

Since all parody involves some conscious imitation
of another literary work, the questions of access
and appropriation cannot arise in a case of
infringement by burlesque. Consequently, the first
question to be considered is whether parodies should
be found noninfringing because the appropriation is
not substantial.71

In other words, it is accepted that a parody, by nature,

must copy the fundamental form of expression exhibited in

the original work. It is assumed, however, that the end

product--the parody--will have a purpose sufficiently

different from the original work so as to generate a

totally unique turn of thought. Even if parody is not

within fair use, for in some cases courts have ruled that

i Arthur Rossett. "Burlesque as Copyright Infringe-
mernt," Co.vright Law Symposiumr ed. American Society of
Composers, Authors, ancd Publishers (New York: Columbia
University Press, 1958), IX, 25.


parody has infringed, there are those who would still defend

its preservation. For example, some authorities contend

that parody should be granted freedom from infringement if,

in the judgment of the court, there are no offending por-

tions within it.72 In other words, it is argued that the

amount of offensive material contained in the parody should

be the criterion for judgment rather than similarities in

the texts. With this reasoning, an examination of similari-

ties would be an unfair test of infringement since, by its

very nature, a parody must draw much of its material from

another source.

A second unique problem which occasionally arises in

infringement cases is that of "unfair competition." One

aspect of unfair competition involves "simulation or

copying of certain features of the goods of a com-
petitor or of an entire article of manufacture." Nimmer,

a leading authority in copyright law, claims that several

charges could stem from unfair competition--secondary

72bTid., p. 28.

Charles S. McGuire, "Common-Law Overtones of Statu-
tory Copyright: An Inquiry into the Status of a Federal
Cojmmon Law of Unfair Competition," Cotpyrht Law Symposium,
ed. Amecrican Society of Composers, Authors, and Publishers
(New York: Columbia University Press, 1964), XIII, 37.


meaning, injury to reputation caused by a poor imitation, or
injury to a valuable contract. Secondary meaning deals

with an appropriation of a value attached to an article by

public association--not the appropriation of the creation

itself, but of its value.75 For instance, if a play were

experiencing excellent box office sales and someone wrote

another play by the same title to take advantage of the

value attached to the first play, the proprietor of the

second play could be sued for unfair competition due to

secondary meaning. Similarly, a well-known star may file

suit for unfair competition if his reputation has been

injured due to a poor imitation. If the poor imitation

were widespread enough, it could even affect a valuable

contract signed by the one infringed, further complicating

the matter.

The possibilities of being granted recovery for

infringement in any of the aforementioned circumstances have
increasingly waned, and the chances for winning an in-

fringement case may be further complicated by the "clean

hands" principle.

74Nimmer, Cases and Materials, pp. 524-525.

75Ibid., p. 525.

76Libott, Copyright Law Symposium, XVI, 78.

The principle of clean hands has appeared in a
number of cases, and there appears to be little
question that it applies to copyright. Under
this principle, an author who has pirated a large
part of his work from others is not entitled to
have his copyright protected. This conclusion
is based on the general proposition that equity
would refuse its aid to a suitor who had himself
been guilty of the same inequitable conduct
which he denounced in others.77

This provides an additional mode of escape for the individual

charged with a copyright violation. If, in a piracy case,

the defendant can prove that the plaintiff has been involved

in piracy, he will be absolved of the charges. In the event

an infringement case is won by the plaintiff, however, the

infringer may encounter several forms of retribution. For

instance, he could conceivably be faced with a staggering

combination of damages, penalties,79 and forfeiture of


Given the above information concerning the nature,

history, and types of copyright, as well as the law and

theory which applies to dramatic and dramatico-musical

'Shaw, Literary Prooerty, p. 46.

78U.S., Coovri ht Law, pp. 15-17,

79Ibid., pp. 17-18.

80Tbid., pp. 15-17.


compositions, it is possible to proceed with an examination

of the litigation in this area. Chapter II will explore

the manner in which the various facets of copyright theory

have been applied by American courts in landmark copyright

cases involving theatre, cases which have established the

rights, the opportunities, and the practices of the American

playwright and theatre manager.



The Act of August 18, 1856, was passed at a time when

piracy and plagiarism were prominent forces in the American

theatre. Because of the measure of protection which it

provided playwrights and producers, it rapidly emerged as

a critical factor in the development of the American theatre.

The provisions of the law and their interpretations in the

courts, particularly in the period immediately following the

passage of the Copyright Act of 1856, have a significant

bearing on studies in American theatre history.

The first court action to contribute to a definition

of the American dramatic proprietor's rights involved the

American actress and theatre manager, Laura Keene. The

events leading up to the case actually began in England,

where Tom Taylor, the English playwright, wrote Our American

Cousin. After an unsuccessful effort to have the play

--Keene v. Wheatlev ad Clarke, 9 Am. L. Reg. 33
(C.C.E.D. Pa. 1861).


performed in England, Taylor sold the United States literary

and dramatic proprietary rights of his play to Laura Keene.

Miss Keene, assisted by the renowned American actor, Joseph

Jefferson, revised the script to suit her purposes. She

opened the play at the Laura Keene Theatre, which she owned

and managed, on October 18, 1858. The production, with

Joseph Jefferson in the title role of Asa Trenchard, was an
overnight success.

Wheatley and Clarke, lessees and managers of a theatre

in Philadelphia, became aware of the success of Miss Keene's

production of Our American Cousin and began preparations to

open the play in their Philadelphia theatre. In the course

of those preparations, they obtained a copy of the script

from a Mrs. William Chapman. The script in question was one

which Mrs. Chapman's former husband, Joshua Silsbee, had

procured while associated with Taylor in London.3 It is

important to note that, prior to obtaining the play from

Mrs. Chapman, Wheatley and Clarke had rejected Miss Keene's

offer to sell them performance rights for Philadelphia.4

Ibid., pp. 35-36.

Ibid., p. 38.

4Ibid., p. 37.

Instead of purchasing the Philadelphia performance

rights to Our American Cousin from Miss Keene, Wheatley and

Clarke, with the aid of Miss Keene's leading man, Joseph

Jefferson, altered the script which they had purchased from

Mrs. Chapman. For all intents and purposes, their play was

similar to Miss Keene's altered play. Wheatley and Clarke

announced their intention to perform Our American Cousin on

November 22 and 23, 1858, after "several weeks of most care-

ful preparation," at which point Laura Keene filed a motion

for injunction which was subsequently denied. The week

following the opening of the defendants' production, Miss

Keene initiated a second legal proceeding which, again,

asked for an injunction to restrain the defendants from

performing the play and, in addition, requested an account

of the defendants' profits. Eventually, the case came

before Judge Cadwalader, in the Circuit Court of the United

States for the Eastern District of Pennsylvania.

The major issues in the case, as Judge Cadwalader

viewed iL, were (1) wthther the acting or representation of

a surreptitious copy of a literary and dramatic proprietcr's

5Ibid., p. 40.

6bid., p. 42.

play was an infringement ofthat work, and (2) whether Miss

Keene's prior production defeated her suit.8 In addition to

the above issues, Judge Cadwalader found it necessary to

deal with other important questions, such as, Did the fact

that the copy was surreptitious have any bearing on the

decision? If so, in what respect? Did actual authorship

enter into the question? If so, what effects, if any, did

Joseph Jefferson's alterations on the script have to do with

the question of copyright?

