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the original work, or such as made that work most salable, the maker of the abridgment commits a piracy. Now it will be said that one author may treat the subject very differently from another who wrote before him. That observation is true in many cases. A man may write upon morals in a manner quite distinct from that of others who preceded him; but the subject of music is to be regarded upon very different principles. It is the air or melody which is the invention of the author, and which may, in such case, be the subject of piracy; and you commit a piracy if, by taking not a single bar, but several, you incorporate in the new work that in which the whole meritorious part of the invention consists. . . . Now it appears to me, that if you take froin the composition of an author all those bars consecutively which form the entire air or melody, without any material alteration, it is a piracy; though, on the other hand, you might take them in a different order, or broken by the intersection of others, like words, in such a manner as should not be a piracy. It must depend on whether the air taken is substantially the same with the original. Now the most unlettered in music can distinguish one song from another, and the mere adaptation of the air, either by changing it to a dance, or by transferring it from one instrument to another, does not, even to common apprehensions, alter the original subject. The ear tells you that it is the same. The original air requires the aid of genius for its construction, but a mere mechanic in music can make the adaptation or accompaniment. Substantially, the piracy is, where the appropriated music, though adapted to a different purpose from that of the original, may still be recognized by the ear. The adding variations makes no difference in the principle.” An injunction was granted. The views of Lord Lyndhurst in that case were cited and approved by Mr. Justice Nelson in this court, in the case of Jollie v. Jaques, 1 Blatchf. C. C. 618, 625. They are eminently sound and just, and are applicable to the case of a dramatic composition designed for public representation. Such a composition, when represented, excites emotions and imparts impressions not merely through the medium of the ear, as music does, but through the medium of the eye as well as the ear. Movement, gesture, and facial expression, which address the eye only, are as much a part of the dramatic composition as is the spoken language, which addresses the ear only; and that part of the written composition which gives direction for the movement and gesture is as much a part of the composition and protected by the copyright, as is the language prescribed to be uttered by the characters. And this is entirely irrespective of the set of the stage, or of the machinery or mechanical appliances, or of what is called, in the language of the stage, scenery, or the work of the scene painter.
Now, in consonance with the principles laid down by Lord Lyndhurst, the plaintiff is as much entitled to protection in respect of a substantial
and material original part of his “ railroad scene," as he is in respect of the whole. Under the the Act of 1856, construed in connection with the Act of 1831, he is entitled to be protected against piracy, in whole or in part, by representation as well as by printing, publishing, and vending. Although the Act of 1831, in regard to printing, publishing, and vending, uses the words “in whole or in part," and the Act of 1856, in regard to representing, does not use those words, yet the Act of 1856, by referring, as it does, to the right conferred by the Act of 1831 as the “sole right to print and publish ” the copyrighted composition, when such right is, on the face of the Act of 1831, the sole right to print and publish “ in whole or in part,” and by then conferring “ 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,” must be held to confer the right to represent in whole or in part.
All that is substantial and material in the plaintiff's “railroad scene," has been used by Boucicault, in the same order and sequence of events,
1 In the case of Turner v. Robinson, 10 Ir. Ch. 121, B.C. on Appeal, ib. 510, the plaintiff was proprietor of a picture, “Death of Chatterton,” had publicly exhibited it in sundry places, and was having an engraving made from it. The picture had been engraved in a catalogue previously, in a cheap way, and no objection was made to this by the proprietor. The defendant arranged a tableau vivant in his studio following the grouping of, and with a painted background like the one in the picture, and took a pair of photographs for the stereoscope from this group. Sale of the photographs was enjoined.
2 In considering whether there is infringement of copyright, we often have to consider the quality of the matter taken, rather than its quantity. Gray v. Russell, 1 Story, 11, Case of "Adam's Latin Grammar;” Folsom v. Marsh, 2 Story, 100, Case of“ Sparks's Life of Washington ;” Story v. Holcombe, 4 McLean, 306, Case of “ Story's Equity Pleadings.” And it is no defence that only a part of the work is taken, because the owner of the copyright owns it all. Folsom v. Marsh, ubi sup. In an action for penalties, the rule is different; the whole work must be taken, not merely so much as to render one liable to action for infringement. Rogers v. Jewett, 22 Law Rep. 339 (Curtis, J., 1857, C. C. U.S., Mass.). The plaintiff had published a book called “Philosophy of Mysterious Agents, Human and Mundane; or, The Dynamic Laws and Relations of Man, embracing the Natural Philosophy of Phenomena styled Spiritualism,” and the defendants had copied a large part of this book in a publication called “Modern Mysteries Explained and Exposed.” A demurrer to an action of debt for the penalty of fifty cents a sheet, under St. 1831, ch. 16, § 6, was sustained, though an action on the case for damages might have been sustained. See Atwill v. Ferrett, 2 Blatchf. 48, Case of “Bohemian Girl ;” Dwight v. Appleton, ubi sup, and Backus v. Gould, 7 How.798, Case of “Cowen's and Wendell’s Reports." Quære, as to the rule of damages under the Act of 1856, ch. 169, establishing a rate of damages at not less than one hundred dollars for the first, and fifty dollars for subsequent performances of a copyrighted play, - in case only a very small part of the play is borrowed. Consult on this point, cases on confusion of goods, 2 Black. Comm. 405, and cases cited in Wendell's edition. See also Hart v. Ten Eyck, 2 Johns. Ch. 62. Gillespie v. Moon, 2 Johns. Ch. 585; Brackenridge v. Holland, 2 Blackf. 377.
