Chapter XIII: Appendix (6)

The _ad interim_ provision requires the same formalities and fee as in the case of domestic works, except that only one copy of the foreign work in English need be deposited, and that this deposit copy need not contain the statutory notice of American copyright. The claimant is given thirty days after publication abroad in which to request reservation and a second thirty days after deposit of the foreign copy within which to publish or cause to be published an edition manufactured in America and thus to complete his copyright. This gives a period of _ad interim_ protection, ranging from thirty days to sixty days, within which to obtain permanent copyright, the exact period depending upon the number of days elapsing after publication before deposit of the foreign copy in the Copyright Office. Thus a copy deposited on the day of publication will have thirty days in all within which to secure permanent copyright by the publication of the American-made edition, while a copy deposited on the thirtieth day after publication will have sixty days in all; but the failure to deposit the foreign copy within thirty days after publication, or the failure to publish an American-made edition within thirty days after such deposit, will forfeit the right to obtain copyright protection and throw the foreign work into the public domain, despite the _ad interim_ registration. When an American-made edition with notice of copyright can be published in America simultaneously with its publication abroad, _ad interim_ protection is of course rendered unnecessary; and such simultaneous publication is the simplest and best practice for publishers to adopt.

{Sidenote: Omission of copyright notice}

It may also be emphasized here that the notice of copyright can be omitted only from foreign-made copies and must be included in the American-made edition. The American publisher desiring to reprint a book published abroad in the English language within sixty days after publication, without consent of the copyright proprietor, must therefore assure himself, by inquiry from the Copyright Office, whether the work has been registered _ad interim_. The printing of an American copyright notice on the foreign edition in anticipation of the publication of an American-made edition and the deposit of copies thereof within the statutory requirements is a questionable practice, as a failure to publish American-made copies in the United States, because of defective publishing arrangements or a printers' or binders' strike, would make such notice a false notice of copyright. The copyright term in the case of such foreign work in the English language dates, it would seem, from the date of publication abroad rather than from the date of publication of the American-made edition; but this would be of importance only toward the expiration of the original term and in connection with the renewal term.

{Sidenote: Books only ad interim}

_Ad interim_ protection seems to be confined exclusively to a book as such, and therefore does not apply to articles in periodicals.

{Sidenote: American authors not thus protected}

It should be noted that an American author publishing his work abroad is not benefited by either of these provisions respecting foreign works. The provision regarding works in other languages is specifically confined to a work of foreign origin, that is, not by an American author; and he gains nothing, if his work is in English, from _ad interim_ protection. Thus an American author publishing his work first in German in Berlin, must copyright and deposit an American-made edition of his German text in this country to obtain American protection, without which his work in German could be imported into this country without his consent, and an independent translation of his text into English and its publication in America could not be prevented.

{Sidenote: Exact conformity required in formalities}

In view of the exact prescription of the method of securing copyright, unless the statute is precisely complied with the copyright is not valid. Said Judge Sawyer, in 1875, in Parkinson _v._ Laselle: "There is no possible room for construction here. The statute says no right shall attach until these acts have been performed; and the court cannot say, in the face of this express negative provision, that a right shall attach unless they are performed. Until the performance as prescribed, there is no right acquired under the statute that can be violated." And in the case of the play "Shaughraun," Boucicault _v._ Hart, in 1875, Justice Hunt held, as regards copyrights in general: "Two acts are by the statute made necessary to be performed, and we can no more take it upon ourselves to say that the latter is not an indispensable requisite to a copyright than we can say it of the former." The Supreme Court laid down this general doctrine in Wheaton _v._ Peters, in reference to the statutes of 1790 and 1802, and the later statutes are most explicit on this point. In the same case of Wheaton _v_. Peters, Justice McLean, in delivering the judgment of the Supreme Court, held that while the right "accrues," so that it may be protected in chancery, on compliance with the first requirement of the prescribed process, it must be perfected by complying with the other requisites before a suit at law for violation of copyright can be maintained.

{Sidenote: Expunging from registry}

A false or unjustifiable entry of copyright may be expunged from the registry by court order, as was done in the English case _Re_ Share Certificate Book in 1908.

{Sidenote: British formalities}

The statutory formalities of copyright in other countries vary greatly. In Great Britain copyright has been secured by first (or simultaneous) publication within the British dominions or under the "international copyright act." The law provided that a copy of the best edition of a book must be deposited in the British Museum, this giving basis for proof of publication, which deposit must be made within one month after publication if published within London, three months elsewhere in the United Kingdom, and one year in other parts of the British dominions; the failure to deposit did not forfeit copyright, but involved a fine; but under the international copyright provisions, deposit in the British Museum of a colonial or foreign work was not required, though useful as _prima facie_ evidence of publication. Four other copies of domestic books must be supplied to the universities of Oxford, Cambridge, Edinburgh and Dublin if demanded within twelve months from publication. Registration at Stationers' Hall was necessary for books only as a prerequisite to an action at law against infringement, but was obligatory in the case of paintings, drawings and photographs. Copyright notice on a book was not required except to reserve the right of representation of a dramatic work, etc., though it has been customary for English publishers to print the phrase "All rights reserved" as the equivalent to the copyright notice. But copyright notice was required to protect sculpture, engravings and musical compositions and in respect to oral lectures.

