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room, he skulked by the happy group that surrounded the inventor, not even daring to lift his eyes to Mrs. Dillingham. When he was rich and powerful, with such a place in society as riches and power commanded, he felt himself to be the equal of any woman; but he had been degraded and despoiled in
(To be continued.)
the presence of his idol, and knew that he was measurelessly and hopelessly removed from her. He was glad to get away from the witnesses of his disgrace, and the moment he passed the door, he ran rapidly down the stairs and emerged upon the
FOREIGN DRAMATISTS UNDER AMERICAN LAWS.
THE American stage is to-day almost wholly dependent upon foreign sources for the amusement and instruction nightly given to the public. It always has been so dependent, and there is no prospect that independence in this respect will be attained in the near future. It is not to the purpose to touch upon the delicate ground whether we have a native drama. However that question may be decided, the fact is apparent that most of the new comedies which American managers are expected and even required to provide for an exacting public and a critical press are, like most of our finest merchandise, imported from England and France. It may not be generally known, but it is nevertheless a fact, that while foreign plays are so generally demanded by American audiences, they are under the ban of American law to the extent that they must be kept in manuscript. The moment they appear in print, they become common property-the lawful spoil of whomsoever chooses to appropriate them. Thus, Mr. Wallack or Mr. Daly may copyright a drama which he has himself written, and whether the play be in manuscript or print, the author's exclusive rights must be respected by all persons. But if the comedy has been sent from Paris by M. Sardou, or from London by Mr. Byron, the owner's rights are lost when the play has been published by authority.
In order to determine more clearly the privileges accorded to, or rather withheld from, foreign dramatists in our courts, it will be important to ascertain what is the status of foreign authors in general under the American copyright laws. And here we find that the legislation by Congress has been tolerably explicit, and freed from much of the doubt and consequent litigation that have arisen from the corresponding language used by the British Parliament. There, from the first statute passed in the reign of
Anne, for the encouragement of "learned men to compose and write useful books," to the latest one enacted under the present Queen, the privilege of enjoying the profits arising from the sale of their works for a specified period after first publication has been granted to "Authors." For more than a century, the exact meaning of this word, as here used, was not defined by Parliament or the Judiciary, nor was it questioned in the English courts. In 1854, however, the House of Lords was called upon to determine its construction in a case involving Bellini's rights in the opera "La Sonnambula," which had arisen several years before, and which, having passed through the lower courts, had now reached the highest tribunal known to English law. Five of the eleven Judges who had been summoned to give their opinions, for the guidance of the Lords, contended that the word "author" must be construed in a restrictive sense, and as applying only to subjects of the realm; that a British Legislature dealing with British interests must be presumed to have legislated for British subjects, and for the encouragement of British talent and industry. On the other hand, it was stoutly maintained by six of the Judges that the word was used in a general sense, and was applicable alike to foreign and native authors; that there was nothing in the language of the act, either expressed or implied, to show that Parliament had intended to exclude foreign authors from the privileges granted; and, even admitting that the purpose of the law was to encourage British learning, such object would be promoted in the highest degree by "inducing French, Italian, and German authors to publish their works first in this country." The venerable Lord Brougham and Lord St. Leonards, who advised their peers, followed the minority of the Judges, and the House of Lords followed Lord Brougham and Lord St. Leonards, and, in pronouncing
the most important copyright judgment | essential, much less naturalization. since Lord Mansfield's time, held that neither at common law nor by statute would English copyright vest in a foreign author while resident abroad. There was, however, in this decision no intimation that a foreign author might not acquire all the rights accorded to a native author by coming within the British dominions. It was even held sufficient to cross from Calais to Dover.
In this country, however, as has been stated, the meaning of the law on this point has been less doubtful. In legislation extending through three-quarters of a century, Congress has granted protection to the works of such author as may be a "citizen of the United States or resident therein," thus by express words excluding foreigners from the privileges granted to native authors. This language has, nevertheless, given rise to some dispute as to who may be regarded as a "citizen" or "resident," and what is necessary to constitute such citizenship or residence as will entitle the claimant to come within the provisions of the law. Of course the chief difficulty is in construing the word "resident;" for literary men of every tongue have come to our shores for a longer or shorter period without losing citizenship in their native country, or acquiring it in this. In many instances, such authors have resided here for years; in others, for months or weeks. Are they "residents" in the meaning of the copyright laws?
