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Arthur G. Sedgwick

International Copyright by Judicial Decision

Atlantic Monthly, 43 (256), 217-230

February 1879

WITHIN the past year the old question of copyright has been revived on the other side of the Atlantic, and has engaged the attention of an English commission and a continental congress.  In their discussions, as in most of those in which the matter has been brought up in the United States, the aim of reformers has been generally to effect some changes through legislation.  Most of their efforts have been directed towards the abolition of the practice of international piracy, which the United States has done so much to encourage, and from which in turn we are now beginning to suffer.  It must be confessed that so far as the relations between England and the United States are concerned, these attempts have in the main been productive of little good; it has probably impressed those who have examined the subject casually that the copyright agitation is a rather remarkable illustration of an ineffective agitation.  No international agreement has been reached, and piracy still flourishes as a profitable branch of trade.  It would certainly be singular, however, if all the energy devoted by speakers and writers to this subject within the past fifty years had been absolutely wasted, and as a matter of fact it has not.  Although property in ideas has not by any means yet secured that international and universal recognition which other kinds of property enjoy, it has, during the last half century, made gains; and these seem to point to further advances in the not distant future.  The legislation of both England and the United States has extended the protection first granted to authors to painters, sculptors, and composers, and it may be said that the legislation of each country, considered separately, is founded on the recognition of the general right which is still internationally denied.  While this progress has been made in the tendency of legislation, what has been the course of judicial decision on the subject?  It might perhaps be expected that copyright, since it has been made the subject of legislative treatment, would have received but little consideration from the courts.  But, on the contrary, some of the best discussions of property in ideas are to be found in the pages of legal reports.  The subject has engaged the attention of the most eminent judges in England and America, so that there is to-day probably no branch of the law of property which has been as thoroughly and exhaustively investigated.  Nor has this investigation been devoid of practical results. It is the peculiarity of the


English and American system of law that its principles are supposed to have remained unchanged from time immemorial, and are merely applied by judges to new cases as these arise.  This assumption, however, does not alter the fact that each new decision is really a new addition to the law, made by the judge who decides it, quite as much as a new act of Parliament or of Congress.  Hence, even of subjects which the legislature undertakes to regulate, the courts in a measure retain control, and not uncommonly, in the course of time, establish principles as novel as any that have been introduced by legislation.  This has certainly been the case with one branch of copyright, which has received a development in the courts of a surprising character.  In the following pages it is not proposed to go into minute legal distinctions, or to undertake to state what the law on the subject of stage-right actually is, but merely to call attention to the practical tendency of the treatment the subject has received in the courts, where it will be found that judges have accorded to literary property of a certain restricted kind a protection which goes far beyond the wildest dream of agitators for international copyright, and where principles which seem at first to be fatal to the enjoyment of ownership in ideas have been, by a peculiar course of judicial decision, developed into most effectual safeguards for its protection.  More remarkable still, this protection has been secured for a sort of literary property which is in principle not more deserving of protection than any other, and it derives its complete protection from a mere accident in no way connected with any principle of property or of public advantage.

When we speak of copyright, we generally have in mind copyright in books, and the word is unfortunately chosen to express the notion of property in ideas, because the only sort of ownership it suggests is that which may be enjoyed through the multiplication of copies.  But it is apparent that this is an accidental result of the process of manufacture used for books.  The art of printing enables any one who has a book to multiply identical copies to an unlimited extent; hence the only way of protecting the author is by preventing this.  But if there is some other way of making use of the ideas contained in a book, the mere prevention of printing will not meet the difficulty at all.  Now it so happens that there are, with a certain sort of literary composition, two ways of making use of the ideas.  A play may be either printed or acted, and the latter of the two methods of deriving profit from it is in the case of most plays much the most important.  This fact, however, though it is now obvious enough, does not seem to have occurred at all to the lawyers who drew up the first English copyright statute, and it is only in comparatively recent times that the important consequences that flow from it have been fully recognized.

By the mere accident to which we have just referred, while copyright in books fell, in the beginning of the last century, into the hands of the legislature, stage-right fell chiefly into those of the courts, and the different manner in which the two rights have fared might be cited - at least by those who think that literary property needs all the protection it can get - as a strong instance of the superiority of “judge-made” over statutory law.  Copyright has been restricted to a brief number of years in the period of enjoyment, and internationally (unlike all ordinary kinds of property) is not recognized except by virtue of special treaties; stage-right, on the other hand, has received from courts of high standing a position which apparently makes its enjoyment perpetual and universal, restricted by the limits of no country, and impaired by no lapse of time.

The first copyright act passed in England for the protection of authors became a law in the eighth year of Queen Anne’s reign, but no case of importance on the subject was decided in the English courts till half a century later.  The act, but for the peculiar wording of which the great copyright discussion that has agitated the whole English-speaking race


for the past century would perhaps never have arisen, begins with a preamble declaring that books are frequently printed by persons without authority, to the very great detriment of “the authors or proprietors” and “too often to the ruin of them and their families” and then provides that after a specified date, “the author of any book or books already printed who hath not transferred to any other the copy or copies of such book or books, share or shares thereof, or the book-seller or book-sellers, printer or printers, or other person or persons who hath or have purchased or acquired the copy or copies of any book or books in order to print or reprint the same, shall have the sole right and liberty of printing such book and books for the term of one and twenty years, to commence from the said tenth day of April, and no longer.”  With regard to books not yet printed and published, or not yet written, the act gave the author and his assigns the sole right of printing and reprinting for the term of fourteen years, and at the expiration of this period for an additional fourteen years, if the author should be then living.  Stringent provisions for the enforcement of these clauses were added.

