Chapter XXXII: Section II: Performing Right at Common Law

It is doubtful whether there ever was any performing right at common law. The only case from which it could be gathered that there was is _Morris_ v. _Kelly_,[675] where an injunction was granted by Lord Eldon restraining the performance of a comedy. The play was apparently in manuscript, but it does not appear whether it had been performed or not. The ground of the decision is very uncertain. From the fact that the Lord Chancellor asked for proof that the assignment was in writing, it might almost appear that protection was given under the statute of Anne, which would certainly have been unsound. The decision may also have been on the ground of common law right in unpublished manuscript, _i. e._ the right to prevent any one but the owner from interfering with it in any way, or it may have been on the ground of breach of implied contract. Altogether the decision is unsatisfactory; the application seems to have been _ex parte_, and the law hardly to have been considered, so that it is impossible to base any definite proposition of law on the case. On the other hand Erie, C. J., stated in the course of the argument in _Marsh_ v. _Conquest_,[676] that there was no performing right at common law. For his authority, however, he cites _Murray_ v. _Elliston_,[677] which is hardly sufficient to support the proposition. In _Murray_ v. _Elliston_ a tragedy by Lord Byron was printed and published for sale. The defendants abridged it and represented it on the stage in the abridged form. It was argued for the defendant that the tragedy having been printed and published as a book, must depend for protection entirely on the statute of Anne in accordance with the decision in _Donaldson_ v. _Beckett_.[678] The statute of Anne gave no performing right, and therefore there was no protection. The Court gave judgment for the defendant, but the ground of their judgment is not quite clear. Some stress seems to be laid on the fact that the tragedy was abridged, and it is therefore left doubtful whether the judges would have considered the representation of an unabridged version to be an infringement of the plaintiff's rights. In either view it is not a decision that there was no performing right at common law. Another case which may be relied on for the contention against performing right at common law is _Coleman_ v. _Wathen_,[679] but on examination it will be seen that all that case decides is that the statute of Anne gave no performing right, and that representation on the stage was not an infringement of copyright.

It is submitted that the history of the law of performing right is this: At common law there was no performing right in the proper sense of the term, but an unpublished manuscript was protected from performance as from any other invasion of the author's exclusive right to it. If it was performed on the stage without being published as a book, there would be a remedy on breach of implied contract, the public only being admitted for the purpose of hearing the performance. Once, however, it was published as a book, all exclusive right of performance was gone. The statute of Anne gave no performing right, and performing right proper was first created by 3 & 4 Will. IV. c. 15. This statute and 5 & 6 Vict. c. 45 govern the performing right in dramatic pieces. The performing right in musical compositions is governed by these two Acts, as modified by the Copyright (Musical Compositions) Acts of 1882 and 1888.