The direct issue concerning the public delivery of a lecture arose in Bartlette v. Crittenden,1 which was decided in the United States Court in 1837. Bartlette was a teacher of book-keeping, and had reduced to writing the system he taught, on separate cards, for the convenience of imparting instruction to his pupils. He had permitted his students to copy these cards for their own convenience, and to enable them to instruct others. Crittenden, being a pupil in Bartlette's school, was thus allowed to copy the manuscripts of the latter, from which, with certain alterations, he made up the first ninety-two pages of a book which he published. In the action which followed, it was contended that the complainant by suffering copies of his manuscripts to be taken, had abandoned them to the public. The court, however, did not favor this doctrine, and held that "the students of Bartlette who made these copies have a right to them and to their use as originally intended. But they have no right to a use which was not in the contemplation of the complainant and of themselves when the consent was first given."

An interesting leading case on this subject was decided in the Irish Chancery Court in Dublin, in 1860.2 Henry Wallis had painted the picture entitled "The Death of Chatterton,” which was first publicly exhibited in 1856, at the Royal Academy in London, where it won the praises of Ruskin. A wood engraving of the picture was also published, with the author's permission, in the National Magazine. The painting was purchased by Augustus Leopold Egg, who sold to Robert Turner the exclusive right of publishing engravings of it, and also gave him the privilege of publicly exhibiting the original for the purpose of securing subscribers for the engraving. Under this agreement the painting was exhibited, among other places, in Dublin. Shortly afterward James Robinson, of that city, announced for sale "the beautiful ånd effective stereoscopic pictures of the last moments and death of the poet Chatterton." This led to the action for an alleged piracy of the painting. The defendant denied that he had taken photographs from the painting, and maintained that it was physically impossible to take stereoscopic photographs from the flat surface of any picture or engraving. He admitted, however, that he had seen the painting while on

1 4 McLean, 300.

2 Turner v. Robinson, 10 Irish Ch. N. s. 121 and 510.

exhibition, but explained that he had made his photographs from an arrangement of figures, objects, and scenery which he had prepared in his own gallery. He further admitted that he had arranged the figure and scenery from his recollection of the attitude and arrangement in the painting, and with a view of presenting a stereoscopic photograph of the same subject, and under the same circumstances as were represented by the painting.

The Lord Justice of Appeal (the Right Honorable Francis Blackburne), in commenting upon this statement, was of opinion that "the stereoscopic slides are not photographs taken directly from the picture in the ordinary mode of copying; but they are photographic pictures of a model itself copied from, and accurately imitating in its design and outline, the petitioner's painting. It is through this medium that the photograph has been made a perfect representation of the painting. Thus the object contrived and achieved, and the consequent injury, are the very same as if the copy had, in breach of confidence, been made on the view, and by the eye; and no court of justice can admit that an act illegal in itself can be justified by a novel or circuitous mode of effecting it. If it is illegal, so must the contrivance be by means of which it was effected." Upon this state of facts it was held that the owner's rights had not been waived by the public exhibition of the painting, or by the publication of the wood engraving of it, and that consequently the defendant's action was piratical. It should, however, be noticed here that the court laid great stress upon the fact that the exhibition of the picture was attended with a "restrictive notice" to the spectators not to copy it in any way, or otherwise invade the owner's rights.

We come now to the main point of this subject, and one which has elicited much, if not learned, discussion in the leading American copyright cases of the past fifteen years. In not fewer than seven important cases since 1860 have our courts been puzzled with the problem whether the authorized public performance of a drama unprotected by copyright is such a publication as to deprive the owner of his exclusive right of representation. Three of these actions were brought by Miss Laura Keene against William Wheatley,1 of Philadelphia, Moses Kimball,2 of Boston, and

1 Keene v. Wheatley (1860), 9 Am. Law Reg. 33.

2 Keene v. Kimball, ut supra.

the comedian, John S. Clarke, then of New York, for an alleged invasion of her rights in the drama of " Our American Cousin," which she had purchased in manuscript from Tom Taylor, of London. Another was a controversy 2 between Mrs. Crowe (Miss Kate Bateman) and Aiken, of Chicago, as to the right of that lady to the exclusive representation of "Mary Warner," which had been written expressly for, and the manuscript assigned to, her by the same dramatist. The suit of Palmer v. De Witt was the result of the unlicensed publication by the defendant of Robertson's comedy," Play," the manuscript of which had been purchased by the plaintiff from the author. These, with Roberts v. Meyers1 and Boucicault v. Fox,5 comprise the recent American cases in which the question whether public representation is publication was at issue.