In 1766, Andrew Millar sued Robert Taylor in the court of King’s Bench for a piracy of Thomson’s Seasons, the right to publish which Millar had purchased of Thomson in the year 1729.  It appears from the report given of this cause célèbre by Sir James Burrow [1] that at the trial the jury rendered a special verdict that “before the reign of her late majesty, Queen Anne, it was usual to purchase from authors the perpetual copyright of their books, and to assign the same from hand to hand, for valuable considerations; and to make the same the subject of family settlements, for the provision of wives and children.”  The time secured by the statute had expired, and therefore the question was whether Millar’s purchase from Thomson had invested him with the copyright in the book, independently of the statute; or, in other words, whether he possessed a perpetual copyright at common law.  Some idea of the extreme importance of this case, which was decided when Lord Mansfield was chief-justice, may be gathered from the space devoted to it in Burrow’s reports (it occupies more than one hundred octavo pages), and the almost pathetic account given by Lord Mansfield in his opinion of the ineffectual attempts made by the judges to reach a unanimous opinion.  “This is the first instance,” he declares, “of a final difference of opinion in this court, since I sat here.  Every order, rule, judgment, and opinion has hitherto been unanimous...  We have all equally endeavored at that unanimity upon this occasion; we have talked the matter over several times.  I have communicated my thoughts at large, in writing, and I have read the three arguments which have now been delivered.  In short, we have equally tried to convince, or be convinced; but in vain.  We continue to differ.”  Of the judges of the King’s Bench, three were in favor of the plaintiff; one, Mr. Justice Yates, took the opposite view.  This case would therefore appear to have settled the law on the side of perpetual copyright at common law, or the complete recognition of literary property; but the same question came up in the House of Lords in 1774, when all the judges delivered their opinions separately.  Their decision was to the effect that an author had at common law perpetual copyright; but that it was taken away by the statute of Anne, and that therefore the statutory right is substituted for the common law right.

At first sight this decision may seem very simple and natural.  At common law perpetual copyright existed.  The statute of Anne took it away.  But it may be doubted whether another instance is to be found in which a right of property, admitted to have been in existence for hundreds of years, has been by means of this sort wiped out of existence.  The report of the decision omits to give the reasons on which the judges rested their answers.  There is no question that the statute was devised

[1] Millar v. Taylor, 4 Burr., 2303.


by its promoters for the better security of authors.  Yet the result of it is that a perpetual right is changed into one lasting only for a limited number of years.  There is no question, of course, that Parliament was competent to make such a change, and the decision of the judges must be considered as conclusive proof that it did so; but the singular thing concerning the matter is the high-handed manner in which we find an acknowledged right treated.  If English legislation has one peculiarity more marked than another, it is its respect for vested rights of property; yet here we find an admitted right, said to have existed from time immemorial, swept away in the very act of protecting it.  It is impossible to avoid the conclusion that literary property was, even by those who looked upon it with favor, regarded in 1774 as differing in many essential respects from other sorts of property.  An examination of the opinion of Mr. Justice Yates, in the case of Millar v. Taylor, furnishes ample grounds for this inference.

The conception of “property” or “ownership” in a literary composition is now so familiar that it costs an effort to imagine a state of mind in which it is not recognized.  Yet nothing is more certain than that it is a conception of a very. advanced character.  The difficulty of framing and applying it when literary production first becomes common is in the dissimilarity between this and most other species of property.  Lands, houses, money, horses, and cattle have corporeal substance, - are visible, tangible objects; the idea of property in them is consequently comparatively easy to grasp.  But with regard to ideas, the difficulty consists in the fact that there is no visible corporeal object over which the rights of ownership can be exercised; and that while the value of most kinds of property consists in its use, the value of literary property consists, in a certain sense, in the ability to prevent its use.  Turning now to the opinion of Mr. Justice Yates, who must be taken, from what Lord Mansfield states, to have brought the best energies of an unusually able mind to bear upon the question before him, we find that the idea of perpetual literary property is totally unintelligible to him.  That a literary composition (that is, the manuscript) is the property of the author until he publishes it he admits to be plain; but this, he says, “holds good no longer than while it is in manuscript.”  Property, he continues, is “founded on occupancy,” but “ how is possession to be taken, or any act of occupancy to be asserted, on mere intellectual ideas?  All writers agree that no act of occupancy can be asserted on a bare idea of the mind.  Some act of appropriation must be exerted to take the thing out of a state of being common, to denote the accession of a proprietor; for otherwise how should other persons be apprised they are not to use it?  These are acts that must be exercised upon something.  The occupancy of a thought would be a new kind of occupancy indeed.”  Again, at what time could an author’s property arise?  In other cases it dates from the time of possession; but an author is fully possessed of his ideas when they arise in his own mind; yet the same ideas may occur to another, and in such a case how shall it be determined which is the owner of them?  By publication the author makes his ideas common property.  How can he, after publishing his work, confine it to himself?  If he had kept the manuscript from publication, “he might have excluded all the world from participating with him, or knowing the sentiments it contained; but by publishing the work the whole was laid open, - every sentiment in it made public forever; and the author can never recall them to himself, - never more confine them to himself, and keep them subject to his own dominion.”  It has been a maxim of the law for two thousand years that “nothing can be an object of property which has not a corporeal substance.”  Nothing can be an object of property, either, that is not “capable of distinguishable proprietary marks” and where are the indicia or distinguishing marks of ideas?  “What distinguishing marks can a man fix upon a set


