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right. Prior to this act there was no provision in [ 0 103] 3. Unpublished Works—a. In General. the copyright law of the United States whereby By the act of 1909, congress for the first time aucopyright protection was expressly extended to thorized the copyright of unpublished works.16 periodicals, such as newspapers and magazines, but This authority is not expressly limited to any parthese publications were mentioned in the law in such ticular class of works, but extends to all the a manner as to imply that they came within its pro- works of an author of which copies are not reprotection;' and while it has been held that there can duced for sale. The statute mentions, however, be no general copyright, as an entirety, of an ordi- as being within its terms, lectures, or similar producnary newspaper which is composed in large part of tions; dramatic, musical, or dramatico-musical commatter not entitled to protection, and that a mere positions; photographs; motion pictures; works of news item is not copyrightable, ,11 the better view is art; plastic works; and drawings, and the authority that newspapers were copyrightable as "books' is, perhaps, limited to the classes of works enumereven under former statutes, 12 and this view is

Other sections of the statute refer to manustrengthened by their specific inclusion in the pres- scripts generally,19 and to manuscripts of dramatic ent law which is in many respects a codifying stạt- works not reproduced in copies for sale,20 as subute.13 In England a newspaper may be protected jects of copyright. by statutory copyright as included in the term In England copyright in unpublished works is "book.'' 14 Some of the British colonies have given specifically conferredi in lieu of the common-law protection ky statute to news contained in foreign right which is abolished,22 telegrams, the period of protection varying from [ $ 104] b. Lectures, Sermons, and Addresses. twenty-four to one hundred and twenty hours in the Lectures, sermons, and addresses, prepared for oral respective colonies.15 right for such work under the con-, publications appearing oftener than (a) The forn of stating news is ditions and for the term specified in once a year; bulletins or proceedings copyrightable. See infra § 267. this act' it certainly was not in- of societies, etc., which appear regu- Nature of property in news see tended that a chapter or two-a mere larly at intervals of less than supra § 21. fragment of book--should fall year; and, generally, periodical pub- 12. Harper v. Shoppell, 26 Fed. within the meaning of the word lications which would be registered 519, 23 Blatchf. 431 (a case involving 'work.' Such fragment is

not

as second-class matter at the post the infringement of a cut published 'work,' and can not be so considered. office." Rules and Regulations for in plaintiffs' newspaper. Wallace, J., It is only a part of a work. There Registration of Claims to Copyright said: "The copyright of the plainis a special reason why this meaning (Copyright Office Bul. No. 15) rule 6. tiffs' newspaper was a copyright of should be given the words 'book' and 9. Rev. St. § 4956, as amended by a book, within the meaning of the 'work' in this act which did not exist Act March 3, 1891 (26 St. at L. 1107): copyright laws); Drone Copyright before the passage of the act of Harper v. Donohue, 144 Fed. 491 [aff P 169; 1 Spelling Extra. Rel. § 866. March 3, 1891.

To hold that 146 Fed. 1023 mem, 76 COA 678 Books as including newspapers set a mere fragment of a book could be mem).

supra § 101. copyrighted, would open the door to

10.
Chicago Tribune Co. v. Asso-

13. United Dictionary Co. the most extensive evasions of the ciated Press, 116 Fed. 126; Clayton

G. & C. Merriam Co., 208 U. S. 260, manufacturing provisions of the act. V. Stone, 5 F. Cas. No. 2,872, 2 Paine 264, 28 SCt 290, 52 L. ed. 478 (where For illustration, the Librarian of 382, 392 (where it is said: "The term Congress transmits through you what science cannot, with any propriety be

a later copyrighted statute was re

ferred appears to be a booklet in pamphlet applied to a work of so fluctuating enactment on the same subject, and

to in construing an earlier form of 51 pages, the last of and fugitive a form as that of a

Mr. Justice Holmes said: "It is said which appear the words "The end." newspaper or price-current, the sub

that the act of 1905 cannot affect This has been filed with the registerject-matter of which is daily chang

the construction of the law under of coyrights under section 21 for ad ing, and is of mere temporary use"). interim protection. But as a matter [a] Decisions reviewed."In Trib- and it cannot, beyond illustrating a

which the parties' rights were fixed, of fact this pamphlet contains only

Co.

V. Associated Press, 116 the first four chapters of the book, Fed. 126, the Chicago Tribune at

policy that has not changed").

14. and how many more there are and tempted to copyright, under contract,

Walter V. Lane, (1900) A. C. of how many volumes the entire some special telegraphic matter of

539, 2 BRC 312; Exchange Tel. Co., work consists there is nothing to in- the London Times, by depositing in

Ltd. v. Gregory, [1896] 1 Q. B. 147; dicate; nor could the extent of the the Chicago post office,

the

Cate v. Devon, etc., Constitutional work make any difference so far as evening before publication, the gen

Newspaper Co., 40 Ch. D. 500; Walter

title the principle involved is concerned; eral

of the

v. Howe, 17 Ch. D. 708. newspaper, with

Compare nor can the principle be affected by serial number and date, and by like

Platt v. Walter, 17 L. T. Rep. N. S. the fact that the pamphlet purports deposit, immediately upon publica

157 (in which it was doubted whether to be a complete work. If protection tion, of copies of the newspaper,

5 & 6 Vict. c 45 $ 18, extends to be accorded these four chapters, no each addressed to the Librarian of newspapers); But see Cox V. Land, other publisher could afford to pub-Congress. It

held by Judge etc., Journal Co., L. R. 9 Eq. 324 lish the remainder of the book, and Seaman that it was at least question

(overr Walter v. Howe, 17 Ch. D. though not legally protected by copy- able whether a copyright can thus be

708] (holding that a newspaper is

not secured for a newspaper. right, yet the protection of the re

But as the

book within the Copyright maining portion would in fact be defendant did not copy from the

Act). perfect. But at the same

15. time, Tribune, but directly from the Lon

MacGillivray Copyright p 186 neither the manufacturing provisions don Times after its publication in

(where the following are enumerated in section 15 nor the prohibitions England, and as the matter published

colonies having

laws:

such against importations in section 31 by the Times and Tribune was not

Australian Colonies, Tasmania, Cape would apply to the parts not copy- identical, there was no infringement,

of Good Hope, Natal, New Zealand, righted, and the publisher could have nor_was any copyright thus obtained.