This question has been left to the determination of the Courts, and was thoroughly considered in a case before the United States Court in Chicago, in 1868. The action was brought by the well-known dramatist and actor, Dion Boucicault, a native of Great Britain, who had resided in the United States from 1853 to 1860, when he returned to his native land. During this period, he had published certain plays which were duly copyrighted' in his name, and which were subsequently represented without authority at Wood's Museum, in Chicago. From this sprung the controversy whether Boucicault, being a British subject who had not been naturalized under our laws, and had not formally declared his intention of becoming a citizen, was entitled to American copyright. According to the judicial construction given in this case, the word "resident" refers to any person, no matter of what nativity, residing in the United States with the intention of making this country his place of permanent abode. A formal declaration of such intention is not
long such residence shall continue, or how short it may be, is not defined, and no specific acts are stated as necessary to constitute it. No distinction is made between a householder and a boarder or lodger. A man may live in his own castle, or in a hotel, or on the European plan." Nor is it necessary that such intention shall continue indefinitely. It must exist, however, when application is made for copyright. Suppose Mr. Tyndall were to come to this country with the view of making it his future home, and while here should publish one of his charming works on science, then, after a few weeks' stay, should change his plans and seek again his native land. There is no doubt that the copyright obtained for his book under such circumstances would be held valid by our courts. Suppose, on the other hand, his coming should be for the purpose of scientific investigation, or the delivery of lectures, and with the intention of returning sooner or later to his own fireside, while in reality he should tarry here many years. Before the law, he would be a mere sojourner, not entitled to copyright. Let us take another illustration. The late Prof. Agassiz first came to the United States in 1846, for the purpose of studying the natural history and geology of this country, in fulfillment of a mission suggested to the King of Prussia by Alexander von Humboldt. It does not appear that he was induced to remain here until the following year. In 1848, he published his "Principles of Zoology." Suppose the validity of the copyright in that work should be questioned. The most important judicial inquiry would be, whether the title of the work was filed for copyright before or after the great naturalist had decided to make this country his home.
The question, then, is determined by the intention existing in the mind of the person at the time he has his abode here, and by his acts, so far as they may indicate what that intention was. Of course it will often be a matter of no little difficulty thus to read a man's mind, and may be attended with fraud; but it is a question of fact for the jury, whose finding will determine the law. In Boucicault's case, it was the opinion of the jury that when that gentleman copyrighted the works in question, he regarded this country as his home; judgment was therefore in his favor. The assignee of a foreign author, though a citizen of the United States, holds the same relation under the
statute as the author himself; so that a citizen is not entitled to copyright in a work purchased from a foreign author.
From this cursory review, it will be seen that from the first copyright law of 1790 to the existing one adopted in 1870 our gates have been pretty effectively closed against the authors of other lands. But have they been left ajar for dramatic authors? Has an exception been made in favor of this class? This inquiry must be answered in the negative. And yet, within the past fifteen years, our courts have repeatedly protected from piracy the plays of foreign authors. A consideration of the facts and legal principles presented by the leading of these cases will afford the best illustration of the rights of foreign dramatists under American laws.
In the autumn of 1858 the first performance anywhere of the comedy, "Our American Cousin," was given at Laura Keene's Theater in New York, with Joseph Jefferson in the then leading comedy part of Asa Trenchard, and Mr. Sothern in a character, which he has since made one of the most ludicrous comedy creations of the stage, Lord Dundreary. This play had been written by Tom Taylor for performance at the Adelphi Theater, London, in 1852. It was not, however, given there, and six years later the manuscript was purchased by Miss Keene, who had it copyrighted under the laws of the United States, and carefully guarded it from the printer. The success of the comedy was unparalleled, except perhaps by that of "Uncle Tom's Cabin," and consequently it was at once coveted by other managers. It was soon brought out without authority by William Wheatley in Philadelphia, Moses Kimball at the Boston Museum, and, later, by the comedian, John S. Clarke, in New York. Other managers also announced the comedy without permission; but the three named were called to account by Miss Keene. The pioneer case was that against Wheatley, which resulted in a triumph for Miss Keene-not, however, because the play had been copyrighted, for such copyright was pronounced invalid on the ground that the comedy was from the pen of a foreign author, and, moreover, Miss Keene was herself an alien, but because the common law right of that lady to the exclusive control and enjoyment of her literary property had been invaded. In Boston, however, Kimball triumphed, maintaining that the members of his company had witnessed the performance of the play at Miss Keene's Theater, and were thus enabled to
reproduce it from memory. This question, whether the spectators at a public performance have a right to make public use of a play which they have carried away in their memories, had also been thoroughly considered in the Philadelphia case; but as Wheatley represented "Our American Cousin" from an unauthorized manuscript which he had obtained from England, the decision did not turn on this point. Nor was it a direct issue, although much debated, in the case against Clarke in the New York Superior Court, which was decided in favor of Miss Keene. This valuable discovery of a way of acquiring literary property without paying for it will be fully considered further on; but before doing so, it will be well to note the facts in two other recent cases in which the same doctrine was a stumblingblock to our courts.