In their reply to the charges, the defendants claimed

that Joshua Silsbee and Tom Taylor were coauthors of the

play, Our American Cousin, and that Taylor's rights were

assigned to a Mr. Webster, the manager of the Adelphi

Theatre, who, in turn, sold those rights to Joshua Silsbee.

That, of course, would have made Silsbee sole proprietor of

the play. They went on to contend that, upon his death,

Silsbee willed his personal estate to his widow, who became

the wife of William Chapman. Acting in his wife's behalf,

Chapman subsequently sold Wheatley and Clarke the perform-
ance rights to Our American Cousin.

7Ibid., p. 34.

8"1id., p. 49.

9Ibid., pp. 42-43.

The defendants also asserted that the additions which

Joseph Jefferson had made to the play while employed by

Miss Keene were independent literary productions. On that

basis, they claimed that Jefferson's additions to Miss

Keene's manuscript destroyed any exclusive literary and

dramatic rights which she had procured through her trans-

action with Tom Taylor. They also contended that, since

over one half of the dialogue in one scene, and one fourth

of the dialogue in another scene, had been deleted from the

original manuscript for Miss Keene's production, it was no

longer the original (Taylor) play. They also noted that,

in the New York production, numerous additions had been

made in order to capitalize on Joseph Jefferson's acting

skills. The defendants argued that, because of the ad-

ditions and deletions which Miss Keene's manuscript had

undergone, the play differed enough from the original to

warrant reconsideration of the question of proprietorship.0

In dealing with the defendants' contention that Silsbee

was a coauthor of the Taylor play, Judge Cadwalader stated

the defendants offered no evidence that Silsbee helped

Taylor write Our American Cousin. In discounting that claim,

10Ibid., pp. 36, 47.

he also noted that, not only had the defendants failed to

offer proof of Webster's sale of the production rights to

Silsbee, but that Taylor and Webster had disavowed that

there was any joint authorship by Silsbee.1

With respect to the defendants' second contention--that

additions to the manuscript were independent literary

creations--Judge Cadwalader took the position that Jeffer-

son's contributions were additions to the play and that, as

such, they became part and parcel of the play proper and
could not be considered independently. Cadwalader went

on to point out that Jefferson, who was in the complainant's

employ when he helped her revise the play, had no right to

offer such information to the defendants. The position

taken with respect to this point was that "the duties of

theatrical performers to their employers are like

those of artists retained under a standing engagement in
any other professional service." Since Jefferson was

working for Miss Keene, Cadwalader ruled that he had no

saleable right to his additions, and that Miss Keene was

1iIbid., p. 43.

12bid., pp. 47-49.

13bid., p. 48.

the proprietor of Jefferson's work because she was paying

him for his intellectual efforts.14

Judge Cadwalader also addressed himself to an allega-

tion which the defense had made at a previous hearing. On

that occasion, Wheatley and Clarke had argued that, although

Miss Keene had applied for a United States statutory copy-

right, she was not entitled to such protection since Taylor,

the original author, was a non-resident alien. Judge

Cadwalader agreed that the copyright proprietor of a non-

resident alien author's play could receive no protection

under United States copyright law except that which was

provided in section nine of the Act of 1831. However, he

went on to take the position that the section in question

involved the printing and publishing of plays and not their

performance or representation. On that basis, he ruled that

of the 1831 Act, section nine offered no protection to

Miss Keene. Having dispensed with section nine, Judge

Cadwalader went on to note that

[the other sections] apply only to authors who, if
not citizens, must be residents of the United States,
and proprietors under derivations of title from
such authors. No other proprietor can obtain a
copyright under the act. The only statute which

14Ibid., pp. 48-49.

affords redress for unauthorized theatrical
representations, is the Act of 18th of August,
1856. This act applies only to cases in which
copyright is effectually secured under the Act
of 1831. Therefore, the complainant had no
statutory right of redress.

While Judge Cadwalader took the position that Miss Keene was

not afforded statutory redress for unauthorized representa-

tions of her theatrical property because the author was a

non-resident alien, he went on to state that the possibility

of sustaining her suit independent of legislation still

remained. In other words, while Cadwalader took the posi-

tion that existing copyright legislation did not apply in

Miss Keene's case, he did not rule out the possibility of a

consideration of her case on the basis of common law rights.

After further examination, Judge Cadwalader determined

that, even though Miss Keene had produced her play prior to

the defendants' production, she had not lost her common

law rights to the play. He was careful to note, also, that

the defendants did not rely upon memory to obtain a copy

of the play.16 The latter observation was significant

because, although it was merely incidental opinion obiterr

dictum), it implied 'hat the defendants would have been

15oid., p. 45.

16Tbid., p. 100.

within their legal rights if they had memorized the play

while viewing Miss Keene's performances and if they had, in

turn, created their production from memory. As it was,

however, they clearly had made use of a surreptitious copy

of the play. Because of that fact, Judge Cadwalader decided

that infringement was involved and set "proper pecuniary

compensation."17 In this case, the proper amount was "the

price which the complainant asked for such a license when
she asserted that she had a statutory copyright."

The rules of the Keene v. Wheatley case may be summed

up as follows: (1) Acting or representation of a surrepti-

tious copy of a literary and dramatic proprietor's play is

an infringement of that work, and (2) the representation of

a play by the literary and dramatic proprietor does not,

in and of itself, defeat said proprietor's suit for infringe-

ment. Specific as this determination may have been, several

questions remained unanswered, the most noteworthy one

being that involving memorization of a play. As will be

shown later, Cadwalader's obiter dicturp on memorization did

not go unnoticed by the courts.19

17_bid., p. 102.

18Ibid., p. 103.

9Roqers, MichiTan Law Review, I, 181.


In contrast to Keene v. Wheatley, where a surreptitious

copy of a play became an important part of the suit, there

was also an early infringement case which did not involve

the use of a surreptitious copy. It consisted of a motion

for a preliminary injunction which a Mr. Roberts, an assignee
of Dion Boucicault, filed against a producer, Mr. Myers.2

The object of the conflict was Boucicault's successful

drama, Octoroon, with Judge Sprague, of the Circuit Court

of the District of Massachusetts, delivering the opinion.

Dion Boucicault, the author of Octoroon, had helped

produce the play on December 6, 1859, in the Winter Garden

Theatre in New York. Six days later, on December 12, he
filed for and obtained a copyright. Boucicault then

assigned Roberts the exclusive right to act and perform the

play, for one year, in all places throughout the United

States except Boston, New York, Philadelphia, Baltimore,

and Cincinnati.22 During that year, however, Meyers and his

associates attempted to produce Octoroon in Massachusetts

20Roberts v. Myers, 20 Federal Cases 898 (No. 11, 906)
(C.C.D. Mass. 1860) (St. Paul: West Publishing Co., 1895),
hereafter cited as F. Cas.

22-Ibid., p. 900.

and Roberts filed suit to enjoin them from presenting the


When the case came before Judge Sprague, Myers lodged

six objections which were intended to disprove both Mr.

Roberts' rights to the play, and his right to maintain

the suit. The first and primary objection centered upon

the fact that Octoroon had been performed before it was

copyrighted. The defendants contended that, because of

that performance, it was not possible for Boucicault to

secure a copyright, a fact which negated Roberts' claim

that he had been assigned exclusive rights to the play.

