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§ 124.

ment of author's

rights.

dramatising; but the case seems never to have arisen in English Courts. The consent of the author is however Infringein practice sometimes obtained (u). All this confusion results from the English doctrine Novelisathat the dramatisation of a novel produces a new and tion of original work capable of copyright; while yet the Courts are forced to recognise that it is not original. by treating the printed dramatisation as a possible infringement of the copyright in the novel.

An author communicates to the public the results of intellectual labour. Whether in making other communications to the public any other person infringes his rights should be tested by the principle laid down as between plays and plays in Chatterton v. Cave (x): Has there been a substantial and material taking of these results? In the case of most dramatisations of novels, there certainly has, and the law has recognised this by prohibiting in some cases the printing of such dramatisations. In acted plays, we have the text, the actors' abilities, and the stage accessories, costumes, and scenery; these last two being additions founded and based on the text. But the text is the most important part of the play, so important that it has been doubted whether there can be copyright in anything but the actual words of the play. Surely then in the case of dramatisations of novels there has been "a substantial and material taking" of the labour of an author, and where there has been such taking, every reason on which literary property is based is a reason for protection against such infringements. The English law here is another example of the English position referred to above, that addition condones subtraction, the question

(u) See Tom Taylor's evidence, C. C. Ev. q. 2652.
(r) L. R. 10 C. P. 572, 575; L. R. 3 App. Cases, 483.

dramas.

§ 124.

Infringe

ment of author's rights. Novelisation of dramas.

in the English Courts being not so much "Has old and valuable work been taken?" as "Has new and valuable work been added?"

It is an infringement of an author's right to perform parts of his play or opera (y), as for instance single songs from an opera, subject to the principle of Chatterton v. Cave (z), that the part taken must be substantial and material.

Infringement may also be committed by taking scenic effects and dramatic situations, without any accompanying words. Thus Brett, J., in Chatterton v. Cave (z) said, "I think scenic effects and situations are more peculiarly the subject of copyright than the words themselves," and in an American case (a) it was held that "written work consisting wholly of directions set in order for conveying the ideas of the author on a stage by means of characters who represent the narrative wholly by action is as much a dramatic composition as any other." But on the other hand, in Martinetti v. Maguire (b), the 'Black Crook' was not protected from piracy, apparently on the ground that it was a "mere spectacle." In this case however it was in evidence that great part of the scenery consisted in the "female form divine," and the learned judge's morality appears to have overpowered his grasp of the general law.

Immorality and blasphemy in plays prevent protection from vesting; and it is also required that there should be some amount of original work in the play claiming protection. Dramatisations of novels have playright of their own. Playright can also be obtained in the adaptation of a play in which there is no playright, as in the (y) Planché v. Braham, 4 Bing. N. C. 17.

(z) L. R. 10 C. P. 575; L. R. 3 App. Cases, 483.
(a) Daly v. Palmer, 6 Blatchford, 256, 264.

(b) 1 Deady 216 (Am.)

author's

case of Hatton v. Keen (e), where the defendant estab- § 124. Infringelished a playright in adapted plays of Shakespeare. ment of Copyright and playright can also be obtained in trans- rights. lations of a foreign play in which there is no copyright, but this does not hinder others from making their own translations from the common source.

The duration of the protection afforded is perpetual at common law. By statute for both copyright (d) and playright (e), it is forty-two years from first publication, or life+seven years, whichever is longer.

The investitive facts of the right are:

I. Of playright.

At common law:

1. Intellectual production in some form per-
manent or capable of permanence.

Under the Statute:

2. First representation in public.

3. (Condition precedent to suing.) Registration
under 5 & 6 Vict. c. 45, ss. 20-24.

II. Of copyright.

At common law:

1. Intellectual production in a permanent form. Under the Statute:

2. First printing and publication.

3. Registration under 5 & 6 Vict. c. 45, ss. 13, 24. One (ƒ) who employs another to write a play for him, and even goes so far as to suggest the subject, does not by that alone acquire copyright; nor (g) do minor

(c) 7 C. B. N.S. 268.