{Sidenote: The new British code}

The new British code bases copyright for all published works on first publication within "the parts of His Majesty's dominions to which this Act extends" or as provided for in colonial or international arrangements--copyright of unpublished works depending upon British citizenship or residence at the time of making. Delivery of copies to the British Museum and on demand to the other libraries is required from the publisher of every book published in the United Kingdom, but on penalty of five pounds and the value of the book and not of forfeiture of copyright. The National Library of Wales is entitled to a sixth copy, in prescribed classes of books. Registration is no longer made a condition or circumstance of copyright.

Most of the British colonies have followed the precedent of the mother country, with slight variation, in their domestic legislation. Canada and Newfoundland, following the precedent of the United States, require copyright notice in statutory form.

{Sidenote: Other countries}

France requires deposit of two copies upon publication, and registration is required prior to a suit for infringement. Germany requires the registration of the name of the author of anonymous or pseudonymous works as the condition for copyright, but otherwise grants copyright practically as natural right without requiring formalities. The greater number of copyright countries do not impose any formalities except for specific privileges as the right of translation, of representation or of reproduction in the case of periodical contributions; or for special subjects as works of art, musical compositions, telegraphic messages, where these are protected, and oral lectures. Deposit of copies is, however, generally required, either before putting the book on the market or before circulation, or upon publication, or else within a specified time after publication, ranging from ten days in the case of Greece to two years in the case of Brazil, while in several countries no specific time is mentioned. In Italy, if no deposit of a registered work is made within ten years, the copyright is considered to be abandoned. The number of copies required varies in the several countries from one to six. In some countries specific formalities are required to establish the beginning of the term of protection for collective or posthumous works, etc., or in connection with the disclosure of the author's name on anonymous or pseudonymous works. Spain, Colombia and Panama, and Costa Rica have a curious provision that if a work is not registered within one year from publication the copyright is forfeited for ten years, at the end of which period it may be recovered by registration. Canada and Newfoundland, following the United States precedent, Australia, Holland and the Dutch colonies, and Siam require manufacture within the country. In several countries penalty for failure to deposit is provided, the limit being usually the value of a book and a sum not exceeding L5, or in France 300 francs. The deposit of a photograph or sketch of a work of art is in many countries required for purposes of identification.

{Sidenote: International provisions}

International copyright throughout the countries of the International Copyright Union and the Pan American Union, if the Berlin and Buenos Aires conventions are ratified throughout, will depend, as now it depends for most countries, entirely on the formalities in the country of origin.

X

THE AMERICAN MANUFACTURING PROVISIONS

{Sidenote: Manufacturing provision of 1891}

In the American law of 1891, embodying the "international copyright amendment" which for the first time permitted the copyright in the United States of works by foreign authors not resident in this country, the copyright of books was conditioned on the manufacture within the United States, and this condition was made applicable also to American authors.

{Sidenote: Text in 1909 code}

The American code of 1909 follows this precedent in making manufacture within the United States a _sine qua non_ of copyright for printed books and periodicals, lithographs and photo-engravings, under the following provision (sec. 15), commonly cited as the manufacturing provision: "That of the printed book or periodical specified in section five, subsections (a) and (b) of this Act, except the original text of a book of foreign origin in a language or languages other than English, the text of all copies accorded protection under this Act, except as below provided, shall be printed from type set within the limits of the United States, either by hand or by the aid of any kind of type-setting machine, or from plates made within the limits of the United States from type set therein, or, if the text be produced by lithographic process, or photo-engraving process, then by a process wholly performed within the limits of the United States, and the printing of the text and binding of the said book shall be performed within the limits of the United States; which requirements shall extend also to the illustrations within a book consisting of printed text and illustrations produced by lithographic process, or photo-engraving process, and also to separate lithographs or photo-engravings, except where in either case the subjects represented are located in a foreign country and illustrate a scientific work or reproduce a work of art; but they shall not apply to works in raised characters for the use of the blind, or to books of foreign origin in a language or languages other than English, or to books published abroad in the English language seeking _ad interim_ protection under this Act."

{Sidenote: Scope and exceptions}

This manufacturing provision requires that every "book" except the original text of a book of foreign origin, _i. e._, not by an American writer in a language or languages other than English, or a book published abroad in the English language seeking _ad interim_ protection, or a book in raised characters for the use of the blind, can obtain American copyright whether by an American or foreign author, only in case the type is set, the plates made and lithographic or photo-engraving text or illustrations produced and the work printed and bound within the limits of the United States--inclusive, presumably, of the outlying dependencies. The provision extends to periodicals, though these are not subjected to the affidavit clause, and periodicals containing authorized copyrighted material are not prohibited from importation. The provisions extend also to lithographs or photo-engravings, issued separately as well as for book illustration, unless these represent foreign subjects or illustrate a scientific work or reproduce a work of art.

{Sidenote: Changes 1891-1909}

The provision of 1909 differs from the provision of 1891 in requiring that a book should be from plates type-set as well as made, and be printed and bound, within the United States, in adding periodicals and by omitting photographs and dropping the word chromo, and including photo-engravings as well as lithographs. The inclusion of binding in the manufacturing provision met with especial opposition, on the ground that binding is not an integral part of, but an incidental addition to, a completed book.