The defendants' second and third objections were that

Boucicault had not deposited the title of the play, or a

copy of the play, in the clerk's office as required under

the Act of 1831. Their fourth objection was that the

drama had never been printed by the copyright proprietor

and that rights may not exist without the printing of the

drama. The defendants based their fifth objection upon

the judgment of Cadwalader in Keene v. Wheatley, arguing

that since Boucicault was in the employment of another at

the time he wrote Octoroon, the drama was not legally his

at all. The sixth and final objection was that all rights

were not given to Roberts. The defense contended that

Roberts had only limited time and location rights, and that

such a partial assignment was contrary to law.

Each of the above objections was considered individu-

ally by Judge Sprague. With respect to the first objection--

that prior performance voided copyright protection--Sprague

ruled that the statute of 1856, which stated that represen-

tation was not publication, was directly involved. Conse-

quently, the prior performances were fully protected by the

Act of 1856, and did not void the rights of the copyright

proprietor. In turning to the defendants' charge that the

play's title had never been deposited in the clerk's office,

Judge Sprague ruled that the defendants had shown no actual

proof of such neglect. He noted, further, that a clerk's

record had been introduced which indicated that the title

had been submitted and which, in the eyes of the court,

was considered prima facie evidence of the fact that

Boucicault had met the statutory requirement. Sprague gave

little consideration to the related argument concerning

Boucicault's failure to deposit a copy of the Octoroon in

the clerk's office; he simply pointed out that the due date

had not yet arrived." In answering the charge that the

drama had never been printed, Sprague cited the Act of

1856 which stipulated that the copyright proprietor had

23Ibid., pp. 898-899.

the exclusive right of printing. In interpreting that

right, he contended that a work may exist without printing,

depending on the wishes of the proprietor. Thus, it was

not deemed necessary for Boucicault to have filed a printed

copy of his work in order to retain his rights to the play.

In rendering his opinion on the question of whether Bouci-

cault or Boucicault's employer was the rightful owner of

the play, Judge Sprague made a distinction between the

circumstances in the case of Keene v. Wheatley and that

involving the Octoroon. He took the position that Bouci-

cault was being employed as a stage manager and, therefore,

Boucicault's employer had no right to the play authored by

Boucicault. In essence, Sprague held that what Boucicault

did beyond his duties as stage manager was his business,

and that if he wrote a play it could only be considered
his play and not that of his employer.4 Sprague dis-

patched the sixth and final objection--that partial assign-

ments were contrary to law--with the statement that "what-

ever force this objection might have at law, it cannot
prevail in equity." By taking this position, the court

24bid., p. 899.

25Thid., p. 900.

made it clear that general principles of fairness would

determine the case, and not the law.26 Judge Sprague also

noted that a division of the authors' rights were in order

because divisibilityy as well as assignability enhances the

value of his (the copyright proprietor's) property, for he

may find a purchaser able and willing to pay for a part,
but not for the whole of his copyright."

Having dismissed the arguments presented by Myers in

the above fashion, Judge Sprague granted Roberts' motion

for a temporary injunction. This decision was an important

one since it unequivocally enforced the intent of the

Copyright Act of August 18, 1856. Due to the fact the

court had ruled that the acting or representation of a play

was not considered a publication, playwrights were afforded

a new measure of protection. Another significant rule in

the case was that which stipulated playwrights were entitled

to divide their rights in any way they saw fit. Having been

guaranteed that right, the playwright was in a more

advantageous bargaining position.

26By "equity," Judge Sprague is referring to general
principles of fairness and justice which supersede inade-
quate law.


Significant as the Roberts v. Myers court action had

been, it left unanswered the question of whether memoriza-

tion of a performance gave the memorizer the right to pro-

duce the play. That question became a prime issue, however,

in November, 1860, when Laura Keene initiated proceedings

charging theatre manager Moses Kimball with having presented

an unauthorized production of Our American Cousin, which

infringed on her sole right to represent or contract for the

representation of the play.

The case was precipitated by the fact that Moses

Kimball, proprietor of the Boston Museum, sent one or more

of his artists to Laura Keene's Theatre in New York to view

the outstanding success, Our American Cousin. Kimball

reconstructed the play on the basis of his employee's

memorized version of its content and, subsequently, produced

it at the Boston Museum. Upon hearing of Kimball's produc-

tion, Laura Keene clearly warned him to "desist from per-
fcrming the comedy in violation of her rights ...

iThen Kirnoiall ignored her advice and continued to perform

K2eene v. Kimball, 16 Gray (Mass.) 545 (1.860) (Boston:
Little, Brown, and Co., 1871).

29bid., p. 547.

the play, Miss Keene filed suit. Kimball, in turn, called

for a dismissal of the suit, claiming that even if the

opposition's statements were true, the facts could not win

her a judgment.

The case, which came before Judge Hoar of the Supreme
Court of Massachusetts, had one major issue. Specifically,

this was whether a play, in this case a play covered by

common law copyright, could be legally produced at a

theatre if the sole source from which it was drawn was an

unauthorized memorization of the dramatic proprietor's

performance.31 In rendering an opinion in the case, Judge

Hoar maintained that "the public acquire a right to the

extent of the dedication, whether complete or partial,
which the proprietor has made of it to the public." He

clarified the court's position by stating that a medical

student has the right to use or communicate any information

he may receive through a lecture, and the same right should

be granted to the audience at a play or other forms of

entertainment, so long as the idea is carried away through

30 bid.

3Ibid., pp. 550-551.

'Ibid., p. 551.

memory and not phonographically or otherwise.33 Judge Hoar

went on to note that the opinion in the case had been


wholly upon the doctrine that there is nothing in
the plaintiff's bill to show that the defendant
has done anything beyond that which the limited
dedication [italics mine] of the plaintiff's 34
property to the public authorized him to do .

In short, the court considered Miss Keene's representation

of Our American Cousin to be a limited dedication, and,

therefore, a product which rightfully could be appropriated

through memorization. As a result, Moses Kimball's demurrer

was granted.35

The case of Keene v. Kimball was significant inasmuch

as it opened up, or brought to light, a loophole in common

law copyright. In the wake of it, any judge who chose to

rule stare decisis, that is, render a fixed decision predi-

cated upon prior identical cases, could, for all intents

and purposes, eliminate performance rights among common law

proprietors by basing his decision on Judge Hoar's verdict.

The Hoar decision had ruled that representation could be

33Ibid., pp. 551-552.

34bi., p. 552.

35 bid.

considered limited dedication, and when a play was thus

dedicated, common law rights were transferred from the

author to the public. This meant that prospective assignees

would be apt to be hesitant to purchase a playwright's

performance right for fear their claim to the rights would

be worthless.

While the legality of a production which was a mem-

orized copy of a protected source was the major issue in

Keene v. Kimball, the ruling contained an incidental opinion

which was to play a major role in a later case involving

dramatic copyright. The opinion in question was issued by

Judge Hoar when he brushed aside the defendant's argument

that, because the Puritan founders of the Commonwealth

judged plays to be immoral, Laura Keene's play could not be

legally protected in Massachusetts. Judge Hoar averred that

courts will not interfere to vindicate the claims of
any party to the exclusive enjoyment or disposal of
an iinr.oral or licentious production; but the par-
ticular application once made of this rule of the
conmon law, in conformity with the peculiar opinions,
sentiments or prejudices of one generation of men,
will not control its application in a state of
society where different views prevail. If our
ancestors prohibited all scenic exhibitions, it
was because they regarded them as immoral and
pernicious. If we do not so regard them, the
reason ceasing, the rule ceases with it.36

36bid., pp. 548-549.

