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and presence of characters, must be protected by patent for the machinery, and design patents for the scenery and properties.
The opinions of classic English critics and essayists were read to show, that, in their opinion, these mechanical adjuncts to the drama were a deterioration of literature, and therefore the Copyright Acts “ to advance science and the useful arts” (Constitution U.S. Art. 1, § 8) did not apply.
The defendants also raised the technical point, that the title of the book registered by the plaintiff was “ Under the Gaslight, a Romantic Panorama of the Streets and Homes of New York," whereas the title of the printed play, filed as an exhibit to show what had been infringed, was “ Under the Gaslight, a totally Original and Picturesque Drama of Life and Love in these times.” And they claimed that the protection of the statute had been lost by means of this change of title.
BLATCHFORD, J. — This is an application for a provisional injunction to restrain the defendants from the public performance and representation, and from the sale for dramatic representation, of a scene called the “railroad scene” in a play called “ After Dark.” The plaintiff is by profession a dramatic author, his business being to compose, write, and produce on the theatrical stage dramatic compositions, commonly called plays. The defendants are the managers of a public place of theatrical amusement, in the city of New York, called Niblo's Garden. Before the 1st of August, 1867, the plaintiff composed and wrote a dramatic composition, called “ Under the Gaslight;” and on that day he took the proper steps to secure to himself a copyright for the composition, under the provisions of the Act of Feb. 3, 1831 (4 U.S. Stat. at Large, 436), by depositing before publication a printed copy of the title of the composition, as author and proprietor, in the clerk's office of the District Court of the Southern District of New York, where he resided at the time. The composition was afterward printed and published, and within three months from its publication he caused a copy of it as printed and published, to be delivered to
| The record of title may be made after representation as well as before. Roberts v. Myers, 23 Law Rep. 396 (SPRAGUE, J., 1860, C. C. U.S., Mass.), Case of the “Octoroon.” But it must be made before publication, otherwise the protection of the statute is lost. Bartlett v. Crittenden, 5 McLean 32,“ System of Book-keeping." See also Jollie v. Jaques, 1 Blatchf. 618, Case of the “Serious Family Polka ;” Baker v, Taylor, 2 Blatchf. 82, Case of the “Sacred Mountains ;” Wheaton v. Peters, 8 Peters, 591, Case of Peters's Condensed Reports ; Dwight v. Appleton, 1 N. Y. Leg. Obs. 195, (1843 C. C. U.S., N.Y., THOMPSON, J.), Case of “Dwight’s Theology;"
Coce, 4 Wash. C. C. 487, Case of the “ American Dispensatory.”
said clerk. He also gave information of copyright being secured by causing to be printed and inserted in the several copies published the words prescribed by the fifth section of the Act.
The Act of 1831 confers upon the author and proprietor of a dramatic composition, duly copyrighted, the sole right and liberty of printing, reprinting, publishing, and vending such composition, in whole or in part, for the term of twenty-eight years from the time of recording the title of such composition, in the manner directed by the Act. The Act of Aug. 18, 1856 (11 U.S. Stat. at Large, 138), provides, that any copyright thereafter granted under the laws of the United States “ to the author or proprietor of any dramatic composition, designed or suited for public representation, shall be deemed and taken to confer upon the said author or proprietor, his heirs and assigns, along with the sole right to print and publish the said composition, the sole right also to act, perform, or represent the same, or cause it to be acted, performed, or represented, on any stage or public place during the whole period for which the copyright is obtained.”
The bill alleges that the plaintiff's play was designed and suited for
1 This delivery of the copy of the published book is a necessary prerequisite to claiming protection of the statute against unauthorized publication, except under $ 9, Act of 1831. Ewer v. Coxe, 4 Wash. C. C. 487; Wheaton v. Peters, 8 Pet. 591. But if the book is published in more than one volume, delivery of the first volume within the period limited by law, and of the others before action is brought, is held sufficient. Dwight v. Appleton, 1 N.Y. Leg. Obs. 195. And if the book be not printed, the author may maintain his action for an infringement, and the acting of a play is not such a publication as to require the printed copy to be filed with the clerk. Roberts v. Myers, 23 Law Rep. 396. The action for infringement of the author's rights, after deposit of title and before the deposit of the book, cannot be maintained under the statute. Keene v. Wheatley, 9 Am. Law Reg. 33 (CADWALLADER, J., 1860, U.S. C. C., Pa.), Case of “Our American Cousin."
