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Engli^ 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 ap-
plying only to subjects of the realm ; that a
British Legi^ature dealing with British inter-
ests must be presumed to have legislated for
British subjects, and for the encouragement
of British talent and indiistry. On the other
hand, it was stoudy maintained by six of
the Judges that the word was used in a gen-
eral sense, and was applicable alike to for-
eign and native authors; that there was
nothing in the language of the act, either
expres^ or implied, to show that Pariia-
ment had intended to exclude foreign au-
thors 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 " in-
ducing French, Italian, and German authors
to publish their works first in this coimtry."
The veneraUe Lord Brougham and Lord
St. Leonards, who advised their peers, fol-
lowed the minority of the Judges, and the
House of Lords followed Lord Brougham
and Lord St. Leonards, and, in pronouncing



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the most important copyright judgment
since Lord Mansfield's time, held that nei-
ther 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 ac-
corded to a native author by coming within
the British dominions. It was even held
sufficient to cross from Calais to Dover.

In this coun^, however, as has been
stated, the meaning of the law on this point
has been less doubtftd. In legislation ex-
tending 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 fi-om 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 ne-
cessary to constitute such citizenship or resi-
dence as will entide 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 resi-
ded here for years; in others, for months
or weeks. Are they "residents" in the
meaning of the copyright laws ?

This question has l^en left to the deter-
mination 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 dram-
atist and actor, Dion Boucicault, a native
of Great Britain, who had resided in the
United States fi-om 1853 to i860, when he
returned to his native land. During this
period, he had published certain plays
which were duly cop)rrighted in his name,
and which were subsequently represented
i^-ithout authority at Wood's Museum, in
Chicago. From this sprung the controversy
whether Boucicault, being a British subject
who had not been natimdized under our
laws, and had not formally declared his in-
tention of becoming a atizen, 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 yi the
United States with the intention of making
this country his place of permanent abode.
A formal declaration of such intention is not



essential, much less naturalization. How
long such residence shall continue, or how
short it may be, is not defined, and no spe-
cific acts are stated as necessary to consti-
tute it. No distinction is made between a
householder and a boarder or lodger. A
man may live in his own casde, or in a
hotel, or " on the European plan." Nor is
it necessaiy that such intention shall con-
tinue indefinitely. It must exist, however,
when application is made for copyright.
Suppose Mr. Tyndall were to come to this
coimtry with the view of making it his ftiture
home, and while here should publish one
of his charminR works on science, then,
after a few weeks' stay, should change his
plans and seek again his native land. There
IS no doubt that Sie copyright obtained for
his book under such circumstances would
be held valid by our coiurts. Suppose, on
the other hand, his coming should be for
the purpose of scientific investigation, or
the delivery of lectures, and with the inten-
tion 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 Tate
Prot Agassiz first came to the United States
in 1846, for the purpose of studying the
natural history and geology of this country,
in fiilfillment of a mission suggested to the
King of Prussia by Alexander von Hum-
boldt It does not appear that he was in-
duced to remam here until the following
year. In 1848, he published his " Princi-
ples of ZoSlogy." Suppose the vaHdity of
the copyright in that work should be ques-
tioned. The most important judicial in-
quiry would be, whether the title of the
work was filed for copyright before or after
the great natiuralist 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
fi^ud ; 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 gentieman copy-
righted 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



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FOREIGN DRAMATISTS UNDER AMERICAN LAWS.



statute as the author himself; so that a citi-
zen 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 ex-
ception been made in &vor of this class ?
This inquiry must be answered in the nega-
tive. And yet, within the past fifteen years,
our courts have repeatedly protected fix)m
piracy the plays of foreign authors. A con-
sideration of die facts and legal principles
presented by the leading of these cases will
a£R>rd the best Wustration of the rights of
foreign dramatists under American laws.