of intellectual ideas, so as to call himself the proprietor of them?  They have no ear-marks upon them, - no tokens of a particular proprietor.”

These quotations show that Mr. Justice Yates had very clear and definite notions as to the limits of property, but a reference which he makes to the civil law throws a stronger light on his view of the whole subject than any of his direct reasoning.  What the Institutes have to say relating to ‘‘wild animals,” he observes, “is very applicable to this case.”  And he then proceeds to draw a comparison between these two singularly related subjects.  Animals ferae naturae are yours “while they continue in your possession, but no longer.”  So those wild and volatile objects which we call ideas are yours as long as they are properly kenneled in the mind.  Once unchain or publish them, and they “become incapable of being any longer a subject of property; all mankind are equally entitled to read them; and every reader becomes as fully possessed of all the ideas as the author himself ever was.”

If a judge were to-day racking his brain to discover an analogy in the law of property that should strike every one as forced and unnatural to the point of grotesqueness, it may be doubted whether a parallel between copyright and the law relating to wild animals would occur to him; and its use by Mr. Justice Yates is peculiarly interesting because its casual introduction in his argument proves conclusively that to his mind there was nothing forced about it.  His opinion, singular as it appears to us at the present day, is full of evidence of his learning and his acuteness, and of his conception of property being such as to make the inclusion of literary property in it an impossibility.  In the copyright cases which have subsequently arisen we shall find his ideas, in one form or another, continually recurring, and interfering with the adoption of what we are now accustomed to consider the natural view of the subject, until, at least with regard to stage-right, it substantially disappears, and in this restricted but important field perpetual copyright as it existed before the statute of Anne is reestablished.

It will be seen that the two difficulties which appear to have stood most in the way of the recognition of copyright as a species of property were, first, that the subject of the property is not visible or tangible; and, second, that from analogy with other kinds of property, if literary ideas are within the exclusive ownership of the person who originates them, they remain so only as long as he retains them in his possession, or in other words until he publishes them, and that publication is a virtual abandonment to the public.  Now, as suggested above, there is one species of literary property which admits of two sorts of publication: a dramatic composition may be made public by its appearance in a printed volume, or it may be given to the public on the stage.  The latter method is that usually adopted, and is, strictly speaking, the analogue of the multiplication of printed copies in the case of a novel or poem.  But it is apparent at the same time what great obstacles at the end of the last century stood in the way of the recognition of this fact.  If perpetual copyright in books could be reduced to a short term of years by an act for the better protection of literary property, what chance was there for the right of representing plays on the stage?  A playwright might own, as he undoubtedly would, his manuscript; but the moment he represented his play on the stage, that was a “publication,” and a publication meant a dedication to the public.  In his case there was not even an immemorial custom of stage-right, as there had been of copyright in books.

The first case involving dramatic copyright in England - at least the first of any importance - was that brought in 1770 by Macklin, the author of a farce called Love a la Mode, against Richardson and Urquhart, the owners of a magazine of the day.  They had employed a person to take down the words from the mouths of the actors, and published the first act in their magazine, giving notice that the second act would be published the succeeding month.  (It may


be interesting to know that the sum paid this reporter was one guinea.)  Macklin applied for and obtained a perpetual injunction against their doing so.  The author, in this case, had used every precaution.  The play had never been acted without his permission.  After every performance he had taken away the copy from the prompter.  He made two actors who desired to have it performed at their benefits pay twenty and thirty guineas for one night’s performance of it.  In this case, as in Millar v. Taylor, we find the notion of publication at once making its appearance.  The counsel retained by Richardson and Urquhart argued that the acting of the play was tantamount to a dedication to the public, and it may be inferred from the very few words of the decision that if the piracy complained of had consisted of a representation at another theatre the decision might have been in favor of the proprietors of the Court Miscellany.  But representation was one thing, and printing was another, and whatever might have been done with regard to the former, there was no doubt that the author had never published the play as a book is published.  It should be observed here, perhaps, with reference to publication, that the right of authors in their manuscripts, or original unmultiplied copies of works of all sorts, has always been recognized by the courts, and one of the curiosities of copyright has been that a right should be universally recognized until the possessor attempts to render it of value to himself, and should at that critical moment disappear altogether.