Hong Kong and Ceylon). the entire remainder of the book In England it was first held that a

16. Act March 4. 1909 (35 U. S. printed abroad and imported and here newspaper was not

book or

St. at L. 1075 C 320 $ 11).

in bound with the four chapters printed periodical Cox

17. Land, etc.,

Act March 4, 1909' (35 U. S. within the United States. If the law Journal Co., L. R. 9 Eq. 324, but the

St. at L. 1075 C 320 § 11). should be construed to permit this, contrary was decided in Walter v.

18. Act March 4, 1909 (35 U. S. it is quite probable that the copy- Howe, 17 Ch. D. 708. in Cate

St. at L, 1075 C 320 S 11). righting of but a part of books which | Devon, etc.. Constitutional News

19. Act March 4, 1909 (35 U. s. are not supposed to be of very sub- paper Co., 40 Ch. D. 500, and finally St. at L. 1075 C 320 $ 60) (which, stantial merit would become the by the Court of Appeals in Trade after providing for the destruction custom. But independent of this con- Auxiliary Co.

Middlesborough, of useless copyright deposits, further sideration, there appears to be noth-, etc., Tradesmen's Protection Assoc., provides: “That no manuscript of an ing in the statute which implies that 40 Ch. D. 425. Whatever may have unpublished work shall be destroyed but a part of a work may be copy- been the true construction of former during its term of copyright without righted, nor have I been able to find copyright acts, and whether or not specific notice to the copyright any authorities showing that other a newspaper is entitled to copyright proprietor of record, permitting him siinilar statutes have been so con- I think the international copyright to claim and remove it"). strued." 28 Op. Atty.-Gen. (Wicker- act of 1891 has set the question at 20. Act March 4, 1909 (35 U. S. sham) 176, 178. But see infra § 272. rest so far as periodicals like Har- St. at L. 1075 c 320 $ 1 (d)).

8. Act March 4, 1909 (35 U. S. St. per's Bazar are concerned.” Harper 21. Copyright Act, 1911 (1 & 2 at L. 1075 C 320 $ 5).

v. Donohue, 144 Fed. 491, 496 (aff Geo. V c 46 $ 1 (1) (b)). (a) “This term includes

146 Fed. 1023 mem, 76 CCA 678 mem). 22. Copyright Act, 1911 papers, magazines, reviews, and serial 11. See supra § 91.

Geo. V c 46 8 31). See also supra $ 4.

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delivery, are specifically made the subject of copy- the work itself, not its subject or ideas, which may right,23 and provision is also made for copyrighting be copyrighted.3* No intellectual conception is copythem as unpublished works.24

rightable until it has taken material shape.3 Under the English statutes such works have long [107] 4. Dramatic or Dramatico-Musical Combeen protected.25

positions—a. In General. Dramatic or dramatico[105] c. Manuscripts. Unprinted manuscript,

musical compositions are one of the statutory classes such as a collection of letters, has been held to be

of copyrightable works enumerated in the act of within the meaning of the statute of Anne.28 In the United States an author's or proprietor's prop

1909.36 Dramatic compositions were first mentioned erty in an unpublished manuscript was specifically

as such in the act of 1856,37 since which time all protected by the former statute. 27. The term “manu

revisions of the copyright law have specifically as used in this statute, includes private

named dramatic compositions as a subject of copyletters,28 but does not include pictures.

29
The act

right,38 and they have been copyrightable as such, of 1909 contains no similar provision, although all

provided they are of a character falling within the rights. at common law or in equity are expressly

constitutional description of copyrightable works.39 preserved, and the copyrighting of manuscripts

Under the English statutes dramatic compositions is authorized. 31

have long been entitled to copyright.* [0 106] d. Inchoate or Intended Works. An [$ 108] b. What Constitutes. In the United inchoate or merely intended publication is not the States the term “dramatic composition” is not desubject of copyright,32 and will not be protected fined by the copyright statutes and its meaning must under the copyright law, notwithstanding its title

be ascertained by judicial construction. The copyhas been entered in the copyright office as a step right office, however, has placed a construction on toward obtaining a copyright,33 because it is only the term.“? In England, there are statutory defini

23. Act March 4, 1909 (35 U. S. ute, but the books themselves had published or unpublished !Iterary St. at L. 1075 C 320 $ 5); Rules and not been completed even in manu- production, and, therefore, there can Regulations for Registration of script, and had not been published be no copyright in the prospective Claims to Copyright (Copyright deposited. The commission series of newspapers.

The

copyOffice Bul. No. 15) rule 7.

granted the exclusive right of pub- right may attach upon each success. (a) This provision is new (1) in lishing such official catalogues to ive publication, but that which has this act, and has no equivalent or plaintiff's assignor. Defendant was no present existence cannot be the parallel in any previous copyright about to issue his own catalogue of subject of this species of property.'' act of the United States. (2) Prior the exhibitors at such exposition, Platt v. Walter, 17 L. T. Rep. N. S. to this act, protection

for

such when a bill for injunction under the 157, 159. works could be obtained only under copyright law was filed. Plaintiffs' 33. Centennial Catalogue Co. the common law of literary property. book was in a form called a dummy, Porter, 5 F. Cas. No. 2,546. See supra 88 4 et seq; and particu- that is a book containing a few 34. Centennial Catalogue Co. larly see 88 20, 53. (3) Of course, if printed leaves followed by blank | Porter, 5 F. Cas. No. 2,546. reduced to manuscript form, the

