3 F. Cas. 977 | U.S. Circuit Court for the District of Southern New York | 1862
The plaintiff, who was an actor, and a dramatic author, made an arrangement with one Stuart, then the lessee of the Winter Garden Theater, in the city of New York, by which the former was to become the stage manager, and general director of the theatre. The particulars of this arrangement are of no importance here, as the undisputed proof in the case is, that it was either never definitely settled, in all its terms, or, if it was, that it was abandoned before the production of the play in question. Under that arrangement, however, such as it was, the plaintiff performed
While the performance of the play was proceeding at the Winter Garden, a negotiation was opened between the defendants, through their treasurer and agent, one Try-on and Stuart, for the purchase of whatever right the latter had in the manuscript, and ■also for the purchase of the scenery by •which the performance was illustrated, which resulted in a verbal agreement between them, by which the defendants were to have all the rights of Stuart to the manuscript, and in its representation, for one hundred dollars. A further sum was agreed on for the scenery. The play was then announced for the New Bowery Theatre, by the defendants, in the following card. “To ■the public. Messrs. Fox and Lingard beg to inform their patrons and the public, that they have purchased of AY. Stuart, Esq., the proprietor of the ‘Winter Garden,’ the successful drama of the ‘Octoroon,’ with all the scenery, properties, music, machinery, and everything appertaining to the piece, which will be produced in the &c.” During the negotiations between the defendants’ agent and Stuart, the latter informed him that his right to the play was in suit, then pending, but the agent insisted that the right to the manuscript, and to the performance of the play, was in Stuart, and concluded the alleged purchase and received from Stuart a copy, the original being still in the hands of the plaintiff. This copy had been taken by Stuart, (whether with or without the consent of the plaintiff d'oes not appear,) before the latter withdrew from the Winter Garden, as Stuart says, “for fear of accidents,” and it would seem that it was from this copy, whenever reference to it was needed, that the piece was performed at this theatre after the plaintiff withdrew.
. On the trial, the plaintiff proved the performance of the piece at the defendants’ theatre for nine nights, from the 23d of January to the 1st of February, inclusive. On this point, there was no opposing proof. The plaintiff also proved, from the record of copyrights, in the possession of the clerk of the district court for the southern district of New York, that he obtained a copyright for the play on the 12th of December, 1859. The records of the suit in equity brought by the plaintiff against Stuart and Fields, was also offered in evidence, for the purpose of fixing the dates of the commencement and termination of that suit, to which the defendants objected. The court admitted the evidence only for the purpose for which it was offered, and the defendants excepted. This exception has not been noticed on this argument, on the ground, no doubt, that the subsequent facts proved by the defendants’ witness, Stuart, that such a suit was pending, and that he communicated the fact to the agent of the defendants when he proposed to purchase the play, renders the dates proved from this record clearly relevant. This exception requires, therefore, no further notice.
The plaintiff having rested his case, the defendants moved for a non-suit, on the ground that the declaration did not allege that any copyright of the play had ever been taken out by the plaintiff, and on the further ground that the plaintiff had, by his own showing, by performing the piece for hire, dedicated the right to others, and abandoned his right to play the piece and to a copyright, except as regarded the mere right to print and publish the same. The court overruled this motion, on the ground that the courts of the United States are not empowered to .grant non-suits, in cases where evidence has been taken; to which the defendants excepted. This exception, too, has not been mentioned on the argument The ruling of the court was in conformity to well settled authority and long practice. Doe v. Grymes, 1 Pet. [26 U. S.] 469; D’Wolf v. Rabaud, Id. 476, 497.