In 1793 a case was decided in the King’s Bench which has proved the germ of much discussion, although it is difficult to see how any doubt as to its proper decision could ever have arisen.  The copyright statute of Anne provided penalties, as has been already stated, against the publication of any works protected by it.  Coleman, the manager, had purchased the copyright of an entertainment, called The Agreeable Surprise, from O’Keeff, and had it represented on his stage at Richmond, when it was unexpectedly brought out by one Wathen at a rival theatre.  Coleman brought an action to recover the penalty provided by statute.  The question on which the case turned was simply whether the representation was a publication within the meaning of the act.  The language of the statute throughout excludes the possibility of such an interpretation; its framers had in mind the multiplication of copies of books, or other writings, by the process of printing.  Coleman’s counsel, however, advanced an argument which was, to say the least, highly ingenious: that the representation was sufficient evidence for the jury to conclude that there had been piracy within the statute, because it was inconceivable that the performers could by any other means than the use of a copy have exhibited so perfect a representation of the work.  The case, however, was considered by Lord Kenyon, then chief-justice, and Mr. Justice Buller too plain for argument, and they did not think it necessary to hear the defendant’s counsel.  Lord Kenyon said, “There is no evidence to support the action in this case.  The statute for the protection of copyright only extends to prohibit the publication of the book itself by any other than the author or his lawful assignees.  It was so held in the great copyright case by the House of Lords.  But here was no publication.”  Mr. Justice Buller added, “Reporting anything from memory can never be a publication within the statute.  Some instances of strength of memory are very surprising, but the mere act of repeating such a performance cannot be left as evidence to the jury that the defendant had pirated the work itself.”

It will be seen that there was no evidence that the play had actually been reproduced by memory, and Mr. Justice Buller’s reference to surprising instances of strength of memory was evidently thrown out as a mere suggestion.  The fact on which the case was decided was that there was no evidence of publication within the meaning of the statute.  If Wathen had reprinted the play, he would clearly have been liable to the penalties provided in the act; but to argue that a representation on the stage


involved a previous reprint were to beg the whole question.  The statement, therefore, that “reporting anything from memory can never be a publication within the statute” was wholly unnecessary to the decision of the case, and was what lawyers know as an obiter dictum.

Notwithstanding this, however, from the time of this decision, the notion that piracy by means of memory differs from other sorts of piracy has repeatedly made its appearance, the view taken of the law, rather by tacit assumption than by any actual decision, being somewhat as follows: The author of a play, kept in manuscript, undoubtedly owns the manuscript, just as he owns his clothes, or his house.  He may sell it, or leave it by will, or suppress it altogether.  Moreover, he may have it represented on the stage; but if he does this, he must be very careful how he does it.  If he represents it to indiscriminate audiences, as Mr. Justice Yates might have said, those who witness it are not at liberty to take it down by short-hand; but they cannot be prevented from using their memory, and if they carry it away in their memory they may themselves represent it elsewhere.  It is evident that this view of memory really rested on a denial of stage-right, properly so called.  The manuscript was looked upon before as the thing actually owned, but the ideas contained in it were ferae naturae, - liable to capture by the exercise of that faculty of the mind peculiarly adapted to the intellectual sport of piracy, the memory.

In this peculiar sort of limbo stage-right remained for nearly a century, and it was not relieved from it even when, in 1854, the whole subject of literary property again came up for discussion in the English House of Lords, in the case of Jefferys v. Boosey.[1]  The composer Bellini, author of La Sonnambula, living at Milan and having a Milanese copyright of some sort, the exact nature of which did not appear in the case, assigned it to another Milanese citizen, who, in London, transferred it, in accordance with the forms of English law, to Boosey.  The opera was unpublished, and the assignment transferred the right to publish in Great Britain only.  Jefferys published an air from the opera, Come per me Sereno, and the question was whether this was an infringement.  The case was decided in favor of the defendant, on grounds which it is not necessary to state here; it is chiefly interesting for the opinions of the judges, and of Lord St. Leonards (then lord chancellor) and Lord Brougham.  It is impossible in this place to give extracts from these opinions, but any one who will read them will find them a mine of information on the subject of the legal aspect of property in ideas.

The further investigation of the question of piracy by memory was, however, not destined to be the work of English judges.  Owing to another of the singular accidents of which the history of stage-right has been full, - the fact that most plays which are acted in the United States are produced in Europe or England, - the work of giving the final touches to the development of stage-right, and placing it on what seems destined to be a secure basis, was left to the courts of this country; and in order that the irony of fate upon our national pursuit of piracy might be complete, the play which was first to produce this result was designed and written as a satire upon American life, and was called Our American Cousin.