(d) 5 & 6 Vict. c. 45, s. 3.

(e) 5 & 6 Vict. c. 45, s. 20.

(f) Shepherd v. Conquest, 17 C. B. 427.

(3) Levy v. Rutley, L. R. 6 C. P. 523. See also Shelley v. Ross, L. R. 6 C. P. 531.

§ 125. Duration

of protec

tion.

§ 126. Investitive facts.

§ 126.

facts.

alterations or additions with or without the consent of Investitive the author necessarily constitute joint authorship. Registration (h) is necessary before infringement of copyright can be sued for; a modified form of registration is desirable as evidence () of playright, but is not a condition precedent to an action for infringement (k).

§ 127. Transvestitive facts.

The transvestitive facts of the right are:

1. Consent of author (1), which must be in writing. (h) 5 & 6 Vict. c. 45, s. 24.

(i) Ibid. s. 20.

Clarke v. Bishop, 25 L. T. N.S. 908. (k) In the case of a play which has been printed, the proprietor of the copyright must make entry in the register of—

1. The title of such play;

2. The time of first publication thereof;

3. The name and place of abode of the publisher thereof;

4. The name and place of abode of the proprietor of the copyright, or of any portion (5 & 6 Vict. c. 45, s. 13);

66

on the form given in the schedule of the Act of 1842, a copy of which is supplied at Stationers' Hall. The publisher whose “ name and abode” is registered must be the first publisher of the work: Coote v. Judd, L. R. 23 Ch. D. 727. The place of abode of the publisher may be his place of business: Nottage v. Jackson (not yet fully reported). A fee of 5s. is payable to the Registrar.

In the case of an assignment of such copyright, there must be registered

1. The assignment;

2. The name and place of abode of the assignee.

A form for registration is given in the schedule, and a similar fee of 5s.

is payable. (5 & 6 Vict. c. 45, s. 13.)

In the case of a play acted, but not printed, it is sufficient to register

(1.) The title of the play.

(2.) The name and place of abode of the author.

(3.) The name and place of abode of the proprietor of the copyright.

(4.) The time and place of first representation or performance.
(5 & 6 Vict. c. 45, s. 20.) Any failure to register will not deprive the
author of any remedies to which he may be entitled under 3 Will. IV.
c. 15.

A play neither acted nor printed of course needs no registration.
(1) 3 Will. IV. c. 15, s. 2; Shepherd v. Conquest, 17 C. B. 427.

vestitive

The writing of the agent of an author will suffice as § 127. evidence of assignment, and the Secretary (m) of the TransSociety of Dramatic Authors is treated as his agent, facts. The transfer need not be witnessed (n), or under seal (o). A part owner cannot assign the whole (p) copyright or playright without the consent of his co-owners.

2. In the event of death intestate, copyright and playright descend as personal property.

3. Registration of the transfer is a condition precedent to the bringing of an action. By 5 & 6 Vict. c. 45, s. 22, an assignment of copyright does not transfer playright unless the intention to do so is expressly entered on the register. This clause is the result of the decision in Cumberland v. Planché (q), where it was held that the assignment of the copyright of a drama passed the sole right of representing it, as incidental to the copyright. The clause was, however, held in Lacy v. Rhys (r) not to apply to an unregistered deed expressly conveying both copy and acting right. Cockburn, C.J., arguendo suggested that possibly an unregistered assignee would not have the benefit of the Act of Victoria, but only of the Act of William IV.

The Divestitive Facts of the Right are

1. Expiration of the statutory term, which may be at different times for playright and copyright.

2. Waiver by the author, which (possibly) must under the Act of William IV. be in writing.

(m) Morton v. Copeland, 16 C. B. 517.

(n) Cumberland v. Copeland, 1 Hurl. & C. 194.

(0) Marsh v. Conquest, 17 C. B. N.S. 418.

(p) Powell v. Head, 12 Ch. D. 686.

(7) 1 A. & E. 580.

(r) 4 B. & S. 873; and see Marsh v. Conquest, supra.

L

§ 128.

Divestitive facts.

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