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THIS will be a very long, and, I fear, a dry chapter, but, nevertheless, I advise you to read it. If the advantage to you bears any approximation to the labour it has entailed on me it will prove of much service to you.
The laws relating to theatrical affairs have been fearfully and wonderfully made, and they grow more confused, contradictory, and unintelligible with every fresh attempt to elucidate them. They appeared to me somewhat complicated and mysterious even before I went, for the purposes of these articles, thoroughly into the matter. Now that I understand them--as far as human understanding can cope with them--the Chinese grammar seems straightforwardness itself compared with them. A vague notion is hovering through my distracted brain that an author can claim no right in his work at all, and that anybody can slap his head, and take his play away from him, and that he has no legal redress whatever; and as one justification among many for this opinion of mine, I may mention that at the date I am writing, a certain person is advertising in the American papers that he has adapted Mr. Rider Haggard's "She" for the stage (without the author's permission, mind), and threatening anyone who does the same (including Mr. Rider Haggard himself) with all the penalties of the law; and really it is a question of grave argument if the law is not on his side.
A sort of custom of the trade has grown up, regulating all dealings connected with plays, and this, among honest menr answers well enough in practice; but it rests on no sure legal foundation, and, were managers and authors to examine too minutely into the abyss of law over which they exist, they would probably go mad.
The whole confusion arising from its being undecided (and it never will, I expect, be decided) whether there is any "common law" right, as it is termed, in literature. The great wieght of judicial opinion is against there being this right, but: some of the judges hold that there is such right, so that uncertain as law is in every case it is just fifty times more uncertain than ever in all theatrical matters.
Now, by "common law"--I am sorry to be a bore, but I must get you to thoroughly understand this preliminary point of the matter, so much depends upon it. By "common law" is meant the law that is established, not by Act of Parliament, but by plain justice and commor sense; or to quote a celebrated judge, "by the common law is meant those principles, usages, and rules of action applicable to the government and security of person and property which do not rest for their authority upon any express declaration of the Legislature." If you devote your brains and labour to making a three-legged stool, that stool is yours by right of common law. No one may steal it from you, or injure it, or lay a finger on it without your permission. It is yours from the hour you make it till the crack of doom (unless somebody very heavy sits down on it, and, even then, the pieces belong to you). No one dare dispute your claim to it, and every court in the land will protect you in the enjoyment of that three-legged stool. But if you devote your time to writing a play or a book, the law washes its hands of you, and leaves you to the mercy of a bunch of ill-worded, involved, and not-to-be understood statutes, under which you can be robbed and swindled with impunity by every dirtY blackguard who may be hanging on to the fringe of the theatrical profession.
"Yes," says the judge, adjusting his spectacles, "A. wrote the play, and B. stole it from him. That, I take it, is clear. Now, I will carefully consider the Act, and then give my judgment accordingly."
In nine cases out of ten the judgment is for B., and A. has to pay the costs.
In "Murray v. Alliston" (to go no further back) Byron's tragedy of Marino Faliero, the copyright of which belonged to Mr. Murray, had been taken and altered, and performed as a play at Drury Lane. If ever there was a case of cool and impudent robbery it was here. Verdict for the defendant.
Another famous case, in which the principle of there being no common law-right in literary work was maintained, is "Reade v. Conquest" Mr. Reade argued, among other points, that the performance of Mr. Conquest's play--adapted from his (Mr. Reade's) novel, "It's Never Too Late To Mend"--injured the sale of the book, and also prevented him himself from making the use of the tale as a play, thereby claiming, as the judge pointed out, a common law right in his work; and, although Reade won the case, as we shall see hereafter, when dealing more fully with the case under another branch of the subject, he failed entirely on this head, the Court holding that an author had no common law right in his play, "that the time had passed when the question was open to discussion, and that it must now be considered to be settled that copyright in a published work only exists by statute."
In "Turner v. Robinson "the Master of Rolls (Ireland) said, "Works of literature are unprotected by the common law."
In "Toole v. Young," Lord Chief Justice Cockburn said, "The author of a drama is not protected by the common law."
On the other hand, Judge Erle, in "Jeffreys v. Boosey," held most strongely that there was a common law right in coypright and stageright ("Stageright," a word invented by the late Chas. Reade, and now generally adopted, implies the right of a dramatist in his plays similar to the "copyright" enjoyed by an author in his books); and the following sentences from his judgment are worth recording:--
"The right of an author in his works is analogous to the rights of ownership in other personal property.
"In other matters the (common) law has been adapted to the progress of society according to justice and convenience, and by analogy it should be the same for literary works, and they should become property with all its incidents on the most elementary principles of securing to industry its fruits and to capital its profits."
And he, Judge Erle, concluded his exhaustive and closely argued decision with these words:--"Upon this review of principle and authority, I submit that authors have property in thelr works by common law as well since the statute of Anne as before it." (It had been argued that even if such right had previously existed, the Copyright Act, passed in the reign of Queen Anne, had destroyed it.)
Lord St. Leonards, in the same case, it should be mentioned, however, held just the opposite opinion to Erle.
Another eloquent judge, Judge Aston, may also be quoted on the same side:--"The invasion of this sort of property (literary property) is as much against every man's sense of it as it is against natural reason and moral rectitude. It is against the conviction of every man's own breast who attempts it. He knows it not to be his own. He knows he injures another, and he does not do it for the sake of the public, but treacherously and for mere gain (animo lucrandi). The law of nature and truth and the light of reason and the common sense of mankind is against it."
And, to conclude our quotations, Judge Dodderidge, speaking of the same subject, asks, "Why should the common law be deemed so narrow and illiberal as not to recognise and receive under its protection a property so circumstanced as the present?"
