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right. Prior to this act there was no provision in the copyright law of the United States whereby copyright protection was expressly extended to periodicals, such as newspapers and magazines, but these publications were mentioned in the law in such a manner as to imply that they came within its protection; and while it has been held that there can be no general copyright, as an entirety, of an ordinary newspaper which is composed in large part of matter not entitled to protection,10 and that a mere news item is not copyrightable,11 the better view is that newspapers were copyrightable as "books" even under former statutes, strengthened by their specific inclusion in the pres12 and this view is ent law which is in many respects a codifying statute.1 In England a newspaper may be protected by statutory copyright as included in the term "book.'' 14 Some of the British colonies have given protection by statute to news contained in foreign telegrams, the period of protection varying from twenty-four to one hundred and twenty hours in the respective colonies.15





[§§ 102-104

[103] 3. Unpublished Works-a. In General. By the act of 1909, congress for the first time authorized the copyright of unpublished works.16 This authority is not expressly limited to any particular class of works, but extends to all "the works of an author of which copies are not reproduced for sale.'' 17 The statute mentions, however,

as being within its terms, lectures, or similar productions; dramatic, musical, or dramatico-musical compositions; photographs; motion pictures; works of art; plastic works; and drawings, and the authority is, perhaps, limited to the classes of works enumerated.18 Other sections of the statute refer to manuscripts generally,19 and to manuscripts of dramatic works not reproduced in copies for sale,20 as subjects of copyright.

In England copyright in unpublished works is specifically conferred" in lieu of the common-law right which is abolished,22

[104] b. Lectures, Sermons, and Addresses. Lectures, sermons, and addresses, prepared for oral


right for such work under the con- | publications appearing oftener than ditions and for the term specified in this act' it certainly was tended that a chapter or two-a mere once a year; bulletins or proceedings not in- of societies, etc., which appear regufragment of a book-should larly at intervals of within the meaning of the fall year; and, generally, periodical publess than 'work.' word lications which would be registered 'work,' and can not be so considered. office." is not a as second-class matter at the post It is only a part of a work. is a special reason why this meaning (Copyright Office Bul. No. 15) rule 6. There Registration of Claims to Copyright Rules and Regulations for should be given the words 'book' and 'work' in this act which did not exist before the Rev. St. § 4956, as amended by Act March 3, 1891 (26 St. at L. 1107); March 3, 1891. passage of the act of Harper v. Donohue, 144 Fed. 491 [aff a mere fragment of a book could be mem]. To hold that 146 Fed. 1023 copyrighted, would open the door to mem, 76 COA 678 the most extensive evasions of the manufacturing provisions of the act. For illustration, the Librarian Congress transmits through you what of appears to be a booklet in pamphlet form of 51 pages, on which appear the words "The end.' the last of This has been filed with the register of coyrights under section 21 for ad interim protection. But as a matter of fact this pamphlet contains only the first four chapters of the book,


and how many more there are and of how many volumes the entire work consists there is nothing to indicate; nor could the extent of the work make any difference so far as the principle involved is concerned; nor can the principle be affected by the fact that the pamphlet purports to be a complete work. be accorded these four chapters, no If protection other publisher could afford to publish the remainder of the book, and though not legally protected by copyright, yet the protection of the remaining portion would in fact be perfect. But at the neither the manufacturing provisions time, in section 15 nor the prohibitions against importations in section 31 would apply to the parts not copyrighted, and the publisher could have the entire remainder of the book printed abroad and imported and here bound with the four chapters printed within the United States. If the law should be construed to permit this, it is quite probable that the copyrighting of but a part of books which are not supposed to be of very substantial merit would become custom. But independent of this conthe sideration, there appears to be nothing in the statute which implies that but a part of a work may be copyrighted, nor have I been able to find any authorities showing that other similar statutes have been so construed." 28 Op. Atty.-Gen. (Wickersham) 176, 178. But see infra § 272. 8. Act March 4, 1909 (35 U. S. St. at L. 1075 c 320 § 5). [a] "This term includes papers, magazines, reviews, and serial


une Co.



ciated Press, 116 Fed. 126; Clayton
10. Chicago Tribune Co. v. Asso-
v. Stone, 5 F. Cas. No. 2,872, 2 Paine
science cannot, with any propriety be
382, 392 (where it is said: "The term
applied to a work of so fluctuating
ject-matter of which is daily chang-
and fugitive a form
newspaper or price-current, the sub-
as that of a
ing, and is of mere temporary use").
[a] Decisions reviewed. "In Trib-
Fed. 126, the Chicago Tribune at-
V. Associated Press, 116
tempted to copyright, under contract,
some special telegraphic matter of
the London Times, by depositing in
the Chicago
evening before publication, the gen-
post office,
serial number and date, and by like
eral title
deposit, immediately upon publica-
of the newspaper, with
tion, of copies of
each addressed to the Librarian of
the newspaper,
Seaman that it was at least question-
was held by Judge
able whether a copyright can thus be
secured for a newspaper. But as the
defendant did
Tribune, but directly from the Lon-
not copy from the
England, and as the matter published
don Times after its publication in
by the Times and Tribune was not
identical, there was no infringement,
nor was any copyright thus obtained.
In England it was first held that a
newspaper was
not a book
contrary was decided in Walter v.
in Cox
Journal Co., L. R. 9 Eq. 324, but the
V. Land. etc.,
Howe, 17 Ch. D. 708, in
paper Co.. 40 Ch. D. 500, and finally
by the Court of Appeals in Trade
Auxiliary Co. V.
etc., Tradesmen's Protection Assoc.,
40 Ch. D. 425.
been the true construction of former
Whatever may have
copyright acts, and whether or not
a newspaper is entitled to copyright.
act of 1891 has set the question at
I think the international copyright
per's Bazar are concerned."
rest so far as periodicals like Har-



v. Donohue, 144 Fed. 491, 496 [aff
146 Fed. 1023 mem, 76 CCA 678 mem].
11. See supra § 91.

