Section IX Infringement of Dramatic Performing Rights
By 3 & 4 Will. IV. c. 15, section 1, the author or his assignee has “the sole liberty of representing, or causing to be represented, at any place or places of dramatic entertainment whatsoever” in the British dominions.
Public Performance.—It is no infringement of performing right in a dramatic work to represent it otherwise than in a place of dramatic entertainment; but it has been held that any place where a dramatic work is publicly performed is for the time being a place of dramatic entertainment. In Lee v. Simpson,743 Wilde, C. J., says:
“The legislature clearly meant places where dramatic entertainments are represented to which the public are admitted.”
In Russell v. Smith744 the Court decided that a certain song, “The Ship on Fire,” was a dramatic piece. Denman, C. J., said:
“It follows that as Crosby Hall was used for the public representation for profit of a dramatic piece, it became a place of dramatic entertainment for the time, within the statutes now in question. The use for the time in question and not for a former time is the essential fact. As a regular theatre may be a lecture-room, dining-room, ball-room, and concert-room on successive days, so a room used ordinarily for either of these purposes would become for the time being a theatre if used for the representation of a regular stage play. In this sense, as “The Ship on Fire” was a dramatic piece, in our view Crosby Hall, when used for the public representation and performance of it for profit, became a place of dramatic entertainment. In thus deciding we do not declare that the defendant’s performances at Crosby Hall were unlawful without a theatrical licence within Stat. 6 & 7 Vict. c. 68.”745
In the judgment of Brett, M. R., in Wall v. Taylor746 there is a suggestion that although a single item in a programme might be dramatic, that would not be sufficient to render the whole entertainment dramatic or to make the place a place of dramatic performance. In Duck v. Bates747 the defendant represented a dramatic piece without the author’s consent. The representation took place in a room of Guy’s Hospital, and was provided entirely for the amusement of the nurses and attendants of the hospital. The medical officers of the hospital, the students and some of their friends were present. A reporter to a theatrical newspaper was also present by invitation. It was held by Brett, M. R., and Bowen, L. J. (Fry, L. J., dissenting), that the room was not a place of dramatic entertainment. Neither profit748 nor habitual use were essential elements, but there must be a representation to which a portion of the public is admitted. Brett, M. R., said:
“Did the legislature intend to forbid a representation without the author’s consent by children in a nursery before their parents, or by grown-up persons in a drawing-room? It is clear that something more than that must have been intended; and why should not a representation of that kind be called a dramatic entertainment? Because it is obviously domestic and private. Suppose that the servants of the household are invited to witness the performance; nevertheless it is a domestic entertainment. As I have already intimated, the author wants protection for the pecuniary value of his drama, and a representation in a private room is of no pecuniary value. In order to entitle the author to penalties there must be a representation which will injure the author’s right to money; such, for instance, as a representation which, although it is not for profit, would attract persons who are willing to pay money, and would induce them not to go and see a performance licensed by the author. Suppose that a representation in the presence of friends takes place for the amusement of friends and of the members of the household in an unfurnished house hired for the occasion: that is not an infringement of the statute: the representation must be other than domestic or private. There must be present a sufficient part of the public who would go also to a performance licensed by the author as a commercial transaction; otherwise the place where the drama is represented will not be a ’place of dramatic entertainment’ within the meaning of the statute. Suppose that a drama is represented in a county town, and that all persons of a certain class throughout the county are free to come: suppose that a member for a parliamentary constituency (I do not mean shortly before or during an election) organises dramatic entertainments to which the inhabitants are admitted without paying: suppose that an amateur company choose to act some drama for a charitable object, with admission upon payment or by tickets issued generally: in each of these instances an infringement of the statute has been committed.... I wish to say, by way of warning, that those who go beyond the facts of the present case may incur the penalties of the statute.”
This case is most instructive as being quite on the border line between a private and public representation. Performing right in a drama may be infringed by a representation without scenery and appropriate dresses.