With that obiter dictum, Judge Hoar paved the way for the

courts to examine the relationship of censorship to copy-

right. Moreover, his view made playwrights aware of the

fact that, when allegedly licentious plays were to be

tested for immoral content, the courts would take the

position that society controls its own concept of morality.

While common law copyright protection suffered a set-

back in the case of Keene v. Kimball, a case involving play-

wright Dion Boucicault provided statutory copyright pro-

prietors stronger protection. This critical test of 'the

rights provided by statutory copyright arose when George L.

Fox and James W. Lingard produced Dion Boucicault's Octoroon

without his authorization. As might be expected, Boucicault

retaliated by filing a motion for injunction against the

producers.37 Not only had Boucicault's Octoroon been the

center of focus in the earlier case of Roberts v. Myers, but

some of the facts in that case provided the foundation for

Boucicault's complaint against Fox and Lingard. By way of

background, it should be noted that at the time Boucicault

had been the stage manager and general director of the

3cucicault v. Fox and Lingard, 5 Blatchford (U.S.) 87
(CC..S.P.N.Y. 1862) (New York: Baker, Voorhis, and Co.,

Winter Garden Theatre, he made arrangements with Mr.

Stuart, the lessee of the theatre, to write a play in which

he and his wife would perform for as long as it would run

in the Winter Garden Theatre. The play Boucicault wrote

was Octoroon, and he and his wife performed it at the

Winter Garden from December 6, 1959, until December 13.

During that interim--on December 12--Boucicault obtained a

statutory copyright on the drama. Although Boucicault and

his wife left the company on December 13, the play continued

to run for several weeks.38

After the run of the Octoroon ended January 21, 1860,

George L. Fox and James W. Lingard paid Winter Garden

manager, Stuart, who they assumed was the copyright pro-

prietor of the play, $100 for the rights to perform the play

at their New Bowery Theatre.39 Although Boucicault passed

by the New Bowery Theatre on several occasions during the

course of the play's nine performances and viewed large

poster advertisements for Octoroon, at no time did he warn

Fox and Lingard that they were infringing on his

32Ibid., pp. 88-89.

391bid., p. 89.

proprietary rights, or attempt to stop them from performing

the play.40

Immediately after the completion of the play's run at

the New Bowery Theatre, Boucicault filed suit for infringe-

ment against Fox and Lingard. He was awarded $500 in

damages as a result of his petition, but Fox and Lingard

promptly asked for a new trial. At that point, the case was

brought before the Circuit Court of the Southern District
of New York, with Judges Shipman and Nelson presiding.4

In the course of the litigations, Judges Shipman and

Nelson examined the following major issues: (1) Whether

the performance of a play in public with the consent of its

author and payment of a compensation to him, signifies that

he has abandoned his rights and more or less dedicated his

play to the public. (2) Whether a proprietor has to register

his dissent upon becoming aware of a violation of his copy-

right. In other words, did the author, by ignoring the fact

that people were illegally producing his play, more or less

dedicate his play to the public through abandonment? If he

purposely allowed the illegal production to continue, with

Ibid., p. 99.

41Ibid., p. 88.

the intent of obtaining a portion of the play's profits

through court action, would he be a victim of the "clean

hands" policy, which stipulates that the plaintiff must not

be guilty of "inequitable conduct?"

The defendants began their argument by contending that

Stuart, Boucicault's employer, had rights to representation

because the playwright was being paid by Stuart at the time

the play was written. Second, they contended that Bouci-

cault's statutory copyright was invalid because the play

had been voluntarily performed in public and was "such a

publication as to amount to a dedication of the play to
the use of the public." Fox and Lingard went on to argue

that Boucicault abandoned his rights to the public because

he had not yet applied for statutory copyright when he con-

sented to let his play be performed at Stuart's Winter

Garden Theatre. Their final objection was that the plaintiff

should have assumed the responsibility of informing them

that he believed their production of Octoroon was illegal.

They pointed out that, instead, Boucicault ignored the pro-

duction until after the completion of their successful run.

42Ibid., p. 93.

In considering the first objection--that Boucicault's

employer had proprietary rights to the play--Judge Shipman

reaffirmed the decision which Judge Sprague had rendered

in the earlier case involving the Octoroon. Specifically,

Shipman ruled that

the title to literary property is in the author whose
intellect has given birth to the thoughts and wrought
them into the composition, unless he has transferred
that title, by contract, to another. In the present
case, no such contract is proved.43

Fox and Lingard's second objection--that the act of volun-

tarily performing Octoroon in public amounted to a dedication

of the property--was negated when the court noted that

Boucicault, as author, had the exclusive right to represen-
station. The third argument--that Boucicault had abandoned

his rights to the play by permitting its production prior to

obtaining statutory copyright--was decisively rejected by

Judge Shipman, who noted that

there can be no evidence of abandonment to the public
of any rights growing out of the authorship of a
manuscript, drawn from the mere fact that the manu-
script has, by the consent and procurement of the
author, been read in public by him, or another, or
recited, or represented, by the elaborate per-
formances and showy decorations of the stage. If

43Ibid., p. 95.
44bi pp. 95-96.
Ibid.. pp. 95-96.

the reading, recitation, or performance is conducted
by his direction, by his agents, for his benefit and
profit, with the sanction of the law, how can it be
said to be evidence of his intention to abandon his
production to the public? Suppose Mrs. Kemble were
to read, in her unrivalled manner, a drama of her
own production, would the reading be a dedication
to the public, and authorize any elocutionist to
read it, who could obtain a copy, against the
consent of the author? How would it change the
matter, if she should, instead of reading the play,
have it brought out by a company at Wallack's, or
the Winter Garden, with all the embellishments which
the stage can lend? The true doctine is, that the
literary property in the manuscript continues in the
author, so long as he exercises control over it, or
has the right to control it; and, until its publi-
cation, no one has a right to its use or that of its
contents, without his consent. Therefore, any
special use of it by him, in public, for his own
benefit, is a use perfectly consistent with his
exclusive right to its control, and is no evidence
of abandonment.45

The above decisive response by the court was particularly

significant since it was used as a functional reference in

subsequent cases. That segment of the Boucicault v. Fox

opinion also serves as an excellent example of the vari-

ability of the protection concept. On the point involved,

the court found itself squarely in agreement with Judge

Sprague's decision in the case of Roberts v. Myers, but it

took a position in direct opposition to the judgment which

Judge Hoar had rendered in Keene v. Kiinball. With respect

451bmid., pp. 98-99.

to Fox and Lingard's argument that Eoucicault's complaint

was unwarranted because he had failed to inform them of his

dissent, the court held that they had not been ignorant of

Boucicault's rights. On this point, Judge Shipman noted

the evidence shows conslusively, that Stuart
distinctly informed the defendant's [sicj agent,
when he went to purchase the play, that his, Stuart's,
right to it was disputed by the plaintiff, in a
suit then pending. It shows further, that, instead
of relying on the consent of the plaintiff, they
impliedly disclaimed it, by publicly announcing, in
their cards and bill posters, that the piece was
purchased exclusively from Stuart, and was played
with his consent.46

Having dispatched the arguments of Fox and Lingard in

the above manner, the circuit court affirmed the previous

court's ruling and denied a new trial, thus allowing Bouci-

cault to retain possession of the $500 in infringement

damages. As a consequence of the court's decision, two

maior protective conditions were established. First, the

playwright was given statutory protection of his performance
rights. As a result, he could produce his play or sell

his performance rights to a producer and be confident that

those rights would be protected under law. This rule was

46Ibid., p. 99.