[a] The form of stating news is
See infra § 267.
Nature of property in news see
supra § 21.

519, 23 Blatchf. 431 (a case involving
12. Harper v. Shoppell, 26 Fed.
the infringement of a cut published
in plaintiffs' newspaper. Wallace, J.,
"The copyright of the plain-
copyright laws);
tiffs' newspaper was a copyright of
a book, within the meaning of the
p 169; 1 Spelling Extra. Rel. § 866.
Books as including newspapers see
supra § 101.



G. & C. Merriam Co., 208 U. S. 260, United Dictionary Co. enactment on the same subject, and 264, 28 SCt 290, 52 L. ed. 478 (where a later copyrighted statute was referred the construction of the law under to in construing an earlier Mr. Justice Holmes said: that the act of 1905 cannot affect "It is said and it cannot, beyond illustrating a policy that has not changed"). which the parties' rights were fixed,


539, 2 BRC 312; Exchange Tel. Co., Walter v. Lane, [1900] A. C. Ltd. v. Gregory, [1896] 1 Q. B. 147; Cate v. Devon, etc., Constitutional Newspaper Co., 40 Ch. D. 500; Walter v. Howe, 17 Ch. D. 708. Platt v. Walter, 17 L. T. Rep. N. S. Compare 157 (in which it was doubted whether newspapers); 5 & 6 Vict. c 45 $ 18. extends to etc., Journal Co., L. R. But see Cox v. Land, 708] (holding that a newspaper is [overr Walter v. 9 Eq. 324 Howe, 17 Ch. D. not book within the Copyright Act). 15. MacGillivray Copyright p 186 (where the following are enumerated colonies having Australian Colonies, Tasmania, Cape such laws: of Good Hope, Natal, New Zealand, Hong Kong and Ceylon).




(35 U. S.

(35 U. S. (35 U. S.

Act March 4, 1909 St. at L. 1075 c 320 § 11). 17. Act March 4, 1909 St. at L. 1075 c 320 § 11). 18. Act March 4, 1909 St. at L. 1075 c 320 § 11). St. at L. 1075 c 320 § 60) (which, 19. after providing for the destruction Act March 4, 1909 (35 U. S. provides: "That no manuscript of an of useless copyright deposits, further during its term of copyright without unpublished work shall be destroyed specific to claim and remove it"). notice to the proprietor of record, permitting him Copyright 20. Act March 4, 1909 St. at L. 1075 c 320 § 1 (d)). Geo. V c 46 § 1 (1) (b)). 21. Copyright Act, 1911 22. Copyright Act, 1911 Geo. V c 46 § 31). See

[blocks in formation]

delivery, are specifically made the subject of copyright,23 and provision is also made for copyrighting them as unpublished works.24

Under the English statutes such works have long been protected.2



[105] c. Manuscripts. Unprinted manuscript, such as a collection of letters, has been held to be within the meaning of the statute of Anne.20 In the United States an author's or proprietor's property in an unpublished manuscript was specifically protected by the former statute.2 27 The term "manuscript," as used in this statute, includes private letters,28 but does not include pictures." The act of 1909 contains no similar provision, although all rights. at common law or in equity are expressly preserved,30 and the copyrighting of manuscripts is authorized.31



[106] d. Inchoate or Intended Works. inchoate or merely intended publication is not the subject of copyright,32 and will not be protected under the copyright law, notwithstanding its title has been entered in the copyright office as a step toward obtaining a copyright,33 because it is only

23. Act March 4, 1909 (35 U. S. St. at L. 1075 c 320 & 5); Rules and Regulations for Registration of Claims to Copyright (Copyright Office Bul. No. 15) rule 7.

[a] This provision is new (1) in this act, and has no equivalent or parallel in any previous copyright act of the United States. (2) Prior to this act, protection for such works could be obtained only under the common law of literary property. See supra §§ 4 et seq: and particularly see §§ 20, 53. (3) Of course, if reduced to manuscript form, the manuscript was protected. See supra SS 14, 48; and infra § 105.

24. See supra § 103. 25. See supra § 53.

26. Pope v. Curl, 2 Atk. 342, 26 Reprint 608.

27. Rev. St. 8 4967, as amended by Act March 3. 1891 (26 St. at L. 1106 c 565 § 9) (which provided: "Sec. 4967: Every person who shall print or publish any manuscript whatever, without the consent of the author or proprietor first obtained

shall be liable to the author or proprietor for all damages occasioned by such injury"). And see Little v. Hall, 18 How. (U. S.) 165, 15 L. ed. 328; Lawrence v. Dana, 15 F. Cas. No. 8,136, 4 Cliff. 1.

[a] Effect of statute.-"At common law, an author has a right to his unpublished manuscripts the same as to any other property he may possess, and this statute gives him a remedy by injunction to protect this right." Little v. Hall, 18 How. (U. S.) 165, 170, 15 L. ed. 328.

28. Bartlett v. Crittenden, 2 F. Cas. No. 1,076, 5 McLean 32, 2 F. Cas. No. 1,082, 4 McLean 300.

Property in letters at common law see supra §§ 18, 32.

29. Parton v. Prang, 18 F. Cas. No. 10,784, 3 Cliff. 537.

30. Act March 4, 1909 (35 U. S. St. at L. 1075 c 320 § 2).

31. Act March 4, 1909 (35 U. S. St. at L. 1075 c 320 §§ 11. 60); 28 Op. Atty.-Gen. (Fowler) 265. See also supra § 103.

32. Oliver Ditson Co. v. Littleton, 67 Fed. 905, 15 CCA 61; Centennial Catalogue Co. v. Porter, 5 F. Cas. No. 2.546; Platt v. Walter, 17 L. T. Rep. N. S. 157.

