Tompkins v. Halleck

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: Devens, J.
• Citation: Tompkins v. Halleck, 133 Mass. 32 (Mass. 1882)
• Decision Date: 15 May 1882
• Parties: Orlando Tompkins & another v. Thomas E. Halleck

133 Mass. 32

Orlando Tompkins & another v. Thomas E. Halleck

Supreme Court of Massachusetts

May 15, 1882

Suffolk.

Decree reversed.

S. J Thomas, for the plaintiffs.

D. F Fitz, for the defendant.

OPINION

Devens J.

This is a bill in equity to restrain the defendant from representing at his theatre in Boston a drama called "The World," and for further relief.

It appears from the report of the judge who heard the case that this drama was originally composed in England, where, after being presented, it was sold to one Colville in New York, who caused it to be altered and amended, to suit the presumed taste of an American audience, by one Stevenson. It was successfully represented at Wallack's Theatre in New York, and was then assigned to the plaintiffs, with the exclusive right to represent the same in the New England States. The drama does not appear ever to have been copyrighted or printed. While represented at Wallack's Theatre, one Byron and one Mora attended the representation, on three or more occasions, with the intent of copying and reproducing the drama as there enacted. Byron committed as much of the play as he could to memory, and, after each performance, dictated it to Mora until the copy was completed. It was not shown that either took any notes or written memoranda in the theatre. Byron subsequently made an agreement with the defendant to produce the same; and, against the remonstrance of the plaintiffs, who informed him of their ownership, it was advertised and produced by the defendant at his theatre, known as the Alhambra. As produced by the defendant it was called "The World," and is found to be in all substantial particulars identical with the plaintiffs' drama of the same name.

It being found by the judge who heard the cause that the dialogue and incidents of the drama were acquired by memory by Byron, who visited Wallack's Theatre sufficiently often for that purpose, that no written or stenographic minutes were made either by him or Mora in the theatre, and that there was no violation of any trust or confidence reposed in them by the plaintiffs or their assignors, he ruled that no injunction could issue; but, at the request of the plaintiffs, reported the case for the consideration of the full court. If the ruling is sustained, the bill is to be dismissed; otherwise, an injunction is to issue, and the case to be referred to a master for the assessment of damages.

These facts bring the case clearly within the principles decided in Keene v. Kimball, 16 Gray 545; and it is frankly admitted by the counsel for the plaintiffs that, unless that decision shall be reconsidered and reversed, no injunction can issue according to the prayer of the bill. The question decided in Keene v. Kimball had never until then been directly determined in any reported case. It had been discussed with great ability by Judge Cadwalader in the Circuit Court of the United States for the Eastern District of Pennsylvania, where a decision of it was not necessary in order to dispose of the case before him. Keene v. Wheatley, 9 Am. Law Reg. 33. Adopting the views there expressed, it was held in Keene v. Kimball "that the literary proprietor of an unprinted play cannot, after making or sanctioning its representation before an indiscriminate audience, maintain an objection to any such literary or dramatic republication by others as they may be enabled, either directly or secondarily, to make from its being retained in the memory of any of the audience." The case of Keene v. Kimball has not since been reaffirmed here, nor, so far as we are aware, elsewhere, nor has it been distinctly denied by the decision of any adjudicated case, except that of French v. Conelly, decided by the Superior Court of New York, which is not the final tribunal in that State. 1 N. Y. Weekly Dig. 196. The defendants were there charged with representing an unprinted play, "Around the World in Eighty Days," in violation of the rights of the plaintiff. They sought to maintain a defence upon the ground that they had themselves dramatized the story from Jules Verne's work of the same name. They were unsuccessful in this, and, it having been proved that the copy used by them was obtained by the memory of individuals after witnessing its public representation, an injunction was issued restraining the defendants from further representing it.

An examination will show various and conflicting opinions expressed by jurists, as well as by text-writers of high respectability, upon the question involved. Keene v. Clarke, 5 Rob. (N.Y.) 38. Palmer v. De Witt, 2 Sweeny 530; 7 Rob. (N.Y.) 530; 36 How. Pr. 222; and 47 N.Y. 532. Crowe v. Aiken, 2 Biss. 208. Shook v. Rankin, 6 Biss. 477. Boucicault v. Fox, 5 Blatchf. 87, 3 F. Cas. 977. Drone on Copyright, 558-564.