The play of Our American Cousin, described in one of the cases to which its representation in this country gave rise as a play “presenting, in suitable situations, those eccentricities usually attributed on the stage to Yankees,” was written in 1852 by Tom Taylor.  Whether the author had looked up the law of the subject as to the effect of publication, or was influenced by other reasons, the play was not printed; the manuscript, after going through several changes and vicissitudes, was in 1858 sold to Laura Keene, the well-known actress and manager, the transfer embracing the author’s dramatic rights within the United States; Miss Keene, with the assistance of Joseph Jefferson, altered and adapted it for her

[1] 4 H. L., 815.


theatre in New York.  The play, thus changed, was brought out for the first time on any stage in October, 1858, and proved a great theatrical success.  Wheatley and Clarke were at this time lessees and managers of a theatre in Philadelphia, and they, in a singular manner, had become possessed of a copy of the play.  It had been written originally for representation at the Ade1phi Theatre in London, of which Mr. Benjamin Webster was manager, and where Joshua Silsbee, an American actor, had an engagement.  A copy of the manuscript came into Silsbee’s hands, and he retained it, brought it back to the United States, and at his death, in California, in 1855, .it came to his widow, from whom Wheatley and Clarke finally got it.  From Jefferson they afterwards procured the additions and alterations he had made, and they immediately produced it at their theatre in Philadelphia.  It should be stated also that before this both Wheatley and Clarke, and the actress of their company who performed the principal female character, had witnessed the performance in New York, but there was no pretense that they had been enabled to reproduce it through an effort of the memory.  They succeeded in producing a close imitation of Laura Keene’s play, who brought a suit for the infringement in the United States circuit court for the eastern district of Pennsylvania.

At about the same time Our American Cousin was brought out at the Boston Museum, and Laura Keene also brought a suit again Moses Kimball, the manager of that theatre, in the Massachusetts supreme court.  These two suits were identical in character and object, but they differed in one particular: in the first, the fact that the imitation was obtained through a surreptitious copy came out; in the second, this did not appear, nor did it appear by what means Kimball had obtained the play, unless it was through sending persons to see it and commit it to memory.  Owing to this difference, the two cases were decided differently, though both decisions recognized the same principle with regard to dramatic property.

In the first case [1] it was at the outset decided that Laura Keene had no rights under the United States statutes relating to copyright, and the only remaining inquiry was whether her suit could be maintained independently of any such statutes; in other words, the old question of literary property at common law and the effect of publication upon such property came up.  It was decided that by her purchase from Taylor she had acquired the full ownership of the play; that she also owned the changes incorporated in it by Jefferson, who had acted in the matter as her employee.  But as to the question of publication, it may be inferred from what has gone before that considerable difficulty was found.  Here was a case in which a play, not protected by any statute, had been publicly represented to indiscriminate audiences in New York, night after night.  Is there any method of making a play more public than this?  If, as Mr. Justice Yates had argued in 1770, there were a legal resemblance between intellectual ideas and wild animals, could there be a clearer case of escape from the control of their owner than this?  But here, strange as it may seem, the suggestion of the court of King’s Bench, in 1793, on the subject of the astonishing performances of the human memory made its appearance again, this time, however, not to impair but to strengthen the foundations of literary property.  Laura Keene had clearly made a publication of the play; and in the opinion of the court, in such a case, “other persons acquire unlimited rights of republishing in any modes” in which the publication “may directly or secondarily enable them to republish.”  Therefore, “the literary proprietor of an unprinted play cannot, after making or sanctioning its representation before an indiscriminate audience, maintain an objection to any such literary or dramatic republication by others as they may be enabled, either directly or secondarily, to make from its having been retained in the memory of any of the audience.”  But if the republication is made, not through retention in the mem-

[1] Keene v. Wheatley, 9 Am. Law Reg., 33.


ory, but through a surreptitious copy, it is not a republication in a mode which the original publication had directly or secondarily made possible.  On the strength, therefore, of the old principle with regard to memory, Miss Keene maintained her suit.

We must be permitted to doubt whether this reasoning is not in a vicious circle.  The question is whether the dedication to the public by representation is complete (so as to entitle all the world to represent it) or limited (so as to entitle only those persons who have carried it away in their memories to the right); and it is said to be limited, because only those persons who have carried it away in their memories are entitled to reproduce it, while the sole reason that the right is restricted to them is that the dedication was limited.  The idea that the owner had any intention, of making either a limited or unlimited dedication is of course out of the question.

But it will be seen that this case introduced a very important modification or restriction of the doctrine of “dedication” of unpublished plays.  And the other suit brought by Miss Keene to prevent an infringement of Our American Cousin, though decided against her, recognized this modification as sound.  The suit against Wheatley had been decided when the suit against Kimball was tried.  The Massachusetts supreme court expressly refer to it in their opinion.  But owing to the fact that in the one case the court found that the surreptitious copy had been the means of reproduction, while in the second the court felt itself constrained to exclude all considerations of the kind, one suit was decided in Miss Keene’s favor, and the other against her.