[a] Official Centennial Exposition catalogues.-Official catalogues of the exhibitors at the Centennial Exposition at Philadelphia were in course of preparation by the commission, and they had deposited in the office of the librarian of congress the titles of such catalogues in accordance with the stat-' [13 C. J.-33]

the work itself, not its subject or ideas, which may be copyrighted.34 No intellectual conception is copyrightable until it has taken material shape.35

[107] 4. Dramatic or Dramatico-Musical Compositions-a. In General. Dramatic or dramaticomusical compositions are one of the statutory classes of copyrightable works enumerated in the act of 1909.36 Dramatic compositions were first mentioned as such in the act of 1856,37 since which time all revisions of the copyright law have specifically named dramatic compositions as a subject of copyright,38 and they have been copyrightable as such, provided they are of a character falling within the constitutional description of copyrightable works.39 Under the English statutes dramatic compositions have long been entitled to copyright."

[§ 108] b. What Constitutes. In the United States the term "dramatic composition" is not defined by the copyright statutes and its meaning must be ascertained by judicial construction." The copyright office, however, has placed a construction on the term.12 In England, there are statutory definipublished or unpublished iterary production, and, therefore, there can be no copyright in the prospective series of newspapers. The copy


ive publication, but that which has no present existence cannot be the subject of this species of property." Platt v. Walter, 17 L. T. Rep. N. S. 157, 159.

33. Centennial Catalogue Co. V. Porter, 5 F. Cas. No. 2,546. 34. Centennial Catalogue Co. V. Porter, 5 F. Cas. No. 2,546. Protection of subject and ideas see infra §§ 267, 268.

35. Oliver Ditson Co. v. Littleton, 67 Fed. 905, 15 CCA 61.

36. Act March 4, 1909 (35 U. S. St. at L. 1075 c 320 § 5); Rules and Regulations for Registration of Claims to Copyright (Copyright Office Bul. No. 15) rule 8.

37. Act Aug. 18, 1856 (11 U. S. St. at L. 138) (this act conferred on the proprietor of a copyrighted dramatic composition exclusive performing rights, in addition to the publishing rights alone conferred by former laws); Palmer v. De Witt, 32 N. Y. Super. 530, 40 HowPr 293 [aff 47 N. Y. 532, 7 AmR 480].

ute, but the books themselves had
not been completed even in manu-
script, and had not been published
or deposited. The commission
granted the exclusive right of pub-right may attach upon each success-
lishing such official catalogues to
plaintiff's assignor. Defendant was
about to issue his own catalogue of
the exhibitors at such exposition,
when a bill for injunction under the
copyright law was filed. Plaintiffs'
book was in a form called a dummy,
that is a book containing a few
printed leaves followed by blank
ones. Plaintiffs contended that, al-
though subject matter open to all
the world cannot be copyrighted, as
a general principle, in this particular
case it was different, because the
information from which alone a cata-
logue could be prepared had been ex-
pressly reserved to the commission
and their assigns, and all exhibitors
and visitors were subject to
reservation by the published regu-
lations. The objection was to the
publication by defendants of a list
of leading exhibitors. They further
maintained that by taking the initia-
tory steps in recording the title, they
became entitled to protection, and
the congressional librarian in his
pamphlet of instructions declared
that a copyright may be secured for
a projected as well as for a com-
pleted work. But the injunction was
denied. Centennial Catalogue Co. v.
Porter, 5 F. Cas. No. 2,546 (where
Cadwalader, District Judge, "consid-
ered that the plaintiffs were not in a
condition to make such a book as
shown in the application. It was
something new to him that copyright
was applicable to an inchoate and
intenued publication. Assuming that
a manuscript could be copyrighted,
the question was whether it must
not be in the form in which it is to
be printed. The difficulty was that
the plaintiffs had no copyright in
the subject but only in the work.
If there is anything but literary
piracy, their remedy is in the state
courts. There is no remedy in the
United States court until it comes to
infringement of literary property.
The plaintiffs go upon the ground of
literary property, not in print and
only partly in manuscript. The juris-
diction of the court is only over
printed matter. The mere threat to
print a book does not give it juris-
diction. The act says a book, not an
intended book. The injunction was
therefore refused").

38. Act July 8, 1870 (16 U. S. St. at L. 198 c 230 § 86); U. S. Rev. St. $ 4952; Act March 3, 1891 (26 U. S. St. at L. 1106 c 565 § 1); Act Jan. 7, 1904 (33 U. S. St. at L. 4 c 2 § 1); Act March 3, 1905 (33 U. S. St. at L. 1000 c 1432).

39. Barnes v. Miner, 122 Fed. 480, 490 (where it was held that, by the use of the words "dramatic composition" in the statute, it was not intended to include any compositions that would not tend to "promote the progress of science and useful arts." and that a stage production which lacks those elements in a substantial degree is not the subject of copyright). See also supra § 85.

40. Dramatic Copyright Act. 1833 (3 & 4 Wm. IV c 15); 5 & 6 Vict. c 45 § 20. And see Cumberland v. Planche, 1 A. & E. 580, 28 ECL 276, 110 Reprint 1329; Chappell v. Boosey, 21 Ch. D. 232, 9 ERC 890.

41. See cases infra this section. 42. Rules and Regulations for Registration of Claims to Copyright (Copyright Office Bul. No. 15) rules 8, 9.

