2 Biss. 34 | U.S. Circuit Court for the Northern District of Illnois | 1867
charged the jury as follows: The act of Feb. 3d, 1831 (4 Stat. 438), protected the author of any book in the right to print and publish such book, provided he was a citizen of the United States, or a resident therein. The fourth section of that act. declared how such author should proceed in order to make that protection available to him. It declared that he should not be entitled to the benefit of the act unless, before publication, he deposited a printed copy of the title of the book in the clerk’s office of the district court of the district wherein he resided.
The fifth section declared that no person should be entitled to the benefit of the act unless he gave information of the copyright being secured, by causing to be inserted in the copy of each and every edition published, during the term secured, on the title page or the page immediately following it, a notice of the fact of such right being secured to him, and the words by which such notice was to be given were specified in that section.
The sixth section of the act provided for the recovery of certain penalties if any person or persons, after the recording of the title of the book, should publish, import or cause to be printed or imported, any copy of such book without the consent of the person legally entitled to the copyright thereof, first had in writing, and a forfeiture in money could be enforced by an action of debt
The seventh section made the same provision substantially in relation to certain other works, such as a print, cut or engraving, map, chart, or musical composition
It is apparent from what has been stated, in relation to these various sections of the law of 1831, that there was a right of action before the publication was actually made. The fourth section of the act provided that the author of a book, within three months, from the publication, should cause to be delivered a copy of the same to the clerk of the district court; but from what has been already stated, it is clear that a right of action accrued before the deposit of this copy of the book, because the language of the sixth and seventh sections is express, that if any other person or persons, from and after the recording of the title of the book should violate any of the provisions of those sections they were liable to an. action for the benefit of the author, so that, under the act of 1831, there can be no doubt that not only a suit in equity, but at law, could be maintained before the publication of the work, for the benefit of any party aggrieved.
Turning then to the act of Aug. 18th, 1856 (11 Stat. 138), and construing it by the light thrown upon the subject by the previous act of 1831, the question is, what rights there are under the more recent statute. The act was declared to be supplemental to the act of 1831, and it set forth that “any copyright hereafter granted under the laws of the United States to the author or pro
It will be observed that this act speaks of a copyright being obtained and granted, but it is clear that it does not necessarily mean that the title of the work shall be deposited with the clerk of the district court, and publication made, because that is not the meaning of the term in the original law, to which this is supplemental, as will be seen from what has been already said. The language of the fifth section of the act of 1831 is, that .no person shall be entitled to the benefit of this act, unless he shall give information of the copyright. ' That section must be construed with the other sections which immediately follow it, the sixth and seventh, and, of course, it is not intended by this language to deprive of his action a party who may be injured between the time of filing his title in the clerk’s office and the time of publication.
As I have already said, it in terms gives the right of action in such case. Then this supplemental act does not necessarily mean by the term “copyright being granted,” that the book has been published and notice given; otherwise, the author of a book, under the act of 1831, would have a more complete remedy than the author of a play, .under the supplemental act of 1856; so that, comparing the two acts together, and construing the latter by the light thrown upon the subject by the various provisions of the prior act, I think we may arrive at a conclusion as to what is the meaning of this clause of the act of 1856; namely: “and any manager, actor, or other person, acting, performing, or representing the said composition, without or against the consent of said author or proprietor, his heirs or assigns, shall be liable for damages, to be sued for and recovered by. action on the case, or other equivalent remedy, with costs of suit, in any court of the United States; such damages in all cases to be rated and assessed at such sum not less than one hundred dollars for the first, and fifty dollars for every subsequent performance, as to the court having cognizance thereof shall appear to be just;” and it is this: that the act of 1831 having given a right of action between the time of filing the title of the book in the clerk’s office and the time of publication, the above clause in the supplemental act also gives the right of action.
It seems to me that a little reflection will convince us that that must necessarily be so, and must have been the intention of this supplemental act. It is plain that the reason why the act was passed, was because the prior law did not give sufficient protection to the author of a play. The principal profits derived from plays are their representations on the boards of a theatre. Now, it is apparent if that representation could be made, at any time, without the consent of the author of the work, he would be injured pecuniarily in the profits to be derived from his work, because it . is from that source, principally, that the profits are expected to come. The injury, it is apparent, would be just as great, and in most instances it may be presumed, greater, by the representation of his play before its publication than it would after. Take the case of the composition of a dramatic work and notice given, as the law requires, by leaving the title page with the clerk, and after that is done, the obtaining by clandestine or surreptitious means, of a copy of that play, and publicly’ representing it upon the stage of a theatre. That, of course, would be an injury, pecun-iarily, to the author. The question, then, is,' whether this law did not intend to protect the author against such use without his consent. I think that it did. I think when it says that any manager, actor or other person who shall represent the composition without the consent of the author shall be liable for damages, to be sued for and recovered by an action on the case, it means as well a representation made before as after publication.
