These views, both as to restrictive notice and the right of acquisition by memory, were also adopted in Palmer v. De Witt,1 in the Superior Court of New York; but when that case came before the General Term for review, the ruling below was reversed, and in a very sound opinion, by Judge Monell, who had dissented from the other two judges in Keene v. Clarke, it was held "that any surreptitious procuring of the literary property of another, no matter how obtained, if it was unauthorized and without the knowledge or consent of the owner, and obtained before publication by him, is an invasion of his proprietary rights, if the property so obtained is made use of to his injury." In holding that representation was not publication, and conferred no right upon the spectator, either to print and publish or to represent the play, the learned judge combated the doctrine based upon a distinction between different modes of obtaining, without consideration, a manuscript play from its public performance, and also the doctrine that "restrictive notice" is necessary to protect the rights of the owner from invasion by the public. "A wrong-doer," in the language of the opinion, "cannot get title to property, or escape the responsibility of his tortious or felonious act, merely because the owner has failed to give public notice or warning that it was not to be stolen. Upon a careful consideration, therefore, of the subject, I have not been able to appreciate the distinction which the learned judges in Keene v. Wheatley, and Keene v. Clarke, and Crowe v. Aiken, have attempted to draw between different modes of obtaining the contents of a manuscript play from its public performance. They are equally objectionable, and are merely different modes of depriving an author of his literary property; and therefore any mode which effectuates that purpose is unlawful." 2 This decision was affirmed in the Court of Appeals, whither the matter was carried for review; but it must be remarked that the strict question before the court was, not whether the defendant was entitled to represent upon the stage the play after its public performance by the owner, but whether he might lawfully print and publish it. De Witt had printed and sold copies of the drama in New York city, alleging that he had received it from persons who had witnessed its public representation in London. But, said the court, "it is

VOL. IX.

1 (1868) 5 Abbott's Practice Reports, 130.

2 (1870) Palmer v. De Witt, 2 Sweeney, 530.
17

not found that it was reported by the witnesses of the performance from memory, and it would be entirely consistent with the findings that the copies were surreptitiously obtained." After remarking that the question was not before them, whether upon the facts as found the defendant might lawfully produce the play upon the stage, the court held that "lectures and plays are not, by their public delivery or performance in the presence of all who chose to attend, so dedicated to the public that they can be printed and published without the author's permission. It does not give to the hearer any title to the manuscript, or a copy of it, or a right to the use of a copy." Judge Allen, who delivered the opinion of the court, went so far, however, as to say, obiter, that "the permission to act a play at a public theatre does not amount to an abandonment by the author of his title to it, or to a dedication of it to the public."

In this country, the doctrine that restrictive notice is necessary to protect the rights of an owner in his uncopyrighted manuscript play has met with little favor outside the Superior Court of New York. It has been emphatically pronounced unsound in the United States Circuit Court in Illinois, by Judge Drummond, who held that "it is not easy to see, however, how a notice can have any effect upon the rights of the owner 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." 1

No satisfactory reasons have been given in support of these doctrines, and it is difficult to conceive any. It has been argued that "in the case of a public dramatic performance the public is held entitled to make use of that faculty which is necessarily addressed by such representation, to wit, memory, for the purpose of repeating the contents of the play, even in performing it elsewhere, when the owner has laid no restraint upon such use of the knowledge so obtained and retained by memory only; and that "remembering, to a certain extent, is the natural consequence of hearing, and using such recollection naturally flows from possessing it." Taking notes, and “all artificial aids to, or substitutes for, memory, may be restrained by a court, as a vio

1 Crowe v. Aiken, supra.

lation of the terms of admission, or may be made part of the police of the place of performance;" but the "privileges of listening, and of retention in the memory, cannot be restrained where the audience is not a select one." Except the last remark, which is found in the decision in Keene v. Wheatley, the above quotations must be accredited to the opinion of the court in Keene v. Clarke.