[a] "The designation 'dramatic composition' does not include the following: Dances, ballets. or other choregraphic works; tableaux and

[b] Future issue of newspaper.-motion-picture shows; stage settings "That protection given by common and statute law, which is called copyright, is only in respect of some

or mechanical devices by which dramatic effects are produced, or 'stage business'; animal shows,

The courts are extremely liberal in their
construction, and hold any piece to be a dramatic
composition in which the dramatic
present, and which is suitable for representation on
element is
the stage.** A composition is a written or literary
work invented and set in order.45
position is such a work in which the narrative is
A dramatic com-
not related, but is represented by dialogue and ac-
tion.4 46
A dramatic performance is a performance
adapted to the stage, with the appropriate scenery
for its representation. A drama is a poem or com-
position representing a picture of human life and


sleight-of-hand performances, acrobatic or circus tricks of any kind; descriptions of motion pictures or of settings for the production of motion pictures. (These, printed and published, however, when trable as 'books.')" Rules and Reguare regislations for Registration of Claims to Copyright (Copyright Office Bul. No. 15), rule 8. [b] tions include composiprincipally operettas, and musical comedies, or operas, similar productions which are to be acted as well as sung." Regulations Rules and for Claims to Copyright (Copyright OfRegistration of fice Bul. No. 15) rule 9. [c] "Ordinary songs, intended to be sung from the stage even when in a dramatic manner, or separately published songs from operettas, should be registered operas and musical compositions, not dramaticomusical compositions." and






of (Copyright

to Copyright Office Bul. No. 15) rule 9. 43. St. 1 & 2 Geo. V c 46 § 35; 5 & 6 Vict. c 45 § 2. [a] Statutory "Dramatic work' includes any piece definitions.-(1) for recitation, choreographic work or entertainment in dumb show, the scenic arrangement or acting form of which is fixed in writing or otherwise, and any cinematograph production where the arrangement or acting form or the combination of incidents represented give the work an original character." Act, 1911 (1 & 2 Geo. V c 46 § 35). Copyright (2) "The words shall be construed to mean and in'Dramatic Piece' clude every Tragedy, Comedy, Play, Opera, Farce, musical, or dramatic Entertainment." other scenic, 5 & 6 Vict. c 45 § 2.





[b] Statute construed.-In struing the definitions of "dramatic piece" as contained in 5 & 6 Vict. c 452, Denman, C. J., said: "These words comprehend any piece which could be called dramatic widest sense; any piece which, on being presented by any performer to an audience, would produce the emotions which are the purpose of the regular drama, and which constitute the entertainment of audience." Russell v. Smith, 12 Q. the B. 217, 236, 64 ECL 217, 116 Reprint


44. Green v. Luby, 177 Fed. 287; Daly v. Webster, 56 Fed. 483, 4 CCA 10 [app dism 163 U. S. 155, 16 SCt 961, 41 L. ed. 111]; Daly v. Palmer, 10 F. Cas. No. 3,552, 6 Blatchf. 256; Russell v. Smith, 12 Q. B. 217, 64 ECL 217, 116 Reprint 849; Lee Simpson, 3 C. B. 871, 54 ECL 871, 136 Reprint 349; Clark v. Bishop, 25 L. T. Rep. N. S. 908.


45. Daly v. Palmer, 6 F. Cas. No. 3,552. 6 Blatchf. 256, 36 HowPr (N. Y.) 206.

46. Green v. Luby, 177 Fed. 287; Daly v. Palmer, 6 F. Cas. No. 3.552, 6 Blatchf. 256, 36 HowPr (N. Y.) 206; O'Neill v. General Film Co., 152 NYS 599 [aff 171 App. Div. 854, 157 NYS 1028].

[a] Dramatic or musical composition. "The defendant contends, in the first place, that the sketch 'The


Queen of the Vaudeville' is a musical
composition, within the meaning of
and not a dramatic
the copyright law
March 4, 1909, 35 U. S. St. at L. 1075,
of 1909
p. 1289]).
c. 320 [U. S. Comp. St. Supp. 1909,
There is much force in
this contention.
tially a
The work is essen-
series of recitations
songs to be recited or sung by the
person dressed in different
The action and dialogue




[§ 108 accommodated to action;4 .48 action, where the representation is as if the real a story represented by persons were introduced and employed in the action itself.1 49 It has been said that, in order for a composition to constitute a "dramatic composition" within the meaning of that term as used in the copyright law, it is necessary that it should tell some story.50 Therefore there can be no dramatic copyright in a mere stage dance;51 in the voice, motion, and postures of the actors;52 in mere stage business, or "gags;" 954 in a purely spectacular piece, or mere exhibition;55 in the device of representing bell shall be rung to call them together for resistance. ing picture company Then a movrepresenting Napoleon and French soldiers and a young girl beseeching arranges to take a moving picture appears and Napoleon to release her sweetheart, who is about to be executed as a spy. The miller, seeing this, rings the bell, the villagers rally and set graphed for the moving picture. In upon the party which is being photothe defendant's play, at the end of California in which a the first act, there is a scene laid in Japanese invasion, whereupon it is warns others of the danger of a countryman agreed that if such a thing occur an alarm bell shall be rung, so that the countryside may turn out to resist it. Then a moving picture company appears, arranging to take a picture of a Japanese general and troops and the effort of a woman to save a spy general. One of the countrymen, seefrom execution by importuning the ing this, rings the alarm bell. neighbors turn out, and a fight enThe sues with the moving picture comGirl on the Film is shown to be quite pany. The idea of the scene in the All Aboard with substantially the novel. It is certainly reproduced in same dramatic incidents. voice, motions, and postures of actors While the (Savage v. Hoffman, 159 Fed. 584; and mere stage business may be imitated because they have no literary quality and cannot be copyrighted Bloom v. Nixon, 125 Fed. 977), a scene literary quality, and may like the one under consideration has tected by copyright (Daly v. Palmer, be pro6 F. Cas. No. 3,552, 6 Blatchf. 256, 36 HowPr (N. Y.) 206; Daly v. Webster, 56 Fed. 483, 4 CCA 10; Brady v. Daly, 83 Fed. 1007, 28 CCA 253). with Judge Hough in thinking that We agree this scene infringed." Chappell v. Fields, 210 right, and that the defendants have a subject of Fed. 864, 865, 127 CCA 445. copy51.