Plaintiffs contended that, al- Protection of subject and ideas see manuscript was protected. See supra though subject matter open to all infra 83 267, 268. $$ 14, 48; and infra § 105.

the world cannot be copyrighted, as 35. Oliver Ditson Co. v. Littleton, 24. See supra $ 103.

a general principle, in this particular 67 Fed. 905, 15 CCA 61. 25. See supra 8 53. case it was different, because the

36. Act March 4, 1909 (35 U. S. 28. Pope v. Curl, 2 Atk. 342, 26 information from which alone a cata- St. at L. 1075 C 320 $ 5); Rules Reprint 608.

logue could be prepared had been ex- and Regulations for Registration of 27. Rev. $t. $ 4967, as amended pressly reserved to the commission Claims to Copyright (Copyright by Act March 3. 1891 (26 St. at L. and their assigns, and all exhibitors Office Bul. No. 15) rule 8. 1106 c565 $ 9) (which provided: 1 and visitors were subject to the

37. Act Aug. 18, 1856 (11 U. S. "Sec. 4967: Every person who shall reservation by the published reguprint or publish any manuscript lations.

St. at L. 138) (this act conferred on

The objection was to the the proprietor of copyrighted whatever, without the consent of the publication by defendants of a list dramatic composition exclusive perauthor or proprietor first obtained of leading exhibitors. They further forming rights, in addition to the

shall be liable to the author or proprietor for all damages oc

maintained that by taking the initia- publishing rights alone conferred by

tory steps in recording the title, they former laws); Palmer V. De Witt, casioned by such injury”). And see became entitled to protection, and 32 N. Y. Super. 530, 40 HowPr 293 Little v. Hall, 18 How. (U. S.) 165, the congressional librarian in his (aff 47 N. Y 532, 7 AMR 480). 15 L. ed. 328; Lawrence v. Dana, 15 pamphlet of instructions declared 38. Act July 8, 1870 (16 U. S. St. F. Cas. No. 8,136, 4 Cliff. 1.

that a copyright may be secured for at L. 198 c 230 $ 86); U. S. Rev. St. (a) Effect of statute -"At com

a projected as well as for a com- $ 4952; Act March 3, 1891 (26 U. S. mon law, an author has a right to his pleted work. But the injunction was St. at L. 1106 c 565 $ 1); Act Jan. 7, unpublished manuscripts the same as denied. Centennial Catalogue Co. v. 1904 (33 U. S. St. at L. 4 c 2 $ 1); to any other property he

may Porter, 5 F. Cas. No. 2,546 (where Act March 3, 1905 (33 U. S. St. at L. possess, and this statute gives him Cadwalader, District Judge, "consid- 1000 C 1432). a remedy by injunction to protectered that the plaintiffs were not in a

Barnes v. Miner, 122 Fed. 480, this right." Little v. Hall, 18 How.

condition to make such a book as 490 (where it was held that, by the (U. S.)_165, 170, 15 L. ed. 328. shown in the application. It

use of the words "dramatic composi28. Bartlett v. Crittenden, 2 F.

something new to him that copyright tion" in the statute, it was not inCas. No. 1,076, 5 McLean 32, 2 F. Cas.

was applicable to an inchoate and tended to include any compositions No. 1,082, 4 McLean 300.

intenued publication. Assuming that that would not tend to "promote the Property in letters at common law

a manuscript could be copyrighted, progress of science and useful arts." see supra $$ 18, 32.

the question was whether it must and that a stage production which 29. Parton v. Prang, 18 F. Cas.

not be in the form in which it is to lacks those elements in a substantial No. 10,784, 3 Cliff. 537. be printed. The difficulty was that

degree is not the subject of copy30. Act March 4, 1909 (35 U. S.

the plaintiffs had no copyright in right). See also supra $ 85. St. at L. 1075 c 320 $ 2).

the subject but only in the work. 40. 'Dramatic Copyright Act. 1833 31. Act March 4. 1909 (35 U. S. If there is anything but literary (3 & 4 Wm. IV C 15); 5 & 6 Vict. c St. at L. 1075 C 320 88 11. 60); 28 piracy. their remedy is in the state 45 $ 20. And Cumberland V. Op. Atty.-Gen. (Fowler) 265. See

courts. There is no remedy in the Planche, 1 A. & E. 580, 28 ECL 276, also supra § 103.

United States court until it comes to 110 Reprint 1329; Chappell v. Boosey, 32. Oliver Ditson Co. v. Littleton, infringement of literary property. 21 Ch. D. 232. 9 ERC 890. 67 Fed. 905, 15 CCA 61; Centennial The plaintiffs go upon the ground of 41. See cases infra this section. Catalogue Co. v. Porter, 5 F. Cas. No. literary property, not in print and 42. Rules and Regulations for 2.546; Platt v. Walter, 17 L. T. Rep. only partly in manuscript. The juris- | Registration of Claims to Copyright N. S. 157.

diction of the court is only over (Copyright Office Bul. No. 15) rules Oncial Centennial Exposition printed matter. The mere threat to 8, 9. catalogues.-Official catalogues of print a book does not give it juris- (a) "The designation dramatic the exhibitors

at the Centennial | diction. The act says a book, not an composition' does not include the folExposition at Philadelphia were intended book. The injunction was lowing: Dances, ballets, or other in course of preparation by the therefore refused").

choregraphic works; tableaux and commission, and they had de. [b] Future issue of newspaper.-motion-picture shows; stage settings posited in the office of the librarian "That protection given by common mechanical devices by which of congress the titles of such cata- and statute law, which is called dramatic effects are produced, or logues in accordance with the stat-'copyright, is only in respect of some 'stage business'; animal shows,