{Sidenote: German-American instances}

The effect of these provisions, to cite specific instances, is that an original German text by a non-American author is exempt from the manufacturing provisions, but that a French translation or an English translation is not, and that an original German work by an American author must be manufactured in this country to obtain protection, and that the American author printing his work in English abroad may claim _ad interim_ protection but can obtain no substantial benefit from it. In case a German-American citizen, or German resident of this country, writes a book in the German language and prints it first in Berlin, he can have no American copyright in the German edition; and if copies of such an edition, without copyright notice, should reach the United States previous to manufacture and publication of the work here, any one would have the right to reprint print it, and the work would be practically dedicated to the public, while the copyright notice could not be affixed to such foreign printed edition without violation of the law. If, however, the German work were a translation made by or for the author of a work written in English, the general copyright of the English work would cover the German edition, but the German copies could not then be imported.

{Sidenote: Dramas excepted}

A drama copyrightable as such under subsection (d) is not subject to the manufacturing provision, unless classified as a book under subsection (a). A printed drama was held not to be subject as a book to the manufacturing provision in Hervieu _v._ Ogilvie, in the U. S. Circuit Court, by Judge Martin in 1909, and this decision under the old law is applicable to the new code.

{Sidenote: Exception of foreign original texts}

The exception of "the original text of a book of foreign origin in a language or languages other than English,"--drafted by the author of the present volume, introduced at the instance of the American (Authors) Copyright League, as the McCall bill with the assent of the representatives of the typographical unions responsible for the manufacturing provision,--was included to assure a real reciprocity in copyright with continental and other non-English nations. The exception is repeated toward the close of the section in the somewhat wider phrase "books of foreign origin in a language or languages other than English," which omits restriction to "the original text"; but it is probable that the second phrasing would be construed in conformity with the first, as the evident intention of the law.

{Sidenote: Exception of foreign illustrative subjects}

The exception from lithographs and photo-engravings of subjects which "are located in a foreign country and illustrate a scientific work or reproduce a work of art" is intended to permit the importation, either separately or for book use, of direct reproductions made abroad of scenes or objects which otherwise could be reproduced in this country only indirectly and at second-hand; the confusing and probably careless use of the word "and" might seem to exclude from the exemption a lithograph or photo-engraving of a natural scene, illustrating a work of travel, but the courts might here feel justified in taking the more liberal view.

{Sidenote: Affidavit requirement}

To the manufacturing provision of the previous law has been added a new affidavit requirement (sec. 16) as follows:

"That in the case of the book the copies so deposited shall be accompanied by an affidavit, under the official seal of any officer authorized to administer oaths within the United States, duly made by the person claiming copyright or by his duly authorized agent or representative residing in the United States, or by the printer who has printed the book, setting forth that the copies deposited have been printed from type set within the limits of the United States or from plates made within the limits of the United States from type set therein; or, if the text be produced by lithographic process, or photo-engraving process, that such process was wholly performed within the limits of the United States, and that the printing of the text and binding of the said book have also been performed within the limits of the United States. Such affidavit shall state also the place where and the establishment or establishments in which such type was set or plates were made or lithographic process, or photo-engraving process or printing and binding were performed and the date of the completion of the printing of the book or the date of publication."

{Sidenote: Avoidance of errors}

In preparing the affidavit, which is necessary for books only, the applicant should be careful to note the following points, as to which errors are commonly made. The affidavit should correspond exactly with the application (as that with the title-page or other data in the work itself). The affidavit cannot be made till _after_ publication and must state the exact day of publication or the date of completion, either or both, which last means not necessarily the completion of printing the whole edition, but of the deposit copies. The affidavit must be taken and signed by an individual, not by a corporation, company or firm as such, and the affiant must state whether he is the claimant, agent of the claimant, or printer, striking out the other designations. The name of the printer and binder must be given in the affidavit with city and state (but not street) address; but this means the printing and binding establishment and not the individual type-setter or binder. If the book is not bound but only issued in paper, the word "unbound" should be written into the affidavit. It is necessary to give the _venue_, that is, the county and state in which the affidavit is made, and to take the oath before a notary or other official authorized to take such oath in that locality (not merely a justice of the peace). The affiant's and notary's names should be signed exactly as written into the body of the affidavit, and the seal should correspond exactly with the name of the official and the _venue_. The signature of the affiant and of the notary and the seal are all necessary to validate the affidavit. The names and other writing should be written plainly, and the affiant should make sure to read the affidavit and compare it with the application and with the book.

{Sidenote: Forfeiture by false affidavit}

In case of false affidavit, forfeiture of copyright is provided (sec. 17) as follows:

"That any person who, for the purpose of obtaining registration of a claim to copyright, shall knowingly make a false affidavit as to his having complied with the above conditions shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine of not more than one thousand dollars, and all of his rights and privileges under said copyright shall thereafter be forfeited."