in addition thereto are hardly suffi-
cient to make a dramatic composi-
tion. Still the work is something
more than a mere musical composi-
tion. The singer dresses in costumes
'patter'-the latter being, apparently,
There is a very little dialogue or
to represent the different characters.
the professional term. There is also
a very little action.
out of a cradle.
The singer gets
and lights
There is scenery,
think the
fairly be classified as a 'dramatico-
Green v. Luby, 177 Fed. 287.
of the copyright
performances which
47. Jacko v. State, 22 Ala. 73, 74
(where the court said: "The dramatic
adapted to the stage, with the ap-
as belonging to a theatre are those
are recognized
propriate scenery for their



the act."

ceded, that its signification is broad
Jacko v. State, 22 Ala. 73, 74
(where it is said: "It may be con-
enough to cover any representation
in which a story is told, a moral
conveyed, or the passions portrayed,
whether by words and actions com-
bined, or by mere actions alone").

49. O'Neill v. General Film Co.,
152 NYS 599 [aff 171 App. Div. 854,
157 NYS 1028]; Bell v. Mahn, 121 Pa.
225, 228, 15 A 523, 6 AmSR 786, 1
ordinarily designed to be spoken, but
LRA 364 (where it is said: "It is
it may be represented in pantomime,
when the actors use gesticulations,
sometimes in the form of the ballet,
but do not speak; or in opera, where
music takes the place of poetry and
of ordinary speech, and the dramatic
treatment is essentially
from either").

50. Cappell v. Fields, 210 Fed. 864,
127 CCA 448; Barnes v. Mine'
926; O'Neill v. General Film Co., 152
Fed. 480; Fuller v. Bemis, 50 Fed.
NYS 599, 604 [aff 171 App. Div. 854,
157 NYS 1028]; Tate v. Fullbrook,
[1908] 1 K. B. 821, 2 BRC 93, 14
AnnCas 428; Karno v. Pathé Frères,
99 L. T. Rep. N. S. 114 [app dism 100
L. T. Rep. N. S. 260].

"A dramatic composition is a work
logue and action, and the characters
in which the narrative is told by dia-
go through a series of events which
pantomime, and the story told in ac-
tell a connected story.
It may be a
but to make it
story or a series of events."
composition it must tell a connected
a dramatic
v. General Film Co., supra.

[a] Scene held dramatic within
rule. "In the second act of the Girl
on the Film a scene occurs in which
an old miller informs a meeting of
English villagers of the danger of a
French invasion, and it is agreed
that in case such a thing happen a


poetry of motion by a Fuller v. Bemis, 50 Fed. 926. graceful movements, combined with [a] A stage dance illustrating the series of an attractive arrangement of drapery, lights, and shadows, but telling meaning of the copyright act. no story, portraying no character, and depicting no emotion, is "dramatic composition," within not a the v. Bemis, 50 Fed. 926, 928. Fuller 52. Chappell v. Fields, 210 864, 127 CCA 448; Bloom v. Fed. 125 Fed. 977. Nixon, See also infra § 318. Imitations infra 321. infringement




[1908] 1 K. B. 821, 2 BRC 93, 14 Ann
53. Chappell v. Fields, 210
864, 127 CCA 448; Tate v. Fullbrook,
Cas 428; Karno v. Pathé Frères. 99
L. T. Rep. N. S. 114 [app dism 100 L.
T. Rep. Ñ. S. 260].
54. Tate v. Fullbrook, [1908]
K. B. 821, 2 BRC 93, 14 AnnCas 428;
Karno v. Pathé Frères, 99 L. T. Rep.
N. S. 114 [app dism 100 L. T. Rep.
N. S. 260].

55. Barnes v. Miner, 122 Fed. 480;
Martinetti v. Maguire, 16 F. Cas. No.
9,173, 1 Abb. 356, Deady 216; Jacko
v. State, 22 Ala. 73.

[a] "The Black Crook is a


, same title, page and note number

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of the suffering

all events within the meaning of
the statute, though it be sung only
by one person, sitting at a piano,
giving effect to the verses by his
delivery, but not assisted by scenery
or appropriate dress." Russell V.
Smith, 12 Q. B. 217, 64 ECL 217,
116 Reprint 849.


[b] Topical song.-The introduction, skeleton, and chorus of a topical song, part of a dramatic composition, designed merely to amuse, although possessing little literary merit originality, may be subject to copyright if of value for the purposes for which they were designed. Henderson V. Tompkins, 60 Fed. 758.

craft, a 'spectacular piece.' It has supposed words
no pretensions to be called a dra-parties, is dramatic, and therefore at
matic composition. The dialogue is
very scant, and appears in the light
of a mere accessory-a piece of word
machinery tacked on to the ballets
and tableaux. The principal part
and attraction of the spectacle seems
to be the exhibition of women in
novel dress or undress, or in strik-
ing attitudes or action. The closing
scene is called 'Paradise,' and con-
sists, as witness Hamilton expresses
it, 'of women lying about loose'-a
sort of Mohammedan paradise, I take
it, with imitation grottos and earthly
houris. To call such a spectacle a
'dramatic composition' is an abuse of
language. An exhibition of model
artistes, or a menagerie of wild
beasts, might as well be called a
dramatic composition, and claim to
be entitled to copyright. A menagerie
is an interesting spectacle, and so
may this be; but it is nothing more.
An exhibition of women, whether in
the ballet or tableaux, or even lying
around loose' in such a paradise, is
not a dramatic composition and en-
titled to the benefit and protection of
copyright." Martinetti V. Maguire,

