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Privilege and Property

 | 
Ronan Deazley
, 
Martin Kretschmer
, 
Lionel Bently

12. ’Neither Bolt nor Chain, Iron Safe nor Private Watchman, Can Prevent the Theft of Words’: The Birth of the Performing Right in Britain

Isabella Alexander

Texte intégral

  • 1 I am grateful to Lionel Bently and Elena Cooper for helpful comments on drafts of this paper.

1Note portant sur l’auteur1

  • 2 J.R. Planché, The Reflections and Recollections of J.R. Planché, 2 vols (London: Tin-sley Brothers (...)
  • 3 Ibid., p. 149.
  • 4 Edward Lytton Bulwer changed his name to Bulwer Lytton in 1843, according to the terms of his moth (...)

2’Neither bolt nor chain, iron safe nor private watchman, can prevent the theft of words’.2 In 1872, the playwright James Robinson Planché penned these words in his autobiography. Planché is not well known today – indeed his reputation was in decline during his own lifetime. However, by the time of his death in 1880 Planché had written around one hundred and eighty plays for the theatre, covering every type of dramatic genre. He was also a tireless campaigner for improvement of the theatre and the rights of dramatic authors. In 1830 he convinced the Member of Parliament and fellow-dramatist George Lamb to introduce a bill into Parliament granting copyright protection to dramatists.3 However, the bill failed and, two years later, Edward Bulwer Lytton was more successful in convincing Parliament to pass legislation. As a result, it was to be Bulwer Lytton whose name was subsequently associated with reforming the rights of dramatists.4

  • 5 10 Geo. II c.28.
  • 6 J.R. Stevens, The Censorship of English Drama 1824-1901 (Cambridge: Cambridge University Press, 19 (...)

3Why did dramatists need protection in the 1830s? What were the problems that Planché and Bulwer Lytton were addressing? The answer requires an excursion further back in time, and starts with the observation that the history of dramatic copyright, like that of copyright in books, is bound up with the history of censorship and monopoly powers. Censorship of the theatres stretches back to the Tudors, but the central instrument for censorship in the eighteenth and nineteenth centuries was Walpole’s Stage Licensing Act of 1737.5 This Act supported the monopolies of the two patent theatres, Drury Lane and Covent Garden, which had been granted exclusive rights to perform ’legitimate’ drama by Charles II. The Stage Licensing Act required a copy of every new play to be submitted to the Lord Chamberlain, who could prohibit performance of the play if he saw fit. The powers of the Lord Chamberlain extended to the city of Westminster, which comprised the two patent theatres, as well as the Haymarket, which was granted a royal patent in 1766, and the King’s Theatre. Other theatres, which grew steadily in numbers throughout the eighteenth century, were, in theory, restricted to performing plays containing singing, dancing and ’spectacles’. However, they too submitted manuscripts to the Lord Chamberlain regularly. Theatres outside the city of Westminster were subject to supplementary licensing regimes.6

  • 7 A prompter is a person who stands next to the theatre stage, but out of sight, so as to prompt the (...)
  • 8 J.R. Stevens, The Profession of the Playwright (Cambridge: Cambridge University Press, 1992), p. 8 (...)
  • 9 Macklin v. Richardson (1770) Amb. 694.
  • 10 (1760) 4 Burr. 2303.

4The system of censorship and licensing, however, did not inhibit various sharp practices between rival theatres, as managers sought to obtain copies of successful plays, in order to stage them for their own profit. One popular method was to purchase a copy of the prompt book from the prompter,7 or to send in several agents to join the audience over several nights, each tasked with recording a particular character or characters. By the 1830s, the practice had evolved to sending in shorthand writers to take down the script as it was performed.8 In 1770, the actor and dramatist Charles Macklin, who had taken the precaution of never printing any copies of his play Love à la Mode and always took the copy away from the prompter, sought an injunction from the Court of Chancery against just such practices.9 The defendants were the proprietors of a magazine called the Court Miscellany, rather than a rival theatre, and they published the play’s first act in their magazine, promising that the second was to come in a subsequent edition. Macklin brought a bill seeking an account of profits and injunction against further publication of the first act, and the promised publication of the second. Lord Camden initially stood the case over until after the decision in Millar v. Taylor10 should be given.

  • 11 (1770) Amb. 694 (p. 696).
  • 12 Ibid., pp. 696-7.

5As is well known, the Court in Millar v. Taylor found that there was a common law copyright existing outside the Statute of Anne. Macklin sought to rely on this precedent, arguing that representing a play in a theatre did not amount to making a gift of it to the public, and that the defend-ants’ publication thereof amounted to an invasion of the plaintiff’s property right. The defendants, however, asserted that representing a farce on the stage gave a right to the audience to ’carry away what they could and make any use of it’.11 Moreover, they alleged that the publication occasioned no damage to Macklin as he could still receive profits from the acting of the piece. Lord Commissioners Smythe and Bathurst rejected these arguments, finding that the printing of the play did occasion damage to the plaintiff and granted a perpetual injunction.12

  • 13 5 T.R. 245.
  • 14 Ibid., p. 245.
  • 15 (1774) 2 Bro. P.C. 129.
  • 16 5 T.R. 245.

6However, the Court of the King’s Bench took a different approach in the subsequent case of Coleman v. Wathen.13 Colman (as it is usually spelt), was the manager of the Haymarket Theatre and had purchased the copyright of John O’Keeffe’s play, The Agreeable Surprise. In 1793, he brought an action against Wathen, of the Richmond Theatre, for performing the piece without permission. Thomas Erskine (later Lord Chancellor), acting for the plaintiff, argued that a representation should amount to a publication within the meaning of the statute, for if it was not ’all dramatic works might be pirated with impunity’.14 He also based his argument upon the finding in Millar v. Taylor that an author had a property in his works independent of the Statute of Anne. Lord Kenyon CJ did not accept this argument. By this stage, Donaldson v. Becket15 had been decided by the House of Lords, and the Chief Justice based his decision on this case. He noted that ’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’.16

  • 17 Robert Maugham, A Treatise on the Law of Literary Property (London: Longman, 1828), p. 155.
  • 18 Morris v. Kelly (1820) 1 Jac. & W. 481.
  • 19 Select Committee to inquire into Laws affecting Dramatic Literature (1831-2) 7 Parliamentary Paper (...)

7In his 1828 treatise on literary property, Robert Maugham suggested that the differing results in the two cases could be traced to the fact that the plaintiff in the latter case was seeking statutory penalties, rather than bringing an action for damages, with the result that he was bound by the express provisions of the Statute of Anne, which were, as penal provisions, construed strictly.17 This seems to be borne out by the greater success of later plaintiffs in Chancery. In 1820, David Morris, also a manager of the Haymarket, obtained an injunction from Lord Eldon in respect of another of John O’Keeffe’s plays, Young Quaker. Lord Eldon was satisfied by the production of an affidavit stating that the copyright of the play had been assigned to Morris in writing, and granted the injunction against the actress Maria Kelly and Samuel Arnold, proprietor of the English Opera House.18 Morris was also successful in obtaining injunctions against the patent theatres for other plays by O’Keeffe.19

  • 20 (1822) 5 B. & Ald. 657.
  • 21 Ibid., p. 661.

8However, when the Lord Chancellor referred the case of Murray v. Elliston to the Court of the King’s Bench, that Court found against the plaintiff.20 This case was brought by John Murray, the publisher of Byron’s Marino Faliero, against the manager of the Theatre Royal, Drury Lane, who was advertising a performance of the poem. Once again, counsel for the plaintiff argued that the question did not depend on the Statute of Anne, but was an invasion of Murray’s property right in the poem. Counsel for the defendant relied on Donaldson v. Becket as deciding that the author had no remedy except that provided by the statute, as well as the authority of Coleman v. Wathen. The judgment of Abbott CJ, Bayley and Holroyd JJ is briefly reported as finding that the action could not be maintained for publicly acting and representing the poem.21 It is not clear, from the report, whether they came to this conclusion because they accepted Elliston’s argument that the play was an acceptable abridgment, or the argument that there was no ’publication’ within the meaning of the Statute of Anne.

  • 22 Stevens, The Profession of the Playwright, pp. 86-7.
  • 23 Ibid., pp. 25-6.
  • 24 Ibid., p. 31, and Dramatic Literature Select Committee, p. 3.