The result of these two last cases would be, practically, that the author of an unpublished play could produce it on the stage whenever he pleased, and sell the right to produce it in different places (as patent rights are sold), and that he, or those to whom he might sell such rights, could protect their property against unlicensed representations so long as it could be shown that these had not been the result of an exercise of the memory; but that if it could be shown that it was by memory that the unlicensed representations had been produced, the protection ceased.  In 1870, however, a case was decided in the United States circuit court for the northern district of Illinois which showed that the position assigned to memory as a faculty peculiarly consecrated to piracy was to be still further weakened.  It had been decided or conceded in a dozen cases, which it is unnecessary to cite here, that the purchase of a theatre ticket gave the buyer no right to take down phonographically the words of a play, for use elsewhere; and yet he could, if he confined himself to his memory, use as much as he could carry away.  Here -were two principles of law difficult to reconcile.  In Illinois, the questions which arose turned upon the representation of another of Tom Taylor’s dramas, entitled Mary Warner.  The play was written by Mr. Taylor for Miss Kate Bateman, an actress of note, and after it was written he transferred all his right -in the play and the manuscript, together with the exclusive right to its representation in the United States, for five years, to Miss Bateman’s husband.  The play was always kept in manuscript.  One Aiken, the manager of a theatre in Chicago, produced Mary Warner there, and Crowe, the husband, brought a suit against him.  In order to bring the question of memory before the court, it was alleged, on the plaintiff’s behalf, that the defendant did not produce the play by that means, but by a surreptitious copy.  It does not appear that the plaintiff succeeded in proving the use of any such copy; but the judge who decided the case was inclined to look at the question of memory from a new point of view.  “There are cases,” he said, “in some of the courts of this country, which hold that the representation of a play is a qualified publication, namely, to the extent in which the memory of the auditors can retain its language, scenery, or incidents, and if it is reproduced only in that way


the author of the work has no remedy.  Of these cases it may perhaps be said that, in some instances, the court has not looked very rigidly into the proofs, considering the intrinsic difficulty of the subject.  Indeed, as some of the affidavits in this case show, and as all experience proves, to write out a play from memory alone is well-nigh impossible...  I am of opinion that upon principle and authority the author, or his assignee, of an unpublished play has a right of property in the manuscript and its incorporeal contents; that is, in the words, ideas, sentiments, characters, dialogue, descriptions, and their connection, independent of statutes, and that a court of equity can protect it.  I am also of opinion that, as the law now exists in this country, the mere representation of a play does not of itself dedicate it to the public, except, possibly, so far as those who witness its performance can recollect it, and that the spectators have not the right to secure its reproduction by phonographic or other verbatim report, independent of memory...  I cannot doubt that DeWitt obtained the copy of the play of Mary Warner, which he furnished to the defendant in this case, either in whole or in part, through a short-hand reporter, or in some other unauthorized or wrongful way, and not by memory only.” [1]  It will be noticed that the substantial difference between the case in Massachusetts and this is that in the former the court declined to assume that the means of representation was anything but memory; in the latter, the court declines to assume that the means of representation was memory.  There can hardly be a doubt as to which of the two positions is more in accord with the actual probabilities.

We now come to the case of Palmer v. DeWitt, in which the infringement complained of, instead of being the reproduction of an unpublished play on a rival stage, was the printing of an edition of the unpublished manuscript.  In 1868, T. W. Robertson, the English dramatist, sold to Henry D. Palmer the right of performing Play upon the stage, and of printing and publishing it within the United States.  Play was first brought out on the 15th of February, 1868, in London.  The defendant, Robert M. DeWitt, without Palmer’s knowledge or consent, published and offered for sale printed copies.  The defense to the action was that the play had been dedicated to the public by frequent representations; that the tickets admitting spectators to the performance “contained no notice or prohibition against carrying the said comedy away by memory or otherwise, and using, printing, or publishing the same;” that no notice to that effect was “posted in any of the theatres, in view of the spectators;” and that the defendant procured the play “from one or more persons, who obtained the same from its performance on the stage at such public representations, while witnessing the same as such spectators.”  The ease came up in the New York superior court, but the judge who tried it dismissed the complaint.  It was then appealed and a decision was rendered reversing this action.  It was again taken up to the New York court of appeals, the highest court of the State, where the same conclusion was reached.  Here again the question of memory was discussed, and the remarks of the court which reversed the first decision are interesting.  After admitting that in previous cases learned judges had inclined to the opinion that an auditor might “use his memory as a means of procuring a represented play,” and might then “lawfully print and publish it,” the court says: “The reason seems to be that as there can be no power over or restriction of the use of memory, therefore such use is not unlawful.  It is enough, however, perhaps, for the present case to say that even if it is true that an auditor at a public representation may lawfully carry away the play in his memory, and afterwards put it in writing, and from such writing print and publish, there was no evidence in this case to bring it within that rule.  The finding of the court is that the defendant received the words of the comedy, etc., from one or more persons who had seen or heard it

[1] Crowe v. Aiken, 2 Bias. 208.