16 F. Cas. No. 9,173, 1 Abb. 356, Deady 216 [quot Barnes v. Miner. 122 Fed. 480, 490]. For an adverse criticism of this decision, see the

60. Fuller V. Blackpool Winter Gardens, etc., Co., Ltd., [1895] 2 Q. B.


61. Fuller V. Blackpool Winter Gardens, etc., Co., Ltd., [1895] 2 Q. B. 429.

[a] When song is a dramatic piece. -(1) "The fact that it is sung in costume does not make it a dramatic piece. If the dress of the singer could have that operation, the singer and not the author of the song would be the person who caused it to be a dramatic piece. The same may be said of the manner in which the



by Vaughan Williams, L. J., and it is pointed out that it does not appear in other reports of that case. It was further said: "But, be that as it may, that decision does not bind us here, and the conclusion which I have come to is that the subject-matter in which the author is to acquire a property is something which is capable of being printed and published. It seems to me that a great deal of the matter which was decided by Phillimore, J. [in the court below], to be the subject-matter for protection under the Act, was not so at all. The intention of the Act of Parliament was to protect the property of an author. Sometimes the learned judge did not quite put the matter in that way. He seems to treat the subject-matter of the Act as being the written production plus other matters, such as the similarity of the get-up of the various characters, the facial expression, the scenic effects, and suchlike, which he speaks of as being ancillary or accessory to the words of the peace. In my view, the true construction of the Act is that the subject-matter-viz., the right of the author which it is intended to protect-is something which is capable of being printed and published").

article entitled "The Law for Play- singer treats the song. The question "Railroad Scene."-(1) A play con

wrights," 8 So. L. Rev. N. S. 13.

[b] Circus exhibitions; feats of legerdemain.-"It may often be difficult to trace the dividing line between the terms theatre and circus from the character of their exhibitions, but there can be none whatever in distinguishing the difference between the usual performances of a theatre and an exhibition of feats of sleight of hand or legerdemain. The latter cannot be said to be a dramatic performance, in any legitimate sense of that term." Jacko v. State, 22 Ala. 73, 75.

56. Barnes v. Miner, 122 Fed. 480. [a] Rule applied.-A stage performance consisting of the singing of well known songs by a woman dressed to personate other singers, prefaced by a short and commonplace dialogue having no reference to such performance, and with a kinetoscope exhibition during the intervals when the performer is changing costume, in which she is shown while making such changes by means of moving pictures previously taken photographically on a film, is not a subject of copyright, the dialogue not being a dramatic composition, but a mere exhibition, in addition to being immoral. Barnes v. Miner, 122 Fed. 480.

57. Mikado, etc., Case, 25 Fed. 183, 23 Blatchf. 347.

58. Mikado, etc., Case, 25 Fed. 183, 23 Blatchf. 347; Fuller v. Blackpool Winter Gardens, etc., Co., Ltd., [1895] 2 Q. B. 429, 437 (where Kay, L. J., said: "Music without the words could hardly be called a dramatic piece").

must be what was the character of
the composition when it was first
written and published. I can quite
understand that it is possible that a
thing to be performed by one person
only may be a dramatic piece. But,
whether the composition is to be
sung by one or more persons, if a
song is sung, and only a song, there


no performance of a dramatic
Fuller v. Blackpool Winter
Gardens, etc., Co., Ltd., [1895] 2 Q. B.
429, 434 (per Lord Esher, M. R.).
(2) "Every case must depend upon
its own attendant circumstances.
each case it is a question of fact. I
think that to constitute a song a dra-
matic piece it must be such a song as
for its proper representation, acting,
and possibly scenery, formed a neces-
sary ingredient, and that if neither of
these be a requisite to the efficient
representation of the song, it is not
a dramatic piece. It is an entire
misnomer to call a mere common,
ordinary music-hall song, which re-
quired neither acting nor scenery for
its production, a dramatic piece, for
it is in truth nothing of the kind."
Fuller v. Blackpool Winter Gardens,
etc., Co., Ltd., [1895] 2 Q. B. 429, 442
(per A. L. Smith, L. J.).

62. Fuller V. Blackpool Winter
Gardens, etc., Co., Ltd., [1895] 2
Q. B. 429, 434 (per Lord Esher,
M. R.).

63. Daly v. Webster, 56 Fed. 483,
4 CCA 10 [app dism 163 U. S. 155,
16 SCt 961, 41 L. ed. 111]; Daly v.
Palmer, 6 F. Cas. No. 3,552, 6
Blatchf. 256; Chatterton V. Cave,
L. R. 10 C. P. 572.

"It was first said that the subjectmatter of the action was not the sub

59. Fuller v. Blackpool Winter Gardens, etc., Co., Ltd., [1895] 2 Q.ject-matter of copyright-that the B. 429; Russell v. Smith, 12 Q. B. 217, 64 ECL 217, 116 Reprint 849; Clark v. Bishop, 25 L. T. Rep. N. S. 908; Roberts v. Bignell, 3 T. L. R. 552.

