Landmark Litigation in the American Theatre
IVAN JOE FILIPPO
A DISSERTATION PRESENTED TO THE GRADUATE COUNCIL OF
THE UNIVERSITY OF FLORIDA IN PARTIAL
FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF
DOCTOR OF PHILOSOPHY
UNIVERSITY OF FLORIDA
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
infor.lat.ion:. cor;ncerning the' e-te'-.:. to whic;ch tic-aion has
;advanced r .ip-ded .the progrc:s ef the Aericar: theatre.
Sarefu r.vi" 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
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
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.
TABLE OF CONTENTS
PREFACE . . .
ABSTRACT. . . .
THE NATURE AND BACKGROUND OF UNITED S'
COPYRIGHT LAW . .
D1RATIC COPYRIGHT IN THE COURTS. .
THE BASES OF DREAATIC CENSORSHIP. .
CENSORSHIP LITIGATION IN THE THEATRE.
EAC GROUNDS OF ANTITRUST THEATRICAL
LITIGATION. . .
THE TH-EATRE ,AND A:.NTITRUST LITIGATION.
CONCLUSIO . . .
BIBLIGR APHY. ... .
PIOGRBPHICAL SKETCH . .
* 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
LANDMARK LITIGATION IN THE AMERICAN THEATRE
Ivan Joe Filippo
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
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
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 NATURE AND BACKGROUND OF
UNITED STATES COPYRIGHT LAW
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
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
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),
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
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
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),
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
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
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
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
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 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
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.
DRAMATIC COPYRIGHT IN THE COURTS
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
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-
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
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
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.
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
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
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
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.
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
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.
"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.
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)
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.