These discrepancies disappear, when we consider, that, before publication by the author, he has a right, independent of the statute, to restrain any and every use of his work, except such as is fairly derived from him by the degree of publicity he may have given it. Keene v. Kimball, 32 Law Rep. 669 (1860, S. J. C., Mass.), Case of “Our American Cousin ;" Keene v. Clarke, N.Y. Transcript, March 8, 1868 (SUPERIOR Court, N.Y., 1867), Case of “Our American Cousin ; " Bourcicault v. Wood, 16 Am. Law Reg. 539 (1867, DRUMMOND, J., C. C. U.S., III.), Cases of “The Octoroon,” “Pauvrette,” and “ Colleen Bawn." And even filing the title gives an equitable right, which a Chancery Court of the United States will protect till the acts required for perfecting the legal title can be done. Pulte v. Derby, 5 McLean, 328, Case of “Homeopathic Domestic Physician.” After publication, the author must rely on the statute only. Jeffries v. Boosey, 4 H. L. Cas. 815, and cases cited; Wheaton v. Peters, 8 Peters, 591, 662. See also Clayton v. Stone, 2 Paine, 382, Case of the “Commercial Advertiser;” Blunt v. Patten, 2 Paine, 393, Case of "Chart of Nantucket Shoal ;” Stowe v. Thomas, 2 Am. Law Reg. 210 (Grier, J., 1853, C. C. U.S., Penn.), Translation of “Uncle Tom's Cabin.” A very full discussion of the subject of property in unpublished manuscripts, is to be found in Woolsey v. Judd, 4 Duer, 379, which was a case of publication of private letters.
public representation ; that it was represented for the first time on the 12th of August, 1867, under his direction, and for his benefit, at the New York Theatre, a public place of theatrical amusement in New York, and was thenceforward represented there for eight consecutive weeks; that it met with great success, attracted crowds of persons, and was pecuniarily profitable to the plaintiff to a large amount; that the particular cause of such success was what was commonly called, after such public performance, the “ railroad scene," at the end of the third scene of the fourth act, in which one of the characters is represented as secured by another, and laid helpless upon the rails of a railroad track, in such manner, and with the presumed intent, that the railroad train, momentarily expected, shall run him down and kill him, and just at the moment when such a fate seems inevitable, another of the characters contrives to reach the intended victim, and to drag him from the track as the train rushes in and passes over the spot ; that this incident and scene were entirely novel, and unlike any
dramatic incident known to have been theretofore represented on any stage, or invented by any author, before the plaintiff so composed, produced, and represented the same; that the playing of said composition and scene caused the same to become famous in all parts of the United States and Canada and in England ; that the chief value of the composition and its popularity depend upon said " railroad scene;" that it was repeatedly produced and represented by and for the advantage of the plaintiff, in many cities and towns of the United States and Canada,' to the profit of the plaintiff; that before learning of the alleged wrongs, mentioned in the bill attempted by the defendants, the plaintiff had made arrangements for representing the play dramatically at New York, and in various places in the United States, during the present winter and the approaching spring; that he accordingly commenced to represent the play at the New York Theatre, in the city of New York, on the 4th of November, 1868; that soon after the production, representation, and printing of the play in the United States, one Dion Boucicault, a dramatic author and actor and theatrical manager, a subject of Great Britain, residing in England, procured a copy of said play by some means, and, without the knowledge or consent of the plaintiff, prepared therefrom a play, which he called “ After Dark," in which play he introduced several of the scenes and incidents of the plaintiff's play, varying them slightly, but following in them the invention and plan of the plaintiff's play, in a manner which was intended to differ from it only slightly, so as colorably to be a different work, while substantially retaining the attractive features of the plaintiff's play, and which
* 1 The value of the piece in Canada could not be material to the issue, and it may be questioned if the rights of the English author in Canada can be affected by a decision here.