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48 The courts are extremely liberal in their accommodated to action;4 a story represented by construction, and hold any piece to be a dramatic action, where the representation is as if the real composition in which the dramatic element is persons were introduced and employed in the action present, and which is suitable for representation on itself. It has been said that, in order for a comthe stage. A composition is a written or literary position to constitute a 'dramatic composition" work invented and set in order.45 A dramatic com- within the meaning of that term as used in the copyposition is such a work in which the narrative is right law, it is necessary that it should tell some not related, but is represented by dialogue and ac- story.“ Therefore there can be no dramatic copytion. A dramatic performance is a performance right in a mere stage dance;51 in the voice, motion, adapted to the stage, with the appropriate scenery and postures of the actors; in mere stage busifor its representation.47 A drama is a poem or com- ness, or "gags; 1954 in a purely spectacular piece, position representing a picture of human life and or mere exhibition;65 in the device of representing sleight-of-hand performances, acro- | Queen of the Vaudeville' is a musical | bell shall be rung to call them tobatic or circus tricks of any kind; composition, and not dramatic gether for resistance. Then a movdescriptions of motion pictures or of composition, within the meaning of ing picture company

appears and settings for the production of motion the copyright law of 1909 (Act arranges to take a moving picture pictures. (These, however, when March 4, 1909, 35 U. S. St. at L. 1075, representing Napoleon and French printed and published, regis- c. 320 (U. S. Comp. St. Supp. 1909, soldiers and a young girl beseeching irable as 'books.')" Rules and Regu- p. 1289]). There is much force in Napoleon to release her sweetheart, lations for Registration of Claims to this contention. The work is essen- who is about to be executed as a Copyright (Copyright Office Bul. No. tially a series of recitations and spy. The miller, seeing this, rings 15), rule 8.

songs to be recited or sung by the the bell, the villagers rally and set [b] "Dramatic-musical composi- same person dressed in different upon the party which is being phototions include principally operas, costumes. The action and dialogue graphed for the moving picture. In operettas, and musical comedies, or in addition thereto are hardly suff- the defendant's play, at the end of similar productions which are to be cient to make a dramatic composi- the first act, there is a scene laid in acted as well as sung." Rules and tion.. Still the work is something California in which a countryman Regulations for Registration more than a mere musical composi- warns others of the danger of a Claims to Copyright (Copyright Of- tion. The singer dresses in costumes Japanese invasion, whereupon it is fice Bul. No. 15) rule 9.

to represent the different characters. agreed that if such a thing occur an [c] "Ordinary songs, even when There is a very little dialogue or alarm bell shall be rung, so that the intended to be sung from the stage 'patter'—the latter being, apparently, countryside may turn out to resist it. in a dramatic manner, or separately the professional term. There is also Then a moving picture company appublished songs from operas and a very little action. The singer gets pears, arranging to take a picture of operettas, should be registered as out of a cradle. There is scenery, a Japanese general and troops and musical compositions, not dramatico- and lights

thrown upon the the effort of a woman to save a spy musical compositions." Rules and singer. think the sketch may from execution by importuning the Regulations

for

Registration of fairly be classified as a 'dramatico- general. One of the countrymen, seeClaims to

Copyright (Copyright musical composition' within the ing this, rings the alarm bell. The Office Bul. No. 15) rule 9.

meaning of the copyright act." | neighbors turn out, and a fight en43. St. 1 & 2 Geo. V c 46 $ 35; Green v. Luby, 177 Fed. 287.

sues with the moving picture com5 & 6 Vict. c 45 $ 2.

47. Jacko v. State, 22 Ala. 73, 74 pany. The idea of the scene in the [a] Statutory definitions.-(1) (where the court said: "The dramatic Girl on the Film is shown to be quite “ 'Dramatic work includes any piece performances which are recognized novel. It is certainly reproduced in for recitation, choreographic work as belonging to a theatre are those All Aboard with substantially the or entertainment in dumb show, the adapted to the stage, with the ap- same dramatic incidents. While the scenic arrangement or acting form propriate scenery for their repre- voice, motions, and postures of actors of which is fixed in writing or other- sentation").

and mere stage business may be imt. wise, and any cinematograph pro- 48. Jacko v. State, 22 Ala. 73, 74 tated because they have no literary duction where the arrangement or (where it is said: “It may be con- quality and cannot be copyrighted acting form or the combination of ceded, that its signification is broad (Savage v. Hoffman, 159 Fed. 584; incidents represented give the work enough to cover any representation Bloom v. Nixon, 125 Fed. 977), a scene

original character. Copyright in which a story is told, a moral like the one under consideration has Act, 1911 (1 & 2 Geo. V c 46 § 35). conveyed, or the passions portrayed, | literary quality, and may be pro(2) "The words 'Dramatic Piece' whether by words and actions com- tected by copyright (Daly v. Palmer, shall be construed to mean and in- | bined, or by mere actions alone"). 6 F. Cas. No. 3,552. 6 Blatchf. 256, 36 clude every Tragedy, Comedy, Play, 49. O'Neill v. General Film Co., HowPr (N. Y.) 206; Daly v. Webster, Opera, Farce,

other scenic, 152 NYS 599 [aff 171 App. Div. 854, 56 Fed. 483, 4 CCA 10; Brady v. Daly, musical, or dramatic Entertainment." 157 NYS 1028]; Bell v. Mahn, 121 Pa. 83 Fed. 1007, 28 CCA 253). We agree 5 & 6 Vict. c 45 g 2.