On the last day of 1869 the United States Circuit Court in Chicago decided a controversy as to the rights of Mrs. Crowe (Miss Kate Bateman) in the manuscript drama, "Mary Warner," which Tom Taylor had written expressly for, and duly assigned to, her in consideration of four hundred pounds.
Miss Bateman brought out the play first at the Haymarket Theater, London, in June, 1869, and in the following autumn at Booth's Theater in New York, herself assuming the leading character. Without authority, the piece was announced for production by Aiken at his theater in Chicago. Mrs. Crowe had kept the play in manuscript, and alleged that the defendant had produced it, not by means of the memory of those who had witnessed its authorized representations in London and New York, but by a copy wrongfully and surreptitiously obtained. Aiken replied that he had represented the play by means of printed copies obtained from Robert M. De Witt, a New York publisher of dramas, and that his representation therefore was lawful. These copies had been printed, however, without the knowledge or consent of Mrs. Crowe, and in pronouncing judgment in favor of that lady, Judge Drummond had no doubt "that De Witt 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 shorthand reporter, or in some other unauthorized or wrongful way, and not by memory alone."
The only other legal controversy that need be cited here to illustrate the standing of foreign dramatists in our courts had reference to the charming English comedy,, Play," written by the late T. W. Robert
son. The New York manager, Henry D. Palmer, had purchased the manuscript of this piece from the author, with the exclusive privilege of representation and publication in the United States, and was careful that it should not fall into the hands of the printer. The play was first given to the public through the agency of the author at the Prince of Wales Theater in London, and about the same time was brought out in New York by Mr. Palmer. Soon after, without the knowledge or consent of the author or Mr. Palmer, a printed copy appeared in circulation in this country, and was traced to the press of Robert M. De Witt. When that gentleman was called to account, he alleged that he had received the words of the comedy, with the necessary stage directions, from one or more persons who had witnessed its performance in London, and, in the three courts through which the case passed, his lawyers offered that plea as a sufficient defense. It did not appear, however, whether De Witt was indebted to the memories or the notebooks of his London friends who had furnished the copy, and when the case was called in the Court of Appeals in 1872, the Judges entertained a strong opinion that "it would be entirely consistent with the findings that the copies were surreptitiously obtained," and pronounced in favor of Palmer the judgment of the highest court of the State of New York.
protection which was granted, and not statutory. It is a fundamental principle of the common law, recognized wherever that law obtains, that an author has the same control over, and the same right to the enjoyment of, the unpublished products of his brain, as the farmer has to the results of his toil or the banker to his bonds. Whether reduced to writing or not, whether in manuscript or in print, traced in marble or upon canvas, such production is his literary property, and subject to his exclusive direction until it is abandoned to the public. The common law makes no distinction between native and foreign authors; before it all tongues are the same. But the act of publication transfers the work from the realm of common law to that of the statute, and remands the author to the latter tribunal for redress.
The great question, therefore, in all the cases here referred to was, whether the public representation of a manuscript play by its lawful owner was such a publication as made it common property, and gave others the right to reproduce it upon the stage without special license. On this point certain principles of law may be considered as firmly established in our jurisprudence. In the first place, the representation of a drama does not authorize any one to print and publish it without the consent of the owner, no matter how the copy may be obtained; so that the dramatist has a complete remedy Here, then, are four cases wherein the for the piracy of his play by publication. rights of British dramatists have been pro- But, suppose the infringement consists, not tected in our courts, and only one in which in publishing the piece, but in representing protection has been denied, and that on a it upon the stage by means of a copy obdisputed principle of law. But it will be obtained from the authorized performance. In served that none of the cases arose under the this case the question becomes more difficopyright statute, and did not, therefore, as cult. It is fully settled, however, that the some have erroneously supposed, have any- authorized representation would be unlawful, thing to do with our copyright legislation. and might be restrained if the copy had All of the works in controversy were the been obtained in any surreptitious manner, dramatic productions of English authors or from the authorized performance by resident in Great Britain. They had been means of phonography, notes, or any other produced in manuscript for exclusive repre- aids to memory. In other words, all means sentation in the United States. They were of obtaining a play from its public performrepresented from manuscript held by the ance for the purpose of reproducing it upon assignee, were not copyrighted (except "Our the stage have been declared unlawful, exAmerican Cousin," the copyright of which cept that of memory. But may a rival manwas held invalid), and had not been printed ager summon to his aid the memory of any by authority for public circulation. Having person who has witnessed the performance, been publicly represented by the lawful and by this means reproduce the play owner, they were reproduced without license against the protest of the owner of the manby other managers, who maintained that the uscript? This question has caused much authorized representation was a publication discussion before our judicial tribunals, and which divested the owner of his exclusive cannot yet be considered as settled, notrights in the play, and made it common withstanding the affirmative has been mainproperty. It was, therefore, common law tained in several of the cases mentioned.