9A number of defensive practices grew up in response to this uncertain situation. The managers of theatres would often buy the ’copyright’ in a play from the dramatist but, rather than printing and publishing these plays, they would hoard the manuscripts, both to protect the script and as a long-term investment. Often the manuscript would be later sold to a publisher. An informal system of spying on competitors also grew up.22 The method of remunerating authors also changed at the start of the nineteenth century. The old system which involved authors taking a share of box office takings on the ’benefit’ nights (the third, sixth and ninth nights) began to give way to the more certain system of payment by a lump sum, which might include an allowance for the copyright, and might include bonus amounts on certain nights, should the play run that long.23 However, by the 1820s and 1830s the theatres were in a general decline and this was reflected in decreasing amounts paid to authors. Reasons for the decline were variously identified as incompetent management, excessive actors’ salaries, the fashion for late dinner hours, the absence of Royal encouragement and the opposition of religious sects.24

  • 25 Ibid., p. 157.
  • 26 Planché, p. 148. See also Dramatic Literature Select Committee, p. 214.
  • 27 Parl. Deb., vol. 22, col. 918, 24 February 1830; Journal of the House of Commons (1830), LXXXVI, p (...)

10The fact that the surreptitious copying of plays as they were performed had become a considerable industry is illustrated by the observation of the well-known playwright Douglas Jerrold that ’Mr Kenneth, at the corner of Bow Street, will supply any gentleman with any manuscript on the lowest of terms’.25 Planché alleged that he was given the impetus to seek reform of the law following an incident involving John Murray, lessee of the Theatre Royal in Edinburgh. According to Planché, Murray refused to pay the entirely reasonable sum of ten pounds for the privilege of staging Planché’s drama Charles XIIth pleading poverty, and then obtained an unauthorised copy and staged that instead.26 However, the bill that Planché convinced Lamb to introduce in 1830 was continually deferred and Lamb eventually dropped it.27

  • 28 Parl. Deb., vol. 28, col. 685, 13 July 1814.

11Interestingly, this was not the first attempt to convince the legislature to take action to protect dramatic authors. In 1814, in the course of debate concerning a bill aimed at amending the provisions regarding legal deposit, Davies Giddy, a scientist and MP for Bodmin, suddenly proposed including a clause that would protect the interests of authors in the habit of writing plays ’intended merely for the closet’.28 Apparently, a gentleman of his acquaintance had described to him the lack of protection for dramatic authors against theatre managers putting on plays without the author’s permission. It was objected that the clause was too disconnected from the rest of the bill and Giddy let the suggestion drop.

  • 29 Parl. Deb., vol. 13, cols 239-41, 31 May 1832.
  • 30 Ibid., col. 244.

12In 1832, however, the matter was taken up by Edward Bulwer Lytton. This time, the matter of dramatic copyright was raised alongside reform of theatrical London. Bulwer Lytton, a Whig radical and novelist of growing popularity, had become an MP the year before. He objected to the system of dramatic licensing and considered that the original reason for suppressing the minor theatres, namely their disorderly state during the time of Charles II, no longer existed. In his view, the system was the direct cause of deterioration in national drama.29 Moreover, he considered the censorship powers exercised by the Lord Chamberlain over all dramatic performances to be unconstitutional.30

  • 31 Dramatic Literature Select Committee, pp. 142, 156, 176, 190, 194, 214, 227, 228.
  • 32 Ibid., pp. 143, 157, 176.

13Bulwer Lytton believed that a revival in English drama would result from relieving theatres and dramatic works from the restrictions under which they operated and from conferring on dramatic authors the same rights as literary authors under copyright law. His motion to appoint a Select Committee to look into these matters was agreed to by the House of Commons, and the Committee began to take evidence on 13 June 1832. All the dramatic authors who appeared before the Select Committee were of the opinion that granting copyright protection to published plays as well as a right to consent to performances of their plays, whether published or unpublished, would benefit them and lead to an increase in the amount they were paid.31 Moreover, they considered that granting these rights would encourage people with greater literary talents to write for the stage, instead of working on better paid periodical literature and novels.32

  • 33 The Times, 4 May 1822, p. 3e.
  • 34 Dramatic Literature Select Committee, p. 157.

14As well as being anxious to receive payment for performances of their plays, dramatists were also concerned with the effects of such unauthorised performances upon their reputations. This concern had been raised in Murray v. Elliston by Murray’s counsel James Scarlett, who had argued that Byron had expressly stated that he did not want his tragedy to be performed, and claimed that the play’s failure would hurt Byron’s feelings as well as his fame.33 As Douglas Jerrold put it before the Select Committee, unauthorised performances constituted a ’double injury [to authors]: in the first place, they are not paid for their pieces, and in the next place, they are represented by the skeleton of their dramas; so that, as it was emphatically said by a sufferer, the author was not only robbed but murdered’.34 The argument was not pressed, but represents an instance of the impetus to lay claim to author’s rights going beyond mere pecuniary interest.

  • 35 Ibid., pp. 150, 209-13. The right was to last for twenty-eight years, and if the author were still (...)
  • 36 Bill to amend Laws relating Dramatic Literary Property (1833) 2 Parliamentary Papers (73).
  • 37 Journal of the House of Commons (1833) LXXXVIII, pp. 246, 310.
  • 38 Ibid., p. 470.
  • 39 3 Geo. III c.15.
  • 40 Dramatic Literature Select Committee, pp. 3-5.
  • 41 Parl. Deb., vol. 16, cols 561-7 (12 March 1833). The bill was passed in the House of Commons but p (...)

15Despite the opposition of theatre managers and proprietors to a scheme that would give authors of plays control over their performance, the Committee recommended that the authors of plays should possess the same legal rights as the authors of any other literary production, as well as the right to grant consent to performances.35 In March 1833, Bulwer Lytton introduced a bill into Parliament to this effect.36 Bulwer Lytton had wanted the penalty for representing a play without permission to be the sum of fifty pounds for each representation, but this was amended in the House of Commons to forty shillings.37 With a few other small amendments the bill was passed in the House of Commons and the House of Lords made no further changes. The bill received royal assent in June 183338 and passed into law.39 On the matter of censorship, the Committee’s recommendations were modest: rather than abandoning the office of censor, it advocated extending the Lord Chamberlain’s jurisdiction to cover the minor theatres, but removing the privileges of the patent theatres.40 Bulwer Lytton introduced the censorship provisions in a second bill, but it was far more contentious than the dramatic copyright bill and had to be dropped.41

  • 42 3 Will. IV c.15, s. 1.
  • 43 3 Will. IV c.15, s. 2.

16Bulwer Lytton’s Act sought to clarify the confusing situation that had resulted from the different approaches taken to unauthorised performances by the Courts of Chancery and Law. The statute provided that the author or assign of any ’tragedy, comedy, play, opera, farce or any other dramatic piece or entertainment’ composed but not printed by the author should have the sole liberty of performing or representing the piece at any place of dramatic entertainment. The right also applied to the authors and assigns of plays printed and published within ten years before the passing of the Act and any plays printed and published after the passing of the Act. For plays that were not printed, the right granted was perpetual; for printed plays it would last for twenty-eight years and, if the author were still alive at the end of that period, for the rest of his life.42 The penalty for breaching the Act was to be forty shillings, or the amount of benefit derived from the representation, or the loss occasioned by the plaintiff.43

  • 44 Stevens, The Profession of the Playwright, p. 175; D. Barratt, ’The Dramatic Authors’ Society (183 (...)
  • 45 Select Committee to inquire into Working of Acts for Licensing and Regulating of Theatres and Plac (...)
  • 46 Planché, p. 202.

17The Dramatic Copyright Act appeared to bring dramatic authors, and their assigns, into the copyright fold, alongside the authors and publishers of printed books. However, the operation of the Act was far from straightfor-ward. First came the question of how the new right was to be administered and enforced. In the case of printed books, there was physical evidence in existence to establish whether copyright was being observed, but a play was ephemeral, existing only at the time of its performance and leaving no trace once that was ended. A new body, the Dramatic Authors’ Society, was set up to address this situation. Planché and Bulwer Lytton were, of course, members, as were many of the other leading dramatists of the day, including Douglas Jerrold, James Sheridan Knowles, Edward Fitzball, Charles Dance and Richard Brinsley Peake.44 The Society’s main aim was to facilitate the dealings of dramatic authors with the provincial theatres. The usual practice in London was for dramatists to grant a theatre the right to perform a play for a certain amount of time, or forever, but it was far harder for the dramatists to deal with the theatres outside the capital. Giving evidence before a Select Committee on theatrical licences in 1866, the Society’s then secretary, Joseph Stirling Coyne, explained that the Society had been established at the suggestion and wish of the provincial managers themselves.45 Doubt is cast on this, however, by Planché’s recollection that the managers raised an outcry at the bill’s introduction.46

  • 47 Barratt, p. 21.
  • 48 Ibid., pp. 21-4.
  • 49 Royal Commission on Laws and Regulations relating to Home, Colonial and Foreign Copyrights (1878) (...)