performed.  That finding is not enough to justify the conclusion that the person or persons who saw or heard the public performance had brought it in their memories from the theatre.  The burden of proving the manner in which the play was procured was upon the defendant, and he was bound to show that he had obtained it in a lawful way.  There are no presumptions in his favor.  The right of the plaintiff as owner before publication was absolute, and could be defeated only by showing that the defendant had obtained the play through the memory of an auditor.”  The judge who delivered the opinion then went on to say that he felt compelled to dissent from the doctrine that a spectator may, “upon witnessing the public performance of a play, rightfully commit it to memory, and then publish it to the world.”  He proceeded to give his view of the law of the subject in the following: “It seems to me that any surreptitious procuring of the literary property of another, no matter how obtained, if it was unauthorized and without the knowledge or consent of the owner, and obtained before publication by him, is an invasion of his proprietary rights, if the property so obtained is made use of to his injury.”  He then pointed out that it is admitted that “a play cannot lawfully be taken down by a short-hand writer from the lips of the actors during a public performance,” and asked, “If taken thus by a stenographer, is it different in its legal effect and resulting consequences from committing to memory and afterwards writing it out?  In principle it is not.  They are only different modes of doing the same thing, and if without the author’s consent are alike injurious to his interests.  The objection is not to the committing a play to memory, for over that no court can exercise any control, but in using the memory afterwards as the means of depriving the owner of his property.  Such use, it seems to me, is as much an infringement of the author’s common-law right of property as if his manuscript has been feloniously taken from his possession. I can see no difference.”  With regard to the fact that no warnings against infringement were printed on the tickets or posted in the theatre, he said: “Whatever means a prudent man may adopt to prevent his property from being feloniously taken from him, it cannot, I think, be successfully contended that if he chooses to take the risk he may not have it exposed without mark or other sign to designate it as his property; or that by thus exposing it he would lose his title, and could not afterwards recover it, or its value, from one who tortiously took it.  A wrong-doer cannot get title to property, or escape the responsibility of his tortious or felonious act, merely because the owner has failed to give public notice or warning that it was not to be stolen.  If carrying away in the memory of a spectator, or otherwise surreptitiously obtaining the contents of a play, is without the consent of, or unauthorized by, the owner, and therefore an infringement of his property in the play, the act is not caused by the omission of the owner to notify the audience that they will not be allowed or are forbidden to carry it away in that manner.”

In the foregoing quotations from the decisions of the courts on the subject of stage-right, no attempt has been made to ascertain the exact state of the law; but enough has been said to show a prevailing tendency to the complete and absolute protection of a particular kind of literary property.  Practically, although it would be difficult for a lawyer to advise a dramatic author exactly what the legal boundaries of his stage-right are, the right is now recognized so generally that, as we have seen, it has become the custom for foreign dramatists to sell the right to act their plays in the United States, unprotected by any international treaty or act of Congress.  An American citizen may copyright a play for a limited number of years, under the laws of the United States, and the copyright protects him as well against piracy by the printing of his play as piracy by acting it; but stage-right is a protection above and beyond either of these, which protects the foreign author no less than the domestic, enabling him to prevent


the representation of his play for profit in any country in which the common law is recognized, and investing him with a right of property as sacred as any recognized in houses, lands, or chattels.

If Lord Mansfield’s view of the subject of copyright had prevailed a hundred years ago in the House of Lords, all literary property would probably now stand upon the same footing that stage-right does.  The author of a book would thus enjoy an ownership absolute, exclusive, and perpetual.  The English author would be protected in America, and the American author in England.  But owing to the decision then arrived at, all property in books is confined in its enjoyment to a limited period of years, while even for this period it is protected only scantily.  The right to depredate upon it (which is recognized in reference to no other species of property) has been elevated to the dignity of a national privilege, and piracy to the standing of a respectable branch of trade.  By a singular accident of the law, the right of representing a drama on the stage has escaped spoliation, and thus, in the course of a hundred years, a peculiar kind of copyright has well-nigh established for itself a position accorded to no ,other kind of intellectual property.  A successful play is to-day perhaps the most valuable sort of literary property that a writer can produce.  Owing to the unqualified protection afforded it, it can be disposed of to far greater advantage than any ordinary copyright, and of course its value must increase with its popularity.  On this point the conclusion to which the law on the subject of dramatic copyright tends is amply confirmed by well-known facts.  A curious letter has recently been published in a New York paper, giving an account of an interview of the writer with the head of a dramatic agency in London.  It is part of this gentleman’s business to sell in the United States the right to act foreign plays, which are, as we have seen, absolutely unprotected except by the decisions of our own courts.  The following extracts from the conversation of the correspondent with the agent will be interesting reading to authors of books not capable of being put upon the stage. [1]  

Correspondent. While benefiting your own house, you hold, then, you are a benefactor to authors?

Agent.  Certainly I do.  Take the Celebrated Case as an example.  It was played over one hundred nights in New York.  We paid the author in France several thousand dollars.  It was infringed upon by Gilmore in Baltimore; we protected it, and got a decision in our favor.  By this success we and others are enabled to make handsome offers to French authors for other plays.

Corr.  Who adapted the Celebrated Case for America?

Ag.  A New York author.

Corr.  To what English authors have you paid most for American representations?

Ag.  Byron, Gilbert, and Wills.

Corr. For what pieces most?

Ag.  Our Boys, Charity, and Olivia.

Corr.  To whom have you paid most?

Ag.  Byron.

Corr.  May I ask what you have paid him in fees for Our Boys?

Ag.  Over five thousand dollars.

Now it will certainly be admitted that there is no reason for this anomaly, and that it was never anticipated as a desirable or probable consequence of the copyright laws.  There can be no reason why dramatic production (no matter how elevated a view we take of the drama) should be favored beyond all other kinds of literary property.  If copyright laws are passed for the encouragement of authorship, there can be no good ground for selecting dramatic authors as more deserving than all others, and enabling them to reap a richer harvest than historians, poets, or novelists.  Our American Cousin is a very amusing play; but it is certainly not so valuable a contribution to human thought as Macaulay’s histories or Lowell’s poetry; and the mere accidental fact that one of them can be used in manuscript profitably, while the other must be multiplied in print, surely ought not to make any difference.  If perpetual copyright

[1] New York Times, September 30, 1878.


is good for the stage, is it not good for all literature?