In the autumn of 1858 the first penorm-
ance anywhere of the comedy, "Our Ameri-
can Cousin," was given at Laura Keene's
Theater in New York, with Joseph Jeffer-
son in the then leading comedy part of Asa
Trenchard, and Mr. Sothem in a character,
which he has since made one of the most
ludicrous comedy creations of the stage.
Lord Dundreary. This play had been writ-
ten by Tom Taylor for performance at the
Adelphi Theater, London, in 1852. It was
not, however, given there, and six years
later the manuscrii)t was purchased by Miss
Keene, who had it copjrrighted under the
laws of the United States, and carefully
guarded it from the printer. The success
of the comedy was unparalleled, except per-
haps 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 Wheadey in Philadel-
phia, Moses Kimball at the Boston Museum,
and, later, by the comedian, John S. Clarke,
in New York. Other managers also an-
nounced the comedy without permission;
but the three named were called to accoimt
by Miss Keene. The pioneer case was that
against Wheadey, which resulted in a tri-
umph for Miss Keene — not, however, be-
cause the play had been copyrighted, for
such copyright was pronounced mvalid 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 ex-
clusive control and enjoyment of her literary
Property had been invaded. In Boston,
owever, Kimball triumphed, maintaining
that the members of his company had wit-
nessed the performance of the play at Miss
Keene's Theater, and were thus enabled to



reproduce it firom memory. This quesdcHi,
whether the spectators at a pubUc perform-
ance have a right to make public use of a
play which they have carried away in their
memories, had also been thoroughly con-
sidered in the Philadelphia case; but as
Wheadey represented " Our American Cou-
sin '' from an unauthorized manuscript which
he had obtained fix)m En^and, the decision
did not turn on this pomt Nor was it a.
direct issue, although much debated, in the
case against Clarke in the New York Supe-
rior Court, which was decided in &vor of
Miss Keene. This valuable discovery of a.
way of ac(}uiring literaiy 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 stumbling-
block to our courts.

On the last day of 1869 the United States
Circuit Court in Chicago decided a contro-
versy 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 representaticms
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 pub-
lisher of dramas, and that his representation
therefore was lawful l]hese copies had been
printed, however, without the knowledge or
consent of Mrs. Crowe, and in pronouncing
judgment in favor of that lady. Judge Drum-
mond had no doubt " that De Witt obtained
the copy of the play of * Mary Warner,* whidi
he furnished to the defendant in this case,
either in whole or in part through a short-
hand reporter, or in some other unauthorized
or wrongfiil 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 rder-
ence to the charming En^^h comedy^
" Play,*' written by the late T. W. Robert-



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son. The New York manager, Henry D.
Palmer, had purdiased 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 ^1 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 knowl-
edge 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 per-
formance in London, and, in the three courts
through which the case passed, his lawyers
ofiRsred that plea as a sufficient defense. It
did not appear, however, whether De Witt
was indebted to the memories or the note-
books of his London fiiends who had fiu*-
nished 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.

Here, then, are four cases wherein the
ri^ts of British dramatists have been pro-
t^^ted in our courts, and only one in which
protection has been denied, and that on a
disputed principle of law. But it will be ob-
served that none of the cases arose under the
cop3rright statute, and did not, therefore, as
some have erroneously supposed, have any-
thing to do with our copyright legislation.
All of the works in controversy were the
dramatic productions of English authors
resident in Great Britam. They had been
produced in manuscript for exclusive repre-
sentation in the United States. They were
represented from manuscript held by the
assignee, were not copyrighted (except " Our
American Cousin," the copyright of which
was hdd invalid), and had not been printed
by authority for public circulation. Having
been publicly represented by the lawfiil
owner, they were reproduced without license
by other managers, who maintained that the
authorized representation was a publication
which divested the owner of his exclusive
rights in the play, and made it common
p r o pert y . It was, therefore, common law



protection which was granted, and not stat-
utory. It is a frmdamental 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 imtil 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 com-
mon 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 pub-
lic representation of a manuscript play by its
lawfiil 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 cer-
tain prinaples of law may be considered as
firmly established in our jurispmdence. 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 onnplete remedy
for the piracy of his play by publication.
But, suppose the infiingement consists, not
in puUishing the piece, but in representing
it upon the stage by means of a copy ob-
tained from the authorized performance. In
this case the question becomes more diffi-
cult. It is fiilly settled, however, that the
authorized representation would be unlawful,
and might be restrained if the copy had
been obtained in any surreptidous manner,
or from the authorized performance by
means of phonography, notes, or any other
aids to memory. In other words, all means
of .obtaining a play fix)m its public perfomi-
ance for the purpose of reproducing it upon
the stage have been declared unlawftil, ex-
cept that of memory. But may a rival man-
ager summon to his aid die memory of any
person who has witnessed the performance,
and by this means reproduce the play
against the protest of the owner of the man-
uscript? This question has caused much
discussion before our judicial tribunals, and
cannot yet be considered as settied, not-
withstanding the aflirmative has been main-
tained in several of the cases mentioned.