47bid., p. 88.

important inasmuch as it served as a turning point in the

confusion over representation and dedication to the public.

Thereafter, "the great weight of authority was] in
favor of this rule."48 It shall be seen, however, that it

did not completely put an end to arguments based on the

public's rights. The second significant rule in the

Boucicault v. Fox decision was that which held that neither

the playwright nor any dramatic copyright proprietor would

be responsible for objecting to a violator making unauthor-

ized use of his dramatic property. This was highly signifi-

cant because, by placing the burden of responsibility more

fully on the potential infringer's shoulders, it added greater

strength to the concept of statutory copyright. The in-

fringer could no longer base his defense on the fact the

copyright proprietor had failed to inform him of his (the

proprietor's) legal rights.

While the preceding cases extend some form of protection

to either the plaintiff or the defendant, a verdict with-

holding protection was rendered in April, 1867, when Cali-

fornia theatre owners Julian Martinetti and Thomas Maguire

48Rogers, Michigan Law Review, I, 183.

filed suits against one another. Interestingly, Judge

Hoar's earlier opinion that the "courts will not interfere

to vindicate the claims of any party to the exclusive

enjoyment or disposal of an immoral or licentious produc-

tion" (Keene v. Kimball, 1860) was a distinct foreshadowing
of the Martinetti v. Maguire case. In the California

case, the judge's contempt for the vehicle under examination

resulted in an opinion which, in a sense, restricted both


The incidents leading to the case were as strange as

the opinion. On October 17, 1866, Julian Martinetti, one

of the proprietors of the Metropolitan Theatre in San Fran-

cisco, claimed to have bought exclusive rights to a play

allegedly written by James Schonberg and entitled, Black

Rook. On March 25, 1867, Thomas Maguire, one of the

proprietors of Maguire's Opera House in San Francisco,

obtained exclusive California performance rights to a play

by Charles M. Barras entitled, Black Crook. The two scripts

%'ere astonishingly similar, in both form and dialogue.

49Martinetti v. Maquire, Deady (U.S.) 216 (C.C.D.
Cal. 1867) (San Francisco: A. L. Bancroft and Co.,

Realizing that Martinetti was intending to produce Black

Rook, and having not received his own copy of Black Crook,

Maguire surreptitiously bought a copy of the former play

from one of Martinetti's employees. He then altered the

copy of Black Rook which he had obtained and proceeded to

produce it under the title, Black Crook. Suspecting some

form of piracy, Martinetti took legal measures to enjoin

Maguire from performing the play. Maguire retaliated with

a countersuit which asked for an injunction against Mar-

tinetti. At this point, the suits came before Judge Deady,

who sat in the Circuit Court of the District of California.50

Although both parties filed simple suits for injunction

against one another, the ultimate issues were of a totally

different nature. Although not argued by counsel, the major

question became whether or not the phrase, "suited for

public representation," which was contained in the Copyright

Act cf 1356, protected the copyright proprietor of compo-

sition of an immoral or indecent character, in the exclusive
right to represent the same." Another key issue raised

by the court was whether an exhibition, a spectacle, or an

I0bid., pp. 216-220.
Sp 1
ibid., p. 216.


arrangement of scenic effects having "no literary character"

could be considered a "dramatic composition."

The argument put forth by Maguire and Martinetti war-

rants consideration despite the fact it had nothing to do

with the issues upon which Judge Deady ultimately based his

decision. Maguire claimed that Martinetti employed James

Schonberg, or some other person, to copy Black Crook in

shorthand as it was being performed in Niblo's Garden in

New York. He further submitted that Martinetti had been

rehearsing this colorablee" imitation of Black Crook

(entitled Black Rook), with the intent to produce it on a

California stage despite the fact he (Maguire) had sole

rights to its representation. In other words, Maguire con-

tended that Black Rook infringed Black Crook; therefore,

Martinetti had no legal right to produce the former work.52

Martinetti, in turn, charged that Maguire improperly ob-

tained a copy of Black Rook and that the latter's production

of Black Crook had been made possible as a result of his

use of the surreptitiously obtained Black Rook manuscript.

In dealing with Maguire's allegation, Judge Deady held

that the facts indicated Martinetti's Black Rook was an

52ibd., pp. 216-220.

imitation of Black Crook. He based his judgment on the

fact that Charles Barras had written Black Crook on July 1,

1866, that it had been performed early in September of the

same year, and that these events preceded Schonberg's Black

Rook (written October 17, 1866). Schonberg's title, the

unquestionably identical character of the texts, the

proximity of the dates upon which the two works were com-

pleted, and especially the fact that Martinetti never

obtained written permission from Schonberg for production

rights in California led Judge Deady to cast strong sus-

picion on both Martinetti and Schonberg. Concerning the

last factor, Judge Deady noted that

no evidence is produced of the alleged purchase of
the Black Rook, except the allegation to that effect
in the bill. If Martinetti had purchased an original
composition, or what he believed to be such a compo-
sition, called the Black Rook, which had been copy-
righted by the author, it is reasonable to infer that
he would have taken an assignment of the latter's
right to himself, and have produced it here in evi-
dence or accounted for its absence. The omission
to do this tends strongly to disprove the allegation
of a purchase from Schonberg by Martinetti.53

This insurmountable mixture of evidence and reasoning

negated Martinetti's argument, and Judge Deady took the

Ibid., p. 219.

position that Martinetti had employed Schonberg or someone

else to imitate Black Crook.

By the same token, Deady held that Maguire knew he too

was dealing with an illegal manuscript when he bought Black

Rook from Martinetti's employee. The judge pointed out

that, because Maguire was probably aware the manuscript was

stolen, he had reason to consider both parties in pari
dilicto, or in equal fault. As a consequence, the court

was not obligated to consider either party in a favorable


After dealing with the arguments of Martinetti and

Magvuire, Judge Deady crystallized what, to him, was the

major issue. He contended that Black Crook was a mere

spectacle with a substantial number of scenic effects and

representations taken from other dramas and operas. He was

supported by W. B. Hamilton, stage manager of the Metropoli-

tan, whom he cited at one point in his opinion. According

to stage manager Hamilton,

The dialogue is very scant and meaningle ss, and
appears to be a mere accessory to the action of
the piece--a sort of verbal machinery tacked on
to a succession of ballet and tableaux.. .[sic
The principal part and attraction of the spectacle

54Xbid., p. 220.

seems to be the exhibition of women in novel dress
or no dress, and in attractive attitudes or action.
The closing scene is called Paradise, and as witness
Hamilton expresses it, consists mainly "of women
lying about loose"--a sort of Mohammedan paradise,
I suppose, with imitation grottos and unmaidenly

Judge Deady went on to note that, "to call such a spectacle

a 'dramatic composition' was an abuse of language, and an

insult to the genius of the English drama."5 As a result,

he took the position that such a spectacle could not be

considered a dramatic composition and it was, therefore,

unworthy of protection under the copyright act.

The opinion in the case also noted that, even if Black

Crook were to be considered a dramatic composition, it would

still be ineligible for protection because, as stated in the

Copyright Act of August lb, 1856, a dramatic composition

had to be "suited for public representation." In Judge

Deady's eyes, the Black Crook did not meet that require-


Finally, Judge Deady declared that the constitutional

article upon which copyright law was based prohibited

55bid., p. 221.

"Ibid., p. 222.