And this brings us to the important point recently mooted in a European congress.  Has not the time come for a new consideration of the question of perpetual copyright in all literary property?  It has been tacitly assumed now for a long time that authors ought to derive an advantage from their books only for a limited period of years.  The reasons for this limitation are usually stated to be that the public also have an interest which is hostile to that of authors; that “monopolies are odious;” and that the perpetual ownership of copyrights would involve confusion between the rights of rival publishers and the holders of the copyright.  These reasons have hitherto seemed sufficient to justify the limitation of copyright to a short period (in this country to twenty-eight years, with a liberty of renewal for fourteen more).  As to the first of these reasons, the supposed hostility of interest between the public and authors, the theory appears to be that there is a danger lest an author should suppress his ideas, or lest the copyright of valuable books should be bought up for the sake of driving them out of the market.  This argument would be entitled to more consideration if any startling instances of this sort of danger could be adduced.  The question is not as to the possibility of such an occurrence, but as to its probability.  Against its probability there is the universal motive of authors to derive as much from their books as they can.  Without adopting Dr. Johnson’s opinion that “nobody but a fool ever wrote for anything but money,” it is certainly fair to say that no one ever writes without having money before him as one of the inducements to writing; and it is out of the question that any sane author shall not desire to derive as great a profit as possible from the sale of his works.  Therefore, if he were to enjoy a perpetual copyright, he would be no slower in disposing of it to a publisher than he is now; the only difference would be that he would profit more by the arrangement.  The price of his book would be regulated, as it is now, by economic laws.  The notion that the public has a right, after a certain time, to the ideas of the author without payment, or, to put it in another way, that the author has the right to profit by his intellectual labor only for a limited period, appears to rest on a communistic basis.  Why have the public any greater, or the producer any less, rights with regard to this species of property than with regard to any other?  If the public have rights hostile to those of the producer of books, have they not the same rights hostile to the accumulator of lands, or houses, or grain, or railroad securities?  It is impossible that ideas can be of more immediate importance to the public than food and clothing; and if we are entitled to appropriate the ideas of an author after forty-two years, why should we not have the rest of his property?  Of course, communists may consistently hold this view of literary as of any other property; but it is difficult to see how any one not a communist can distinguish between property acquired by literary, and that acquired by any other kind of labor.

The second reason, that monopolies are objectionable, would certainly be valid if copyright was a monopoly in the ordinary sense of the word.  But it is no more so than all property is.  There are of course monopolies which it may be for the interest of the state to grant for a limited time only; but these are privileges which are given to individuals, and secured against competition, where no original property existed.  But in the case of literary ownership there is no monopoly at all; there is an accumulation of original ideas, the result of individual labor, and the only question is how far it is to be protected.  There is no ground for calling perpetual copyright a monopoly which will not apply to any recognized form of individual property.

The last difficulty, that the perpetual ownership of ideas will be likely to cause practical confusion, may safely be left, one would think, to be dealt with when it arises.  Exactly what the nature of


the difficulty is to be has never been clearly stated; and an argument in favor of destroying or seriously curtailing a right of property, on the ground that its enjoyment may give rise to difficulties not explained, would probably, if we were not accustomed to seeing literary property treated with savage disregard of right, strike us with amazement.

The attitude of the United States on the subject of copyright is more remarkable than that of any other modern country.  Professing a desire to foster science and literature, it has passed innumerable laws giving protection to all kinds of intellectual property.  It has at the same time, however, studiously fostered international piracy, and refused to foreigners the benefits of its copyright law; while in the development of stage-right, as sketched above, its courts have shown a tendency to recognize, in a more thorough way than the most advanced reformers could have desired, a kind of literary property which none of those who have discussed the subject have thought deserving of especial protection.  It would seem as if the time had come when this country could with advantage engage in the work of a reexamination of the whole subject, such as has been going on in England and Europe.

Perhaps this is too much to hope for just now.  But it is the object of the present article to call attention to the facts that in one branch of intellectual property perpetual and universal copyright is now actually in the progress of establishing itself in the American courts; that this is the work of judges, who are simply applying to literary property of a peculiar kind the principles which the enlightenment produced by the copyright discussion of the past century has shown must be applied to all such property; and that therefore those who are opposed to perpetual or international copyright, instead of reproducing the abstract arguments that have been repeated by rote from Mr. Justice Yates’s time until to-day, ought to devote all their energies to discovering whether abuses and dangers to the rights of the public grow up from stage-right.  If stage-right is a bad thing, it ought itself to be abolished.  If it is good, it is difficult to perceive any reason why legislation should not be directed to extending a protection equal to that which it affords to dramatic authors to all literary producers.

Arthur G. Sedgwick.


The Competitiveness of Nations

in a Global Knowledge-Based Economy

November 2006

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