■ [Undoubtedly the act of 1831 contemplated a publication after the filing and deposit of a printed copy of the title-page of the work in the clerk’s office, but it did not specify how soon that publication should be made; and, as in this case, there is evidence of the representation of “The Octoroon”, and “Colleen Bawn,” in various parts of the country for some time past, yet, as there is also evidence showing that for many representations made, compensation was. given to the plaintiff, I am not prepared to say that, under the circumstances of this case, he has lost the right of action merely in consequence of the non-publication by him of these plays. It is conceded that there would be a complete and perfect remedy in a court of equity, and I do not know why there should not be in a court of law. Action on the case means an action brought in a court of law. It is under the words “other equivalent remedy,” that the party would have recourse to a court of equity. So that as to the main question of law there is in the case, I think that the action, can be maintained. But of course there are other questions that must be decided in favor of the plaintiff before he can recover in this case, independent of these questions of law. As you will have seen, gentlemen of the jury, from what the court has already said, before a party is entitled to the benefits of these acts, you must be satisfied, that he. has brought himself within
• No person is entitled to the benefit of these acts unless he be at the time of filing the title, a citizen of the United States, or a resident therein. Residence ordinarily means domicil, or the continuance of a man in a place, having his home there. It is not necessary that' he should be the occupant of his own house; he may be a boarder or a lodger in the house of another. The main question is, the intention with which he is staying in a particular place. In order to constitute residence, it is necessary that a man should go to a place, and take up his abode there with the intention of remaining, making it his home. If he does that, then he is a resident of that place. This question of residence is not to be determined by the length of time that the person may remain in a particular place. [The question, you' will see, that is to be determined, is the state of mind, accompanied with acts, of the man at the time that he goes to the place and takes up his abode there.]
[I think that there ought to be some affirmative evidence introduced on the part of the defendant, that Mr. Boucicault, by word or deed, has consented to the performance of this play by the defendant — “Pau-vrette” I mean; because it is perfectly clear that the act of 1856 gave the right to the author not only to perform, but to publish it, and declared that no one should perform it without his consent. The mere fact that it was published did not give others the right to enact it or perform it in a theatre; it must be done with his consent or acquiescence, and there ought to be some evidence that it was so done by the defendant. As to the other plays, the “Colleen Bawn” and the “Octoroon,” there is no evidence that these plays were ever published by the plaintiff in this country, and the only question for you to determine would be so far as this country is concerned, whether the use of the manuscripts of these plays by the defendant, was with the consent or acquiescence of the plaintiff. There is evidence tending to show that these two plays were published, that is, printed, and that this publication was made in England. I do not think that would make any difference as to the right of the plaintiff, unless that publication was with the consent of the plaintiff.]
[He does not seek, in other words, to follow up the beginning of the protection which our law gave him, but resorts to publication in England, instead of publication in this country, where, if he were a resident, he would have the right and would be protected. So that the question for you to determine is, whether he did make the publication in England, and of that I think there should be some affirmative evidence to satisfy you that such is the fact This substantially, with one other remark, disposes of the rights of the party under the law in relation to copyright. That law prescribes a particular penalty for the unauthorized performance of a play; in the first instance, not less than $100, and for every subsequent performance $50; leaving a certain discretion with the court upon that subject; “as to the court having cognizance thereof shall appear to be just.” In other words, it does not necessarily follow that in all cases the precise penalty fixed to the violation of the law shall be given, but the court is to exercise a certain discretion in relation to the matter.
[There is another branch of the case under which it is claimed the plaintiff is entitled to protection, and that is under what is termed the common-law right, irrespective and independent entirely of the statute, and because there has been no publication of the “Octoroon” and “Colleen Bawn” by Mr. Boucicault, or under his authority. If that be so, then he is entitled to the property in his work, existing in manuscript, and nobody can use It without his consent, and If it is so used, every person so using it is liable to respond in damages to him for such use. 'You will understand that there is no question raised in this branch of the case in relation to “Pauvrette,” because that was published with his consent; and, if he is not protected under the law, he is not protected at all, because, having published it himself, he has given it to the public, and the only shield he has is the law.]
The fact that the two unpublished plays, after having been entered here, were published in England, would make no differ’ence, unless that publication was with the consent of the plaintiff. No one would have the right to import and use them. Such consent, however, would be an abandonment of his rights, under our laws, and place him simply in the position of an ordinary English dramatist, who had published his plays in his own country; but this consent must be affirmatively proved.
[It is admitted on the part of the plaintiff that if a play is performed upon a public theatre, and there is a representation of the same from the mere fact of hearing the play performed, that does not constitute a violation of the law. How far that may be true,
There having been no publication in this country of these two plays by him or under his authority, he is entitled by . the common law, independent of the statute, to the property in them existing in manuscript. He may authorize their performance by others, or dispose of his property in them. [The question for you to determine is, if he has not published these works, if he has so disposed of them or acquiesced in the performance of these works by the defendant. I admit, also, that, conceding that he has not published them, he may also act in relation to them, as to, perhaps, deprive himself of the right of calling upon a person to respond in damages for the representation; that is-to say, if he has allowed these plays to be represented throughout the community for a long space of time, without license, and without objection, knowing the fact -to be bo, then I think he may'be considered to have abandoned the use of them to the public. But it must be apparent that it has been done with his knowledge and without objection on his part. That is to say, the facts must exist to indicate that he consented or acquiesced in their performance. Otherwise he is not prevented from claiming his property in these plays. I mean, of course, h's property at common law, as has been ex plained to you.]
Verdict for plaintiff, $900.
[From 7 Am. Law Reg. (N. S.) 539,]
[From 7 Am. Law Reg. (N. S.) 539.]
[Prom 7 Am. Law Beg. (N. S.) 539.]
[From 7 Am. Law Beg. (N. S.) 539.]
[Prom 7 Am. Law Beg. (N. S.) 539.]
[From 7 Am. Law Beg. (N. S.) 539.]