{Sidenote: Exact compliance necessary}

The affidavit clause is exact and specific. It may be made either by the printer or the publisher. This exacting and drastic addition to the manufacturing clause met with strong opposition from the friends of copyright, particularly authors and book publishers, as unnecessary and unreasonable, but was successfully insisted upon by the representatives of the typographical unions. The voiding of copyright because of a false affidavit by a printer or publisher, which might even be mistakenly made and of which the author would have no cognizance, was opposed as especially unjust to authors and out of keeping with the rest of the law. Under the statute as enacted, this provision must be exactly complied with, and the courts would doubtless enforce it to the letter.

{Sidenote: Importation questions}

The manufacturing provision of 1891 and its extension in the code of 1909 have raised important and difficult questions as to the time at which these provisions become effective in relation with copyrights previously existing. It was claimed by Benziger Brothers, as proprietors of a copyright American edition of the "Key of Heaven," that an edition of sheets printed in America previous to the law of 1909 and sent abroad for binding, could be re-imported notwithstanding the new provision against binding, but the decision of the appraisers at New York against this claim was upheld by the Secretary of the Treasury, under advice of the Attorney-General, and the courts have not yet had occasion to pass on the question. This ruling indicates that since July 1, 1909, copyright could not be maintained on any book unless type-set, printed and bound completely within the limits of the United States, and that any copyrighted books, partly manufactured in the United States, but bound and otherwise completed abroad since July 1, 1909, must be denied importation. It has been decided, however, by the Attorney-General, that the manufacturing requirement as to binding refers only to the original, and that copyright books rebound abroad cannot be denied importation. Also it has been held that a foreign translation of a copyright work, for which translation American copyright is not claimed, cannot be refused importation.

The provisions supplementing the manufacturing clause by prohibiting importation are given in the chapter on importation.

{Sidenote: Foreign manufacturing provisions}

Holland is the only country in Europe which requires that the deposit copies shall be printed within the country and thus makes manufacture a condition of copyright--an inheritance probably from the times when the printer-publishers of the Protestant Netherlands were the only ones printing the books barred in Catholic countries by the _index expurgatorius_, and when deposit was naturally required from them. The law covered the Dutch West Indies, and the precedent was followed in Siam; and in the Transvaal and Orange State the Dutch law continued after they had become English colonies. Otherwise than in these countries, only the British dominions of Canada and Newfoundland and the Commonwealth of Australia have manufacturing provisions. Canada made such provision as to domestic copyright in 1886 and again in the act of May 2, 1889, which last provides that a literary, scientific, musical or artistic work shall, before or simultaneously with publication or production elsewhere, be registered in the office of the Minister of Agriculture, and be printed or published or produced in Canada within one month after publication or production elsewhere. Newfoundland in its statute of 1892, following our own of 1891, provided similarly that the condition for obtaining copyright shall be that the literary, scientific or artistic work shall be printed and published or produced in this colony. Australia, under the new code of 1905, confines domestic copyright to books (inclusive of drama) "printed from type set up in Australia, or plates made therefrom, or from plates or negatives made in Australia in cases where type is not necessarily used," and in an artistic work to those "made in Australia."

{Sidenote: English patent proviso}

Unfortunately, the precedent of our copyright act of 1891 has since been followed in England in the patent and designs act of 1907, which provides (sec. 27) that a patent may be revoked after four years "on the ground that the patented article or process is manufactured or carried on exclusively or mainly outside the United Kingdom." Such a provision had been a feature of the patent laws of Germany, Canada and other countries, but it is new in British law and has evoked strong protest from American patentees, notwithstanding that it is parallel with our manufacturing provision with respect to copyrights.

XI

DRAMATIC AND MUSICAL COPYRIGHT, INCLUDING PLAYRIGHT

{Sidenote: Dramatists' and composers' rights}

The dramatic author and the musical composer receive recompense for their creative labor not so much from publication of their works in the printed form of a book as through their performance or representation, when protected as playright or performing right, as the artist receives remuneration not only for the reproduction and sale of copies, but also from the exhibition as well as sale of his original work. Dramatic and musical copyright, in the wide sense, therefore, covers copyright in the specific sense and playright, as to which latter common law rights especially need statutory protection.

{Sidenote: American provisions}

In the protection of dramatic and musical compositions the new American code specifically provides not only for copyright, but for playright or right of performance. Under subject-matter of copyright (sec. 5) such works are classified as "(d) Dramatic or dramatico-musical compositions; (e) Musical compositions"; and the Copyright Office Rules and Regulations further define these classes as follows:

{Sidenote: Copyright Office definitions}

"8. _(d) Dramatic and dramatico-musical compositions_, such as dramas, comedies, operas, operettas and similar works.

"The designation 'dramatic composition' does not include the following: Dances, ballets, or other choregraphic works; tableaux and moving picture shows; stage settings or mechanical devices by which dramatic effects are produced, or 'stage business'; animal shows, sleight-of-hand performances, acrobatic or circus tricks of any kind; descriptions of moving pictures or of settings for the production of moving pictures. (These, however, when printed and published, are registrable as 'books.')

"9. _Dramatico-musical compositions_ include principally operas, operettas, and musical comedies, or similar productions which are to be acted as well as sung.

"Ordinary songs, even when intended to be sung from the stage in a dramatic manner, or separately published songs from operas and operettas, should be registered as musical compositions, not dramatico-musical compositions.

