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in the scene are, that Laura requests the signal-man to lock her in the shed, and he consents ; that Snorkey requests the signal-man to stop by signal the expected train, and he refuses; that Byke gives Snorkey to understand that he is to be run over and killed by the train ; and that Snorkey requests Laura to break down the door and release him. The idea is also conveyed, by the language in the scene, that Byke is about to commit robbery and murder at Laura's house, and that Snorkey is trying to give information of the fact.
In the play of “ After Dark,” the “railroad scene ” is in the third act. In the first scene of that act, one Gordon Chumley is rendered insensible by drugs, and one Old Tom is thrown by force into a wine vault. In the second scene of that act, Old Tom is represented as in the vault. There is an orifice in the vault which opens upon the track of an underground railroad. The rumbling of cars is heard, and lights flash through the orifice. Old Tom, through a door into an adjoining vault, sees two of the characters carry Chumley and break a hole through a wall, and pass the body of Chumley through the hole, as he supposes for concealment, in a well or vault. Old Tom then finds an iron bar, and resolves to attempt escape by enlarging the orifice in the wall opening on the railroad. Then follows scene third. The railroad is seen, with a circular orifice which ventilates the cellar in which Old Tom is. The body of Chumley is seen lying across the rails, and the arm of Old Tom, and then his head, are passed through the orifice. For this much of the scene, there are only stage directions without spoken words. The following is a verbatim copy of the rest of the scene, the parts in parentheses being stage directions : “ Old Tom— About four courses of bricks will leave me room to pass. What is that on the line? There is something surely there. (A distant telegraph alarm rings, the semaphore levers play, and the lamps revolve.) Great Heaven ! 'tis Gordon. I see his pale, upturned face- he lives! Gordon! Gordon! I'm here! He does not answer me.
(A whistle is heard, and distant train passes.) Ah! murderers. I see their plan. They have dragged his insensible body to that place, and left him there to be killed by a passing train. Demons! Wretches! (He works madly at the orifice. The bricks fall under his blows. The orifice increases. He tries to struggle through it.) Not yet; not yet. (The alarm rings again. The levers in the front play. The red light burns, and a white light is turned to L. H. Tunnel. The wheels of an approaching train are heard.) Oh, Heaven! give me strength
down -down. One moment! (A large piece of wall falls in, and Old Tom comes with it.) See, it comes ; the monster comes! (A loud rumbling and crashing sound is heard. He tries to move Gordon; but seeing the locomotive close on him, he flings himself on the body, and, clasping it in his arms, rolls over with it forward. A locomotive, followed by a train of carriages, rushes over the place, and.
as it disappears, Old Tom frees himself from Chumley, and gazes
after the train.)” The play of “ After Dark” has never been published by Boucicault, although printed by him for private use.
The first inquiry is, What is meant, in the Act of 1856, by a “dramatic composition;" what is meant by the “public representation" of a dramatic composition ; and what is meant by the right to "act, perform, or represent " a dramatic composition, on a stage or public place?” The Act of 1856 confers on the author or proprietor of a copyrighted “dramatic composition, designed or suited for public representation," the sole right of acting, performing, or representing the same on a stage or public place, in addition to the sole right to print and publish such composition. The latter right must be considered as being conferred by the Act of 1831 ; for, although that Act only speaks of a copyright for a “book or books, map, chart, musical composition, print, cut, or engraving,” yet, under the language of the Act of 1856, a “dramatic composition, designed or suited for public representation," must be regarded as embraced within the Act of 1831.
A composition, in the sense in which that word is used in the Act of 1856, is a written or literary work invented and set in order. A dramatic composition is such a work in which the narrative is not related, but is represented by dialogue and action. When a dramatic composition is represented, in dialogue and action, by persons who represent it as real, by performing or going through with the various parts or characters assigned to them severally, the composition is acted, performed, or represented ; and, if the representation is in public, it is a public representation. To act, in the sense of the statute, is to represent as real, by countenance, voice, or gesture, that which is not real. A character in a play who goes through with a series of events on the stage without speaking, if such be his part in the play, is none the less an actor in it than one who, in addition to motions and gestures, uses his voice. A pantomime is a species of theatrical entertainment in which the whole action is represented by gesticulation, without the use of words. A written work consisting wholly of directions set in order for conveying the ideas of the author on a stage or public place by means of characters who represent the narrative wholly by action, is as much a dramatic composition designed or suited for public representation as if language or dialogue were used in it to convey some of the ideas.