Black Crook from being protected under statutory copy-

right. He pointed out that Article one, section eight, of

the United States Constitution had as its objective "the

progress of science and useful arts." Deady took the posi-

tion that Black Crook in no way achieved such an end and that,

as a result, it had to be considered uncopyrightable.58

Because Black Crook was declared unsuited for public

representation and did not serve to promote the progress of

science or useful arts, and because Black Rook was con-

sidered a copy of the former, Judge Deady denied both par-

ties' applications for an injunction. The decision in

Maguire v. Martinetti was significant in several respects.

It established, first, that, since the dramatic copyright

act designated that the drama should be "suited" for public

performance, a playwright could lose his protection if his
play were found immoral or indecent by a court of law.

The decision also established that the terms, "dramatic

composition," which appear in the Copyright Act of 1856,

could not be applied to an "exhibition, spectacle or arrange-

ment of scenic effects having no literary character."60

Ibid., pp. 222-223.

9Ibid., p. 216.


Thus, in a single case, the playwright and copyright pro-

prietor were served legal notice of two limitations to

copyright protection.

In the same year Judge Deady was ruling on the rela-

tionship between morality and copyright protection (1867),

a noteworthy case involving representation and publication

was being recorded. This involved Dion Boucicault's suit for

infringement against an Illinois museum manager, Joseph

Wood, who had produced Boucicault's Octoroon, Colleen Bawn,

and Pauvrette in his museum theatre without the playwright's

permission.61 Boucicault claimed that these performances

violated his common law rights to the plays, and he sought

restitution from Wood via the courts. Wood contended that

Boucicault's earlier performances of the plays had consti-

tuted publication and, therefore, Boucicault had abandoned

his rights to them. After establishing the facts in the

case and hearing the litigant's arguments, Judge Drummond

of the Circuit Court of Illinois' Northern District, ruled

that the play Pauvrette had been given to the public since

it had already been printed and published with no statutory

6Boucicault v. Wood, 2 Bissell (U.S.) 34 (C.C.N.D.
Ill. 1867) (Chicago: Callighan and Co., 1873).

copyright; thus, it was no longer a property over which

Boucicault could claim exclusive rights. With respect to

the plays Octoroon and Colleen Bawn, however, he took the

position that they were still under Boucicault's control by

virtue of common law copyright. The ruling concerning the

latter two plays not only favored Boucicault, but because

the accompanying opinion stated specifically that "repre-

sentation upon the stage by or with the consent of the

author, is not 'publication,'"62 it temporarily signified a

greater measure of security for all playwrights.

The fact that not all cases were to concur with, or

be decided on the basis of, Judge Drummond's ruling con-

cerning "publication" was made apparent when producer Henry

Palmer sought to enjoin publisher Robert Dewitt from pub-
fishing the T. W. Robertson comedy, Play. Palmer had

purchased the exclusive American rights to the comedy from

Robertson. In an alleged violation of these rights, the

defendant, Dewitt, proceeded to print, publish, and sell

copies of Play in New York. Dewitt claimed that he had


3Palmer v. Dewitt, 36 Howard's Practice (N.Y.) 222
(Super. Ct. 1868) (Albany: William Gould and Son, 1669),
hereafter cited as How. Pr.

obtained the play from individuals who had witnessed per-

formances of the comedy in London. When ruling on the case,

Judge Garvin of the Superior Court of New York alluded to

the opinion Judge Cadwalader had rendered in the case of

Keene v. Wheatley, noting,

Every communication, says Cadwalader, in Kean Isic
agt. Clark [sic, of a knowledge of the contents
unless restricted of a manuscript, is more or less
a publication. And this able judge further says,
"an act which renders the contents of a manuscript
in any mode or degree an addition to the store of
human knowledge, is a publication."64

Garvin's opinion, which stated specifically that "unre-
stricted representation upon the stage is a publication,"

not only contradicted the ruling handed down in Boucicaultv.

Wood, but it also noted that "if spectators carry away in

their memory the whole or any part of the play, they cannot
be restrained by injunction from printing it." As a

result of this case, the 1860 ruling that memorization was

a legal means through which one could procure a drama for

production was reaffirmed, and the way was paved for future

conflict over that issue.

6'bid., pp. 225-226.

-Ibid., p. 222.


Whereas the litigation noted above dealt with plays

in their entirety, the time eventually arrived when the

court focused its attention on specific portions of a play

or plays. An historic infringement case, which involved

segments of plays and the question of whether part of a

play may be infringed, was set in motion in 1867 when play-

wright and producer Augustin Daly applied for an injunction

against Henry Jarrett and Henry Palmer, managers of Niblo's

Garden.67 Facts leading to the case indicate that on

August 1, 1867, Augustin Daly secured a statutory copyright

for his play, Under the Gaslight. On August 12, Daly per-

formed the drama at the New York Theatre, and it was so

successful that it ran for eight weeks. Dion Boucicault,

who was then living in England, obtained a copy of the play.

Sometime thereafter, Boucicault wrote a drama entitled

After Dark which, in part, was similar to the Daly melodrama.

After Dark became successful in England and, subsequently,

Boucicault sold the right to New York performances of it to

Henry Palmer and Henry Jorrett, who made preparations for

its production at Niblo s Carden. Augustin Daly, seeing a

distinct similarity in portions of the two plays, filed

67DaIv v. Palmer, 6 Blatchford (U.S.) 256 (C.C.S.P.N.Y.

suit to enjoin Jarrett and Palmer from producing After

Dark. The case was taken before Judge Blatchford of

Circuit Court, the Southern District of New York, in

December of 1868.

There were two major issues in the case involving the

Daly-Boucicault dramas: (1) Does the segment of a play,

in which the key element is pantomimic action as prescribed

by stage directions, qualify as a "dramatic composition"

under the terms of the dramatic copyright act?, and (2)

under the Act of 1856, is the author of a copyrighted

dramatic composition entitled to protection against the

unauthorized representation or duplication of part of his

play? It was necessary, then, for Judge Blatchford to

determine whether a part of a play could be considered a

dramatic composition if it had no dialogue, and whether or

not a scene of that type was protected under the Copyright

Act of August 18, 1856.

The scene which Daly accused Boucicault of plagiarizing

was the "railroad scene" in Under the Gaslight which, at

the time, was a unique and original type of scene. The

plaintiff, Augustin Daly, contended that the success of

68bid., pp. 257-260.

Under the Gaslight was due, in large part, to the "railroad

scene"--a scene in which the heroine attempts to save the

life of a helpless person who is bound to the railroad track

and about to be killed by an oncoming train. He contended,

further, that the scene was entirely novel to the stage,

that it was the unique feature of the play, and the ingredi-

ent that insured its financial success.69 By implication,

Daly sought to make the financial success of his play a

determining factor in the court's decision.

In order to determine whether there was substantial

similarity between the two scenes, Judge Blatchford examined

each in detail. Since this case dealt only with a single

portion of the play, and since it became one of the most

famous and important cases in American dramatic copyright

history, a comparison of the details of the two scenes is

warranted. Act Four, scene three, of Under the Gaslight

opens at a railroad station. Also visible to the audience

are a shed, which is used as a storeroom, and a railroad

track. Laura, the heroine, is talking with the signalman

and requests that he lock her in the storeroom. The signal-

man grants her request, whereupon Snorkey, the hero, arrives

69 id., pp. 258-259.

and asks the signalman to stop the oncoming train. The

signalman refuses to do so, however, and leaves. The

villainous Byke then enters, ropes Snorkey, binds his arms

and legs, and ties him to the railroad track. Byke exits,

a train whistle is heard, and Laura, witnessing the pre-

dicament from a window, snatches an axe in the storeroom and

commences to batter down the door. As the train approaches,

she manages to escape; she rushes to the track, unties

Snorkey, and pulls him from the track just as the train

roars by.70 The scene ends on this note.