"10. _(e) Musical compositions_, including other vocal and all instrumental compositions, with or without words.

"But when the text is printed alone it should be registered as a 'book,' not as a 'musical composition.'"

{Sidenote: Rights assured}

To dramatic and musical authors are given (sec. 1) in addition to the general right, granted in subsection "(a) To print, reprint, publish, copy and vend the copyrighted work," the specific exclusive rights:

"(b) ... to dramatize it if it be a non-dramatic work; to convert it into a novel or other non-dramatic work if it be a drama; to arrange or adapt it if it be a musical work;...

{Sidenote: Dramatic rights}

"(d) To perform or represent the copyrighted work publicly if it be a drama or, if it be a dramatic work and not reproduced in copies for sale, to vend any manuscript or any record whatsoever thereof; to make or to procure the making of any transcription or record thereof by or from which, in whole or in part, it may in any manner or by any method be exhibited, performed, represented, produced, or reproduced; and to exhibit, perform, represent, produce, or reproduce it in any manner or by any method whatsoever;

{Sidenote: Musical rights}

"(e) To perform the copyrighted work publicly for profit if it be a musical composition and for the purpose of public performance for profit; and for the purposes set forth in subsection (a) hereof, to make any arrangement or setting of it or of the melody of it in any system of notation or any form of record in which the thought of an author may be recorded and from which it may be read or reproduced";--to which provision of subsection (e), in respect to copyright control of mechanical records, are added provisos that such control shall not extend to compositions published and copyrighted before July 1, 1909, and works of foreigners whose state does not grant similar right to American citizens, and shall be subject to compulsory license arrangements, requiring that if the author permits any mechanical reproduction, he shall license any manufacturer under conditions stated in detail in the act, all of which exceptions and conditions are fully stated in the chapter on mechanical music provisions.

{Sidenote: Excepted performance}

An exception to these exclusive rights is, however, made in the proviso (sec. 28) "_Provided, however_: That nothing in this Act shall be so construed as to prevent the performance of religious or secular works, such as oratorios, cantatas, masses, or octavo choruses by public schools, church choirs, or vocal societies, rented, borrowed, or obtained from some public library, public school, church choir, school choir, or vocal society, provided the performance is given for charitable or educational purposes and not for profit."

This proviso is singularly defective in phraseology, as the phrase "octavo choruses" has no musical significance and uses a music-trade term to designate choruses usually but not necessarily published in octavo form; and the duplication of the words "public school," etc., is probably a verbal error in the bill which mistakenly became part of the law. The proviso is doubtless intended and would fairly be construed to permit gratuitous unauthorized performance of religious or secular works such as oratorios, cantatas, masses, and choruses by public schools, church choirs, school choirs or vocal societies, from copies rented, borrowed, or obtained from some public library, provided the performance is given for charitable or educational purposes and not for profit. Curiously the letter of the proviso would seem to provide that the beneficiary organization cannot perform from a purchased copy, but only from copies rented, borrowed or "obtained from" some public source; but this also is an evident error.

{Sidenote: Performance "for profit"}

It should be noted that the omission from subsection (d) as to drama and the inclusion in subsection (e) as to music, of the words "for profit,"--doubtless with the intent of assuring to the individual purchaser of music the right to perform it privately,--have significance here, and serve, it would seem, to give the dramatic author absolute control even over gratuitous performances and to limit the control of the musical author to performances which are not gratuitous, a negative provision covering, and giving much wider latitude than, the proviso (sec. 28) above cited. But as dramatico-musical compositions are classified (sec. 5, d) with dramatic compositions, and an oratorio and possibly a cantata might be considered as a dramatico-musical composition, the proviso (sec. 28) may have a specific effect as to this kind of dramatico-musical compositions. The law is unfortunately defective and confusing by reason of this proviso and will be so difficult of judicial construction as to suggest the omission, by amendment, of this proviso. The use of the word "public" in both cases implies that the author cannot control private representation and opens other questions difficult of judicial interpretation.

{Sidenote: Works not reproduced}

It is provided (sec. 11): "That copyright may also be had of the works of an author of which copies are not reproduced for sale, by the deposit, with claim of copyright, of one complete copy of such work if it be ... a dramatic or musical composition"; provided that the required deposit of two copies shall be made, as in the case of books, on publication thereafter by the multiplication and public sale or distribution of copies.

{Sidenote: Copyright notice}

The notice of copyright must be printed (sec. 18) on each copy, as in the case of a book in the form "Copyright" or the abbreviation "Copr.," "accompanied by the name of the copyright proprietor" and "the year in which the copyright was secured by publication." In the case of a published dramatic work the notice must be placed, as in the case of a book, upon the title-page or the page immediately following, but in the case of a published musical work the law provides that the notice "shall be applied ... either upon its title-page or the first page of music," and this specification makes the copyright notice of doubtful validity if applied in a musical work on the page following the title-page, unless this is the first page of music.