18The system operated by the Society changed several times throughout its fifty year life span. The Society began by asking provincial managers to send a list of the plays they had performed, which were charged on a fixed scale according to how many acts the play had and the size and location of the theatre performing it.47 This system of uniform pricing, however, was undermined by the preferential treatment given to Sheridan Knowles, the most famous playwright of the day. Sheridan Knowles was allowed to set prohibitively high prices for his plays, his objective being to earn greater profits by acting in them himself. By the 1840s, managers could negotiate with individual dramatists for reduced rates and in the Society’s list of 1840, many plays appeared at different prices to the standard ones. By 1866, the system had changed yet again, and instead of provincial managers submit-ting periodical lists of plays they had performed, they were required to pay a certain sum of money based upon the size of the theatre, and other factors, in return for which they could put on any play on the Society’s list.48 The London managers, however, continued to make arrangements on an individual basis.49

  • 50 Barrett, pp. 26-9; Stevens, The Profession of the Playwright, pp. 179-80.

19By the 1860s, however, the Society began to be affected by the growing status and prosperity of dramatic authors; ironically, the very change it had sought to achieve. A number of leading dramatists, such as Dion Boucicault, Francis Burnand, T.W. Robertson and W.S. Gilbert, left the Society, as they could obtain better remuneration by negotiating individual prices with managers. In response, the Society revised its rules by allowing members to retain rights in popular plays for a certain period before they would enter the Society’s list.50

  • 51 Select Committee to inquire into Working of Acts for Licensing and Regulating of Theatres and Plac (...)
  • 52 Royal Copyright Commission, p. 121.
  • 53 Ibid., App. VIII, p. 354.

20In addition to internal disunity, the Society faced other obstacles. Chief amongst these was non-compliance by the provincial managers, who had been accustomed to performing plays without payment and either avoided or did not understand the new system. Particularly problematic were travelling companies. In 1866, Stirling Coyne complained before the Select Committee of ’certain managers, disreputable and dishonest men, who go about from theatre to theatre, and do not pay’.51 The same concerns were reiterated before the 1878 Copyright Commission by the current secretary, John Palgrave Simpson.52 Both men complained that the means of recovering the penalties against such managers through the bringing of proceedings at common law was frequently ineffective, as well as expensive. The petition presented by Simpson also complained that the remedy of forty shillings was wholly inadequate to ensure compliance with the Act.53

  • 54 Planché v. Hooper, The Times, 19 January 1844, p. 7c.
  • 55 Royal Copyright Commission, pp. 121-2.

21Clearly, not all the parties involved understood the operations of the Society. One such example can be seen in a case that Planché brought against Hooper, the lessee of the Theatre Royal at Bath, for representing his play, White Cat, without permission. Counsel for Hooper argued that if he had committed an offence it was unintentional, and he had ’been drawn into his present very disagreeable situation without any fault of his own by the conduct of the Society of Dramatic Authors’.54 Apparently, Hooper had been under the impression that as long as he sent a monthly file of the plays performed to the Society he was entitled to represent a play even without the author’s consent. The Court, however, instructed the jury that if they were satisfied that the White Cat was a dramatic entertainment, that Planché was the author, and the play was performed without his consent, then they must find for the plaintiff, which they accordingly did. The Dramatic Authors’ Society was itself hampered by its own inability to bring prosecutions to recover penalties. Simpson complained about this also before the Royal Copyright Commission, noting that the Society’s application to register under the Friendly Societies Act 1875, which would allow them to sue as a body, had been rejected by the Treasury on the grounds that the Society’s purposes appeared to amount to a restraint of trade.55

  • 56 Planché v. Braham (1837) 2 Car. & P. 68 (p. 74).
  • 57 Planché, p. 272.
  • 58 Ibid., pp. 270-1.

22Another obstacle lay in the fact that the Act had not completely clarified the law on performances of dramatic works. Indeed, it had added new uncertainties. What was meant by a ’dramatic piece’ and a ’place of dramatic entertainment’? What counted as a ’representation’? The latter question was tested in Court by Planché, who brought an action against the manager John Braham. Braham had commissioned the libretto to Weber’s opera Oberon, but the commissioned version used many of the same words that Planché had used in his libretto of the same piece, which had been performed at Covent Garden with Braham in the principal role. Tindal CJ held that the word ’represent’ must be taken to mean ’the bringing for-ward on stage or place of dramatic representation’ and included the singing of one or more songs from a theatrical piece.56 Planché was ashamed to have used the Dramatic Copyright Act against a respected colleague and referred to the incident as ’one of the most disagreeable recollections of my professional life’.57 His excuse was that he was acting at the behest of the proprietors of Covent Garden.58

  • 59 (1847) 3 C.B. 871.
  • 60 [1848] 2 Q.B. 217.
  • 61 (1882-3) L.R. 11 Q.B.D. 102.
  • 62 Ibid., p. 108.
  • 63 [1884] Q.B.D. 843.
  • 64 Ibid., p. 848.

23The question of what amounted to a ’dramatic piece’ was considered in Lee v. Simpson59 and the Court held that the introduction to a pantomime easily fell within the meaning of the statute, despite not being mentioned specifically in the Act. More difficult issues arose in respect of musical works, which will be discussed further below. The question of what was meant by ’place of dramatic entertainment’ occupied the Courts on several occasions. In Russell v. Smith,60 Lord Denman CJ held that a lecture room, Crosby Hall, became a place of dramatic entertainment for the purposes of the Act when it was used for the public representation for profit of a dramatic piece. In Wall v. Taylor; Wall v. Martin,61 which will be discussed in more detail below, Brett MR held that ’performing a dramatic piece makes the place where it is performed a place of dramatic entertainment’.62 He amended this view the following year, however, in Duck v. Bates.63 This case arose when an amateur dramatic club put on a free performance for the staff of St Guy’s Hospital of a play called Our Boys. Brett MR stated that he may have been interpreted as going too far in the earlier case, as the statute clearly contemplated that there may be some place at which a piece is performed which would not breach the statute. He went on to find that domestic and private performances would not fall within the Act. It was necessary that the representation be ’public’ by which was meant ’a representation to which any portion of the public are freely admitted with or without payment’.64 In this case, there was no such public representation and, consequently, St Guy’s Hospital was not a place of dramatic entertainment. He did however note in obiter dicta that representations for charitable objects would fall within the Act and warned that those who went beyond the facts of the particular case might incur the statutory penalties.

  • 65 (1847) 3 C.B. 871 (p. 883).
  • 66 Ibid.
  • 67 (1849) 8 C.B. 836 (p. 848). See also Lyon v. Knowles (1863) 3 B. & S. 556; (1864) 5 B. & S. 751.
  • 68 (1864) 17 C.B. (N.S.) 418.

24Yet another problematic issue was the responsibility of the landlord, or manager, for such unauthorised performances. This was held to turn on the question of knowledge, or mens rea. In Lee v. Simpson, the defendant argued that he had purchased the play in the bona fide belief that he was purchasing it from the author, which was not in fact the case. Wilde CJ held that the knowledge of the person actually representing the dramatic work as to ownership was irrelevant, because ’the object of the legislature was to protect authors against the piratical invasion of their rights’65 and the statute would altogether fail in this object if it were necessary to show that the defendant had knowledge of the plaintiff’s right of property.66 However, in Russell v. Briant, the same judge held that the landlord of the Horn Tavern in Kennington could not be held liable for the unauthorised performance of a dramatic piece, despite the fact that he had provided the venue, advertising and allowed tickets to be sold from the bar, on the basis that ’no one can be considered as an offender against the provisions of [the statute] [...] unless, by himself or his agent, he actually takes part in a representation which is a violation of copyright’.67 However, in the case of Marsh v. Conquest,68 the manager of a theatre who had no involvement in the performance of a play was found to be liable because he was the owner of the theatre and his son, who was in charge of the representation, was acting with his permission.

  • 69 Cumberland v. Planché (1834) 1 Ad. & E. 580; SC 3 N. & M. 537; L.J. 3 K.B. 194.

