Chapter XLI: Section X: Infringement of Musical Performing Rights

=Substantial Part.=--The rule that the taking of a part but not of a particle in infringement applies equally to musical compositions and to the performing rights therein. In _D'Almaine_ v. _Boosey_[774] the taking of airs from an opera and arranging them as quadrilles and waltzes was held to be an infringement of the copyright in the opera. Lord Lyndhurst said:

"Substantially the piracy is when the appropriated music, though
adapted to a different purpose from that of the original, may
still be recognised by the ear."

This test, however, will hardly apply to the piracy of an adaptation where the air or melody is a non-copyright one. A comparison of the actual notes and treatment of the phrases would have to be made.

=Public Performance.=--It has been contended that the protection afforded by 3 & 4 Will. IV. c. 15 to musical compositions is only an exclusive right of performance in places of dramatic entertainment. That is the protection given to dramatic pieces, and it was said that 5 & 6 Vict. c. 45, in applying 3 & 4 Will. IV. c. 15 to musical compositions did not give them a wider protection than dramatic pieces had. In _Wall_ v. _Taylor_[775] the Court held that this view was wrong. Bowen, L. J., said:

"I think the answer is this, that what is called in the argument a
'condition' of recovering a penalty in sec. 2 of 3 & 4 Will. IV.
c. 15 is nothing of the kind, but part of the definition of the
offence upon which the penalty is to be incurred.... The right
granted is the privilege of representing at places of dramatic
entertainment.... Now sec. 20 of 5 & 6 Vict. c. 45 creates a
new right of property as to a musical composition, and gives
the author and his assigns the sole liberty of representing or
performing it. That is the right given, and sec. 21 says that
the person who shall have that right 'shall have and enjoy the
remedies given and provided' in the Act of 3 & 4 Will. IV. c. 15.
Why read into that word 'remedies' that the second section of that
Act is only to be put in force not where there is an infringement
of that right, but where there has been a representation or
performance at a place of dramatic entertainment."

The view of Cotton, L. J., in the same case was that the remedies of 3 & 4 Will. IV. c. 15 were not applicable unless the musical composition was performed in a place of dramatic entertainment; but that in every case of public performance there was a remedy under 5 & 6 Vict. c. 45 for damages and injunction. Since the Musical Copyright Act of 1888 the distinction between these opinions has become immaterial, for in every case in which the performance is actionable at all the Court may assess the damages as it thinks proper.

=Causing to be Represented.=--The offence is representing or "causing to be represented." As to what the latter includes see page 139, on performing right in dramatic pieces. The liability for "causing to be represented" differs from that in the case of dramatic pieces in that since the Copyright (Musical Compositions) Act, 1888, "the proprietor, tenant, or occupier of any place of dramatic entertainment or other place at which any unauthorised representation or performance of any musical composition shall take place ... shall not by reason of such representation or performance be liable to any penalty or damages in respect thereof, unless he shall wilfully cause or permit such unauthorised representation or performance, knowing it to be unauthorised."[776] In respect of those who are not proprietors, tenants, or occupiers the liability is the same as in the infringement of dramatic performing right.