{Sidenote: Dramatico-musical works protected from mechanical reproduction}

The classification of dramatico-musical compositions under subsection (d) as dramatic works and not under subsection (e) as musical compositions, defines an opera and possibly an oratorio or cantata as a dramatic rather than a musical composition. As the dramatic author is given (sec. 1, d) the comprehensive rights over reproduction "in any manner or by any method whatsoever" while the musical author is limited (sec. 1, e) in respect to mechanical reproductions, it would seem to follow that the author of an opera may retain absolute control over mechanical reproduction, as the author of a non-musical drama retains absolute control over phonographic or other reproduction of his drama. This would seem to confine the requirements that the author of a musical composition permitting mechanical reproduction should license any manufacturer, to musical compositions which are not dramatic, _i. e._, to instrumental compositions or to songs and other vocal music not associated with drama. As an overture to an opera is an integral part of the dramatico-musical composition, it would even seem that an overture which is part of an opera, or possibly an orchestral introduction or interlude in an oratorio or cantata, would not be subject to the mandatory license provided as to musical compositions. But this question has not yet come before the courts.

{Sidenote: Dramatic and musical works excepted from manufacturing provisions}

Dramatic and musical works are not mentioned in the manufacturing and affidavit provisions (secs. 15, 16, 17) which are specifically confined to "the printed book or periodical specified in section 5, subsections (a) and (b)," while dramatic and musical compositions are classified in subsections (d) and (e). It might be alleged that dramatic or musical compositions in book form or produced as books from type or by lithographic or photo-engraving process should be classified as books and subjected to the manufacturing provisions; but this is distinctly not the letter of the law. This exception was specifically upheld for music in the case of Littleton _v._ Ditson in 1894, by Judge Colt in the U. S. Circuit Court in Massachusetts, where the defense that there was no copyright in certain songs because the music sheets were not from type set or plates made within the United States, was overruled; and for drama in Hervieu _v._ Ogilvie in 1909, where in the U. S. Circuit Court in New York, Judge Martin cited with approval Judge Colt's decision. This ruling was also embodied in Treasury decision No. 21012 of April 17, 1899, permitting the importation of musical compositions copyrighted in the United States and printed abroad.

{Sidenote: British colonial practice}

The Australian law, on the contrary, specifically includes under the definition of "book," a "dramatic work" and a "musical work," and thus subjects both to the manufacturing clause. Printing and publishing are required in Canada ("within one month after publication or production elsewhere") and in Newfoundland to obtain copyright under the local acts; and as drama is not mentioned but included generically as a book or literary composition, and music is specifically included, both dramatic and musical compositions must be manufactured within each country to obtain local, as distinguished from British or Imperial, protection.

{Sidenote: Entry under proper class}

{Sidenote: Applications and certificates}

The author of a dramatic, dramatico-musical, or musical composition should therefore be careful to make application in the United States under class (d) or (e) and not as a book under class (b). The fact that the law classifies under subsection (d) dramatic or dramatico-musical compositions and under subsection (e) musical compositions, has caused the Copyright Office to prepare separate application forms and certificates for (D1) a dramatic composition, (D3) a dramatico-musical composition and (E1) a musical composition, "published"; as also for (D2) a dramatic composition (or a dramatico-musical composition) and (E2) a musical composition, "not reproduced for sale." It would seem advisable therefore that the author of an opera, oratorio or the like, to obtain the fullest protection under the law, should enter such work in class (d) as a dramatico-musical composition rather than in class (e) as a musical composition, and thus safeguard himself against the mechanical music proviso applied exclusively to class (e).

{Sidenote: Right of dramatization}

In regard to dramatization, the new American code is specific (sec. 1, b) in giving to the author of an original work the exclusive right "to dramatize it if it be a non-dramatic work" or "to convert it into a novel or other non-dramatic work if it be a drama." The relations of a maker of a dramatic version of a literary work or of a literary version of a dramatic work, would follow the same rule as in the case of a translator. An author has the exclusive right to dramatize or permit the dramatization of his work, and the dramatization may be copyrighted in the name of the original author or of the dramatizer, but the dramatizer cannot prevent another dramatization of the same work unless by transfer of exclusive right from the original author.

{Sidenote: Dramatization term}

The specific copyright on a published dramatization dates from the publication of the dramatization, which may extend the protection of the dramatization beyond the copyright term of the original work. But on the expiration of the copyright in the original work rival dramatizations can no longer be prevented. All this holds true as to the novelization of a drama.

{Sidenote: Musical arrangements}

In respect to music, the language of the law (sec. 1, e) is thoroughly comprehensive in covering the arrangement or setting of a musical composition or of a melody in any notation or in any form whatever. This gives to the musical author entire control over the use of any part of his work, as for instance the transcription from an orchestral work for piano use, the instrumentation of a vocal work or the use for a song of any melody in an orchestral work. On the other hand, variations, transcriptions and so forth of a copyrighted work, made under authorization from the copyright proprietor, may be separately copyrighted as to that extent original works.

{Sidenote: Copyright Office definitions}

The Copyright Office Rules and Regulations say specifically: "(10) 'Adaptations' and 'arrangements' may be registered as 'new works' under the provisions of section 6. Mere transpositions into different keys are not expressly provided for in the copyright act; but if published with copyright notice and copies are deposited with application, registration will be made."

{Sidenote: Transposition}

In Hein _v._ Harris in 1910, the U. S. Circuit Court awarded damages where the chorus of a song proved on transposition into the key of the copyright song to be practically a copy of the melody.