25Still more fundamental and confusing was the relationship between the copyright in the printed work and the right to perform that work. Once again, Planché was involved in dealing with this issue. However, this time he was defendant to an action brought by the publisher John Cumberland.69 In 1828, Planché had made an assignment to Cumberland of ’all right, title and interest whatsoever in the copyright’ of his farce, The Greeneyed Monster. Prior to this assignment, Planché had granted the right to represent the piece to the Haymarket theatre and, after the passing of the Dramatic Copyright Act, Planché had allowed another theatre to perform the piece. Cumberland, however, claimed that Planché’s assignment of the copyright to him meant that it was now Cumberland who had the sole liberty of rep-resenting the farce (subject to any rights of the Haymarket theatre), thereby making Planché’s purported assignment an infringement of his right.

  • 70 (1834) 1 Ad. & E. 580 (pp. 583-6).

26Cumberland retained Frederick Pollock as counsel, and he argued that Planché’s assignment to Cumberland placed him in the same position as if he had been the author, following the Dramatic Copyright Act. Sir James Scarlett argued for Planché that the Act created a new right and could not have been assigned away by the defendant before he possessed it. He con-tended that the intention of the legislature was to encourage genius, and that any new privileges created must therefore have been intended to be conferred upon the author. Pollock countered that the Act’s object was the protection of literary property and so an assignment of copyright must per-force carry with it the right of representation. Lord Denman CJ accepted Pollock’s argument that the intention of the Act was to protect literary property and therefore an assignment of the copyright must carry with it the right of representation. He noted that this would not injure future authors, as they would merely sell their rights for a higher price.70 This outcome was much resented by dramatic authors. In his autobiography, Edward Fitzball recalled:

  • 71 E. Fitzball, Thirty-five Years of a Dramatic Authors’ Life, 2 vols. (London: T.C. Newby, 1859), I, (...)

The act passed by parliament, in favour of dramatic authors, at this time, the better to allow them to meet with remuneration equal to their labour, proved highly beneficial to me; and would have been more so, had I not previously disposed of so many of my copyrights, to Mr Cumberland, who claimed upon his assignment the new privilege of nightly remuneration for dramatic pieces acted, either in town or country. This event, of course, was never contemplated by the legislature, whose intention was simply to assist literary (and too frequently necessitous) men, not publishers. However, the case was tried with Cumberland by the Authors’ Society, and the judge gave it in favour of the forms. (Law but not justice).71

  • 72 5 & 6 Vict. c.45, s. 22.
  • 73 (1864) 4 B. & S. 873.
  • 74 (1864) 17 C.B. (N.S.) 418. See also Lacy v. Toole (1867) The Times, 29 April 1867, p. 11c.

27The unsatisfactory situation was amended by the 1842 Copyright Act which explicitly provided that assignment of the copyright of a book containing a dramatic piece or musical composition would not convey the right to represent that work unless entry was made in the Registry Book expressing the intention that the right of representation was conveyed.72 That this provision acted to prevent an assignment of copyright from automatically conveying the right of representation, or acting, or stage right (as it was sometimes called), was confirmed in the cases of Lacy v. Rhys73 and Marsh v. Conquest.74

  • 75 Coyne v. Maxwell (1865), The Times, 7 June 1865, p. 11a; The Times, 10 June 1865, p. 11a.
  • 76 The Times, 10 June 1865, p. 11a.

28The ongoing confusion over the relationship between the right of representation and printed copyright provided a continuing incentive for dramatic authors not to publish their plays. However, the status of unpublished works was even less clear. In 1865, Stirling Coyne brought an action against the publisher Maxwell for publishing and selling copies of Coyne’s play, The Woman in Red.75 Coyne had never published his works and alleged that he had a common law property in his play. The defendant argued that by giving copies of the play to the actors, Coyne had published the work and therefore, as he had not registered it, there was no copyright in it for Maxwell to infringe. Cockburn CJ appeared convinced by Coyne’s argument that there was a common law right, but directed him to state the facts in the form of a special case to raise the question for the opinion of the Court.76 In the event, it seems such a case was never brought.

  • 77 Royal Copyright Commission, pp. lxxiii-lxxiv.

29It is clear that the relationship between copyright and the right of representation was not well understood in the theatrical world. However, it was not just publishers, dramatists and theatre managers who were con-fused. In the Digest of Copyright Law which Sir James Fitzjames Stephen had prepared prior to the Copyright Commission and which was annexed to the Report, Stephen stated, ’The exclusive right of representing or per-forming a dramatic piece or musical composition cannot be gained if such dramatic piece of musical composition has been printed and published as a book before the first representation thereof’. He added: ’A dramatic piece or musical composition published as a book may (it seems probable) be publicly represented without the consent of the author or his assigns’.77

  • 78 3 Will. IV c.15, s. 1.
  • 79 The Times, 1 December 1838, p. 6d. Presumably, the distinction between this case and the earlier d (...)
  • 80 (1882) 21 Ch. D. 232.
  • 81 21 ChD 232 (p. 241).
  • 82 T.E. Scrutton, The Laws of Copyright (London: William Clowes & Sons, 1883), pp. 134-5.

30This is an odd interpretation of section 1 of the 1833 Dramatic Copyright Act which, after providing that the author of an unpublished work should have the sole liberty of representing it, extended the same liberty to ’the Author of any such Production, printed and published within Ten Years before the passing of this Act by the Author thereof or his Assignee, or which shall hereafter be so printed and published [...]’.78 Moreover Stephen’s view was not shared by Lord Denman who, in the unreported case of Morton v. Shelders the Elder, held that even though the plaintiff’s play had been printed by the Dramatic Authors’ Society, the plaintiff had not lost his right to con-sent to its performance.79 In Chappell v. Boosey,80 a case brought by Chappell against Boosey relating to the singing of a song in which Chappell owned the copyright, North J rejected Chappell’s argument which relied on the statement of law in Stephen’s Digest, stating he was unable to agree with that assessment of the law, and that it ignored the provisions of the 1833 Dramatic Copyright Act and the 1842 Copyright Act.81 Nor was Stephen’s view shared by T.E. Scrutton, in his treatise on copyright law.82

  • 83 Royal Copyright Commission, p. 125.

31If the lawyers were unable to agree on the meaning of the statute, what chance did the general public stand, particularly given its operation was far from intuitive? As Simpson complained before the Commission, a club or society was liable to pay fees to the copyright owner for putting on an amateur dramatic performance even if they had not charged entry money. Moreover, there was no requirement to pay fees in cases where one man recited long passages from a play, but if two men recited passages together, even without costumes or scenery, they were liable to pay fees. If songs were also sung, composers could charge fees or claim the penalty.83 These subtle distinctions in the statute’s operation were not obvious and it is clear from the amount of complaints, as well as litigation generated, that those involved were tripped up time and again.

  • 84 (1848) 12 Q.B. 217.
  • 85 Ibid., p. 236.

32The situation was still more complex in relation to musical works, which spawned controversies of their own. Although, as mentioned above, the 1842 Copyright Act extended the operation of the 1833 Dramatic Copyright Act to cover ’musical compositions’, there remained uncertainty as to whether all music, or just certain types of song, would be covered. In Russell v. Smith,84 which involved the singing of a song called ’The Ship on Fire’ in a lecture hall, the defendant argued that the only musical compositions intended to be protected were those composed for performance with dramatic pieces. Unfortunately, the Court did not decide on the point, as Lord Denman CJ found that the song in question was a dramatic piece because it had a dramatic subject matter and was sung with great expression. He held that the words ’dramatic piece’ should be interpreted widely as any piece which ’would produce the emotions which are the purpose of the regular drama, and which constitute the entertainment of the audience’.85

  • 86 Royal Copyright Commission, pp. 102, 118.
  • 87 Ibid., p. 114.
  • 88 Ibid., p. 109.

33Most music publishers were firmly of the view that only songs used in conjunction with dramatic works, or performed in theatres, music halls or as parts of operas were subject to the statutory penalties. Before the Royal Copyright Commission, John Boosey and Henry Littleton, of Novello’s, argued that this was the case.86 The composer, Arthur Sullivan was similarly of the view that the current law held that only songs sung as ’dramatic works’ could be protected.87 Thomas Chappell, however, was less sure, stating that although there had been no case on the matter, he believed that the singing of a song separately to an opera or dramatic piece would also be subject to the statute.88

  • 89 (1872) 25 L.T. (N.S.) 908.

