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1. The law of the case as settled in England and in this country.

2. On the facts contained in the affidavits of Robert M. Dewitt and Charles J. Clarke, both of New York.

The affidavit of Dewitt states that he furnished the defendant with a copy of the play used by him; that he procured it from a person in London, on or about the 29th of July, 1869, who procured the same only from repeated representations on the stage at the Haymarket Theatre; that there was no "restriction or prohibition against any of the spectators using such play as they saw fit." He also states he is advised that by § 20 of 5 & 6 Vict. c. 45, "the first representation of any dramatic piece in England is deemed equivalent to the first publication of a book."

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The affidavit of Clarke states that the play of "Mary Warner was in print in the city of New York as early as August, 1869; that he bought a printed copy of the play at a public news stand in New York, where the same was publicly exposed for sale.

The copy furnished to the defendant has been exhibited in court. It is not in the usual form of a published play, but consists of printed slips fastened together in pamphlet form, with plats and stage directions, as if for dramatic use solely.

Various affidavits have been introduced by the plaintiff, from which it is apparent that the play of "Mary Warner" has never been printed with the knowledge or consent of Mr. Taylor, of the plaintiff, nor of Miss Bateman. It is not for sale generally in New York, and not at all in England.1

papers not valuable as literature, could not be restrained. See Pope v. Curll, 2 Atk. 342; Gee v. Pritchard, 2 Swans. 402; Thompson v. Stanhope, Ambl. 737; Forester v. Waller, 2 Bro. P. C. 138; Folsom v. Marsh, 3 Story, 100; Webb v. Rose, 4 Burr. 2508; Queensbury v. Shebbeare, 2 Eden, 329.

And this right of control over an unpublished manuscript can only be defeated by an abandonment by the author, or by the fact that the contents of the work are immoral. Southey v. Sherwood, 2 Mer. 334. The immorality of a work will also defeat a copyright, and throw it open to the public, and even deprive a printer of his wages for printing. Stockdale v. Onwyn, 2 Car. & P. 163; 5 B. & C. 173; s. c., 7 D. & R. 625; Poplett v. Stockdale, 2 Car. & P. 198.

c. The defendant has made a beneficial use not publication of this manuscript, and should be restrained.

The defendant, to meet this case of the plaintiff's, assumes to show by affidavit, that the manuscript had been printed and published in New York, in August, 1869 (Clarke), and that it had been published under the English Copyright Act in England, though not printed (Dewitt), and also tries to bring himself under the rule of Keene v. Clarke, N. Y. Sup. Court, Apr. 1867; 5 Robertson, that the audience of a theatre have a right to carry away from the performance, by memory or reporting, a play, unless there is a restrictive notice on the bills or tickets.

1 Affidavits were produced by the plaintiffs that the play was not in any English or American catalogue of lawfully published plays, that it had never been furnished to McNulty & Co., the Chicago theatrical dealers, under the standing orders of that house for every thing new; that on inquiry of French, in New York, a deponent was informed

It is a fair inference, I think, from all that appears in the case, that the only printed copy in existence was printed by Mr. De Witt, or under his direction, and is kept for sale, at a high price, to theatrical managers. Mr. Clarke's affidavit was made on the 14th of December, and the copy referred to by him may have been, and probably was, purchased directly or indirectly of De Witt, or through his instigation, and as it does not state when, it may have been since this bill was filed.

It would seem, in answer to the allegations of the bill, the defendant ought to show that his copy of the play came from a printed or other copy authorized by the author or his assignee, or from the memory of those present when the play was performed. The manner in which the play was procured in London is rather vaguely stated. It was from repeated representations only. But was it from the memory of those who heard it performed, or from phonographic reporters? The statement is entirely consistent with the latter source of information.1

The author of any literary or dramatic work is the sole proprietor of the manuscript and its contents (the work), and of copies of the same, independently of legislation, so long as he does not publish it, or part with the right of property. This is called a common-law right, and exists irrespective of copyright statutes. This right of property he can transfer, and a court of equity will protect him, or his assignee, in a proper case, just as it will the owner of any other species of property. Those judges who maintained this common-law right in the cases of Miller v. Taylor, 4 Burr. 2303, and in Donaldson v. Becket, 4 Burr. 2408, decided a hundred years ago, it has always been thought, had the strength of the argument on their side in the great discussion to which they gave rise. Subject to the qualification stated, it has been generally admitted in this country.2

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Mr. Taylor, then, was the proprietor of the drama "Mary Warner," when finished, and when transferred to the plaintiff, the latter became the

that the play was unpublished and unprinted; and that restrictive notices had been published in London and New York forbidding the acquisition of the play from witnessing the performance.