{Sidenote: Works in the public domain}

It is specifically provided (sec. 6) that "adaptations, arrangements, dramatizations ... or other versions of works in the public domain, ... shall be regarded as new works subject to copyright," and in the case of such versions copyright inheres in the dramatizer, adaptor or maker of a version, as in the case of a translator of a book, in the public domain. Thus a dramatic or musical work in the public domain may be dramatized or adapted freely and any individual dramatization or adaptation may be copyrighted by the dramatizer or adaptor, but he cannot prevent other dramatization or adaptation of the same work.

{Sidenote: Dramatization right protected by courts}

The American courts have fully upheld the control over dramatization under the right "to dramatize" specifically given in the law of 1891 and preserved under the new code. In 1895 in Harper _v._ Ranous, Judge Lacombe, in the U. S. Circuit Court in New York, enjoined a play, "Trilby," on the ground that the drama "presents characters, plot, incidents, dramatic situations and dialogue appropriated from Du Maurier's copyrighted novel," while denying protection against the mere use of the title. In the same year and in respect to the same novel, in Harper _v._ Ganthony, the Harpers, as owners of the copyright of "Trilby," also obtained from Judge Lacombe an injunction against Miss Ganthony, who had presented at the Eden Musee a series of monologues in costume following the plot of the story, which the judge held to constitute a dramatic version and therefore an infringement. A story, "The transmogrification of Dan," purchased by the _Smart Set_ for $85, copyrighted as part of that periodical and assigned back to the author, was dramatized by Paul Armstrong and produced by the defendants under the name of "The heir to the Hoorah," retaining the central incident of the story, though with modification and extension of the characters, situation and dialogue. In 1908 Judge Hazel, in Dam _v._ Kerke La Shelle Co., in the U. S. Circuit Court in New York, awarded the full profits from the dramatic representation as damages to the executor of Dam, the author of the story; which decision was fully upheld in 1910 by the Circuit Court of Appeals through Judge Noyes. Thus the new American code specifically enacts into statute law previous decisions of the American courts.

{Sidenote: English law and practice}

Under English law, on the contrary, the right of dramatization has not been included under copyright; the mere copyrighting of a book could not prevent its dramatization, but the copyrighting of a work in dramatized form before its publication as a novel practically prevented other dramatization of the literary work in so far as the one drama was a reproduction of the features of the other. As stated by Colles and Hardy in their recent work (1906) on "Playright and copyright in all countries," "a novel is not a dramatic piece, ready and fit for representation on the stage. Consequently, the author of a novel has the copyright in his book, but he has no playright according to English law." The general principles were best stated in 1874 by Chief Justice Cockburn in Toole _v._ Young, where Grattan's drama "Glory" was declared not to be an infringement either of Hollingshead's novel "Not above his business," on which it was confessedly founded, nor of the dramatic version made under the title of "Shop" by Hollingshead himself, but never printed or performed and therefore unpublished: "Two persons may dramatize the same novel, for that is common property. It is true that a writer cannot produce and represent a drama, which he has borrowed from a drama written previously by another person; he would then be representing the production of the first dramatist.... I wish to guard myself against being supposed to lay down that, if a writer, while dramatizing a novel, takes the incidents, characters, and dialogue of a previous drama founded upon that novel, and reproduces what is in substance identical with the previous drama, there might not be an infringement of the right of the earlier dramatist if the later drama be represented on the stage."

{Sidenote: The new British code}

The new British measure remedies this defect by specifically including the sole rights to convert a novel or other non-dramatic work, or an artistic work, into a dramatic work, by way of performance in public or otherwise, and to convert a dramatic work into a novel or other non-dramatic work.

{Sidenote: Infringement cases}

A curious early case was that of Reade _v._ Conquest in 1862, in which the son of Charles Reade had made and sold to the defendant, who produced it at his theatre, a dramatic version of "It is never too late to mend" in ignorance of the fact that his father had first written a play called "Gold" and had then transformed that into the novel; in this the defendant was enjoined because the version which he produced infringed the earlier play. In Beere _v._ Ellis in 1889, Baron Pollock enjoined a rival dramatic version of "As in a looking glass" on the ground that while bits of dialogue, presumably copied into the defendant's version, were scarcely substantial, yet a special situation founded on a new incident not in the novel and certain stage business connected with the death of the heroine constituted an infringement. In 1890, in Schlesinger _v._ Turner, the executors of Wilkie Collins obtained an injunction against a rival dramatic version of "The new Magdalen," the judge holding that although the defendant's version had not been copied from the author's own play, it was substantially similar and therefore an infringement. That an independent and different dramatic version can, however, be made, was specifically held in the case of Schlesinger _v._ Bedford in the same year, when Collins's executors failed to obtain an injunction against the defendant's rival dramatic version of "The woman in white," although the novelist himself had previously dramatized his work, the judge holding that the two plays were "essentially different."