34The position of unpublished musical compositions was also unclear and, when it came before the Court, sparked debate as to whether music should be protected at all. In the case of Clark v. Bishop,89 the plaintiff, a comic vocalist, had purchased a song from a composer, Elton. He sang it in music halls, after which it became very popular, but he never published it. The defend-ant, Bishop, printed and published the song in a one penny book of songs, whereupon the plaintiff brought an action, alleging that the song was now valueless to him. On appeal, Martin B asked the plaintiff whether he relied on the common law or the statute, to which he responded that he relied on both. With respect to the common law right, he referred to Donaldson v. Becket as deciding that a right in unpublished works existed in common law. With respect to the statutes, he argued that the 1842 Copyright Act did not require registration of songs.

  • 90 Ibid., p. 910.
  • 91 Ibid.
  • 92 Ibid., p. 911.

35Kemp, who was counsel for the defendant, submitted that the song could not be protected by the 1842 Act, which was intended ’to afford greater encouragement to the production of literary works of lasting benefit to the world’, adding, ’that cannot apply to such a wretchedly worthless production as the vulgar doggerel which is the subject of the present action’.90 He argued that there was no infringement, because by singing the song, the plaintiff had given it to the public: ’It is similar to a speech by a demagogue at Blackheath or Primrose-Hill, or by a member of Parliament to his constituents; once uttered, it is published to the whole world, and it is no infringement in a newspaper to print it’.91 Kemp relied on Pollock CB’s opinion in Jefferys v. Boosey that allowing copyright in non-physical objects could be easily taken too far. In that case, the Chief Baron had asked, rhetorically: ’And where is it, on principle, to stop? Why is it not to apply to a well-told anecdote or witty reply, so as to forbid the repetition without the permission of the author? And carried to its utmost extent, it would at length descend to lower and meaner objects, and include the tricks of a conjuror or the grimace of a clown’.92 Kemp concluded by arguing that the mere singing of the song amounted to publication and because the song was unregistered there could be no action for infringement.

  • 93 Ibid., p. 910.
  • 94 Ibid., p. 911.
  • 95 Ibid.
  • 96 (1876) 5 Ch D 267.
  • 97 (1863) 33 L.J. 38.
  • 98 In both cases, Dion Boucicault had first represented (but not printed) his plays in the United Sta (...)

36Martin B, dissenting, accepted the defendant’s case, noting in the course of the argument, ’A man writes a song and sings it in public, and another takes down the words and publishes it. It is new to me if that is actionable’.93 In his judgment he added that there could be no infringement because printing the words of the song would only increase its reputation and popularity.94 The rest of the Court, however, agreed with Kelly CB, who held that the singing of a song did amount to publication, but that the song fell within the category of ’dramatic piece’ and did not therefore require registration under the 1842 Copyright Act.95 The Court of Appeal likewise held in Boucicault v. Chatterton,96 following Boucicault v. Delafield,97 that performance amounted to publication.98

  • 99 Royal Copyright Commission, p. 106.
  • 100 Ibid., p. 114.
  • 101 Ibid., p. 116.
  • 102 Royal Copyright Commission, p. 119.

37The music publishers’ poor understanding of the right of representation was reflected in their contractual arrangements with composers. Chappell described how he had foreseen fifteen years earlier that there might be a problem with the right of representation and began including an assignment of the performing right in his contracts. However, he noted that not all publishers had been so wise, noting ’Mr. Boosey, who is a very clever man of business, and has as large a business as anybody, has not done so’.99 Arthur Sullivan gave evidence that the performing right had never been included in any of his publishing contracts100 and the Rev. Bennett referred to a conversation he had had with an employee of Novello’s that they did not know which songs they owned the performing rights to.101 When Littleton, of the same firm, was asked about the difficulties of assignments, he admitted ’I have that book on Copyright by Copinger but it is very difficult to follow it’.102

  • 103 [1878] L.R. 4 Q.B. 90; [1878-9] L.R. 4 Q.B. 483.

38The issue was in fact litigated in the 1878 case of Re the Songs ’Kathleen Mavourneen’ and ’Dermot Astore’ ex parte Hutchins & Romer.103 In this case, the composer of the songs, Crouch, had assigned ’all his present and future contingent and vested copyright in the musical compositions, and the sole and exclusive right and liberty of printing and publishing the same under 5 & 6 Vict.c.45and the Copyright Acts’ to the publishers D’Almaine and McKinlay in 1843. In 1868, the executors of McKinlay had assigned to Hutchings and Romer their interest, whether copyright or otherwise ’and also of representing and performing the same’. In 1878, Crouch had assigned the ’sole liberty of performing or singing’ the songs to J.F. Adams. Hutchings and Romer brought a motion to expunge Adams’ subsequent entry of proprietorship in the Registry Book.

  • 104 [1878] L.R. 4 Q.B. 90 (p. 94).
  • 105 [1878-9] L.R. 4 Q.B. 483.

39In the Queen’s Bench Division, Cockburn CJ upheld the motion on the basis that Adams could not own the right of representation, as the 1842 Act did not have retrospective effect. Because the songs had been published before the Act was passed, the right of representation had already been given to the public and could not, therefore, be owned by anyone.104 The judgment was upheld on appeal, but on a different basis.105 The Court of Appeal found that the 1842 Act did indeed have retrospective effect, but that the outcome turned on the words used in Crouch’s assignment. Accepting that Cumberland v. Planché was no longer good law, the Court nonetheless held that Crouch’s words had been so expansive in 1843 as to pass the right of representation as well as the copyright. Consequently, Crouch had conveyed to D’Almaine and McKinlay the right of representation and could not, therefore, assign it to Adams.

  • 106 Royal Copyright Commission, pp. 101, 105-6.
  • 107 I am indebted to Lionel Bently for this apposite description of Wall’s activities.

40One person who had quickly understood the opportunities offered by the Dramatic Copyright Act and its extension to music in 1842 was the infamous Harry Wall. Wall was married to a comic singer, Annie Adams, and it was possibly this connection which had given him the idea of setting up a business, which he called the Authors’, Composers’ and Artists’ Copyright Protection Office, based upon the statutory penalties provided for in the 1833 and 1842 Acts. Wall’s business consisted of collecting fees for unauthorised performances of songs, often by deceased composers whose assigns had given Wall power of attorney.106 Thus, he takes his place in history as the world’s first ”copyright troll”.107

  • 108 The Musical Times, 1 February 1876, p. 371. See also The Musical Times, 1 March 1876, pp. 394-5, 1 (...)
  • 109 Ibid., p. 106.
  • 110 Ibid., p. 109.
  • 111 Ibid., p. 101.
  • 112 Ibid., p. 194.
  • 113 Ibid., p. 115.
  • 114 Old Bailey Proceedings Online, May 1860, trial of Henry Whiting (t18600507-491) www.oldbaileyonlin (...)

41The musical world was outraged by Wall’s effrontery at exploiting the statutory penalties. From 1876, complaints about his activities appeared in the musical press. The first to complain was a T. Backhouse who had received a letter from Wall demanding two pounds after he held a concert at which one of the singers sang a song by Wallace.108 The music publishers also raised the matter before the Royal Copyright Commission. Thomas Chappell said he had refused to deal with Wall when approached because he ’did not like the character of the man or the character of the proceedings’,109 later adding that such things were done by ’people who do not care any-thing for the work or anything else, all they want is the money they can get’.110 John Boosey said that ’no living composer cared to employ’ him111 and Anthony Trollope spoke of a ’mercenary, vulgar, and I may say, immoral person’.112 Evidence was also given that ladies would be discouraged from singing songs in public for fear of receiving letters from agents such as Wall demanding money.113 Wall was clearly of a class with which the publishers did not care to mix. Born Henry Whiting, Wall had a criminal record, having been imprisoned in 1860 for eighteen months after being found guilty of unlawfully receiving property obtained under false pretence.114

  • 115 Royal Copyright Commission, p. 102. See also the evidence of T. Chappell, ibid., p. 106.
  • 116 Ibid., p. 193.
  • 117 Ibid., p. 113.
  • 118 Ibid., pp. 113-4.
  • 119 See: Stevens, The Profession of the Playwright, Ch. 5; Martin R. Booth, ’Public Taste, the Playwri (...)