In view of this contrariety of opinion, it is not an unreasonable request on the part of the plaintiffs that the question involved should be re-examined, in order that the court may consider whether the decision in Keene v. Kimball expresses correctly the rights of parties, and gives to the proprietors of unpublished plays the full protection to which they are entitled.

The St. of 8 Anne, c. 19, which is the foundation of the English copyright law, while it included plays and dramatic compositions, protected the author in his exclusive right to publish in print, but not in that of public representation of his work. It has since been modified by the St. 3 & 4 Will. IV. c. 15, and subsequently by that of 5 & 6 Vict. c. 45. The U.S. St. of February 3, 1831, was similar in this respect to the original English law, and, like it, has been so changed by the U.S. St. of August 18, 1856, that protection in the exclusive representation is now afforded where the play is published in print. It is perhaps somewhat remarkable that protection in the right of exclusive representation was not afforded by the St. of 8 Anne, c. 19, which is said in D'Almaine v. Boosey, 1 Y. & C. Ex. 288, by Lord Lyndhurst, to have been one of the most laboriously considered acts ever passed by the British Parliament. Although the result of the petitions of the English booksellers, it was submitted to, and carefully examined and passed upon by, committees of which many distinguished literary men were members. When it is remembered that among these were such dramatic writers as Addison and Steele, it would seem that this right would have been carefully guarded.

Dramatic compositions differ from other literary productions not intended for oral delivery in this, that they have two distinct values, each worthy of protection; -- that which they have as books or publications for the reader, and that which they have by reason of their capacity for scenic representation. They are works, in prose or poetry, in which stories are told or characters represented both by conversation and action. Some are poems cast in a dramatic form, capable of representation upon the scene rather than adapted to it, and whose most valuable characteristic is their purely literary merit. Others, of but slight literary pretensions, and affording but little satisfaction in the perusal, are found agreeable in representation from the spirited development of the story which is told in action, the vivacity and interest of the events displayed, even if the conversations of the imaginary characters, out of this connection, would appear tame and unattractive. The most perfect are those which, like some of the tragedies of Shakespeare, as Hamlet or Macbeth, are adapted alike to the library and the stage, and which address themselves more agreeably to those who read or those who hear, as such persons themselves differ in their respective capacities for enjoyment.

That the right of property which an author has in his works continues until by publication a right to their use has been conferred upon or dedicated to the public, has never been disputed. If such publication be made in print of a work of which no copyright has been obtained, it is a complete dedication thereof for all purposes to the public. Wheaton v. Peters, 8 Peters 591. Stevens v. Gladding, 58 U.S. 447, 17 HOW 447, 15 L.Ed. 155. If of a work of which a copyright has been obtained, it is so dedicated, subject to the protection afforded by the laws of copyright, the author accepting the statutory rights thereby given in place of his common-law rights. But the representation of an unprinted work upon the stage is not a publication which will deprive the author or his assignee of his rights of property therein. Roberts v. Myers, U.S.C. C. Mass. Dist. 20 F. Cas. 898, 23 Law Rep. 396. It will not interfere with his claim to obtain a copyright therefor. Keene v. Kimball, ubi supra. Nor will it deprive him of his power to prevent a publication in print thereof by another. Macklin v. Richardson, Ambl. 694.

Nor can we perceive why it should deprive him of his right to restrain the public representation thereof by another. It is said, indeed, in Keene v. Kimball, that the court is not aware of any case then existing, either in England or America, "in which the representation of a play has been restrained by injunction, where no copyright had been acquired, and where the proprietor had permitted its public representation for money, except the case of Morris v. Kelly, 1 Jac. & Walk 481," the authority of which is doubted, it being deemed impossible to reconcile it with the earlier case of Coleman v. Wathen , 5 T. R. 245, or with the subsequent decision in Murray v. Elliston, 5 B. & Ald. 657. This statement, taken in connection with the general terms in which the conclusion of the court is expressed, at the end of the opinion, -- "that the representation by the defendant of a dramatic work, of which the proprietor has no...