[a] Descriptive or dramatic song.— "A song which relates to the burning of a ship at sea, and the escape of those on board, describes their feelings in vehement language, and sometimes expresses them in the

Act gives a property in words and
not in situations and scenic effects.
but I think that these latter are
more peculiarly the subject of copy-
right than words themselves." Chat-
terton v. Cave, 33 L. T. Rep. N. S.
255, 256 [aff 2 C. P. D. 42 (aff 3 App.
Cas. 483)] (per Brett, J.). But see
Tate v. Fullbrook, 98 L. T. Rep. N. S.
706, 710 (where the above quoted
language of Brett, J., is disapproved

[a] Series of dramatic events; tained the following scene: One of the characters was put in peril of his life by being placed by another of the characters on a track over which a railroad train was expected to arrive, and so fastened momentarily that he could not move from his dangerous position. From this perilous situation he was rescued by a stacles, succeeded at the last moment third person who, surmounting obin releasing him. Although the scene contained but very little dialogue. it was held that it constituted a "dramatic composition" within the meaning of the copyright law. Brady v. Daly, 175 U. S. 148. 20 SCt 62. 44 L. ed. 109 [aff 83 Fed. 1007, 28 CCA 253]; Daly v. Palmer, 6 F. Cas. No. 3,552, 6 Blatchf. 256, 36 How Pr (N. Y.) 206 [dist Daly v. Webster, 56 Fed. 483, 4 CCA 10 (app dism 163 U. S. 155, 16 SCt 961, 41 L. ed. 111)]; Serrana v. Jefferson, 33 Fed. 347. (2) "In plays of this class the series any importance. The dialogue is unof events is the only composition of important, and as a work of art trivial. The effort of the composer is directed to arranging for the stage series of events so realistically presented, and so worked out by the display of feeling or earnestness on the part of the actors, as to produce а corresponding emotion in the audience. Such a composition, though its success is largely dependent upon what is seen. irrespective of the dialogue. is dramatic. It tells story which is quite as intelligible to the spectator as if it had been presented to him in a written narrative." Harper v. Kalem Co., 169 Fed. 61, 64, 94 CCA 429 [aff 222 U. S. 55, 32 SCt 20, 56 L. ed. 92, Ann Cas1913A 1285. and quot Daly v. Webster. 56 Fed. 483. 4 CCA 10 (app dism 163 U. S. 155, 16 SCt 961, 41 L. ed. 111)).



64. U. S.-Kalem Co. v. Harper, 222 U. S. 55, 32 SCt 20, 56 L. ed. 92, AnnCas1913A 1285; Daly v. Palmer, 6 F. Cas. No. 3,552, 6 Blatchf. 256.

Ala.-Jacko v. State, 22 Ala. 73.
N. Y.-O'Neill v. General Film Co.,

one form of dramatic composition.65
work consisting wholly of directions, set in order
A written
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 represen-
tation as if language or dialogue were used in it to
convey some of the ideas.66
rights in a series of newspaper cartoons.67
There are dramatic

Mechanical contrivances. While the term "dra-
matic composition" may include dramatic situa-
tions or action, it does not cover the merely mechani-
cal instrumentalities by which the situations or
scenic effects are produced.68



[§§ 108-110

rightable.72 Thus the mere fact that a play is based on and resembles a novel or story previously published does not prevent its being copyrightable as an original production. Copyright may be secured on each of several dramatizations of the same story. A dramatic composition, although founded on another play, may yet be so far different from the latter as to entitle the adaptation as a whole to the claim of originality." must be understood with the qualification that the Of course these rules author must have been legally entitled to make use of the original work; there can be no protection for a piracy. These rules have been long recognized and established by judicial construction and decision;" but now the statute specifically provides that dramatizations or other versions of works in the public domain, or of copyrighted works when produced with the consent of the proprietor, shall be regarded as new works subject to copyright.78

[110] 5. Musical Compositions79-a. In General. In the United States the act of 1831 was the first in which musical compositions were specifically named as the subject of copyright,80 and this specific designation has been continued in all subsequent copyright acts.81 Accordingly, since 1831, musical

printing and publication; but where
less alike, similarity of scenic effects
the words of two plays are more or
like matters may be regarded, al-
and the make-up of actors and such
though not by themselves subjects of
protection under the act, as being
taking them in conjunction with the
evidence on the question whether,
tity of the two productions.
words, there is not substantial iden-
v. Fullbrook, [1908] 1 K. B. 821, 2
BRC 93, 14 AnnCas 428. (2) A scene

[§ 109] c. Dramatic Originality. Of course, as in the case of all other works, a dramatic or dramaticomusical composition must possess some element of originality in order to be copyrightable. Ordinary incidents, stock situations, and oft told tales, are the common property of all playwrights; they cannot be monopolized by copyright.70 But when combined in a new and original way the particular result is copyrightable. Dramatization of existing works involves the independent exercise of intellectual powers, and hence the resulting product is copy152 NYS 599 [aff 171 App. Div. 854, 157 NYS 1028]. Pa-Bell v. Mahn, 121 Pa. 225, 15 A 523, 6 AmSR 786, 1 LRA 364. Eng-Lee v. Simpson, 3 C. B. 871, 54 ECL 871, 136 Reprint 349. Karno V. Pathé Frères, 99 Contra Rep. N. S. 114, 118 [app dism 100 L. T. L. T. Rep. N. S. 2601 (where Jelf, J., said: "Their Lordships seem to me to have distinctly excluded from the protection of the Act every mere pantomime or any piece which is acted entirely in dumb show, how-in a play apart from the dialogue ever much or however little merit there may be in the composition and may be a dramatic composition and however clear and entitled to damaging the Brady v. Daly, 175 U. S. 148, 20 SCt plagiarism may be." copyright protection. necessary to go so far in this case, It was hardly 62, 44 L. ed. 109 (where the railroad where the act in question consisted light" scene in the play "Under the Gassubstantially of an extemporized riot, in which both performers and similar scene only colorably differfringement and was infringed by a protected against inaudience took part, acting largely ent on the spur of the moment. in the piece had no fixed form or plot. The The Dark"). play called "After big idea was the riot and the idea of having a riot was, of course, not copyrightable); Tate v. Fullbrook, [1908] 1 K. B. 821, 2 BRC 93, 14 AnnCas 428 (where Vaughan Williams. L. J., said that the subject matter protected by copyright must be "something which dramatic is capable of being printed and published," and therefore did not cover situations, scenic effect, stage "business," etc.).