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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
is not a prcxluction of American genius, but
is of foreign importation. In that case the
rule was laid down that the public perform-
ance of an unprinted play was a publication
so far as to justify a nval manager in repro-
ducing it, provided he had " obtained it by
fair means ;'' but that no one of the audi-
ence " might lawfully make use of stenogra-
phy, phonography, writing, notes, or any
other except fair means." And " the only
fair means by which others could have ob-
tained 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 repro-
duced upon the stage from the memory of
any spectator, but not from notes or a copy
surreptitiously obtained. This view was
also adoptea 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 thaf any surreptitious procur-
ing of the literary property of another, no
matter haw obtained^ if it was imauthonzed
and without the knowledge or consent of
the owner, and obtained before pubhcadon
by him, is an invasion of his proprietary
rights, if the property so obtained is made
use of to his injuiy."

We may look m vain for any soimd rea-
sons in support of this remarkable doctrine.
The leading arguments seem to have been
that '' in the case of a public dramatic per-
formance the pubtic is held endded to make
use of that faculty which is necessarily ad-
dressed by such representation, to wit,
memory, for the purpose of repeating the
cHgnts of the i^y even in poforming it
^^Bore;" that <' taking notes and all anifi-
JBHIi 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 poUce 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 ex-
tent is the natural consequence of hearing,
and using such recollection naturally flows
from possessing it He might with equ^d
solemnity have proclaimed that using our
hands naturally flows from, having them,
and therefore putting them into another's
pockets is perfecdy legitimate.

Another intimated that it was more diffi-
cult 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 phenomeiml 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 ora-
tors. It is said that Joseph Scaliger com-
mitted to memory both the Iliad anid 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 whidi he soon distin-
guished 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 incredu-
lous 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, »g-
nificant and non-signiflcant, disjointed and
connected, until he wearied himsel^^ 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 Mu-
retus 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 bhef season; and then saj^ Muretus,



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'Vidi fadnus mirifidssimum. Having be-
gun to speak, he absolutely repeated the
whole wooxls in the same order in which
they had been delivered, without the slight-
est hesitation ; then, commencing from the
last, he repeated them backward till he came
to die first Hien, again, so that he spoke
the first, the third, the fifth, and so on ; did
this in any order that was asked, and all
without the smallest eiror. Having subse-
quendy become familiarly acquainted with
him, I have had other and frequent experi-
ence of his power. He assured me (and he
had nodiing of the boaster in him) that he
could recite in the manner I have mentioned
to the amount of thirty-six thousand words.
And what is more wonderful, they all so ad-
hered to the mind, that after a year's inter-
val he could repeat them without trouble.
I know, fix>m having tried him, he could do
so after considerable time.' "

Fauvel-Gouraud recites a clever stCMy to
illustrate how wonderful was the memory
of a young Prussian officer, whose name has
been forgotten. When Voltaire was at die
Court of Frederick the Great, he spoke en-
thusiastically to the Kling one evening of a
new poem of considerable length upon
whkb he was at work. Upon its comple-
tion, the brilliant literary society of Berlin
was assembled at the Prussian Court to
hear die new poem read by its author.
When the reading was finished, die King
was as lavish widi his praises as were his
learned guests, but laughingly remarked to
the philosopher diat the same composition
had b<»n submitted to his criticism a few
mondis before by one of his officers. Here
the King summoned a young officer, and
a^ed for the manuscript He replied that
it bad been lost, but remarked that he could
recite the poem from memory, which he did
with strict accuracy, to the great astonishment
of the company and the confiision of Vol-
taire. Frederick now explained to the French
wit that the officer, stationed behind a cur-
tain^had heard the poem read by the author,
and was thus enabled to repeat it

Now what is the difference in princii^
between calling into requisition one of these
prodigious memories and employing the
services of a phonographer ? It is true
&ese are exceptional cases ; but, if necessary,
die memory can be trained to do wonders as
wdl as the hand. Are our judges aware
that, as well as a system of phonography,
there is an art of mnemonics as old as Simon-
ido, who flourished about 500 B. C, and
diat its teachers have shown it capable of



wonderful results? Are they aware that
Lambert Schenkel astonished all classes in
France, Germany, and the Netherlands, by
his mnemonic p^ormances, which were so
wonderful that they were pronounced by
some the devil's doings ?

This legal doctrine of memory seems to
iwoceed upon the principle that, diat faculty
being given to man to be used, any use



Online LibraryFrancis HallThe Century, Volume 11 → online text (page 16 of 163)