At the close of the evidence, the defendants requested the court to charge the jury as follows: 1. That the employment of the plaintiff by Stuart, to write the play, and its production and performance by the plaintiff, for hire, was a dedication to the profession of players, of the right to play the piece. 2. That the writing the play for hire and compensation paid to the author and its delivery to Stuart, gave not only the title to the play, but a right to its use, as a literary composition. 3. That the voluntary public performance of the play, for hire, is such a publication as to amount to a dedication of the play to the use of the public. 4. That it was the duty of the plaintiff, under the circumstances of this case, to have given notice of his dissent to its performance by the defendants, and his failure to do so es-tops him from alleging a want of assent. This last request was subsequently modified, and the court was asked to charge, that if the jury were satisfied that the plaintiff daily, or, during the time, frequently, saw one of the defendants at the place at which the piece was being performed, and saw the announcement of it, and knew that it was being played there, it was, as matter of law, his duty to express his dissent from the playing; otherwise, the jury have the right, if they think proper, to draw the inference that it was with his assent. The court refused to charge according to the several requests of the defendants, to which refusal they excepted. They also excepted to the charge in the following particulars: 1. That the piece was an original play, and that the plaintiff was the author and entitled to a copyright. 2. That the plaintiff was entitled to the literary property in the play. 3. That the neglect to dissent did not constitute assent. 4. That there was no evidence of the abandonment of the play by the plaintiff. 5. That Stuart had no right that he could sell to the defendants in this suit. The charge of the court will sufficiently appear, as we proceed to examine the following propositions, which condense the points presented in this controversy. The last of these propositions is not ( strictly in the case, but, by a liberal arrangement of counsel, it is submitted for our examination. These points are: 1. Was this, on the undisputed evidence in the case, an original play, and the production of the plaintiff? 2. Was the literary property in the
The first point we have to consider relates to the authorship of the play. On this, the evidence of Stuart, the defendants’ witness is clear and decisive, at least sufficiently so to establish a prima facie case, both as to authorship and originality. He states, that the play was written by the plaintiff, under the special arrangement already referred to. It was to be a new play, and, as such, was put on the stage and had a successful run. Its originality does not appear to have been doubted by Stuart, who was familiar with the current dramatic literature of the day. It was virtually conceded, on the trial, that the plaintiff constructed and wrote the play, although it was insisted that he drew his materials from “The Quadroon,” to such an extent, and with so little modification, as to- destroy his claim to originality. But the evidence offered in support of this latter claim, was, we think, properly ruled out, for the reasons already given. A clear prima facie case on this point having been made out, and nothing having been shown to rebut it, there would have been no error if the charge had assumed the fact as proved. This, however, was not the precise form of the charge. The language used was, that “if it was the original production of the plaintiff, the title was in him.” But it is unnecessary to discuss this point at any length. A verdict for the defendants, resting on this feature of the case and on the evidence as it stood, could not be sustained. It would be clearly a verdict against evidence. The question whether or not, in point of fact, the use made of the materials of “The Quadroon,” in the construction of the piece, was such as to deny to the latter the claim of originality, will be hereafter considered.
Our next enquiry is — Was the literary property in the composition, and the exclusive right to its representation, in the plaintiff? The questions, under this head, relate to the bearing, on the plaintiff’s title, of the fact, that he wrote the drama while in the employ of Stuart and for hire, and also to the proof of his copyright. It is proper here to revert to the agreement under which this play was produced by the author. That agreement was, that he should write this play and, perhaps, some other plays, and that he should contribute his and his wife’s services at the Winter Garden Theatre, as long as the plays would run there, and receive half the profits, as a compensation. This cannot be construed into a contract, conferring upon Stuart, or any one else, the legal or equitable title to this drama. The title to literary property is in the author whose intellect has given birth to the thoughts and wrought them into the composition, unless he has transferred that title, by contract, to another. In the present case, no such contract is proved. The most that could possibly be said, in regard to the right of Stuart, or his trustee, in the play, is, that the arrangement entitled them to have it performed at the Winter Garden as long as it would, run. There is not the slightest foundation upon which they, or either of them, can rest a claim to the literary property in the manuscript. That property was in the plaintiff, subject, at most, to a license or privilege, in favor of Stuart and Fields, to have the piece performed at the Winter Garden. Whether the plaintiff was guilty of a breach of that part of his agreement which bound him to bestow his own and his wife’s services, we need not enquire here. Such a breach, if proved, would not vest the proprietors of the theatre with the title to “The Octoroon.” A man’s intellectual productions are peculiarly his own, and, although they may have been brought forth by the author while in the general employment of another, yet he will not be deemed to have parted with his right and transferred it to his employer, unless a valid agreement to that effect is adduced. Publishers, when they employ authors in particular literary enterprises, of course set•tle, in the terms of their contracts, the rights of each party and the ownership of the copyright. This was not the ease of writing a book for publication and general circulation. The play was to be produced, so far as Stuart and Fields were concerned, for a special purpose, and their rights are co-extensive only with that special purpose, which was, that the play should be brought out by the plaintiff at the Winter Garden, and be performed as long as it would run. The contract cannot, by the most liberal construction, be expanded beyond this. Under these circumstances, the plaintiff was entitled to the copyright which he obtained. The proof of the obtaining of such copyright made a clear prima facie case, and no countervailing evidence was offered. The evidence in the present case is the same as in the case of Roberts v. Myers [Case No. 11,906].