225, 228, 15 A 523, 6 AmSR 786, 1 with Judge Hough in thinking that (b) Statute construed.-In

LRA 364 (where it is said: "It is this scene was a subject of copystruing the definitions of "dramatic ordinarily designed to be spoken, but riht, and that the defendants have piece" as contained in 5 & 6 Vict. c it may be represented in pantomime, infringed." Chappell v. Fields, 210 45 $ 2, Denman, C. J., said: "These when the actors use gesticulations, Fed. 864, 865, 127 CCA 445. words comprehend any piece which sometimes in the form of the ballet, 51. Fuller v. Bemis, 50 Fed. 926. could be called dramatic in its but do not speak; or in opera, where [a] A stage dance illustrating the widest sense; any piece which, on music takes the place of poetry and poetry of motion by a series of being presented by any performer of ordinary speech, and the dramatic graceful movements, combined with to an audience, would produce the treatment is essentially different an attractive arrangement of drapemotions which are the purpose of from either").

ery, lights, and shadows, but telling the regular drama, and which con- 50. Cappell v. Fields, 210 Fed. 864, no story, portraying no character, stitute the entertainment of the 127 CCA 448; Barnes v. Mine' 122 and depicting no emotion, is not a audience." Russell v. Smith, 12 Q. Fed. 480; Fuller V. Bemis, 50 Fed. "dramatic composition," within the B. 217, 236, 64 ECL 217, 116 Reprint 926; O'Neill v. General Film Co., 152 meaning of the copyright act. Fuller 849.

NYS 599, 604 (aff 171 App. Div. 854, v. Bemis, 50 Fed. 926. 9?8. 44. Green y. Luby, 177 Fed. 287; 157 NYS 1028); Tate v. Fullbrook, 52. Chappell v. Fields, 210 Fed. Daly v. Webster, 56 Fed. 483, 4 CCA (1908) 1 K. B. 821, 2 BRC 93, 14 864, 127 CCA 448; Bloom V. Nixon, 10 (app dism 163 U. S. 155, 16 SCt AnnCas 428; Karno v. Pathé Frères, 125 Fed. 977. See also infra § 318. 961, 41 L. ed. 111]: Daly v. Palmer. 10 99 L. T. Rep. N. S. 114 [app dism 100 Imitations as

see

infringement F. Cas. No. 3,552, 6 Blatchf. 256; L. T. Rep. N. S. 260).

infra § 321. Russell v. Smith, 12 Q. B. 217, 64 "A dramatic composition is a work 53. Chappell V. Fields, 210 Fed. ECL 217, 116 Reprint 849; Lee v. in which the narrative is told by dia- 864, 127 CCA 448; Tate v. Fullbrook, Simpson, 3 C. B. 871, 54 ECL 871, | logue and action, and the characters 11908] 1 K. B. 821, 2 BRC 93, 14 Ann 136 Reprint 349; Clark v. Bishop, 25 go through a series of events which Cas 428; Karno y. Pathé Frères. 99 L. T. Rep. N. S. 908.

tell a connected story. It may be a L. T. Rep. N. S. 114 (app dism 100 L. 45. Daly v. Palmer, 6 F. Cas. No. pantomime, and the story told in ac- T. Rep. N. S. 260). 3,552. 6 Blatchf. 256, 36 HowPr (N. tion, but to make it a dramatic 54. Tate v.

Fullbrook, (1908) 1. Y.) 206.

composition it must tell a connected K. B. 821, 2 BRC 93. 14 Ann Cas 428; 46. Green v. Luby, 177 Fed. 287; story or a series of events." O'Neill Karno v. Pathé Frères, 99 L. T. Rep. Daly y. Palmer, 6 F. Cas. No. 3.552, v. General Film Co., supra.

N. S. 114 [app dism 100 L. T. Rep. 6 Blatchf. 256, 36 HowPr (N. Y.) 206; [a] Scene held dramatic within N. S. 260). O'Neill v. General Film Co., 152 NYS rule.-"In the second act of the Girl 55. Barnes v. Miner, 122 Fed. 480; 599 [aff 171 App. Div. 854, 157 NYS on the Film a scene occurs in which Martinetti v. Maguire, '16 F. Cas. No. 1028).

an old miller informs a meeting of 9,173, 1 Abb. 356. Deady 216; Jacko [a] Dramatic or musical composi- English villagers of the danger of a v. State, 22 Ala. 73. tion.-"The defendant contends, in French invasion, and it is agreed (a) The Black Crook is a mere the first place, that the sketch 'The that in case such a thing happen a spectacle; in the language of the

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a performer's change of costume by means of as a question of fact.62 If the composition tells a moving pictures in connection with the actual story intelligible to the spectator, it is immaterial changes of costume;58 or in a mere orchestral score.57 whether it is done by means of dialogue or otherInstrumental music alone is not a dramatic compo- wise. Hence it has been held that a series of inci

A descriptive or dramatic song may, how- dents grouped in a certain sequence and realistically ever, constitute a dramatic piece.59

But a song is

presented may constitute a "dramatic composition" not necessarily a dramatic piece.

It is not so

within the statute, although they are accompanied unless it has the characteristics of a dramatic by very little dialogue,63 or none at all, as in the piece, 61 and this is to be determined in each case case of a pantomine. Motion pictures constitute craft, a 'spectacular piece.' It has | supposed words of the suffering | by Vaughan Williams, L. J., and it no pretensions to be called a dra-parties, is dramatic, and therefore at is pointed out that it does not apmatic composition. The dialogue is all events within the meaning of pear in other reports of that case. very scant, and appears in the light the statute, though it be sung only It was further said: “But, be that of a mere accessory--a piece of word by one person, sitting at a piano, as it may, that decision does not machinery tacked on to the ballets giving effect to the verses by his bind us here, and the conclusion and tableaux. The principal part delivery, but not assisted by scenery which I have come to is that the and attraction of the spectacle seems or appropriate dress." Russell subject-matter in which the author to be the exhibition of women in Smith, 12 Q: B. 217, 64 ECL 217, is to acquire a property is something novel dress or undress, or in strik- 116 Reprint 849.

which is capable of being printed and ing attitudes or action. The closing [b] Topical song.–The introduc.published. It seems to me that a scene is called 'Paradise,' and con

tion, skeleton, and chorus of a topical great deal of the matter which was sists, as witness Hamilton expresses song, part of a dramatic composition, decided by Phillimore, J. (in the it, 'of women lying about loose'-a designed merely to amuse, although court below), to be the subject-matsort of Mohammedan paradise, I take possessing little literary merit

ter for protection under the Act, was it, with imitation grottos and 'earthly originality, may be subject to copy- not so at all. The intention of the houris. To call such a spectacle a

right if of value for the purposes Act of Parliament was to protect the for

which they aramatic composition' is an abuse of

designed. property of an author. Sometimes

Henderson language.