“We should take away a part of the protection conferred on authors if we hold that there could be no public representation without these accompaniments.”749
Substantial Part.—As in literary copyright the part taken must be material and substantial in order to infringe performing right. In Chatterton v. Cave,750 Lord Chief Justice Coleridge at the trial found as a fact “that two scenes or points of the drama of the defendant had been taken directly from the drama of the plaintiff;” there was no further copying. He thereupon gave judgment for the defendant. On a rule for a new trial, Lord Coleridge, sitting in the Court of Common Pleas, stated orally that what he meant to convey by his finding was, “that looking to the general character of the plaintiff’s and defendant’s dramas, the extent to which the one was taken from the other was so slight, and the effect upon the total composition was so small, that there was no substantial and material taking of any one portion of the defendant’s drama from any portion of the plaintiff’s.” On this explanation the rule was discharged, and the judgment subsequently affirmed by the Court of Appeal and the House of Lords. Lord Hatherley said that the principle de minimis non curat lex applied to a supposed wrong in taking a part of dramatic works as well as in reproducing a part of a book. He could not read the word “part” in the Dramatic Copyright Act as “particle,” so that the crowing of the cock in “Hamlet,” or the introduction of a line in the dialogue might be held to be an invasion. In Planché v. Braham,751 Tindal, C. J., directed the jury that if either one song, or more than one song be taken from a piece and be performed on the stage or any place of theatrical entertainment, that would be a “representing” within the Act of Parliament. The jury, having found that the defendant had represented “a part of the plaintiff’s opera,” a rule for a new trial was refused.752 In Beere v. Ellis,753 two plays purported to be founded on the same novel. The defendant’s play contained some of the dialogue and several dramatic incidents and situations taken directly from the plaintiff’s play. Baron Pollock held that a small piece of dialogue would not alone amount to an infringement, but the defendant had taken two dramatic incidents on which the plot of the play depended. He had therefore taken a material part, and although he had done a considerable quantity of work for himself, he had “extracted the plums” from the plaintiff’s work, and this he was not entitled to do. An indirect taking is, as in literary copyright, an infringement, e. g. to copy and perform passages from a play by dramatizing a novel founded on that play.754 It is no infringement to produce a play almost identically similar to that of another author, if this is the result of coincidence and not of any piracy direct or indirect.755 As to the taking of a plan or idea, see the chapter on infringement of literary copyright.756 There must be more than the taking of a general idea or scheme. Lord Blackburn, in Chatterton v. Cave,757 said:
“An idea may be taken from a drama and used in forming another without the representation of the second being a representation of any part of the first. For example, I have no doubt that Sheridan in composing ‘The Critic’ took the idea from ‘The Rehearsal,’ but I think it would be an abuse of language to say that those who represent ‘The Critic’ represent ‘The Rehearsal,’ or any part thereof, and if it were left to me to find the fact, I should without hesitation find that they did not. On the other hand, in composing ‘The Trip to Scarborough,’ Sheridan took so much from ‘The Relapse,’ that if it were left to me to find the fact, I should find that those who represent ‘The Trip to Scarborough’ do represent parts of ‘The Relapse.’”