contained, with only colorable variations, the said “ railroad scene” of the plaintiff's play, substituting for the surface railroad an underground railroad, for the rescuer of the victim to be killed on the railroad a man for a woman, for the railroad station in which the rescuer was confined a cellar, and for the breaking down a door to escape and rescue the victim, the breaking down a wall or the door in a wall; that the work of Boucicault is a palpable imitation of the plaintiff's said “ railroad scene,” and is plagiarized therefrom and put into the play called “ After Dark,” by Boucicault, for the purpose of obtaining the pecuniary benefit which might otherwise result to the plaintiff from the representation of his play; that the play of “ After Dark” was performed in England without the plaintiff's consent, to the great profit of Boucicault, and was indebted for its success and profit to such imitation of said “railroad scene;” that Boucicault has sent copies of his play containing such plagiarism of said " railroad scene" to the defendants in the United States, for sale and performance for his own profit, and several copies of it are in the defendants' possession; that the defendants are intending, and have announced their purpose, to perform such play called " After Dark” publicly on the stage, at Niblo's Garden, in New York, on the 16th of November, 1868, and every night thereafter till further notice, without the consent of the plaintiff; that such play and the plagiarism of said “ railroad scene” are being rehearsed at Niblo's Garden, under the direction of the defendants, with a view to such public performance thereof; and that the defendant Palmer, acting for Boucicault, is about to sell copies of the play called “ After Dark," with said plagiarized scene, to other persons in the United States, to be publicly represented. The bill prays for an injunction to restrain the defendants from the public representation, and from the sale for dramatic representation, of the said “ railroad scene” in “ After Dark.”
The defence to the application, on the facts, is confined to showing by affidavits that the following matters were known prior to the taking out by the plaintiff of his copyright; namely, the representation on a stage of a train of cars drawn by a locomotive engine on a railroad; a like representation, wherein the train appeared to run over a man lying on the track; and a like representation, wherein the train appeared to run over a man
1 In the absence of an international copyright, the performance of an English play in England, without the consent of an American author, seems immaterial. The English Copyright Act, 7 & 8 Vict. ch. 12, § 19, requires the first publication or representation of a work, except such works as come within that statute, to be made in England, in order to have legal protection there. Boucicault v. Dela field, 33 Law Jour. N.s. Ch. 38. Case of the “Colleen Bawn,” a play written, copyrighted, and first performed, by an English author, then a resident of the United States, within the United States, — never printed by the author's consent, subsequently copyrighted in England, where the Vice-Chancellor held the English copyright bad.
lying on the track, who had been thrown thereon in a helpless condition by another of the characters, in order that he might be run over and killed. A story called “ Captain Tom's Fright,” in The Galaxy for March 15, 1867, is also adduced to affect the validity of the plaintiff's copyright. There is no answer to the bill, nor is there any denial of the allegations that Boucicault procured a copy of the plaintiff's play, and prepared therefrom the “ railroad scene" in the play of “ After Dark,” and intended that the latter should only be colorably different from the “railroad scene ” in the plaintiff's play, by making the substitutions before mentioned, and that the “railroad scene ” in the play of “ After Dark” was plagiarized by Boucicault from the railroad scene" in the plaintiff's play.
In the plaintiff's play there is a surface railroad, with a railroad station and a signal station shed or store-room. A signal-man appears, and a woman named Laura. At the request of Laura, the signal-man locks her in the shed. There are some axes in it. One Snorkey then appears. The signal-man then goes off. One Byke then enters with a coil of rope in his hand, and throws it over Snorkey, and tightens it around his arm, and coils it around his legs, and then lays him across the track and fastens him to the rails, and goes off, having by language given it to be understood that the intention is that Snorkey shall be run over by the train and killed. Laura, from a window in the shed, sees what is done. The steam whistle of the train is heard. She takes an axe and strikes the door. The whistle is heard again, with the rumble of the approaching train. She gives more blows on the door with the axe. It opens. She runs and unfastens Snorkey. The lights of the engine appear, and she moves Snorkey's head from the track as the train rushes past. This incident occupies the whole of the third scene of the fourth act. There is a good deal of conversation, first between the signal-man and Laura, and then between Snorkey and the signal-man, and then between Byke and Snorkey, and then between Laura and Snorkey. There are stage directions for Laura to go into the shed; for the signal-man to lock her in; for Snorkey to enter; for the signal-man to go off; for Byke to enter with the coil of rope ; for Byke to throw the coil over Snorkey, and tighten the rope around Snorkey's arm, and coil it around his legs; for Byke to lay Snorkey across the track, and fasten him to the rails; for Byke to go off ; for the steam whistle to be heard; for blows on the door to be heard; for the steam whistle to be heard again, with the rumble of the train; for more blows on the door to be heard; for the door to open ; for Laura to appear with the axe in her hand; for her to run and unfasten Snorkey; for the lights of the engine to be seen; for Laura to take Snorkey's head from the track; and for the train to rush past. These stage directions are separate and apart from the conversation, and are in italics and in parentheses, at the appropriate places in the progress of the scene. The substance and purport of the successive conversations