The comparable scene in Boucicault's play, After Dark,

takes place in the third act when the unfortunate Gordon

Chumley is rendered senseless by drugs, and his old friend,

Tom, is locked in a wine vault. From his vault, Tom sees

the villains knock a hole in the wall of the adjacent room

and pass the body of the unconscious Chumley through it.

The hole leads to an underground railroad track upon which

a train is approaching. As Tom begins to make his escape

from the vault with the aid of an iron bar, he sees that

the villains have placed Chumley's unconscious body on the

railroad track, and he shouts, "I see their plan. They

70Ibid., p. 261.

have dragged his insensible body to that place, and left

him there to be killed by a passing train. Demons!

Wretches "71 Working furiously, Tom frees himself, rushes

to Chumley, "flings himself on the body, and, clasping it

in his arms, rolls over with it forward."72 The train

rumbles by and Old Tom, freeing himself from Chumley, gazes
after it, ending the After Dark "railroad scene."73

In an attempt to negate Daily's allegation that they

were intending to infringe on his "railroad scene" in their

forthcoming production of After Dark, Jarrett and Palmer

argued that the situation and action of the "railroad scene"

had already been used in a story, "Captain Tom's Fright,"

which had appeared in a periodical, The Galaxy, on March 15,

1867. Th-ey took the position that the Galaxy version of

the incident invalidated the plaintiff's copyright. Judge

Blatchford set aside their argument, however, and stated

that "there is no answer to the [plaintiff'sj bill, nor is

there any denial of the allegations that Boucicault procured

a copy of the plaintiff's play and prepared therefrom the

71 1bid., p. 263.


73 bid.

"railroad scene" in the play of "After Dark". With

this statement, Blatchford set aside the possibility of

examining "Captain Tom's Fright," the alleged model for

Daly's idea. He chose, instead, to compare the "railroad

scenes" contained within the two plays for evidence of

substantial similarity and, hence, infringement.

After examining the "railroad scenes" carefully, Judge

Blatchford addressed himself to the matter of the meaning

of the term "dramatic composition" as used in the Act of

1856, and sought to determine whether the scene in question

could be so designated. His conclusion was that

a composition, in the sense in which that word is
used in the Act of 1856, is a written or literary
work invented and set in order. A dramatic compo-
sition is such a work in which the narrative is
not related, but is represented by dialogue and
action. When a dramatic composition is represented,
in dialogue and action, by persons who represent
it as real, by performing or going through with the
various parts of characters assigned to them
severally, the composition is acted, performed,
or represented; and, if the representation is in
public, it is a public representation. To act,
in the sense of the statute, is to represent as
real, by countenance, voice, or gesture, that
which is not real. A character in a play who goes
through with a series of events on the stage with-
out speaking, if such be his part in the play, is
none the less an actor in it than one who, in
addition to motions and gestures, uses his voice.
A pantomime is a species of theatrical entertainment,

Iid., pp. 260-261.

in which the whole action is represented by
gesticulation, without the use of words. A
written work, consisting wholly of directions, set
in order for conveying the ideas of the author on
a stage or public place, by means of characters
who represent the narrative wholly by action, is
as much a dramatic composition designed or suited
for public representation, as if language or
dialogue were used in it to convey some of the
ideas. The "railroad scene," in the plaintiff's
play, is undoubtedly a dramatic composition.

Having determined that the "railroad scene" was a "dramatic

composition," Judge Blatchford was able to turn to the

question of infringement.

In establishing whether or not the Daly script had

been duplicated in After Dark, the fact upon which the charge

of infringement by plagiarism hinged, the court sought to

determine the similarities, and then the differences,

between the two scenes. The similarities were that

(1) a character is confined in a room or structure, (2)

the body of a second character is placed upon a railroad

track, (3) the first character is able to appear at an

opening in the room and see the danger which the second

character faces, (4) the first character is able to hear the

train coming, (5) the rescuer is able to escape from the

place of his imprisonment through the use of an object found

Ibid., p. 264.

within it, thereby managing to get to the track, (6) the

rescuer moves the endangered character just seconds before

the train passes by. Having considered those facts, the

court held that "the action, the narrative, the dramatic

effect and impression, and the series of events in the two

scenes, are identical."76 In considering the differences,

the court noted that, in the one play the character who

performs the rescue is a woman; in the other, it is a man.

Other differences were found in the places of imprisonment

(wine vault--storeroom), in the tool used to effect the

rescuer's escape (axe--iron bar), in the manner in which

the escape was made (door--wall), in the condition of the

victim (conscious and bound to track--drugged and uncon-

scious), and in the type of verbal elements used (dialogue--

soliloquy). After examining the above variations, Judge

Blatchford ruled that "the two scenes are identical in

substance, as written dramatic compositions, in the par-

ticulars in which the plaintiff alleges that what he has

invented, and set in order, in the scene, has been
appropriated by Boucicault."7 The key words are "identical

Ibid., p. 265.

77ibid., p. 266.

in substance," since a substantial similarity was necessary

if Daly's charge of infringement was to be upheld.

Having ruled in Daly's favor, Judge Blatchford rein-

forced that ruling by noting that a dramatic composition

should be just as adequately protected as a musical compo-

sition. He pointed out that, if a substantial number of

bars have been taken from another musical work, the original

work has been infringed and, in the same sense, the drama

should be protected. Blatchford's basic position was that,

if a substantial part of a play has been appropriated in

another dramatic work, infringement should issue. In his


the original subject of invention, that which re-
quired genious to construct it and set it in order,
remains the same, in the adaptation. A mere mechanic
in dramatic composition can make such adaptation,
and it is a piracy, if the appropriated series of
events, when represented on the stage, although
performed by new and different characters, using
different language, is recognized by the spectator,
through any of the senses to which the representa-
tion is addressed, as conveying substantially the
same impressions to, and exciting the same emotions
in, the mind, in the same sequence or order.78

It is interesting to note the particular emphasis Judge

Blatchford placed on the matter of invention, and his

unwillingness to accept different characters and language

Ibid., p. 270.

as a substantial change, except in those special cases in

which the audience would be unable to recognize similarities

between the plays in question.

Convinced that Daly's charge of infringement was valid,

Judge Blatchford issued an injunction restraining Jarrett

and Palmer from performing After Dark. The two rules

governing the case are of special concern inasmuch as they

added key elements to the definition of that which is copy-

rightable and to the terms of that protection. For example,

the case established that "a written play, consisting of

directions for its representation by action, without the use

of spoken language by the characters, is a dramatic composi-

tion, within that Act."79 This established, for the first

time, that the parts of a play which used action, but no

voice, were protected by copyright law. In essence, panto-

mime had been approved as a "dramatic composition," a fact

that expanded the extent of the playwright's protection.

The second important item which the case established was

that, "under the Act of 1856, the author of a copyrighted

dramatic composition is entitled to be protected against

piracy, in whole or in part, by representation."80

791bid., p. 256.