The doctrine recognizing memory as a lawful means of thus acquiring a valid title to an uncopyrighted play, and any use of pen or pencil as unlawful, first appeared in this country in Miss Keene's case against Wheatley in the United States Circuit Court in Philadelphia. Let us be thankful that it Let us be thankful that it is not a production of American genius, but is of foreign importation. In that case the rule was laid down that the public performance of an unprinted play was a publication so far as to justify a rival manager in reproducing it, provided he had "obtained it by fair means" but that no one of the audience" might lawfully make use of stenography, phonography, writing, notes, or any other except fair means." And "the only fair means by which others could have obtained the words were their impression upon the memory of some person whose constant attendance at the performances of the play might at length enable him to repeat or to write out its language." This distinction was recognized in the subsequent cases of Keene against Kimball, in the Supreme Court of Massachusetts; Keene against Clarke, in the New York Superior Court, and Crowe against Aiken, in the United States Circuit Court in Chicago. In each of these cases the Court admitted that a play, having been once publicly performed, might without authority lawfully be reproduced upon the stage from the memory of any spectator, but not from notes or a copy surreptitiously obtained. This view was also adopted in Palmer's suit against De Witt in the Superior Court of New York; but when that case came before the General Term for review, Judge Monell took strong ground against this unsound doctrine, and maintained that "any surreptitious procurany 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."
We may look in vain for any sound reasons in support of this remarkable doctrine. The leading arguments seem to have been that "in the case of a public dramatic performance the public is held entitled to make use of that faculty which is necessarily addressed by such representation, to wit, memory, for the purpose of repeating the contents of the play even in performing it elsewhere;" that" taking notes and all artificial aids to or substitutes for memory may
be restrained by a court as a violation of the terms of admission, or may be made part of the police of the place of performance;" but the "privileges of listening and of retention in the memory cannot be restrained where the audience is not a select one." One New York judge solemnly announced from the bench that remembering to a certain extent is the natural consequence of hearing, and using such recollection naturally flows from possessing it. He might with equal solemnity have proclaimed that using our hands naturally flows from having them, and therefore putting them into another's pockets is perfectly legitimate.
Another intimated that it was more difficult to bring away the dialogue and scenes by memory, and hence more lawful; that the note-book process was too easy, and therefore wrong. But how about some of the phenomenal memories we read of? Pliny says that Cyrus had a memory so prodigious that he could name every officer and soldier in his armies; and that Lucius Scipio knew every Roman citizen by name when that city contained more than two hundred thousand capable of bearing arms. Seneca speaks of a friend, Pontius Latro, who could repeat verbatim all the speeches he had heard declaimed by the Roman orators. It is said that Joseph Scaliger committed to memory both the Iliad and the Odyssey in twenty-one days. Sir William Hamilton tells us of a young Corsican of good family who had gone to Padua to study civil law, in which he soon distinguished himself. "He was a frequent visitor at the house and gardens of Muretus, who, having heard that he possessed a remarkable art or faculty of memory, though incredulous in regard to reports, took occasion to request from him a specimen of his power. He at once agreed; and, having adjourned with a considerable party of distinguished auditors into a saloon, Muretus began to dictate words, Latin, Greek, barbarous, significant and non-significant, disjointed and connected, until he wearied himself, the young man who wrote them down, and the audience who were present;- we were all,' he says, 'marvelously tired.' The Corsican alone was the one of the whole company alert and fresh, and continually desired Muretus for more words, who declared he would be more than satisfied if he could repeat the half of what he had taken down, and at length he ceased. The young man, with his gaze fixed upon the ground, stood silent for a brief season; and then says Muretus,