Section III What Is a Dramatic Work
The subject of dramatic performing right must be—
1. An original composition.
2. Of a dramatic nature.
The amount of original composition required is probably the same as in a literary work claiming the protection of the Copyright Act, 1842, as a “book.” As has been seen the standard is extremely low, no literary merit or great skill being essential.680 Adaptations, translations, and the like, are protected quoad their transformation.681
As to what amount of dramatic element is required is not clear from the statutes, and not much clearer from the decisions. It is now well decided that in order to secure a performing right there must be some dramatic element. That is to say, one cannot compose a non-dramatic work, and after publishing it in its non-dramatic form, claim the exclusive right to represent the non-dramatic work on the stage in dramatic form.682 But the difficulty is to define what is “dramatic form.” The dramatic works protected by 3 & 4 Will. IV. c. 15 are “any tragedy, comedy, play, opera, farce, or any other dramatic piece or entertainment.” In 5 & 6 Vict. c. 45 “dramatic piece” is defined as including every tragedy, comedy, play, opera, farce, or other scenic, musical, or dramatic entertainment. Neither definition is very satisfactory. In Lee v. Simpson683 it was held that an introduction to a pantomime, being the only written part, and intended to be followed by “comic business,” was a dramatic piece. This case as reported, however, is of little assistance, as it does not show what the exact nature of the “introduction” was, and the judgment of the Court does not contain any definition of a dramatic piece. In Russell v. Smith684 the question was more carefully considered. The work in which a performing right was claimed was a song called “The Ship on Fire.” It was founded on the loss of The Kent by fire in the Bay of Biscay. According to the judgment—
“It represents a storm at sea, the burning of the ship, and an escape by boat to another ship, and so a safe return to land. It moves terror and pity and sympathy, by presenting danger, and despair, and joy, and maternal and conjugal affection. A witness of great experience in publishing music deposed that this was considered a dramatic song.”
The Court held that it was a “dramatic piece.” Lord Denman, C. J., said:
“The nature of the production places it rather in the representative than the narrative class of poetry, according to Lord Bacon’s division of dramatic from epic; and the evidence states it to be known as dramatic among those who are conversant with such things. The interpretative clause of 5 & 6 Vict. c. 45, sec. 2, declares that ‘dramatic piece’ within the Act includes ‘tragedy, comedy, play, opera, farce, or any other scenic, musical, or dramatic entertainment.’ These words comprehend any piece which could be called dramatic in its widest sense, any piece which on its 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 the audience.”
In Clark v. Bishop685 an original song, “Come to Peckham Rye,” was composed and set to an old air. It was sung at music halls with appropriate character dress, gesture, and expression. The Court were of opinion that it was a dramatic piece, within the meaning of 5 & 6 Vict. c. 45. Kelly, C. B., said:
“The plaintiff, by his powers of singing, acting, and characterisation, had made this song a thing of value, not as a song merely, but as acted by him in character, and so as a dramatic piece.”
In Wall v. Taylor686 it was suggested that by reason of the interpretation clause in 5 & 6 Vict. c. 45, sec. 2, every musical entertainment whatsoever was a “dramatic piece,” but Brett, M. R., refused to accept this view. In Roberts v. Bignell,687 a very imperfectly reported case, a divisional court (Day and Wills, JJ.) held that a music hall song, “Oh, Jenny Dear!” the exact nature of which is not apparent, was a “dramatic piece.” The leading case on this subject is now Fuller v. Blackpool Winter Gardens,688 and in this the doctrine which seemed to have been growing up that every literary production with the least dramatic flavour was a dramatic piece received a check. The subject of this action was a popular music hall song called “Daisy Bell.” The song was sung in character costume, and the inference to be drawn from the song itself and from the evidence was that it was a composition intended for the stage either of the theatre or of music halls. The Court of Appeal, sustaining the judgment of Kennedy, J., held that the song was not a dramatic piece. Lord Esher, M. R., said:
“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 singer treats the song. The question 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 is no performance of a dramatic piece.”
A. L. Smith, L. J., after reviewing the previous cases, says:
“It is not necessary to determine whether each of these cases was rightly decided or whether the reasons given in each for holding the song to be a dramatic piece are satisfactory. Every case must depend upon its own attendant circumstances. In each case it is a question of fact. I think that to constitute a song a dramatic piece it must be such a song that for its proper representation, acting, and possibly scenery, formed a necessary 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 required neither acting nor scenery for its production, a dramatic piece, for it is in truth nothing of the kind.”
The result then seems to be that “dramatic” must not be used in the widest sense of the term as suggested by Lord Denman, C. J., in Russell v. Smith,689 and that the test is not that of dramatic or epic in the sense in which Lord Bacon applies the words to poetry. There must be more than the dramatic flavour, there must be the dramatic form; that is to say, the work must be so constructed as to be obviously intended for reproduction by means of acting with scenic effect. This test will apply equally to non-musical as to musical works. A case in point is that of the novel in Toole v. Young.690 The facts as stated in the judgment are:
“that Mr. Hollingshead wrote a story which he published in a work called Good Words, and having in his mind at the time he wrote and published it the intention of afterwards dramatizing the story, he composed it very much of a dramatic character.”
Yet it was held that it was no infringement of the author’s right to put this novel into dramatic form and represent it on the stage. If the novel could have been considered a dramatic piece on account of its “dramatic character,” it ought to have been protected against the performance of an adaptation. Mr. Scrutton in his book on copyright considers that “the dramatic character consists in the representative as opposed to the narrative element:” but this seems rather a return to the older theory in Russell v. Smith691 and contrary to Fuller v. Blackpool Winter Gardens.692 For instance, a poem, song, or piece for recitation may be representative in that it depicts action and dialogue rather than narrates events: this according to Russell v. Smith693 would constitute it a “dramatic piece,” but according to Fuller v. Blackpool Winter Gardens694 we must find not only the “representative element” but an element which requires acting in order to represent it adequately.695