The doctrine that the public performance of an uncopyrighted play is not such a publication as will prevent its author from subsequently obtaining a valid copyright, or confer upon another the right to print and publish it without the authority of the owner, was announced in Roberts v. Meyers, followed in Boucicault v. Fox, and affirmed in Palmer v. De Witt, in the New York Court of Appeals, in 1872. In all of these the direct issue was before the court. In the two first named it appeared that the drama in controversy, Boucicault's "Octoroon," had been publicly represented in New York, from December 6, 1859, till the 12th of that month, before a copyright was applied for; and it was held that such representation did not invalidate the copyright, and could not “be regarded as any evidence of abandonment by the plaintiff of the manuscript to the public or to the profession of players." In Boucicault v. Fox, Mr. Justice Shipman took the strong ground that "there can be no evidence of abandonment to the public of any rights growing out of the authorship of a manuscript drawn from the mere fact that the manuscript has, by the consent and procurement of the author, been read in public by him or another, or recited or represented by the elaborate performances and showy decorations of the stage.

1 Keene v. Clarke (1867), N. Y. Superior Court, 5 Robertson, 38.

2 Crowe v. Aiken (1869), 4 Am. Law Rev. 450.

3 (1872) 47 N. Y. 532.

4 (1860) 13 Monthly Law Rev. N. s. 396.

6 (1862) 5 Blatchford, 87.

If the reading, recitation, or performance is conducted by his direction, by his agents, for his benefit and profit, with the sanction of the law, how can it be said to be evidence of his intention to abandon his production to the public? Suppose Mrs. Kemble were to read in her unrivalled manner a drama of her own production, would the reading be a dedication to the public, and authorize any elocutionist to read it who could obtain a copy against the consent of the author? How would it change the matter, if she should, instead of reading the play, have it brought out by a company at Wallack's or the Winter Garden, with all the embellishments which the stage can lend? The true doctrine is, that the literary property in the manuscript continues in the author so long as he exercises control over it, or has the right to control it; and, until its publication, no one has a right to its use, or that of its contents, without his consent. Therefore any spe

cial use of it by him in public, for his own benefit, is a use perfectly consistent with his exclusive right to its control, and is no evidence of abandonment." It should be noted, however, that the question of "memory 66 or restrictive notice" was not before

the court.

In treating the effect of a public representation of a manuscript play upon the owner's rights, two doctrines, which, in this country, first appeared in the Circuit Court of the UnitedStates in the case of Keene v. Wheatley, decided in Philadelphia in 1860, are presented for consideration: first, in regard to the exercise of memory, in contradistinction to the use of writing, as a means of depriving the owner of his rights in an uncopyrighted play which has been publicly represented; and, secondly, restrictive notice as a means of protecting the owner in the same rights. The originality of this valuable discovery or invention cannot, however, be claimed for American genius; for the ideas, if not the doctrines, are of English importation. In that case the rule was laid down that the public performance of an unprinted play before an indiscriminate audience was a publication, so far as to confer upon any one of the spectators who had "obtained it by fair means" the right subsequently either to print and publish or to represent it without the consent of the owner. The distinction was drawn between the exercise of memory and the taking of notes as a means of subsequent publication or representation; and it was held 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 indirectly to make from its having been retained in the memory of any of the audience," but that no one, in order to acquire the contents of the play for publication or representation, might lawfully make use of stenography, phonography, writing, notes, or any other except "fair means." And "the only fair means by which others could have obtained 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, so far as it relates to the right of any one publicly to represent a play which has been obtained through memory from a public performance, was recognized in the subsequent cases of Keene v. Kimball, in the Supreme Court of Massachusetts, Keene v. Clarke, in the New York Superior Court, and Crowe v. Aiken, in the United States Circuit Court for the Northern District of Illinois. In each of these cases the court was of opinion that a play, having been once publicly performed, might without authority lawfully be reproduced upon the stage from the memory of any spectator, but not from notes, or a copy surreptitiously obtained. It was fully conceded, however, that the proprietor might reserve his rights in a manuscript play after public representation, by a restrictive notice to the spectators, which would prevent them from lawfully making any use thereof to his injury. The effect of such notice was said to be to create an understanding between the spectators and the owner of the play that they should not make any use of their remembrance of it to his prejudice. The violation of this understanding might, in the language of Chief Justice Robertson of the New York Superior Court, "be restrained upon the same principle as any other betrayal of confidence; such as the disclosure of the secrets of a business, art, trade, or mystery agreed not to be divulged."1 Such understanding, it was further held, could not be implied as one of the ordinary terms of admission to the performance, but might "be created by indorsements on a ticket of admission, or notices publicly posted in the place of performance, or other modes." 1

1 Keene v. Clarke, supra.