This reasoning is based upon the fallacy that, memory being given to man to be used, any use which can be made of it is legitimate, and that, if a spectator at a public performance is enabled to carry away in his memory the contents of a play unrestrained by" police" arrangements, he has acquired a lawful right to make any use of such play he chooses, however injurious it may be to the owner. The unsoundness of this doctrine is too apparent to need serious consideration. It would be about as wise to argue that because a man has hands for legitimate uses he is also justified in putting them into his neighbor's pockets. And what is the difference between requiring a manager, in order to protect his property from piracy, to cover his theatre and admission tickets with "restrictive notices," and asking Mr. Stewart to label his goods" Thou shalt not steal," as a protection against shop-lifters? Memory may be employed as a means of improvement, enjoyment, and profit, but not to invade the rights of another, or to acquire, without consideration, title to the property of another. In paying for admission to a public performance, a spectator is entitled to such instruction and enjoyment as he may derive from witnessing and hearing the performance and from recollecting it afterward. In other words, he is entitled to just what he pays for. This is the consideration contracted for in return for the price of admission. But there is no contract, express or implied, no consideration, no understanding, that the spectator shall acquire any title to the property in the play, or make any use thereof detrimental to the rights of the owner. And the fact that a spectator cannot be prevented, by police arrangements or otherwise, from retaining in his memory a knowledge of the contents of a play, does not invest him with a right of property therein, and is no reason why a court should not restrain him from appropriating such property of another to which he has acquired no title, or should not require him to make good the damage caused by such unlawful appropriation.

The distinction making the acquisition of a drama by stenography unlawful, but proclaiming it the legitimate spoil of tenacious memories, is one merely between the modes or means of obtaining a play; and it is not easy to see why one method should confer a more valid title than the other, since both are without consideration, and without the authority or consent of the owner. It was intimated by one judge that memory was more legitimate than stenography, because it was more difficult, and therefore more impracticable, to obtain a play by this means. But how long would it take a rival manager to enlist in his service men whose trained memories would enable them to bring away a play, after witnessing its performance, with the ease and promptness of a stenographer? The simple manner of obtaining the play, so long as it is without consideration or authority, cannot affect the fundamental principle at issue. There is a principle of justice older than the written law that property can only be acquired by a good consideration. Either the public representation of a play is a publication, so as to work an abandonment of the owner's rights of property therein, or it is not; and in either case the mode of obtaining it is immaterial, as affecting the owner's rights or the invader's wrong, so long as there is no consideration and no agreement.

There is, then, no foundation for the above distinction between the different means employed in obtaining a play from its public performance, making one mode lawful and the other unlawful. The real question is whether the public performance of an unprinted and uncopyrighted play is per se an abandonment of the owner's rights; and whatever may be the true solution, the principle is not affected by the means of reproduction, or by the presence or absence of a restrictive notice.

Although the doctrine above criticised has been enunciated in several recent American cases, yet in all of them, except perhaps that of Keene v. Kimball, the discussion upon this point may be regarded as obiter, since the direct issue was not really before the court. In Keene v. Wheatley, Keene v. Clarke, Crowe v. Aiken, and Palmer v. De Witt, it did not appear that the play had been obtained by memory, while in the last-named case the infringement was by printing and publishing, and not by representation. Indeed, in each of the above-named cases, with the exception noted, the facts showed that the play had not been obtained by memory, but through other means.

It may be well now to state just what has been decided by these cases, and what has been left in doubt. First, it is clearly settled that no one without authority may print and publish an uncopyrighted manuscript play, although it has been publicly represented by the owner; second, no one, without leave, may publicly represent the drama, if obtained in any other way than by means of memory from its lawful representation; and, third, it has been fully conceded that even the exercise of memory for this purpose may be made unlawful by restrictive notices to the spectators, warning them not to infringe the author's rights. The only point, then, which has not been satisfactorily settled, is whether a spectator at a public performance, in the absence of a restrictive notice, may lawfully appropriate the contents of a play for public representation, if enabled to do so by the exercise of memory. This important problem yet remains for judicial solution; and there is strong reason to believe that when it shall be solved by our highest and most learned tribunal, the just rights of every author, native or foreign, to the exclusive control and enjoyment of the products of his mental labor will be fully protected against invasion by stenography or memory, or any other unlawful mode of appropriating property without paying for it. Indeed, the dicta of our courts are already in this direction. The strong language of one judge to this effect has already been quoted, as well as the latest views on this subject proclaimed by the highest court of the State of New York, that "the permission to act a play at a public theatre does not amount to an abandonment by the author of his title to it, or to a dedication of it to the public." This shows a marked progress since the adjudication of Keene v. Wheatley, where this legal doctrine of memory originally appeared in this country, and in which the language of the opinion goes so far as to make publication by memory lawful. It will also be remembered, as an encouraging sign of progress, that the theory of restrictive notice which was enunciated in that case, and followed in one or more subsequent cases, has been exploded beyond any hope of resurrection; and it is to be hoped that this doctrine of memory will in due time share the same fate.

The same rules and principles which regulate the law concerning the public performance of a dramatic composition apply equally to musical compositions, lectures, sermons, speeches,