60 An exhibition of model

Tompkins, Fed.

the learned judge did not quite put 758. artistes, menagerie of wild

the matter in that way.

He seems 60. beasts, might as well be called a

Fuller Blackpool Winter

to treat the subject-matter of the dramatic composition, and claim to Gardens, etc., Co., Ltd., (1895] 2 Q. B.

Act as being the written production 429. be entitled to copyright. A menagerie

plus other matters, such as the sim

61. Fuller V. is an interesting spectacle, and

Blackpool Winter ilarity of the get-up of the various may this be; but it is nothing more.

Gardens, etc., Co., Ltd., (1895) 2 Q. B. characters, the facial expression, the

429. An exhibition of women, whether in

scenic effects, and suchlike, which he the ballet or tableaux, or even 'lying

[a] When song is a dramatic piece. speaks of as being ancillary or acaround loose' in such a paradise, is

-(1) "The fact that it is sung in cessory to the words of the peace, not a dramatic composition an costume does not make it a dramatic

In my view, th true con

If the dress of titled to the benefit and protection of piece.

the singerstruction of the Act is that the subcopyright." Martinetti v. Maguire, could have that operation, the singer ject-matter-viz., the right of the 16 F. Cas. No. 9,173, i Abb. 356, and not the author of the song would

author which it is intended to probe the person who caused it to be Deady 216 [quot Barnes v. Miner, 122 Fed. 480, 490].

tect-is something which is capable a dramatic piece. The same may be For an adverse said of

of being printed and published").

the manner in which the criticism of this decision, the

[a] Series of dramatic events; article entitled "The Law for Play- singer

treats the song. The question "Railroad Scene."-(1) A play con

must be what was the character of tained the following scene: One of wrights," 8 So. L. Rev. N. S. 13.

the composition when it was [b]

first Circus exhibitions; feats of

the characters was put in peril of his written and published. logerdemain.—“It may often be diffi

I can quite life by being placed by another of

understand that it is possible that a cult to trace the dividing line be

the characters on a track over which thing to be performed by one person tween the terms theatre and circus

a railroad train

momentarily from the character of their exhibi- only may be a dramatic piece.

But, I expected to arrive, and so fastened

whether the composition is to be tions, but there can be none what

that he could not move from his sung by one or more persons, if a ever in distinguishing the difference song is sung, and only a song, there ous situation he was rescued by a

dangerous position. From this perilbetween the usual performances of a

is no performance

of a theatre and an exhibition of feats of piece.”

dramatic third person who, surmounting ob

Fuller v. Blackpool Winter stacles, succeeded at the last moment sleight of hand or legerdemain. The

Gardens, etc., Co., Ltd., (1895) 2 Q. B. latter cannot be said to be a dramatic performance, in any legitimate (2) "Every case must depend upon 429, 434 (per Lord Esher, M. R.). contained but very little dialogue. it

in releasing him. Although the scene sense of that term." Jacko v. State, its own attendant circumstances.

was held that it constituted a "dra

In 22 Ala. 73, 75.

matic composition" within the meaneach case it is a question of fact. I 56. Barnes v. Miner, 122 Fed. 480.

ing of the copyright law. think that to constitute a song a dra

Brady v. [a] Rule applied.-A stage per

Daly. 175 U. S. 148. 20 SCt 62, 44 matic piece it must be such a song as formance consisting of the singing for its proper representation, acting, 253]: Daly v. Palmer, 6 F. Cas. No.

L. ed. 109 (aff_83 Fed. 1007, 28 CCA of well known songs by a woman and possibly scenery, formed a neces

3,552, 6 Blatchf. 256. 36. How Pr (N. dressed to personate other singers,

sary ingredient, and that if neither of prefaced by a short and

Y.) 206 (dist Daly v. Webster, 56 common

these be a requisite to the efficient place dialogue having no reference to representation of the song, it is not

Fed. 483, 4 CCA 10 (app dism 163 such performance, and with a kineto- a dramatic piece.

U. S. 155, 16 SCt 961, 41 L. ed. 111)]; It is an entire

Serrama v. Jefferson, 33 Fed. scope exhibition during the intervals misnomer to call a

347.

mere when the performer is changing ordinary music-hall song, which re

common, (2) "In plays of this class the series

of events is the only composition of costume, in which she is shown quired neither acting nor scenery for while making such changes by means its production, a dramatic piece, for important, and

any importance. The dialogue is un

as work of art of moving pictures previously taken it is in truth nothing of the kind."

trivial. The effort of the composer photographically on a film, is not a Fuller v. Blackpool Winter Gardens, is directed to arranging for the stage subject of copyright, the dialogue not etc., Co., Ltd., [1895] 2 Q. B. 429, 442

series of events so realistically being a dramatic composition, but a (per A. L. Smith, L. J.).

presented. and so worked out by the mere exhibition, in addition to being 62. Fuller Blackpool Winter display of feeling or earnestness on immoral. Barnes v. Miner, 122 Fed. Gardens, etc., Co., Ltd., [1895] 2

the part of the actors, is to produce 480.

B. 429, 434 (per Lord Esher,

corresponding emotion in the 57. Mikado, etc., Case, 25 Fed. 183, M. R.). 63." Daly v. Webster, 56 Fed. 483, its success is largely dependent upon

audience. 23 Blatchf. 347.