"Drama may be achieved by action as well as by speech. tell a story, display all Action most vivid relations between men, the and depict every kind of human emotion, without the aid of It would be impossible to deny the a word. title of drama to a pantomime as played by masters of Kalem Co. v. Harper, 222 U. S. 55, the art." 61, 32 SCt 20, 56 L. ed. 92, AnnCas 1913A 1285.

65. See infra §§ 120-122.

66. Daly v. Palmer, 6 F. Cas. No. 3,552, 6 Blatchf. 256; Lee v. Simpson, 3 C. B. 871, 54 ECL 871, 136 Reprint 349.

67. See infra § 302. 68.

Serrana v. Jefferson, 33 Fed. 347; Freligh v. Carroll, 9 F. Cas. No. 5,092a; Chatterton v. Cave, 3 App. Cas. 483; Tate v. Fullbrook, [1908] 1 K. B. 821, 2 BRC 93, 14 AnnCas 428; Tree v. Bowkett, 74 L. T. Rep. N. S. 77; Beere v. Ellis, 5 T. L. R. 330.

[a] Scenic effects apart from the words and incidents of the piece (1) are not the subject of copyright because they cannot be the subject of




sisting of a tank into which water
[b] A mechanical contrivance con-
off underneath the stage, represent-
is made to fall, and running thence
ing a river into which, in the course
of a play, the villain falls from a
bridge above, not being a link in the
chain of incidents which, together
performance, constitute a series of
with the speech and action of the
events concededly novel, is not such
a mechanical contrivance as will be
protected by copyright of the play
in which it is introduced.
Jefferson, 33 Fed. 347 [quot Barnes
Serrana v.
v. Miner, 122 Fed. 480, 491].
Martinetti v. Maguire, 16 F.
Cas. No. 9,173, 1 Abb. 356 (where the
court questioned whether the spec-
tacular piece called "Black Crook"
right law).
such originality
titled it to the protection of the copy-
§§ 91-97.
see supra
sisted of an angry dialogue between
Serrana v. Jefferson, 33 Fed.
347 (holding that a scene which con-
the hero and villain of the play, and
then a struggle between them ter-
into the river, did not possess such
minating in the villain being thrown
originality as entitled it to
right in the play. Lacombe, J., said:
under the protection of the
"There is nothing original in the
stage. Heroes and heroines, as well
thus represented on the
as villains of both sexes, have for
a time whereof the memory of the
theatre-goer runneth not to the con-
ventional ponds, lakes, rivers, and
trary, been precipitated into






So frequent may fairly be regarded as the coma catastrophe mon property of all playwrights"). See also infra § 318. generally see supra §§ 91-97. 71. Authorship and 72.


SCt 20, 56 L. ed. 92, AnnCas1913A
61. 94 CCA 429 [aff 222 U. S. 55. 32
Harper v. Kalem Co., 169 Fed.
1285]; O'Neill v. General Film Co.,
171 App. Div. 854, 157 NYS 1028 [aff
152 NYS 599].

Fed. 276; Boucicault v. Fox, 3 F.
Glaser v. St. Elmo Co., 175
854, 157 NYS 1028 [aff 152 NYS 5991;
Cas. No. 1,691, 5 Blatchf. 87; O'Neill
Fleron v. Lackaye, 14 NYS 292. See
v. General Film Co., 171 App. Div.
also Daly v. Byrne, 43 N. Y. Super.
publishing an article charging plain-
261, 271 [aff 77 N. Y. 182] (an ac-
tion of libel against defendant for
tiff with claiming the authorship of
"The plaintiff had a right to drama-
by another person.
a play, when in fact it was written
The court said:
tize the novel, and such dramatiza-
incidents, to the novel").
tion became his property, though
appeared in it substantial
similarity in plot, situations and

74. Photo-Drama Motion Picture Co. v. Social Uplift Film Corp., 220 Fed. 448, 137 CCA 42 [aff 213 Fed. 374]; Harper v. Kalem Co., 169 Fed. 61, 94 CCA 429 [aff 222 U. S. 55, 32 SCt 20, 56 L. ed. 92, AnnCas1913A 1285]. See also supra § 94. [a] Spoken and pictured drama.right Act (in 1912, passed subse"Since the amendment of the Copyquent to Kalem Co. v. Harper, 222 AnnCas1913A U. S. 55, 32 SCt 20, 56 L. ed. 92, copyright for a dramatization of the 1285), these were separable; there might be rights old sort (acted on a stage), and also a copyright for a dramatization of pictures)." Photo-Drama Motion Picthe new sort (arranged in motion ture Co. v. Social Uplift Film Corp., 220 Fed. 448, 449, 137 CCA 42. 75. Aronson V. Fed. 75; French v. Maguire, 55 How Fleckenstein, 28 Pr (N. Y.) 471; Tree v. Bowkett, 74 L. T. Rep. N. S. 77.

76. See supra § 91.



See cases this section passim.
positions see infra §§ 319-323.
78. Act March 4, 1909 (35 U. S.
St. at L. 1075 c 320 § 6).
79. Infringement of musical com-


Act Febr. 3, 1831 (4 St. at L. 436 c 16 § 1).

March 3, 1891 (26 St. at L. 1106 81. Act of July 8, 1870 (16 St. at L. 198 c 230 § 86); Rev. St. § 4952;

, same title, page and note number

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