1 Reporting a lecture without consent of the lecturer, may be restrained: Abernethy v. Hutchinson, 1 Hall & Tw. 28, 3 Law J. 209, 219; Keene v. Kimball, 23 Law Rep. 669.

2 See Wheaton v. Peters, 8 Pet. 591; Jeffries v. Boosey, 4 H. of L. 965; Pr. Albert v. Strange, 1 McN. & G. 25; Woolsey v. Judd, ubi supra; Turner v. Robinson, 10 Ir. Ch. 121; s. c. on appeal, ib. 510. Sales of manuscript books will not amount to a publi cation. White v. Gerock, 1 Chitty, 24, 2 B. & Ad. 290; Bartlett v. Crittenden, 4 McL. 300.

Printing alone is not publication. Prince Albert v. Strange, 1 McN. & G. 25; Sweet v. Archbold, 10 Bing. 133, for there the copyright was taken after the book had been printed. Paley's case, cited 2 Vesey, 23. But intent to dedicate to the public may be inferred from acts of the author or proprietor. Keene v. Clarke, ubi supra; Bartlett v. Crittenden, ubi supra, & 5 McL. 32.

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proprietor on the terms of the transfer. lost?

Has the right of property been

It is conceded that it would be lost by any general publication of the play, by the proprietor, which could be regarded as a dedication to the public, but, save this, it is difficult to fix on any rule which shall meet the case. The giving of a copy, or, of several copies, of a manuscript will not necessarily be a publication. The representation of a play on the stage was decided in England before the statute of 5 & 6 Vict., not to be a publication.1

There are cases, in some of the courts of this country, which hold that representation of a play is a qualified publication; viz., to the extent in which the memory of the auditors can retain its language, scenery, or incidents, and, if it is reproduced only in that way, the author of the work has no remedy. Of these cases it may perhaps be said, that in some instances, the court has not looked very rigidly into the proofs, considering the intrinsic difficulty of the subject. Indeed, as some of the affidavits in this case show, and as all experience proves, to write a play out from memory alone is well nigh impossible. Undoubtedly it may be done, especially after many repetitions; and we now and then hear of an individual so marvel

1 Macklin v. Richardson, Amb. 694; Coleman v. Walthen, 5 T. R. 245; Murray v. Elliston, 5 B. & Ald. 657; Morris v. Kelly, 1 Jac. & W. 481; Storace v. Longman, 2 Camp. 27, note. See also Roberts v. Myers, 23 Law Rep. 396; Jones v. Thorne, 1 N. Y. Leg. Obs.; Boucicault v. Wood, 7 Am. Law Reg. N. s. 539.

2 Keene v. Kimball, ubi supra, seems to go nearly to this extent, but in that case the bill expressly alleged an attendance on the plaintiff's performance, and imitation of it, and did not allege the use of a surreptitious copy. In Wallack v. Florence, N. Y. Supreme Court Ms., the defendant swore he had memorized the play of " Caste," and produced it solely from memory. Palmer v. Dewitt, now pending before the General Term of N. Y. Superior Court, was an action for printing Robertson's "Play," an unpublished English drama. The defence was memorization at English performances. Garvin, J., dissolved an injunction obtained ex parte upon the coming in of the answer setting up this defence (N. Y. Transcript, Jan. 5, 1869), and the cause coming to a hearing before Monell, J., at Special Term, in April, 1869, upon a stipulation that the play had been performed in London without restrictive notice to the spectators, and that the defendant had received the copy from which he printed from persons who had witnessed the performance in England, the learned judge upon the authority of Judge Garvin's decision, dismissed the complaint. The cause was argued at General Term in October last, but no decision is yet rendered. The main question is, as to the presumption of memorization, upon the agreed facts. In Crowe v. Aiken, two affidavits of actors were produced to show the difficulty of memorization. One other case has been before the New York courts, Lloyd v. Harkins, where Lloyd sought to restrain Harkins, formerly an actor at Lloyd's Theatre, from performing "Foul Play" from his professional memorization. This case occurred in August, 1868, but has been dropped by consent of parties, or at any rate neglect of parties. See Cadwalader, J., in Keene v. Wheatley, 9 Am. Law Reg. 33, on the implied contract of an actor not to reveal the things obtained by him in the course of his employment. The doctrine of the last case may be doubted to some extent.