We come now to the third proposition — Is there any evidence, in the case, that the plaintiff had abandoned his rights to the public? It appears, in the proof, that the play was performed at the Winter Garden, under the agreement, and, of course, with the consent of the plaintiff, for some six nights before the copyright was taken out. This is all the evidence there is of an abandonment to the public. From this the defendants argue, that such a public representation for
As to the fourth proposition, very little need be said. It appeared in proof, that the plaintiff several times passed the thea-tre of the defendants during the time the play was in progress there, and that it was announced by large bill posters, which he must have seen. Indeed, it is conceded, that while the piece was being played there, the
We come now to the last topic in this controversy, which relates to the originality of this drama, when compared with the novel of Mayne Reid, called “The Quadroon.” Though, as already remarked, not strictly in the record, yet the question is one little fitted for investigation by a jury, and, for reasons already given, was not submitted to them. The counsel, however, have consented that the court may compare the two works, and, if the play cannot be sustained as an original production, then the verdict is to be set aside and a new trial is to be granted.
It is difficult to lay down any precise, rule which can be applied in all cases, as a test of originality. A work may be original in the eye of the law, when it is not in the eye of the critic. Mr. Curtis, in his instructive work on Copyright, well remarks: “A book may also be original, in the sense of the law, although the materials of which it is composed, the hints and sources from which its matter was derived, can all be traced out in former works, provided the author has exercised selection, arrangement, and combination, and has thereby produced anything new.” Curt. Copyr. 177. These are just reflections, and a rule fully as liberal as that stated by the writer, must be applied to dramatic compositions, where the materials on which the author works are often old and well known. Many of the plays of Shaks-peare are framed out of materials which existed long before his time, and were gathered by him from ancient chronicles, and other dusty receptacles of antiquated literature^ But these dry bones of the past the poet combined anew, pouring over them the effulgence of his own genius, until they were quickened with a new life and adorned with a hitherto unknown beauty. Of this, Macbeth is an instance. The original tale, from Hollingshed, whether a fable or a verity, was of very indifferent quality; but Shaks-peare, as remarked by Sir Walter Scott, “adorned it with a lustre similar to that with which a level beam of the sun often invests some fragment of glass, which, though shining at a distance with the lustre of a diamond, is, by a near investigation, discovered to be of no worth or estimation.”
A thorough comparison of the novel and the play in this case, will clearly show that the latter is an original work, in the sense of the law. It is not a copy of “The Quad-roon,” nor an abridgement of it. The most that can be said in favor of their similarity is, that the dramatis personae of the play are, a portion of them, at least, suggested by those that figure in the novel. The prominent characters in each have some features in common, and move in and are acted upon by the same social organization; but there are points of marked contrast, both in the fictitious persons sketched, and the vicissitudes they experience. Some of the actors in the drama, are almost wholly dissimilar to their supposed prototypes in the novel; and, were it not for their relation to the central figure, which is a quadroon girl in both the book and the play, their resemblance would hardly have been noticed. The author of “The Quadroon” has no just cause of complaint against this plaintiff. His vested rights have not been invaded by the latter, and the policy of the law is to encourage literary labor, so far as it can be done without infringing upon the rights already granted to others. Plagiarism and servile imitations are not to be encouraged. Those literary thefts which are committed upon copyrighted works the law promptly suppresses. The mere copyist, or the slavish imitator who reproduces old materials, substantially in their old form, without new combination, is entitled to no protection under the statute. But the law rests upon no code of comparative criticism. It protects
We are of the opinion that there is no error in the record, and that the validity of the copyright is fully supported by the originality of the play. A new trial is denied.