Substantial Part.-As in literary copyright the part taken must be material and substantial in order to infringe performing right. In Chatterton v. Cave,1 Lord Chief Justice Coleridge at the trial found as a fact "that two scenes or points of the drama of the defendant had been taken directly from the drama of the plaintiff;" there was no further copying. He thereupon gave judgment for the defendant. On a rule for a new trial, Lord Coleridge, sitting in the Court of Common Pleas, stated orally that what he meant to convey by his finding was, "that looking to the general character of the plaintiff's and defendant's dramas, the extent to which the one was taken from the other was so slight, and the effect upon the total composition was so small, that there was no substantial and material taking of any one portion of the defendant's drama from any portion of the plaintiff's." On this explanation the rule was discharged, and the judgment subsequently affirmed by the Court of Appeal and the House of Lords. Lord Hatherley said that the principle de minimis non curat lex applied to a supposed wrong in taking a part of dramatic works as well as in reproducing a part of a book. He could not read the word "part" in the Dramatic Copyright Act as "particle," so that the crowing of the cock in "Hamlet," or the introduction of a line in the dialogue might be held to be an invasion. In Planché v. Braham,2 Tindal, C.J., directed the jury that if either one song, or more than one song be taken from a piece and be performed on the stage or any place of theatrical entertainment, that would be a "representing" within the Act of Parliament. The jury, having found that the defendant had represented "a part of the plaintiff's opera," a rule for a new trial was refused.3 In Beere v. Ellis, two plays purported to be founded on the same novel. The defendant's play contained some of the dialogue and several dramatic incidents and situations taken directly from the plaintiff's play. Baron Pollock held that a small piece of dialogue would not alone amount to an infringement, but the defendant had taken two dramatic incidents on which the plot of the play depended. He had therefore taken a material part, and although he had done 1 (1878), 3 A. C., 483. 3 (1837), 4 Bing., N. C., 17. 2 (1837), 8 C. and P., 68. a considerable quantity of work for himself, he had "extracted the plums" from the plaintiff's work, and this he was not entitled to do. An indirect taking is, as in literary copyright, an infringement, e.g. to copy and perform passages from a play by dramatizing a novel founded on that play. It is no infringement to produce a play almost identically similar to that of another author, if this is the result of coincidence and not of any piracy direct or indirect.2 As to the taking of a plan or idea, see the chapter on infringement of literary copyright.3 There must be more than the taking of a general idea or scheme. Lord Blackburn, in Chatterton v. Cave, said :— "An idea may be taken from a drama and used in forming another without the representation of the second being a representation of any part of the first. For example, I have no doubt that Sheridan in composing 'The Critic' took the idea from 'The Rehearsal,' but I think it would be an abuse of language to say that those who represent 'The Critic' represent 'The Rehearsal,' or any part thereof, and if it were left to me to find the fact, I should without hesitation find that they did not. On the other hand, in composing 'The Trip to Scarborough,' Sheridan took so much from 'The Relapse,' that if it were left to me to find the fact, I should find that those who represent 'The Trip to Scarborough' do represent parts of 'The Relapse.' Causing to be Represented.-The "penalty" prescribed by the Act of 3 & 4 Will. IV. c. 15 is recoverable from those who "represent or cause to be represented" an unauthorised work. Section 20 of 5 & 6 Vict. c. 45 provides "that the sole liberty of representing, or performing, or causing or permitting to be represented or performed, any dramatic piece or musical composition, shall endure," &c. Notice that this section uses the word "permitting," whereas 3 & 4 Will. IV. c. 15 only uses "represent or cause to be represented." The later statute, however, does not purport to extend the nature of performing right, and therefore the word "permitting," if it have any meaning at all, can only be explanatory of the words "cause to be represented" in the earlier statute. When then does a person 66 cause a dramatic piece to be represented"? Shortly, the answer 1 Reade v. Conquest (1862), 11 C. B. (N.S.), 479; Schlesinger v. Turner (1890), 63 L. T. (N.S.), 764. 2 Reichardt v. Sapte [1893], 2 Q. B., 308; and see Walter v. Lane [1900], A. C., 539. 3 Supra, p. 104. 4 (1878), 3 A. C., at p. 501. probably is, that if he does not actually take part as an actor, the defendant must be shown to have had some initiation in or control over the performance. In Parsons v. Chapman,1 an acting manager, who paid the performers' salaries, and was entitled to dismiss them, was held to have caused a dramatic piece to be represented within the meaning of 10 Geo. III. c. 28, sec. I. In Russell v. Briant,2 the defendant was the landlord of "The Horns" Tavern, at Kennington. His premises included a large assembly room which was hired for evening entertainments. The defendant furnished the platform and the lights, and allowed bills to be put up in the tavern, and tickets of admission to be advertised to be sold at the bar. At one entertainment a song, "The Ship on Fire," which in Russell v. Smith was held to be a copyright dramatic piece, was sung. It was held that