Such a composition, though 58. Mikado, etc., Case, 25 Fed. 183, 4 CCA 10 (app dism 163 U. S. 155, what is 23 Blatchf. 347; Fuller V. Blackpool 16 SCt 961, 41 L. ed. 111); Daly V.

seen, irrespective of the

dialogue, is dramatic. It tells a Winter Gardens, etc., Co., Ltd., [1895) Palmer, 6 F. Cas. No. 3,552, 6

story which is quite as intelligible 2 Q. B. 429, 437 (where Kay, L. J.,

Blatchf. 256; Chatterton V. Cave, said: "Music without the words could L. R. 10 C. P. 572.

to the spectator as if it had been

presented to him in a written narhardly be called a dramatic piece").

"It was first said that the subject-rative." Harper v. Kalem Co., 169 59. Fuller v. Blackpool Winter matter of the action was not the sub

Fed. 61, 64, 94 CCA 429 [aff 222 Gardens, etc., Co., Ltd., [1895] 2 Q. ject-matter of copyright--that the

U. S. 55, 32 sct 20, 56 L. ed. 92, Ann B. 429; Russell v. Smith, 12 Q. B. Act gives a property in words and

Cas1913A 1285. and quot Dalyv. 217, 64 ECL 217, 116 Reprint 849; not in situations and scenic effects,

Webster, 56 Fed.

483. 4 CCA 10 Clark_v. Bishop, 25 L. T. Rep. N. S.

but I think that these latter are (app dism 163 U. S. 155, 16 SCt 961, 908; Roberts v. Bignell, 3 T. L. R. more peculiarly the subject of copy- 41 L, ed. 111) l. 552.

right than words themselves." Chat- 64. U. S.-Kalem Co. v. Harper, [a] Descriptive or dramatic song- terton V. Cave, 33 L. T. Rep. N. S. 222 U. S. 55, 32 SCt 20, 56 L. ed. "A song which relates to the burn- 255, 256 [aff 2 C. P. D. 42 (aff 3 App. | 92, AnnCas1913A

1285; Daly ing of a ship at sea, and the escape Cas. 483)) (per Brett, J.). But see Palmer, 6 F. Cas. No. 3,552, 6 of those on board, describes their Tate v. Fullbrook, 98 L. T. Rep. N. S. Blatchf. 256. feelings in vehement language, and 706, 710 (where the above quoted Ala-Jacko v.

State. 22 Ala 73. sometimes expresses them in the 'language of Brett, J., is disapproved N. Y.--O'Neill v. General Film Co.,

was

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one form of dramatic composition.65 A written rightable.72 Thus the mere fact that a play is based work consisting wholly of directions, set in order on and resembles a novel or story previously pubfor conveying the ideas of the author on a stage or lished does not prevent its being copyrightable as public place, by means of characters who represent an original production."3 Copyright may be secured the narrative wholly by action, is as much a dramatic on each of several dramatizations of the same composition designed or suited for public represen- story." A dramatic composition, although founded tation as if language or dialogue were used in it to on another play, may yet be so far different from convey some of the ideas. 6 There are dramatic the latter as to entitle the adaptation as a whole rights in a series of newspaper cartoons.

to the claim of originality." Of course these rules Mechanical contrivances. While the term “dra- must be understood with the qualification that the matic composition" may include dramatic situa- author must have been legally entitled to make use tions or action, it does not cover the merely mechani- of the original work; there can be no protection for cal instrumentalities by which the situations or a piracy. These rules have been long recognized scenic effects are produced.RS

and established by judicial construction and deci[ 0 109] c. Dramatic Originality. Of course, as in sion;77 but now the statute specifically provides that the case of all other works, a dramatic or dramatico- dramatizations or other versions of works in the musical composition must possess some element of public domain, or of copyrighted works when prooriginality in order to be copyrightable.69 Ordinary duced with the consent of the proprietor, shall be incidents, stock situations, and oft told tales, are regarded as new works subject to copyright.78 the common property of all playwrights; they cannot [$ 110] 5. Musical Compositions79 -a. In Genbe monopolized by copyright." But when combined eral. In the United States the act of 1831 was the in a new and original way the particular result is first in which musical compositions were specifically copyrightable.71 Dramatization of existing works named as the subject of copyright,so and this specific involves the independent exercise of intellectual designation has been continued in all subsequent powers, and hence the resulting product is copy- copyright acts.81 Accordingly, since 1831, musical 15? NYS 599 [aff 171 App. Div. 854, printing and publication; but where

So frequent catastrophe 157 NYS 1028).

the words of two plays are more or may fairly be regarded as the comPa-Bell v. Mahn, 121 Pa. 225, 15 less alike, similarity of scenic effects mon property of all playwrights"). A 523, 6 AmSR 786, 1 LRA 364. and the make-up of actors and such See also infra $ 318.

Erg-Lee v. Simpson, 3 C. B. 871, like matters may be regarded, al- 71. Authorship and originality
54 ECL 871, 136 Reprint 349. Contra though not by themselves subjects of generally see supra $$ 91-97.
Karno v. Pathé Frères, 99 L. T. protection under the act, as being 72. Harper v. Kalem Co., 169 Fed.
Rep. N. S. 114, 118 (app dism 100 evidence