42Moreover, the composers and music publishers were not convinced that charging money for performances was to their advantage. Their market revolved around sales of sheet music. The music publisher John Boosey gave evidence that the collection of fees would interfere with a composer’s profits, as performance was what made music popular and stimulated sales.115 Charles Purday likewise thought that composers should be glad to have songs sung, to make them known, and that this was also the best arrangement for publishers.116 The composer Arthur Sullivan suggested that there should be a small fee, which in most cases composers would not collect, and no penalty for non-payment. Again, he based his views on his belief that the sale of a work depended on the popularity it acquired through performance.117 While Sullivan supported extending the right to collect such a small fee in respect of more than just ’dramatic performances’, for him the real value would lie in obtaining the power to stop his songs being sung in undesirable contexts, such as burlesques, in the street or by people with bad voices.118 The difference between the attitudes of music composers and publishers towards the right of performance and those of dramatic authors can probably be ascribed to the strength of the market for sheet music when compared to the comparatively weak market for printed dramatic works for much of the nineteenth century.119

  • 120 3 Will. IV c.15, s. 2.
  • 121 Royal Copyright Commission, pp. 106-7.
  • 122 Ibid., p.106.

43The amount of money that ought to be collected for unauthorised performances was also contentious. The 1833 Act, it may be recalled, provided that every offender would be liable for not less than forty shillings for each representation.120 Thomas Chappell pointed out that while this might be a reasonable sum for an opera, it was excessive for the singing of a single, or even several, songs on their own. In his view, a shilling would be more appropriate.121 This related to another objection made to Wall’s mode of doing business. Rather than acting as soon as he discovered a song he owned, or for which he was the agent, was being performed, he would wait until the performance had run on for many nights, and then collect a much larger sum in respect of each performance.122

  • 123 Ibid., p. 116 (Rev. J.W. Bennett), p. 119 (Henry Littleton).
  • 124 Ibid., p. xxviii.

44Related to this ongoing confusion about the different rights was a further concern. Even if the general public could be educated to realise that purchasing a printed copy of a play or piece of music did not automatically bring with it the right to perform it, how would they know to whom they should apply for permission? This question was raised before the 1878 Copyright Commission by several witnesses.123 The Commission accepted this problem, and recommended that ’every musical composition should bear on its title page a note stating whether the right of public performance is reserved, and the name and address of the person to whom application for performance should be made’.124 Furthermore, it recommended that instead of the penalty being automatically assessed at forty shillings, the Courts should award compensation by reference to the damage sustained.

  • 125 The Times, 10 June 1882, p. 11g. Similar complaints were made in The Musi-cal Times, 1 May 1877, p (...)
  • 126 Royal Copyright Commission, p. 116.
  • 127 The Musical Times, 1 December 1883, p. 684.

45This was the only one of the Commission’s many recommendations to be enacted with any promptness, and the impetus was provided by growing complaints about Harry Wall’s business and behaviour, which soon spilled into the mainstream press. An editorial in the Times complained that Wall gave no quarter to those arranging concerts for charitable purposes and echoed complaints before the Royal Copyright Commission as to the difficulty of ascertaining who owned the performance right.125 As was noted before the Commission, Wall did have a list of works he was ’policing’ but refused to make it available without payment.126 Trying to address this issue, the Musical Times published a list of Wall’s pieces that had come to their attention in December 1883 and warned vocalists and concert-givers not to sing these songs.127

  • 128 Wall v. Harris (unreported), The Times, 2 May 1882, p. 6b.
  • 129 Parl. Deb., vol. 269, col. 354, 9 May 1882.
  • 130 A bill to amend the law relating to musical compositions (1882) 1 Parliamentary Papers (161), p. 5 (...)

46Complaints about Wall also reached the ears of Parliament. In May 1882, Wall brought proceedings against an amateur singer, for singing ’She wore a wreath of roses’, the copyright of which had been assigned to Wall, at an entertainment at a working man’s club in Bishops Stortford.128 Manisty J found for Wall, and awarded him a penalty of two pounds and costs. A week later, John Eldon Gorst, MP for Chatham, complained in Parliament that recently persons had been prosecuted for singing songs at penalty readings, and he introduced a bill to deal with the issue.129 This bill provided that any copyright owner who wished to retain the right of performing that work should print a notice on the front of the work saying that performance could only take place with his permission.130 Indeed, in a letter to The Era on 1 July1882, Wall advocated this very solution. Defensively, but defiantly, he wrote:

  • 131 Era, 1 July 1887, p. 4.

I do not (and never did) pretend to protect the interests of music, art, the public, professionals, or amateurs. I cannot, at present, afford to be so generous. I merely seek to protect and enhance my own interests – singularly selfish individual that I am. And I learn from the creators of the respective productions that they themselves would have been only too glad to have done the same, but they did not know that, or how, they could do so.131

  • 132 Parl. Deb., vol. 270, cols 1715-8, 20 June 1882, vol. 272, cols 428-9, 14 July 1882. 45 & 46 Vict. (...)
  • 133 45 & 46 Vict. c.40, ss. 1, 4.
  • 134 Scrutton (1883), p. 160. This problem was raised, and the Act’s drafting criticised, in Fuller v. (...)
  • 135 Wall v. Taylor; Wall v. Martin (1882) QBD 727.
  • 136 Ibid., p. 728.
  • 137 (1882-3) LR 11 QB 102 (CA).
  • 138 Ibid., p. 108.

47In 1882, after some discussion, and amendments in both Houses of Parliament, the bill was enacted.132 It provided that copyright owners who wished to retain the exclusive right of public performance must print a notice on the title page of every published copy stating that the right or public representation or performance was reserved. It also provided that the award of costs of any action should be in the Court’s discretion.133 As Scrutton pointed out, the Act’s failure to inflict a penalty on an owner who did not print such a notice was a serious flaw, and the Act was completely ineffectual in halting Wall’s activities.134 Shortly after the bill became law, Wall brought two further actions to recover penalties for unauthorised performances.135 In both cases, the jury found for Wall but had awarded him a mere one shilling in damages, while the Judge ordered him to pay the defendant’s costs. The refusal to award the statutory penalties was based on the judge’s finding that the penalties did not apply if the work was not performed in a ’place of dramatic entertainment’, following Russell v. Smith.136 Wall sought a new trial and, as noted above, the Queen’s Bench found that any performance in public fell under the 1842 Copyright Act, and there was no need to prove that it occurred in a place of dramatic entertainment. The Court awarded Wall forty shillings for each case and costs in his favour. The decisions were upheld on appeal, but reluctantly.137 Brett MR commented that ’the action ought never to have been brought either for damages or penalties, and that it was an attempt to make money out of what had really not done the plaintiff any harm’.138 The other judges agreed and, although the penalty award was upheld, the Court did not award costs to Wall.

  • 139 The Times, 4 August 1888, p. 10e.
  • 140 Era, 17 July 1886, p. 8.
  • 141 Era, 30 January 1886, p. 10.

48Over the next few years Wall continued to bring actions, either in his own name, or in the name of the copyright owner. At one point, it was alleged that he was responsible for over seventy such actions.139 Moreover, he seems to have spawned a number of similar operations. In the unreported case of McGlennon v. Murphy, for example, McGlennon told the Court that he and Wall had a reciprocal arrangement, whereby each informed the other if his songs were being sung.140 Whilst complaints continued to be made about Wall in the press, soon the tide began to turn. Wall’s actions, though much despised, had drawn attention to the issue. In January 1886, several letters were written charging the managers of theatres, and owners of copyrights, with naivety. One writer, signing himself ’The Guv’nor’ wrote that managers ’are not sufficiently practical for their own interests (beyond baiting an artiste for a few shillings less than the salary paid for him) to get into their heads a little common-sense law’.141 He proposed getting singers to sign contracts saying they would not sign any song unless they could prove that the rights had been paid for. Another letter noted that Wall had:

  • 142 Ibid.

[O]pened the eyes of song-writers to the fact that they are as much entitled to the protection of the law as any other of Her Majesty’s liege subjects, and it therefore behoves proprietors, if only as a matter of business, to be on their guard against those unprincipled persons who would rather steal a song than pay for it, and who, knowing they are not themselves worth proceeding against, are careless of the consequences to their employers.142

  • 143 Parl. Deb., vol. 324, col. 592, 6 April 1888.
  • 144 Parl. Deb., vol. 325, col. 296, 24 April 1888.
  • 145 Parl. Deb., vol. 325, col. 297, 24 April 1888.
  • 146 Parl. Deb., vol. 325, col. 298, 24 April 1888.
  • 147 Parl. Deb., vol. 325, col. 1329, 4 May 1888.