the defendant had not represented or caused to be represented the dramatic piece in question. Wilde, C.J., said that no one could be considered as an offender unless by himself or his agent he actually took part in the representation. In Lyon v. Knowles * the defendant let his theatre. He provided and paid for the scenery, lights, printing, advertising, band, doorkeepers, sceneshifters, and supernumeraries. His servants collected the money at the door, and he retained half the gross profits to recoup himself. The lessee brought his own company, and represented pieces of his own choice, the defendant having no control over any person employed in the representation. It was held that the defendant had not caused the piece to be represented within the meaning of the Acts. In Marsh v. Conquest the defendant was the proprietor of a theatre, and his son, the acting manager, hired it for a "benefit." The Court held that the defendant came within the statute. Erle, C.J., delivered the judgment of the Court : "It appears that the defendant is the proprietor of the Grecian Theatre, and the employer of the dramatic corps attached thereto; that his son, 4 (1863), 3 B. and S., 556; see this case and Russell v. Briant, supra, approved by Byrne, J., in Kelly's Directories v. Gavin & Lloyds [1901], 1 Ch., 374. 5 (1864), 17 C. B. (N.S.), 418. the stage manager, hired for his benefit-night the theatre, together with the company of actors, and servants, and lights, for the sum of £30; and that the son, in the defendant's theatre, and with the aid of his actors and actresses, musicians, servants, lights, and other paraphernalia, represented the dramatic piece in question, in violation of the plaintiff's sole and exclusive right of representing or causing it to be represented. I think the defendant is responsible for that representation. He was the proprietor of the theatre, and had entire control over the establishment and all belonging to it, and what was done by his son was done with his permission." In Monaghan v. Taylor1 the defendant was the proprietor of a music hall, and paid a singer to perform, leaving him his own choice of songs. The singer sang a copyright song. The Court held that the defendant came within the statute. This decision would not now apply to musical performing right, since, by the Musical Copyright Act of 1888, a proprietor is not liable unless he permits the performance knowing it to be an infringement. It is still applicable to dramatic performing rights. Suppose, for instance, the proprietor of a variety theatre hired the services of a troop of players, telling them to fill up twenty minutes on the programme with any dramatic scene they pleased. If they infringed a dramatic copyright, the proprietor would be liable. It seems to be doubtful whether if B, acting entirely as the agent of A, causes C and others to perform a dramatic piece, he can be held liable if he took no part in the representation. In Parsons v. Chapman 2 Lord Tenterden, C.J., directed the jury that it was sufficient if the defendant caused the piece to be performed; and that it made no difference that he did so as an agent for others. This was a decision under 10 Geo. II. c. 28, and the principle should be the same under 3 & 4 Will. IV., and 5 & 6 Vict.; but in French v. Day3 Kennedy, J., took a different view. One of the defendants was the manager of a theatre. He received instructions for the production of the piece in question from the proprietor, and he could not engage or dismiss artistes; he was in every respect 1 (1886), 2 T. L. R., 685; but see Cole v. Gear (1888), 4 T. L. R., 246. 2 (1831), 5 C. and P., 33. 3 (1893), 9 T. L. R., 548. bound to conform to his employer's orders. said: Kennedy, J., "The whole thing was carried on by the proprietor, who merely used the manager as his mouthpiece. I think I ought not to hold that a person in his position 'represented,' or 'caused to be represented,' the piece." Knowledge. In an action for infringement of dramatic performing right it is unnecessary to prove that the defendant knew the performance was an infringement.1 Innocent Agents.-All the actors who take part in an unlawful performance are within the section as "representing," and are liable to penalties.2 Licence. It is an infringement of performing right to perform "without the consent in writing of the author or other proprietor." See decisions on licence as to copyright in books.* The licence must be in writing, but it does not require to be written by the proprietor or signed by him or any one else." The secretary of a dramatic author's society may, if he has authority, grant a good licence on behalf of the authors." A part owner cannot grant a licence without the consent of the other part owners.8 SECTION X.-INFRINGEMENT OF MUSICAL PERFORMING RIGHTS. Substantial Part.-The rule that the taking of a part but not of a particle in infringement applies equally to musical compositions and to the performing rights therein. In D'Almaine v. Boosey9 the taking of airs from an opera and arranging them as quadrilles and waltzes was held to be an infringement of the copyright in the opera. Lord Lyndhurst said :— "Substantially the piracy is when the appropriated music, though adapted to a different purpose from that of the original, may still be recognised by the ear." 1 Lee v. Simpson (1847), 3 C. B., 871, at p. 883. 2 Duck v Mayeu (1892), 8 T. L. R., 339. 3 3 & 4 Will. IV. c. 15, sec. 2. 4 Supra, p. 118. 5 Roberts v. Bignell (1887), 3 T. L. R., 552; Eaton v. Lake (1888), 20 Q. B. D., 378. 6 Morton v Copeland (1855), 16 C. B., 517. 7 Ibid. 8 Powell v Head (1879), 12 Ch. D., 686. 9 (1835), I Y. and C. Ex., 288. |