The “ railroad scene ” in the plaintiff's play is undoubtedly a dramatic composition. Those parts of it which are represented by motion or gesture, without language, are quite as much a dramatic composition as those parts of it which are represented by voice. This is true also of the “ railroad scene” in “ After Dark.” Indeed, on an analysis of the two scenes in the two plays, it is manifest that the most interesting and attractive dramatic
effect in each is produced by what is done by movement and gesture entirely irrespective of any thing that is spoken. The important dramatic effect in both plays is produced by the movements and gestures which are prescribed and set in order so as to be read, and which are contained within parentheses. The spoken words in each are of but trifling consequence to the progress of the series of events represented and communicated to the intelligence of the spectator by those parts of the scene which are directed to be represented by movement and gesture. The series of events so represented and communicated by movement and gesture alone to the intelligence of the spectator, according to the directions contained in parentheses in the two plays in question here, embraces the confinement of A. in a receptacle from which there seems to be no feasible means of egress ; a railroad track, with the body of B. placed across it in such manner as to involve the apparently certain destruction of his life by a passing train ; the appearance of A. at an opening in the receptacle from which A. can see the body of B.; audible indications that the train is approaching; successful efforts by A., from within the receptacle, by means of an implement found within it, to obtain egress from it upon the track; and the moving of the body of B. by A. from the impending danger a moment before the train rushes by. In both of the plays, the idea is conveyed that B. is placed intentionally on the track with the purpose of having him killed. Such idea is, in the plaintiff's play, conveyed by the joint medium of language uttered and of movements which are the result of prescribed directions; while in Boucicault's play, it is conveyed solely by language uttered. The action, the narrative, the dramatic effect and impression, and the series of events, in the two scenes are identical. Both are dramatic compositions, designed or suited for public representation. It is true that in one A. is a woman, and in the other A. is a man; that in one A. is confined in a surface railroad-station shed, and in the other A. is confined in a cellar abutting on the track; that in one A. uses an axe, and in the other A. uses an iron bar; that in one A. breaks down a door, and in the other A. enlarges a circular hole; that in one B. is conscious and is fastened to the rails by'a rope, and in the other B. is insensible and is not fastened ; and that in one there is a good deal of dialogue during the scene, and in the other only a soliloquy by A. and no dialogue. But the two scenes are identical in substance, as written dramatic compositions, in the particulars in which the plaintiff alleges that what he has invented and set in order in the scene has been appropriated by Boucicault.
Nor is this a case of first impression. An arrangement of musical notes, forming a tune or air, is a musical composition; and the author, who has invented it and set it in order and copyrighted it, is entitled to protection. The extent of that protection has been the subject of judicial interpretation. In the case of D' Almaine v. Boosey (1 You. & C. Ex. 288), the plaintiffs, proprietors of the copyright of an opera of Auber's, and also of another copyright of the overture of the same opera, and also of another copyright of the airs of the same opera, filed a bill in equity to restrain the defendant from infringing such copyrights. The defendant had published several of the airs with some alterations, in the shape of quadrilles and waltzes. It was claimed on the part of the defendant that his work was merely an adaptation of the original, and therefore not a piracy. But the court (Lord Chief Baron Lyndhurst) held, that if the defendant had published the original air, though with adaptations and harmonies, or for different instruments, it was a piracy, and that it was not like the case of an abridgment of a book, where the purpose of the abridgment was distinct from that of the work from which it was taken. On this subject the court says, “ It is admitted that the defendant has published portions of the opera containing the melodious parts of it; that he has also published entire airs ; and that in one of his waltzes he has introduced seventeen bars in succession, containing the whole of the original air, although he adds fifteen other bars which are not to be found in it. Now, it is said that this is not a piracy, first, because the whole of each air has not been taken; and, secondly, because what the plaintiffs purchased was the entire opera, and the opera consists not merely of certain airs and melodies, but of the whole score. But, in the first place, piracy may be of part of an air as well as of the whole ; and, in the second place, admitting that the opera consists of the whole score, yet if the plaintiffs were entitled to the whole, a fortiori, they were entitled to publish the melodies which form a part. Again, it is said that the present publication is adapted for dancing only, and that some degree of art is needed for the purpose
of so adapting it, and that but a small part of the merit belongs to the original composer. That is a nice question. It is a nice question what shall be deemed such a modification of an original work as shall absorb the merit of the original in the new composition. No doubt such a modification may be allowed in some cases, as in that of an abridgment or a digest. Such publications are in their nature original. Their compiler intends to make of them a new use; not that which the author proposed to make. Digests are of great use to practical men, though not so, comparatively speaking, to students. The same may be said of an abridgment of any study; but it must be a bona fide abridgment, because if it contains many chapters of
1 There may be a copyright, as in the case of the “Low-Backed Car," wherc the author wrote words, accompaniment, and prelude, to the old air of the “Jolly Ploughboy.” Lover v. Davison, 1 C. B. n.s. 182; or, as in the case of “Pestal,” where an author wrote words for an old air, and got a friend to write an accompani. ment, and then entered the whole at Stationers' Hall. It was held, his assignee had copyright in the accompaniment. Leader v. Purday, 7 C. B. 4.
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 from 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