Fleron v. Lackaye

| The Superior Court of the City of New York and Buffalo | Apr 15, 1891

McAdam, J.

He who honestly translates or dramatizes, produces a work in a new and useful form, and is entitled to the same protection extended to original compositions. The value of a translation depends upon the learning and ability of the person who does the work, and upon his adaptability to the particular task undertaken. It requires versatile talent of a high order to do it well. Dramatization requires the skill and experience of the playwright, and the success of the work depends upon his dramatic knowledge and genius. Dion Boueicault received $30,000 for dramatizing “Led Astray,” and other playwrights have received sums almost as large for similar work. It follows that such productions are valuable property, that requires and must receive protection. Any one may dramatize a novel, and the dramatization becomes his property, (Daly v. Byrne, 43 N. Y. Super. Ct. 261, affirmed 77 N.Y. 182" court="NY" date_filed="1879-04-25" href="https://app.midpage.ai/document/daly-v--byrne-3582599?utm_source=webapp" opinion_id="3582599">77 N. Y. 182,) and the author or his assignee, whether a citizen cran alien, is entitled to pz’Otection, (Shook v. Daly, 49 How. Pr. 366" court="None" date_filed="1875-09-15" href="https://app.midpage.ai/document/shook-v-daly-6144562?utm_source=webapp" opinion_id="6144562">49 How. Pr. 366; Widmer v. Greene, 56 How. Pr. 91" court="N.Y. Sup. Ct." date_filed="1878-09-15" href="https://app.midpage.ai/document/widmer-v-greene--thompson-5470924?utm_source=webapp" opinion_id="5470924">56 How. Pr. 91;) and it matters not whether it be the exclusive work of one, or of several acting in co-operation, (French v. Maguire, 55 How. Pr. 471" court="N.Y. Sup. Ct." date_filed="1878-08-15" href="https://app.midpage.ai/document/french-v-maguire-5470908?utm_source=webapp" opinion_id="5470908">55 How. Pr. 471.) In short, all literary compositions now stand substantially upon the same foundation. The owner’s rights in a manuscript play are not lost or prejudiced by its public performance, azid no matter by what means a copy znay be obtained, whether by carrying in the memory, or by the stenographic notes of a spectator, its use without permission is piratical. Palmer v. De Witt, 32 N. Y. Super. Ct. 530, affirmed 47 N.Y. 532" court="NY" date_filed="1872-02-27" href="https://app.midpage.ai/document/palmer-v--de-witt-3606043?utm_source=webapp" opinion_id="3606043">47 N. Y. 532; French v. Conelly, 1 Wkly. Dig. 197. The plaintiff does not dispute the right of any one to translate Dumas’ novel, or to dramatize and iepresent,it on the stage, nor does.he contest the right of the defendant to take part in such performance, and speak the lines of such translation and dramatization. He insists, how.ever, and with right, that the defendant, while performing under such other dramatization, shall not speak the lines nor do the stage business peculiar to the plaintiff’s dramatization. If the defendant had memorized the plaintiff’s lines while attending a performance given by the plaintiff, it would not accord with any notion of propriety to take them to a rival establishment, and there repeat them as somebody else’s literary production. The law would call this piracy, and enjoin it by injunction. The fact that the defendant memorized the lines while in the plaintiff’s employ does not better his case. What came to him during his employment was imparted under a relationship that required him to be faithful to his employer’s interests, and taking his employer’s property, and using it for the profit and gain of another is at least a breach of confidence. By analogy, High, Inj. § 22; Hil. Inj. § 87. At all events, the act is without justification in law or morals, and must be enjoined. The defendant cannot avail himself of the plaintiff’s labors or literary efforts, nor can he dovetail the plaintiff’s lines into the play of another, and have all pass as the dramatization and literary product of that person. In order to keep up the high sense of honor in the dramatic profession, its members must not forget “to suit the action to the word, and the word to the action.”

The license given to Bz'ady does not disable the plaintiff from maintaining the action. He is the owner of the dramatization, and interested in its preservation from piracy.. An injury to it reaches his proprietary right, notwithstanding the temporary license given Brady to perform the play for a limited period. Brady might, perhaps, have enjoined the defendant’s conduct, on the ground of inj ury to his special property, but this is no answer to the plaintiff’s action. Any person injured by the wrongful act of another has a remedy for the wrong, and the fact that more than one has been injured is no defense. Each may redress his special injury without interfering with the other. In Grover v. Swain, 29 Hun, 454, it was held that a mere agent or servant of the person whose action the plaintiff is entitled to restrain should not be made a party defendant, unless the party enjoined is under some “legal liability to the plaintiff upon the facts stated, either as a wrong-doer or tort-feasor, or as a party to some agreement or arrangement with him which could be enforced by judgment.” The defendant, on the facts presented by the plaintiff, isa wrong-doer and tort-feasor, and the principle decided by that case does not exempt the defendant from the injunction prayed for, but makes him liable to it. The suggestion that the novel or the dramatization is immoral is answered by the want of evidence on that subject; for, in the absence of proof to the contrary, the court must assume that it is a legitimate and moral production, particularly in view of the fact that it has been produced with approval before critical audiences at one of the first theaters in the city, i. e., Hiblo’s, where dramatic art has long held sway. The plaintiff is entitled to have the injunction continued.