lously endowed with memory, as to be able to repeat accurately, after once or twice hearing, whole paragraphs of a speaker. But so anomalous is this, that the chances are, if five thousand persons were to hear a play read or performed for the first time, not one, an hour after the play was over, could repeat verbatim, a single page that he had heard. While admitting its possibility, the evidence should, in my opinion, clearly establish that it was produced from memory, and negative any other conclusion.1

None of the cases cited by counsel have gone so far as to decide that a reporter can take down the words of an unpublished play as they are uttered by the actors, and thus make it public against the wishes of the author, while, on the other hand, it has been frequently held that such action of a reporter can be prevented, because not warranted by express or implied conditions. In some instances stress has been laid on the fact of representations of a play being had without restriction, and it is claimed "Mary Warner" was so produced in England. This, however, is denied, and it is asserted public notice was given both in London and in New York of the private property in the play. It is not easy to see, however, how a notice can have any effect upon the rights of the author or of the auditor. If the latter had the right to carry the play away in his memory or take it down phonographically, and in either case to use or publish it, the notice prohibiting it could not affect or change that right.2

The principal reason, probably, why courts are so much inclined to construe with great strictness the common-law right of an author in a manuscript work, partially imparted to the public, is because the right is perpetual. All claims under copyright statutes are for a limited time only. This reason may have had great weight in the discussion which took place in England in the two cases already referred to, and the result of which was the adoption of the principle that the statute of 8 Anne, cap. 19, took away the property, at common law, of an author in a published work. But this common-law right is always under the control of the legislative power, and it has been exercised in England; and, even under the qualified publication of a play, by representation, there can be no doubt that, under the rule now established in the courts, it might become public property, in the manner heretofore stated, after repeated representations.

1 To supplement evidence by presumption of fact, there must be a necessary and usual connection of the known with the unknown. Cowen and Hill's notes to Phil. Ev., note 285. They must be probable inferences drawn by common sense. Gibson v. Hunter, 2 H. Bl. 297; 1 Phil. Ev. c. 9, and n. 283; 1 Greenl. Ev. c. 4; 3 ib. §§ 14, 147, 408, 453; 2 ib. § 129, a. The whole doctrine about memorizing has arisen from a dictum of Butler, J., in Coleman v. Walthen, 3 T. R. 245, which Cadwalader, J., declares extra-judicial and founded in error. Keene v. Wheatley, 9 Am. Law Reg. 89.

2 The doctrine of restrictive notice first appears in Keene v. Clarke, 5 Robertson, and, save in the Superior Court of New York, has not been respectfully considered.

There was some question whether the author of a published play had, at common law, the sole right of representation; but, so long as the play existed in mauuscript, and was unpublished, and not in some way dedicated to the public, the sole right of representation or performance would seem to follow from the exclusive right of property. But the 20th section of the statute 5 & 6 Vict. cap. 45 put an end to this question by declaring that the first public representation or performance of any dramatic piece should be deemed equivalent, in the construction of the act, to the first publication of any book, and I understand it has been decided in England, that the public performance, even in a foreign country, of a play of which an English subject is the author, defeats his claim to a copyright under the British statutes.1

It is insisted that as, by this statute, representation was publication, the play “Mary Warner," by performance in England, was published there, and all right of property in the play was consequently lost, as well there as in the United States. This necessarily leads to the conclusion — and that is substantially the position of the defendant's counsel that there is no right of property in this country in the play except that conferred by the statutes, and particularly that of Aug. 18, 1856. I do not understand that the authorities have gone that far, and it does not follow, because his claim under the statute is gone, that every thing is lost. He may still stand on his natural, inherent right as the author and creator of the play, and maintain that right until, in some mode, in reason or by statute, it is dedicated to the public. It cannot be true, in this country, that the lecturer has no right of property in his unpublished and unprinted lecture; that the clergyman has no right of property in his unpublished sermon, the work, it may be, in each case, of weeks of thought and labor, merely because he has repeated it to an audience. And I cannot comprehend why, because Congress has legislated about dramatic compositions, the author of a play should occupy different ground. The object of all copyright laws is to protect and regulate property in the product of the brain, not to annihilate it.

There can be no doubt of the authority of Congress to legislate on the subject of literary property, and to prescribe the terms upon which copyrights shall be granted, and when it has so legislated it may be truly said to create those rights under the law, and this is the sense of the language of the Supreme Court in the case of Wheaton v. Peters, 8 Peters, 661; that Congress, instead of sanctioning an existing right, created it; because the court admits the right at common law. Neither, perhaps, can there be any doubt that Congress can declare what sort of publication of a literary or dramatic work shall constitute a dedication to the public. It follows

1 Boucicault v. Delafield, 38 Law Jour. N. 8. (Ch.) 38.

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