and in a manner to convey the same sensations and impressions to those who see it represented, as in the plaintiff's play. Boucicault has indeed adapted the plaintiff's series of events to the story of his play, and in doing so has evinced skill and art; but the same use is made in both plays of the same series of events, to excite, by representation, the same emotions in the same sequence. There is no new use, in the sense of the law, in Boucicault's play, of what is found in the plaintiff's " railroad scene.” The “ railroad scene” in Boucicault's play contains every thing which makes the “railroad scene” in the plaintiff's play attractive, as a representation on the stage. As, in the case of the musical composition, the air is the invention of the author, and a piracy is committed, if that in which the whole meritorious part of the invention consists is incorporated in another work, without any material alteration in sequence of bars; so in the case of the dramatic composition, designed or suited for representation, the series of events directed in writing by the author in any particular scene is his invention, and a piracy is committed if that in which the whole merit of the scene consists is incorporated in another work, without any material alteration in the constituent parts of the series of events, or in the sequence of the events in the series. The adaptation of such series of events to different characters, who use different language from the characters and language in the first play, is like the adaptation of the musical air to a different instrument, or the addition to it of variations or of an accompaniment. The original subject of invention, that which required genius to construct it and set it in order, remains the same in the adaptation. A mere mechanic in dramatic composition can make such adaptation ; and it is a piracy if the appropriated series of events, when represented on the stage, although performed by new and different characters, using different language, is recognized by the spectator through any of the senses to which the representation is addressed, as conveying substantially the same im. pressions to, and exciting the same emotions in, the mind, in the same sequence or order. Tested by these principles, the “railroad scene" in Boucicault's play is undoubtedly, when acted, performed, or represented on a stage or public place, an invasion and infringement of the copyright of the plaintiff in the “ railroad scene” in his play.
The substantial identity between the two scenes would naturally lead to · the conclusion that the later one had been adopted from the earlier one.
The charge of actual plagiarism on the part of Boucicault, made in the bill, is not denied. It is hardly possible that the resemblances are accidental, and that the differences are not merely colorable, with a view to disguise the plagiarism. The true test as to whether there is piracy or not, is to ascertain whether there is a servile or evasive imitation of the plaintiff's work, or whether there is a bona fide original compilation made up from common materials and common sources, with resemblances which are merely accidental, or result from the nature of the subject. Emerson v. Davies, 3 Story, 768, 793.
Nothing that has been adduced on the part of the defendants affects the validity of the plaintiff's copyright on the question of the originality and novelty of the “railroad scene” in his play."
The sale of Boucicault's play to other persons, with a view to its public representation, makes the seller a participant in causing the play to be publicly represented.
An injunction must therefore issue, restraining the defendants from the public performance or representation, and from the sale for public performance or representation, of the “railroad scene ” in the play of “ After Dark," or of any scene in substance the same as the “ railroad scene ” in either of the two plays, as such scene is herein defined.
Thomas S. Alexander, William Tracy, Joseph F. Daly, for the plaintiff; William D. Booth, with whom was Thomas W. Clarke, of Boston, for the defendants.
Descriptive matter in a record of title is no part of the title. Thus a book described in the record as in a certain number of volumes may be published in & different number. Dwight v. Appleton, 1 N.Y. Leg. Obs. 195.
SELECTED DIGEST OF STATE REPORTS.
[For the present number of the Digest, selections have been made from the following volumes of State Reports : 1, 2 Bush (Kentucky); 32, 33 California ; 16, 17, 18 Grattan (Virginia); 3 C. E. Green (18 N.J. Chancery); 40, 41 Illinois ; 28 Indiana ; 23 Iowa; 41 Mississippi; 17 Obio State; 56 Pennsylvania State ; 40 Vermont.]
ACCOUNT. — See TENANT IN COMMON.
FROM UNITED STATES TO STATE COURTS.
ADMIRALTY. The Hine v. Trevor, 4 Wallace, 555, disapproved, but followed in Ballard v. Wiltshire, 28 Ind. 341.
ADMISSION. — See PRESUMPTION.
ALIMONY. Alimony pendente lite may be allowed without statute authority. The power to grant it being incident by common law to the power to grant divorces. — Petrie v. People, 40 Ill. 334.
AMNESTY. — See Way, 3.
APPEAL. — See STAMP, 6, 7.
ASSIGNMENT. An unliquidated balance of account is assignable. — Wescott v. Potter, 40 Vt. 271
See CONFLICT OF Laws.
ASSUMPSIT. 1. The payee of a note for $40, payable on demand in “ hemlock bark, at the going price,” in the summer of 1863, requested the maker to have the bark peeled in the course of the summer (the season for peeling bark), and delivered the next winter, which the maker agreed to do. The bark was not delivered. Held, that the demand was appropriate to the note, and that, on defendant's failure to furnish the bark, the payee could recover on the money counts. — Read v. Sturtevant, 40 Vt. 521.