49In 1886, attempts to amend the 1882 Act began to be brought before Parliament. Addison MP brought a bill in March, and the following August, which sought to remove the fixed penalty of two pounds per infringement, but both times it was dropped. In March 1888, Addison once more introduced a bill and this time it was considered in committee and a few amendments made.143 In the House of Commons there was no dissent as to the objectives of the bill, but the case was different in the Lords. The Secretary of the Board of Trade, the Earl of Onslow, introduced the bill as being needed to correct ’a very great abuse’.144 By way of example, he referred to the case of a penalty being exacted from a thirteen year old girl.145 Lord Bramwell and Lord Halsbury, the Lord Chancellor, however, opposed the bill. Lord Bramwell argued that it sought to take away from people a right which they possessed at present and for which they had paid money.146 He further added that if he were the father of the ’dear little girl’ he should have been glad to have paid what was only a just debt.147

  • 148 51 & 52 Vict. c.17, ss. 1, 2, 3.

50Despite this opposition, the bill was eventually passed by both Houses and became law on 5 July 1888. The resulting Act provided that the penalty or damages to be awarded in cases involving unauthorised representations or performances should be in the discretion of the Court and ’reasonable’, or even a nominal penalty. In addition, it provided that the costs of such actions should be in the discretion of the judge and proprietors of premises in which such unauthorised performances occurred should not be liable unless they wilfully caused or permitted the performance, knowing it to be unauthorised.148

  • 149 Dunn v. Dunn and Wall and Dunn v. Dunn (unreported), Lloyd’s Weekly Newspaper, 29 January 1888, p. (...)
  • 150 Era, 4 August 1888, p. 8.
  • 151 In re a Solicitor and in re Wall, an Unqualified Person (unreported), The Times, 4 August 1888, p. (...)

511888 was a bad year for Wall. In January his son was cited for adultery in divorce proceedings. Wall appeared as witness in the case and was accused of complicity in the affair.149 But worse was to come. In August, the Incorporated Law Society was alerted to certain irregularities in Wall’s operation by counsel of one of Wall’s defendants.150 The Law Society brought an action against Wall for acting as a solicitor without being qualified to do so. He was found to have contravened section 32 of the Solicitors Act and sentenced to three months in gaol.151 The imprisonment of Wall is an appropriate point to end this story. While Wall’s character, motivation and business practices may have been unsavoury to his contemporaries, it is undeniable that his actions played a significant role in revealing the economic potential of the right to perform musical works as distinct from dramatic works. At the same time, however, Wall may also have retarded the formation of a society, similar to the Dramatic Authors’ Society, which could administer the performance right. Rather than embracing the opportunities opened up by the new right they had been granted, composers, music publishers and other interested parties became fixated on the Wall ’problem’. As a consequence, they convinced Parliament to pass two Acts that were not only ineffectual, but shortly to become obsolete when they conflicted with Britain’s international obligations under the Berlin Revision to the Berne Convention which required the abolition of all formalities.

  • 152 See J. Ginsburg, ’A Tale of Two Copyrights: Literary Property in Revolutionary France and America’ (...)
  • 153 For a history of the Société des Auteurs Dramatiques, see Brown.

52The story of the birth and formative years of the performance right in Britain aptly illustrates a number of the broader themes to be found in the history of copyright. One such theme is the expansion of copyright’s reach beyond mere protection of the printed word. Many of today’s commentators on copyright law have expressed concern about copyright’s ever-increasing ’colonisation’ of new territories, and the story of the origins of the performance right can be seen as an example of this. However, what is more interesting is that this was not a ’natural’ expansion, nor a battle that was easily won by those seeking greater protection of their creative works. Indeed, the expansion of copyright to the spoken and sung word was contentious for much of the nineteenth century. Frequently scepticism was displayed as to whether it was both possible and desirable to protect such ephemeral and intangible things as plays and songs. It is noteworthy that it was not for one hundred and twenty years after the passing of the much vaunted ’first copyright Act’ that the right to perform a work was recognised in legislation. This is in marked contrast to the situation in France, where it was a dispute between dramatists and the Comédie Française which led to the debates over literary property in France in the period 1791-3.152 The formation of the first French society to protect the interests of dramatic authors predated this, the Société des Auteurs Dramatiques being formed in 1777.153

53The story of Wall may also serve as a timely reminder of how focussing on one particular perceived problem can lead to short-sighted and short term solutions. These points can be brought under a still more general theme of copyright’s history, which is the observation that the current form of copyright is not ’natural’ or ’inevitable’. Laws, not just copyright laws, frequently give this impression because of the authority they carry and their foundation in precedent. Copyright law does even more so, due to the influence of natural rights arguments. Today the right to perform a work is one of the main, if not the main, sources of revenue for composers and dramatists, not to mention their assigns and employers. But it is important to remember that it was not always thus, and need not have been so.

Notes

1 I am grateful to Lionel Bently and Elena Cooper for helpful comments on drafts of this paper.

2 J.R. Planché, The Reflections and Recollections of J.R. Planché, 2 vols (London: Tin-sley Brothers, 1872), I, p. 199.

3 Ibid., p. 149.

4 Edward Lytton Bulwer changed his name to Bulwer Lytton in 1843, according to the terms of his mother’s will. In 1866 he became Baron Lytton of Knebworth. For ease and consistency he will be referred to in this paper as Bulwer Lytton. For more on Bulwer Lytton’s involvement in copyright law, see C. Seville, ’Edward Bulwer Lytton Dreams of Copyright: ”It might make me a rich man”’, in Victorian Literature and Finance, ed. by F. O’Gorman (Oxford: Oxford University Press, 2007), pp. 55-72.

5 10 Geo. II c.28.

6 J.R. Stevens, The Censorship of English Drama 1824-1901 (Cambridge: Cambridge University Press, 1980), pp. 5-7.

7 A prompter is a person who stands next to the theatre stage, but out of sight, so as to prompt the actors, should they forget their lines.

8 J.R. Stevens, The Profession of the Playwright (Cambridge: Cambridge University Press, 1992), p. 86.

9 Macklin v. Richardson (1770) Amb. 694.

10 (1760) 4 Burr. 2303.

11 (1770) Amb. 694 (p. 696).

12 Ibid., pp. 696-7.

13 5 T.R. 245.

14 Ibid., p. 245.

15 (1774) 2 Bro. P.C. 129.

16 5 T.R. 245.

17 Robert Maugham, A Treatise on the Law of Literary Property (London: Longman, 1828), p. 155.

18 Morris v. Kelly (1820) 1 Jac. & W. 481.

19 Select Committee to inquire into Laws affecting Dramatic Literature (1831-2) 7 Parliamentary Papers (679), p. 153 (hereafter: Dramatic Literature Select Committee).

20 (1822) 5 B. & Ald. 657.

21 Ibid., p. 661.

22 Stevens, The Profession of the Playwright, pp. 86-7.

23 Ibid., pp. 25-6.

24 Ibid., p. 31, and Dramatic Literature Select Committee, p. 3.

25 Ibid., p. 157.

26 Planché, p. 148. See also Dramatic Literature Select Committee, p. 214.

27 Parl. Deb., vol. 22, col. 918, 24 February 1830; Journal of the House of Commons (1830), LXXXVI, pp. 161, 167, 174, 222; Parl. Deb., vol. 13, col. 252, 31 May 1932.

28 Parl. Deb., vol. 28, col. 685, 13 July 1814.

29 Parl. Deb., vol. 13, cols 239-41, 31 May 1832.

30 Ibid., col. 244.

31 Dramatic Literature Select Committee, pp. 142, 156, 176, 190, 194, 214, 227, 228.

32 Ibid., pp. 143, 157, 176.

33 The Times, 4 May 1822, p. 3e.

34 Dramatic Literature Select Committee, p. 157.

35 Ibid., pp. 150, 209-13. The right was to last for twenty-eight years, and if the author were still alive at the end of the period, it would last for the rest of his life, just as it was for literary works under the 1814 Copyright Act.

36 Bill to amend Laws relating Dramatic Literary Property (1833) 2 Parliamentary Papers (73).

37 Journal of the House of Commons (1833) LXXXVIII, pp. 246, 310.

38 Ibid., p. 470.

39 3 Geo. III c.15.

40 Dramatic Literature Select Committee, pp. 3-5.

41 Parl. Deb., vol. 16, cols 561-7 (12 March 1833). The bill was passed in the House of Commons but postponed twice in the Lords before being abandoned. Parl. Deb., vol. 20, cols 269-277 (2 August 1833, vol. 24, cols 908-911 (27 June 1834). See also W. Nicholson, The Struggle for a Free Stage in London (London: Archibald Constable & Co., 1906), pp. 341-55.

42 3 Will. IV c.15, s. 1.

43 3 Will. IV c.15, s. 2.

44 Stevens, The Profession of the Playwright, p. 175; D. Barratt, ’The Dramatic Authors’ Society (1833-1883) and the Payment of English Dramatists’, Essays in English Theatre, 7 (1988), 19-33 (pp. 21-2).