Causing to be Represented.—The “penalty” prescribed by the Act of 3 & 4 Will. IV. c. 15 is recoverable from those who “represent or cause to be represented” an unauthorised work. Section 20 of 5 & 6 Vict. c. 45 provides “that the sole liberty of representing, or performing, or causing or permitting to be represented or performed, any dramatic piece or musical composition, shall endure,” &c. Notice that this section uses the word “permitting,” whereas 3 & 4 Will. IV. c. 15 only uses “represent or cause to be represented.” The later statute, however, does not purport to extend the nature of performing right, and therefore the word “permitting,” if it have any meaning at all, can only be explanatory of the words “cause to be represented” in the earlier statute. When then does a person “cause a dramatic piece to be represented”? Shortly, the answer probably is, that if he does not actually take part as an actor, the defendant must be shown to have had some initiation in or control over the performance. In Parsons v. Chapman,758 an acting manager, who paid the performers’ salaries, and was entitled to dismiss them, was held to have caused a dramatic piece to be represented within the meaning of 10 Geo. III. c. 28, sec. 1. In Russell v. Briant,759 the defendant was the landlord of “The Horns” Tavern, at Kennington. His premises included a large assembly room which was hired for evening entertainments. The defendant furnished the platform and the lights, and allowed bills to be put up in the tavern, and tickets of admission to be advertised to be sold at the bar. At one entertainment a song, “The Ship on Fire,” which in Russell v. Smith760 was held to be a copyright dramatic piece, was sung. It was held that the defendant had not represented or caused to be represented the dramatic piece in question. Wilde, C. J., said that no one could be considered as an offender unless by himself or his agent he actually took part in the representation. In Lyon v. Knowles761 the defendant let his theatre. He provided and paid for the scenery, lights, printing, advertising, band, doorkeepers, scene-shifters, and supernumeraries. His servants collected the money at the door, and he retained half the gross profits to recoup himself. The lessee brought his own company, and represented pieces of his own choice, the defendant having no control over any person employed in the representation. It was held that the defendant had not caused the piece to be represented within the meaning of the Acts. In Marsh v. Conquest762 the defendant was the proprietor of a theatre, and his son, the acting manager, hired it for a “benefit.” The Court held that the defendant came within the statute. Erle, C. J., delivered the judgment of the Court:
“It appears that the defendant is the proprietor of the Grecian Theatre, and the employer of the dramatic corps attached thereto; that his son, the stage manager, hired for his benefit-night the theatre, together with the company of actors, and servants, and lights, for the sum of £30; and that the son, in the defendant’s theatre, and with the aid of his actors and actresses, musicians, servants, lights, and other paraphernalia, represented the dramatic piece in question, in violation of the plaintiff’s sole and exclusive right of representing or causing it to be represented. I think the defendant is responsible for that representation. He was the proprietor of the theatre, and had entire control over the establishment and all belonging to it, and what was done by his son was done with his permission.”
In Monaghan v. Taylor763 the defendant was the proprietor of a music hall, and paid a singer to perform, leaving him his own choice of songs. The singer sang a copyright song. The Court held that the defendant came within the statute. This decision would not now apply to musical performing right, since, by the Musical Copyright Act of 1888, a proprietor is not liable unless he permits the performance knowing it to be an infringement. It is still applicable to dramatic performing rights. Suppose, for instance, the proprietor of a variety theatre hired the services of a troop of players, telling them to fill up twenty minutes on the programme with any dramatic scene they pleased. If they infringed a dramatic copyright, the proprietor would be liable.
It seems to be doubtful whether if B, acting entirely as the agent of A, causes C and others to perform a dramatic piece, he can be held liable if he took no part in the representation. In Parsons v. Chapman764 Lord Tenterden, C. J., directed the jury that it was sufficient if the defendant caused the piece to be performed; and that it made no difference that he did so as an agent for others. This was a decision under 10 Geo. II. c. 28, and the principle should be the same under 3 & 4 Will. IV., and 5 & 6 Vict; but in French v. Day765 Kennedy, J., took a different view. One of the defendants was the manager of a theatre. He received instructions for the production of the piece in question from the proprietor, and he could not engage or dismiss artistes; he was in every respect bound to conform to his employer’s orders. Kennedy, J., said:
“The whole thing was carried on by the proprietor, who merely used the manager as his mouthpiece. I think I ought not to hold that a person in his position ‘represented,’ or ‘caused to be represented,’ the piece.”
Knowledge.—In an action for infringement of dramatic performing right it is unnecessary to prove that the defendant knew the performance was an infringement.766
Innocent Agents.—All the actors who take part in an unlawful performance are within the section as “representing,” and are liable to penalties.767
Licence.—It is an infringement of performing right to perform “without the consent in writing of the author or other proprietor.”768 See decisions on licence as to copyright in books.769 The licence must be in writing,770 but it does not require to be written by the proprietor or signed by him or any one else.771 The secretary of a dramatic author’s society may, if he has authority, grant a good licence on behalf of the authors.772 A part owner cannot grant a licence without the consent of the other part owners.773