Subsequently, this decision prompted litigation involving

parts of a play. Copyright proprietors who saw a similarity

between a fragmented segment of their plays and parts of

another dramatic composition were in a position to file suit

for infringement with hope of redress. The only crucial

item that remained to be established was the matter of

degree--how extensive did the plagiarized portion of a play

have to be in order for infringement to occur? Judge

Blatchford's decision in the case brought by Daly suggested

that the amount of material infringed was unimportant. In

more recent years, that position has been supported by copy-

right authority Edward Rogers, who states that what really

counts is the value of the infringed work. According to


Infringement is not dependent upon the quantity taken.
It is the value, irrespective of amount, and if what
is taken is a material and valuable part of the com-
plainant's play, it makes no difference that it may
be but a small portion of the mere volume of the

Interestingly, the value of the "railroad scene" was men-

tioned repeatedly by Daly's counsel in the case. This may

well have been a decisive factor in the ruling because, in

several instances, Judge Blatchford's opinion took note of

.-Rogers, Michiqan Law Review, I. 189.

the pecuniary results Daly and Boucicault achieved as a

result of the 'railroad scenes."

Still another point to be considered in conjunction

with Daly's suit against Jarrett and Palmer is Judge Blatch-

ford's handling of the distinction between the dramatic

terms "idea" and "expression." In previous cases it had

been clearly stated that only the copyright proprietor's

expression could be protected under copyright law. Ideas

were supposed to be made available to anyone who wished to

make use of them. When Judge Blatchford ruled that the

differences in character and dialogue were minor considera-

tions and did not offset the fact the playwright's invention

of idea had been appropriated, he was, in a sense, opening

up a new avenue of judicial interpretation for application

in infringement cases.

While the cases considered thus far involved only

American copyright law, a conflict arose in 1870 which

tested the impact of English copyright law in an American
court. It was precipitated by the fact that Mr. Crowe,

the husband of actress Kate J. Bateman, bought United States

production rights to Tom Taylor's Mary warner, a play

82Crowe v. Aiken, 2 Bissell (U.S.) 208 (C.C.N.D.
Ill. 18370).

written specifically for Miss Bateman. The play had

already been performed in England and America by Miss

Bateman when Mr. Aiken, a Chicago theatre manager, decided

to produce the drama. Relying on the strength of common

law copyright and equity as sources of relief, Crowe filed

a motion for injunction against Aiken for violation of his

exclusive right to produce the play in the United States.

Crowe was granted a preliminary injunction--an injunction

issued until such time as the case is decided by the courts.

Eventually, the case came before Judge Drummond, who

represented the Circuit Court of the Northern District of

Illinois. Aiken contended that he was entirely within

rights to produce the drama in Chicago. He based that claim

on the fact that Miss Bateman had performed the play in

England83 and, contrary to American copyright law, repre-

sentation in England was tantamount to publication. That

fact, he argued, terminated Taylor or Crowe's exclusive

rights to the play and made it public property. Judge

DrumrIond's view, however, was that United States law was

the dominant factor in the case, and he took the position

that the English representation did not constitute a

83Ibid., pp. 208-210.


dedication to the public, "except, possibly, so far as those
who witness its performance can recollect it. ."8 He

also noted that it would appear that Aiken's copy of the

play was partially obtained by surreptitious means, a fact

that in itself was sufficient to uphold Crowe's claim that

Aiken had no legal right to produce the Taylor play. In

light of the evidence, Judge Drummond ruled that the

preliminary injunction granted to Crowe should be allowed

to continue. The major point in the ruling was that

the English Statute of 5 and 6 Victoria, chap. 45,
sec. 20, which makes representation there a publi-
cation, cannot be so extended as to affect the
exclusive proprietary rights of the author or his
assignees at common law in the United States. It
affects only proceedings had under the statute

This decision was significant in that, for the first time,

American proprietors were assured of protection under

American copyright law regardless of the laws of other

countries. Although Judge Drummond's decision was a

decisive steD forward in the realm of copyright protection,

it is well to note that he intentionally avoided any posi-

tive obiter dictum dealing with memorization of a per-


841bid., p. 214.

5Ibid., p. 208.

While an important aspect of copyright protection was

established in the case of Crowe v. Aiken, other cases were

serving to clarify the question of what type of creative

materials could be copyrighted. One such case arose in

1871, the year following Crowe's suit against Aiken. In

that instance, W. B. Freligh, manager of the Bowery Theatre

in New York, filed a motion to enjoin J. W. Carroll and

J. J. McCloskey, managers of the Park Theatre in Brooklyn,

from using a mechanical contrivance which Freligh had used

in the production of a play for which he was copyright pro-
prietor. Since no judge's opinion was filed with the

case, the titles of the dramas went unreported. It is

known, however, that both plays made use of a drawbridge

which opened during the course of the drama, causing an
approaching train to fall into a stream below.87 The judge

ruled that such a contrivance was patentable, but not

copyrightable. Available reports also indicate that Fre-

ligh's motion for a preliminary injunction was subsequently
denied. In the absence of a written opinion, the basis

86Freliqh v. Carroll, 9 F. Cas. 770 (No. 5,092a)
(C.C.E.D.N.Y. 1871).



for the denial of Freligh's charge of infringement cannot

be ascertained, but it would appear probably that the court

made a distinction between an incident which involved

dramatic personae and one which was concerned solely with

a mechanical contrivance. An explanation of the distinction

between a patent and a copyright may lend clarity to the

judge's decision, and help to confirm the above conjecture.

Ralph Shaw, an authority on copyright, contends that,

to obtain a patent, an inventor must show sufficient
novelty in execution of the method of mechanism
which he wishes to protect to support a claim of
originality. Once his patent is granted, anyone
else who hits upon the same idea and the same or a
similar method of carrying out that idea will be
stopped, during the life of the prior patent, from
making or using or selling his invention. None of
this is true with respect to literary property.
Literary property rights are granted without
examination for novelty. They do not apply to
"use" of any physical object, nor do they prevent
a later author from writing and obtaining pro-
tection for a similar, or even an identical

Based on Shaw's distinction between copyright and patent,

it would seem that, in Freligh v. Carroll, the bench viewed

the allegedly infringed item as a "mechanism." The court

apparently based its decision on the fact an idea was

involved, a fact which established it as an item which

89Shaw, Lierar Propertty, pp. 13-14.

could be patented, but not one which could be copyrighted.

Significantly, it was not considered an item of expression.

Whereas the cases cited previously dealt primarily

with protection afforded by the Act of 1856, a suit filed in
1875 was considered on the basis of the Act of 1831.9 The

case, involving a charge of infringement, was brought against

the publisher, Joshua Hart, by Dion Boucicault. The com-

plaint held that Hart had made illegal use of Boucicault's

play, Shauqhraun, a play for which Boucicault had not ob-

tained a statutory copyright. Hart, after obtaining a

surreptitious copy of Boucicault's drama, had proceeded to

print and publish a version of it under the title Skibbeah,

with the notation that it had been "arranged" by G. L.

Stout. Eight of the twelve scenes in Hart's play, Skibbeah,

were copied from Shaughraun. Hart called for a dismissal of

the suit, claiming that even if Boucicault's contention that

he (Hart) had sold colorable imitations of his play were

true, that fact could not win the playwright a judgment.

Hart apparently thought the court would strip Boucicault of

all rights to Shaughraun because of the fact he had failed

to complete all of the legal steps which were required in

Boucicault v. Hart, 13 Blatchford (U.S.) 47 (C.C.S.D.
N.Y. 1875).