45 Select Committee to inquire into Working of Acts for Licensing and Regulating of Theatres and Places of Public Entertainment (1866) 16 Parliamentary Papers (373), pp. 209-10.

46 Planché, p. 202.

47 Barratt, p. 21.

48 Ibid., pp. 21-4.

49 Royal Commission on Laws and Regulations relating to Home, Colonial and Foreign Copyrights (1878) 24 Parliamentary Papers [C.2036], p. 120 (hereafter: ’Royal Copyright Commission’).

50 Barrett, pp. 26-9; Stevens, The Profession of the Playwright, pp. 179-80.

51 Select Committee to inquire into Working of Acts for Licensing and Regulating of Theatres and Places of Public Entertainment (1866) 16 Parliamentary Papers (373), p. 209.

52 Royal Copyright Commission, p. 121.

53 Ibid., App. VIII, p. 354.

54 Planché v. Hooper, The Times, 19 January 1844, p. 7c.

55 Royal Copyright Commission, pp. 121-2.

56 Planché v. Braham (1837) 2 Car. & P. 68 (p. 74).

57 Planché, p. 272.

58 Ibid., pp. 270-1.

59 (1847) 3 C.B. 871.

60 [1848] 2 Q.B. 217.

61 (1882-3) L.R. 11 Q.B.D. 102.

62 Ibid., p. 108.

63 [1884] Q.B.D. 843.

64 Ibid., p. 848.

65 (1847) 3 C.B. 871 (p. 883).

66 Ibid.

67 (1849) 8 C.B. 836 (p. 848). See also Lyon v. Knowles (1863) 3 B. & S. 556; (1864) 5 B. & S. 751.

68 (1864) 17 C.B. (N.S.) 418.

69 Cumberland v. Planché (1834) 1 Ad. & E. 580; SC 3 N. & M. 537; L.J. 3 K.B. 194.

70 (1834) 1 Ad. & E. 580 (pp. 583-6).

71 E. Fitzball, Thirty-five Years of a Dramatic Authors’ Life, 2 vols. (London: T.C. Newby, 1859), I, pp. 271-2.

72 5 & 6 Vict. c.45, s. 22.

73 (1864) 4 B. & S. 873.

74 (1864) 17 C.B. (N.S.) 418. See also Lacy v. Toole (1867) The Times, 29 April 1867, p. 11c.

75 Coyne v. Maxwell (1865), The Times, 7 June 1865, p. 11a; The Times, 10 June 1865, p. 11a.

76 The Times, 10 June 1865, p. 11a.

77 Royal Copyright Commission, pp. lxxiii-lxxiv.

78 3 Will. IV c.15, s. 1.

79 The Times, 1 December 1838, p. 6d. Presumably, the distinction between this case and the earlier decision of Cumberland v. Planché was that in the former case there had been an assignment of copyright and none such was in evidence here.

80 (1882) 21 Ch. D. 232.

81 21 ChD 232 (p. 241).

82 T.E. Scrutton, The Laws of Copyright (London: William Clowes & Sons, 1883), pp. 134-5.

83 Royal Copyright Commission, p. 125.

84 (1848) 12 Q.B. 217.

85 Ibid., p. 236.

86 Royal Copyright Commission, pp. 102, 118.

87 Ibid., p. 114.

88 Ibid., p. 109.

89 (1872) 25 L.T. (N.S.) 908.

90 Ibid., p. 910.

91 Ibid.

92 Ibid., p. 911.

93 Ibid., p. 910.

94 Ibid., p. 911.

95 Ibid.

96 (1876) 5 Ch D 267.

97 (1863) 33 L.J. 38.

98 In both cases, Dion Boucicault had first represented (but not printed) his plays in the United States of America but the operation of the International Copyright Act 1844 (7 Vict.c.12, s. 19) meant that works first published overseas could not be protected by copyright within the United Kingdom.

99 Royal Copyright Commission, p. 106.

100 Ibid., p. 114.

101 Ibid., p. 116.

102 Royal Copyright Commission, p. 119.

103 [1878] L.R. 4 Q.B. 90; [1878-9] L.R. 4 Q.B. 483.

104 [1878] L.R. 4 Q.B. 90 (p. 94).

105 [1878-9] L.R. 4 Q.B. 483.

106 Royal Copyright Commission, pp. 101, 105-6.

107 I am indebted to Lionel Bently for this apposite description of Wall’s activities.

108 The Musical Times, 1 February 1876, p. 371. See also The Musical Times, 1 March 1876, pp. 394-5, 1 May 1876, p. 471.

109 Ibid., p. 106.

110 Ibid., p. 109.

111 Ibid., p. 101.

112 Ibid., p. 194.

113 Ibid., p. 115.

114 Old Bailey Proceedings Online, May 1860, trial of Henry Whiting (t18600507-491) www.oldbaileyonline [accessed 20/11/2008].

115 Royal Copyright Commission, p. 102. See also the evidence of T. Chappell, ibid., p. 106.

116 Ibid., p. 193.

117 Ibid., p. 113.

118 Ibid., pp. 113-4.

119 See: Stevens, The Profession of the Playwright, Ch. 5; Martin R. Booth, ’Public Taste, the Playwright and the Law’, in The Revels History of Drama in English, ed. by Clifford Leech and T.W. Craik, 8 vols. (London: Methuen & Co., 1975) VI, pp. 29-57 (p. 52).

120 3 Will. IV c.15, s. 2.

121 Royal Copyright Commission, pp. 106-7.

122 Ibid., p.106.

123 Ibid., p. 116 (Rev. J.W. Bennett), p. 119 (Henry Littleton).

124 Ibid., p. xxviii.

125 The Times, 10 June 1882, p. 11g. Similar complaints were made in The Musi-cal Times, 1 May 1877, pp. 214-6, 1 November 1880, p. 567, 1 December 1883, p. 684.

126 Royal Copyright Commission, p. 116.

127 The Musical Times, 1 December 1883, p. 684.

128 Wall v. Harris (unreported), The Times, 2 May 1882, p. 6b.

129 Parl. Deb., vol. 269, col. 354, 9 May 1882.

130 A bill to amend the law relating to musical compositions (1882) 1 Parliamentary Papers (161), p. 571.

131 Era, 1 July 1887, p. 4.

132 Parl. Deb., vol. 270, cols 1715-8, 20 June 1882, vol. 272, cols 428-9, 14 July 1882. 45 & 46 Vict. c.40.

133 45 & 46 Vict. c.40, ss. 1, 4.

134 Scrutton (1883), p. 160. This problem was raised, and the Act’s drafting criticised, in Fuller v. The Blackpool Winter Gardens and Pavilion Company Limited and Another [1895] 2 Q.B. 429.

135 Wall v. Taylor; Wall v. Martin (1882) QBD 727.

136 Ibid., p. 728.

137 (1882-3) LR 11 QB 102 (CA).

138 Ibid., p. 108.

139 The Times, 4 August 1888, p. 10e.

140 Era, 17 July 1886, p. 8.

141 Era, 30 January 1886, p. 10.

142 Ibid.

143 Parl. Deb., vol. 324, col. 592, 6 April 1888.

144 Parl. Deb., vol. 325, col. 296, 24 April 1888.

145 Parl. Deb., vol. 325, col. 297, 24 April 1888.

146 Parl. Deb., vol. 325, col. 298, 24 April 1888.

147 Parl. Deb., vol. 325, col. 1329, 4 May 1888.

148 51 & 52 Vict. c.17, ss. 1, 2, 3.

149 Dunn v. Dunn and Wall and Dunn v. Dunn (unreported), Lloyd’s Weekly Newspaper, 29 January 1888, p. 7.

150 Era, 4 August 1888, p. 8.

151 In re a Solicitor and in re Wall, an Unqualified Person (unreported), The Times, 4 August 1888, p. 10e. Wall’s appeal was unsuccessful: The Times, 10 August 1888, p. 3c.

152 See J. Ginsburg, ’A Tale of Two Copyrights: Literary Property in Revolutionary France and America’, Tulane Law Review, 64 (1990), 991-1031; G.S. Brown, Literary Sociability and Literary Property in France, 1775-1793: Beaumarchais, the Société des Auteurs Dramatiques and the Comédie Française (Aldershot, England: Ashgate, 2006); F. Rideau, ’Dramatic Copyright Act (1870)’, Primary Sources.

153 For a history of the Société des Auteurs Dramatiques, see Brown.

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