{Sidenote: Use of substantial quotations}

But the use in a play of considerable portions of a copyrighted novel would be an infringement. That a dramatization using substantial parts of a novel infringes the novel, was definitely established in 1863 in Tinsley _v._ Lacy, where the proprietor of Miss Braddon's "Lady Audley's secret" and "Aurora Floyd" obtained an injunction against a bookseller who sold dramatizations under the same titles of which a quarter or more of the text was taken bodily from the novels. So in 1888 an injunction was obtained from Judge Stirling, in Warne _v._ Seebohm, in the Court of Chancery, against a dramatization of "Little Lord Fauntleroy" which copied from the novel beyond the limits of fair use and was therefore considered a "copy" from the work.

{Sidenote: Specific scenes or situations}

Where in dramatizing a novel, the dramatic author invents and introduces new scenes, situations or other features, the copying of such added features into another dramatic version of the novel, otherwise independent, constitutes an infringement of the original play. In the case of Nethersole _v._ Bell in 1903, with respect to rival English dramatic versions of Daudet's "Sapho," it was held that while there might lawfully be independent dramatizations of the novel, the circumstances indicated that the Espinasse version of the defendant, said to have been written in Australia, had been so modified consequent to representation of Clyde Fitch's version, as to constitute an infringement of the plaintiff's rights. In Tree _v._ Bowkett in 1896, plaintiff obtained an injunction against the use by the defendant in a rival dramatic version of "Trilby" because of two scenes introduced by the plaintiff into his drama which were not in the novel or in the American dramatization. On the other hand, in Chatterton _v._ Cave in 1876, where the plaintiff had dramatized Eugene Sue's "The wandering Jew" and added two scenes not in the novel, an injunction was denied by Lord Chief Justice Coleridge against an independent dramatization, though it had included similar scenes, on the ground that these were not sufficiently substantial and material in the play to constitute an infringement. And this application of the principle of _de minimis non curat lex_ was affirmed by the House of Lords in 1878.

{Sidenote: What is a dramatic composition}

{Sidenote: Judge Blatchford's opinion}

As to what is a dramatic composition or representation, no definition is given in the American law, and the English laws of 1833 and 1842, quoted beyond, are not explicit. Both English and American courts have therefore been obliged to make or to extend definitions, but the decisions have been somewhat confusing. The most explicit general statement is that made by Judge Blatchford in discussing Daly _v._ Palmer in 1868: "A composition, in the sense in which that word is used in the act of 1856, is a written or literary work invented or set in order. A dramatic composition 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 or 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 without 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, 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."

{Sidenote: Judicial definitions}

In a recent case of Barnes _v._ Miner in 1903, where an injunction was asked against a vaudeville change artist who had combined songs in costume with a cinematograph representation of scenes in the dressing room during the changes, Judge Ray, in the U. S. Circuit Court in New York, declined to grant relief, adding that as a mere spectacular composition such "sketch" was not properly a dramatic composition. The English law was construed in 1848 in Russell _v_. Smith, when a song "The ship on fire," in which dramatic action was exhibited by the singer alone without costume or scenery, while seated at the piano, was construed to be a "dramatic piece"--the action being "not related but represented." In 1872, in Clark _v._ Bishop, a music hall song "Come to Peckham Rye" was similarly protected as a "dramatic piece." But in 1895, in Fuller _v._ Blackpool Winter Gardens Co., it was held that the song "Daisy Bell," though sung in character costume, was not a "dramatic piece" because its representation did not require acting or dramatic effect. Later decision construed the act of 1833 to cover only spoken words, the English Court of Appeal holding in Scholz _v_. Amasis in 1909, through Lord Chief Justice Farwell, that only substantial copying of written dialogue, and not of a plot or situation, constitutes infringement, and in Tate _v._ Fullbrook in 1908, that the writer of the dialogue is the sole author of the musical sketch though devised and staged by another. But in two cases, one by Moore in 1903 and one by Fraser in 1905, against George Edwardes, English juries gave heavy damages where the scenarios for musical comedies submitted to that theatrical manager had been made the basis for musical comedies by other writers afterward produced at Daly's Theatre, London.

{Sidenote: Moving pictures may be infringements}

The opinion of Judge Blatchford was quoted and followed by the U. S. Circuit Court of Appeals in New York, in 1909, in Harper _v._ Kalem Co., which said through Judge Ward: "The artist's idea of describing by action the story the author has written in words is a dramatization. It is not necessary that there should be both speech and action in dramatic performances although dialogue and action usually characterize them." In this case the defendants had caused persons to represent the action in certain scenes of "Ben Hur" and photographed this representation on a moving picture film, which they reproduced for sale to theatoriums, where public exhibitions were given for profit. The court held under the old law that "moving pictures would be a form of expression infringing the author's exclusive right to dramatize his writings and publicly to perform such dramatization." The contrary view was held in the English case of Karno _v._ Pathe Freres in 1908, where also the Court of Appeal held, in 1909, that not the manufacturer but the exhibitor of such a film would be the responsible party if there were infringement.

{Sidenote: Literary merit not requisite}

The doctrine that copyright does not depend on literary merit, was strengthened in a dramatic case in Henderson _v._ Tompkins in 1894, in the U. S. Circuit Court in Massachusetts by Judge Putnam, who held that a paraphrase of "I wonder if dreams come true," from "Ali Baba," constituted an infringement, though the offending piece had slight literary merit.

{Sidenote: What is a dramatico-musical composition}