So much for general introduction; now let us examine into details.
The rights--such as they are--of a dramatic author in the play he has written are given to him by special statutes which have been passed from time to time, beginning with the famous Copyright Act, "8 Anne, c. 19"; and into these rights propose to wade.
To state them with any certainty is impossible. A council of the best lawyers in the kingdom could not do that. The exact meaning of a statute is always a matter of argument, much to the advantage of the arguers. One judge thinks it means one thing and another judge holds that the words must be taken to imply the opposite; and if you do ever have to go to law over any of your plays, I pity you.
Now, first of all, let us understand what it is we are going to talk about. This is always a great point gained in every argument. The Act declares the matter to which it refers to be "any tragedy, comedy, play, opera, farce, and any other dramatic piece or entertainment"; and how wide an area the Courts allow the definition to cover may be judged by the fact that in "Russell v. Smith," a mere song, entitled "The Ship on Fire," sung by a gentleman in evening dress, and without any scenic accessory, was deemed a "dramatic piece" within the meaning of the Act, it being of a descriptive character, and the supposed words of the persons on board being employed. Any of Sims's ballads would, by the same reasoning, be held to be dramatic pieces, and Mr. Sims could, if he chose, control their recitation. Indeed, half of the recitations one hears at smoking concerts, &c., could, I should argue from this decision, be deemed dramatic pieces, and their performance protected.
Such being your property, what are your rights in it?
Before publication, your work belongs to you by right of common law, that is, so long as your play remains unacted it is your property in the same way that your hat and boots are your property, and anyone interfering with it can be dealt with simply and expeditiously by the common law. This may not, at first sight, appear much of a privilege, but there might arise circumstances under which the principle would confer distinct advantage on the author. For instance, if you lent your play to some man to read before it was "published" (the "publication" of a play is its first public performance), and he took it, or a copy of it, and performed it without your permission, that would be a simple robbery, and could be stopped at once. Were matters otherwise your only remedy would be an expensive and uncertain law-suit.
Nor could anyone "crib" any scenes or ideas from it--the proof that he had done so, however, would rest with you, and as, if he did do such a thing, he would be pretty sure to alter and disguisethem, and would then argue that they were his own, you would have extreme difficulty in establishing the fact.
You can allow your unpublished play to be performed privately (the distinction between a private and a public performance I will describe later on) without in the least perilling your rights.
Printing a play in book form, and selling it over a counter, is not deemed a "publication" of the play, and does not injure your stage-right in Her Majesty's dominions. But it deprives you of your chances in America at once. A play, as I have said, is not considered published until it has been publicly performed. To take an example, you can write a play and have it published in a book or magazine without endangering your stage-right in it as a play. Some time ago a comedietta was published in The Lady's Pictorial. All the acting rights of that comedietta remain with the author, and nobody can touch it any way.*
* Some friends have taken objection to my view of the law on this point and doubt the safety of first publishing a play in book form. It would, of course, be absurd to dogmatise upon such a very shifty science as Law; and, as a question of expediency, I should advise any author not to publish his play as a book before having it performed; but, nevertheless, I feel tolerably sure of my ground; and I believe that any manager performing without the cousent of the author, auy play first published in book form would get the worst of the argument. The Act (5 and 6 Victoria--clause 22) distinctly states that the sale of the book copyright of a play does not carry with it the right of representation If the law expressly withholds the stageright from the purchaser of the copyright of a play, it surely would not throw open such stageright to every outsider. Again, the law actually directs a foreign author, wishing to secure hisplay in this country, to first publish a translation of such a play iu book form, and Frou-Frou was first published here in the columns of a magazine.
Nor have practical experiments of the kind been wanting Not very long ago "Ouida" published a thoroughly actable little play, reserving at the same time the stageright. Surely a play with the name of "Ouida" attached to it would have been worth stealing, and there is no lack of thieves hanging round the theatrical profession, Some years back a series of one-act plays appeared in a now defunct paper---The Play. Many of these were quite actable, and oue of them, written by the late Palgrave Simpson, would have been well worth puttiug on at any theatre. It has not been touched. There are plays on Mr. French's list which have never been publicly performed, and fairly good little comediettas often appear in the various magazines. The explanation is that while the author of a narrative possesses only one right in his work, namely, that of copyright, his more fortunate brother, the author of a drama, possesses both copyright and stageright, and can dispose of the two rights separately. Lastly, a play, until it been publicly performed, belongs to the author by right of Common Law.
Selling the book copyright in a play does not carry with it the sale of the stageright.
Mr. W.S. Gilbert's plays are published in book form, and sold all over England. Now I do not know whether Mr. Gilbert has sold the book copyright of those plays to the publisher, or whether he and the publisher share profits, or what the arrangement is; but, for the sake of argument, we will suppose that he has sold the copyright out-and-out to the publisher. This does not give the publisher any right to act the plays, or to deal with them upon the stage in any way. The exact words of the statute are "no assignment of the copyright of any book consisting of, or containing a dramatic piece shall be holden to convey to the assignee the right of representing or performing such dramatic piece." "Book" here includes any article story, &c., &c., published in any magazine or newspaper.
But such publication in book form does deprive you of the American right, so don't print any play you think you can do anything with over there. Every play printed and sold for 6d. over Messrs. French's counter can, under the American law, be played anywhere in the United States without the English author being paid a halfpenny.
Of course, mere printing for private circulation, without publishing, is only like having so many copies of the play written or typed out, and carries with it no legal effect. Indeed, at most of the theatres now, new plays are always printed for rehearsal and other purposes instead of beings copied out in writing as formerly.
So much for your rights before publication. Now, assuming your piece to have been published, i.e., performed in public, let us examine into what rights you then possess over it.
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