on

the question whether, 61. 94 CCA 429 (aff 222 U. S. 55. 32 L. T. Rep. N. S. 2601 (where Jelf, taking them in conjunction with the SCt 20, 56 L. ed. 92, AnnCas1913A J., said: "Their Lordships seem to words, there is not substantial iden- 1285); O'Neill v. General Film Co., me to have distinctly excluded from tity of the two productions, Tate 171 App. Div. 854, 157 NYS 1028 (aft the protection of the Act every mere v. Fullbrook, (1908) 1 K. B. 821, 2 152 NYS 599). pantomime or any piece which is BRC 93, 14 AnnCas 428. (2) A scene 73. Glaser v. St. Elmo Co., 175 acted entirely in dumb show, how- in a play apart from the dialogue Fed. 276; Boucicault v. Fox, 3 F. ever much or however little merit may be a dramatic composition and Cas. No. 1,691, 5 Blatchf. 87; O'Neill there may be in the composition and entitled copyright protection. v. General Film Co., 171 App. Div. however clear and damaging the Brady v. Daly, 175 U. S. 148, 20 SCt 854, 157 NYS 1028 (aft 152 NYS 5991; plagiarism may be." It was hardly 62, 44 L. ed. 109 (where the railroad Fleron y. Lackaye, 14 NYS_292. See necessary to go so far in this case, scene in the play "Under the Gas- also Daly v. Byrne, 43 N. Y. Super. where the act in question consisted light" was protected against in- 261, 271 [aff 77 N. Y. 182) (an acsubstantially of

extemporized | fringement and was infringed by a tion of libel against defendant for riot, in which both performers and similar scene only colorably differ- publishing an article charging plain. audience took part, acting largely ent in the play called “After tiff with claiming the authorship of on the spur of the moment. The Dark").

a play, when in fact it was written piece had no fixed form or plot. The [b] A mechanical contrivance con- by another person. The court said: big, idea was the riot and the idea sisting of a tank into which water "The plaintiff had a right to dramaof having a riot was, of course, not is made to fall, and running thence tize the novel, and such dramatiza. copyrightable); Tate v. Fullbrook, off underneath the stage, represent- tion became his property, though [1908) 1 K. B. 821, 2 BRC 93, 14 | ing a river into which, in the course there appeared in it substantial AnnCas 428 (where Vaughan Wil- of a play, the villain falls from a similarity in plot, situations and liams. L. J., said that the subject bridge above, not being a link in the incidents, to the novel"). matter protected

dramatic chain of incidents which, together 74. Photo-Drama Motion Picture copyright must þe "something which with the speech and action of the Co. v. Social Uplift Film Corp., 220 is capable of being printed and pub-performance, constitute a series of Fed. 448, 137 CCA 42 (aff 213 Fed. lished," and therefore did not cover events concededly novel. is not such 374]; Harper v. Kalem Co., 169 Fed. situations, scenic effect, stage "busi- a mechanical contrivance as will be 61, 94 CCA 429 [aff 222 U. S. 55, 32 ness," etc.).

protected by copyright of the play SCt 20, 56 L. ed. 92, AnnCas1913A "Drama may be achieved by ac- in which it is introduced. Serrana v. 1285). See also supra $ 94. tion as well as by speech. Action Jefferson, 33 Fed. 347 [quot Barnes (a) Spoken and pictured drama tell a story, display all the v. Miner. 122 Fed. 480, 491).

"Since the amendment of the Copy. most vivid relations between men, 69. Martinetti V. Maguire, 16 F. right Act (in 1912, passed subse. and depict every kind of human emo- Cas. No. 9,173, 1 Abb. 356 (where the quent to Kalem Co. v. Harper, 222 tion, without the aid of word. court questioned whether the spec- U. S. 55, 32 SCt 20, 56 L. ed. 92, It would be impossible to deny the tacular piece called "Black Crook" AnnCas1913A 1285), these rights title of drama to a pantomime as possessed such originality as

were separable; there might be a played by masters of the art.' titled it to the protection of the copy- copyright for a dramatization of the Kalem Co. v. Harper, 222 U. S. 55, right law).

old sort (acted on a stage), and also 61, 32 SCt 20, 56 L. ed. 92, AnnCas Originalty generally

supra a copyright for a dramatization of 1913A 1285. $$ 91-97.

the

sort (arranged in motion 65, See infra $$ 120-122.

70. Serrana v. Jefferson, 33 Fed. pictures)." Photo-Drama Motion Pic66. Daly v. Palmer, 6 F. Cas. No.

347 (holding that a scene which con- ture Co. v. Social Uplift Film Corp.. 3,552, 6 Blatchf. 256; Lee v. Simpson, sisted of an angry dialogue between 220 Fed. 448, 449, 137 CCA 42. 3 C. B. 871, 54 ECL 871, 136 Re- the hero and villain of the play, and 75. Aronson Fleckenstein, 28 print 349.

then a struggle between them ter- Fed. 75; French v. Maguire, 55 How 67. See infra § 302.

minating in the villain being thrown Pr (N. Y.) 471; Tree v. Bowkett, 74 68. Serrana v. Jefferson, 33 Fed. into the river, did not possess such L. T. Rep. N. S. 77. 347: Freligh v. Carroll, 9 F. Cas. No. originality as entitled it to

See supra § 91. 5.092a; Chatterton v. Cave, 3 App. | under the protection of the copy- 77. See cases this section passim. Cas. 483; Tate v. Fullbrook, (1908) | right in the play. Lacombe, J., said: 78. Act March 4, 1909 (35 U. S. 1 K. B. 821, 2 BRC 93, 14 AnnCas "There is nothing original in the St. at L. 1075 C 320 $ 6). 428; Tree v. Bowkett, 74 L. T. Rep. incident thus represented on the 79.. Infringement of musical comN. S. 77; Beere v. Ellis, 5 T. L. Ř. stage. Heroes and heroines, as well positions see infra 88 319-323. 330. as villains of both sexes, have for 80.

Act Febr. 3, 1831 (4 St, at L. [a] Scenic effects apart from the a time whereof the memory of the 436 c 16 S 1). words and incidents of the piece (1) theatre-goer runneth not to the con- 81. Act of July 8, 1870 (16 St. are not the subject of copyright be-trary, been precipitated into

con- at L. 198 C 230 & 88); Rev. St. § 4952; cause they cannot be the subject of I ventional ponds, lakes, rivers, aná / Act March 3, 1891 (26 st. at L. 1106

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