Primary Sources on Copyright (1450-1900)

www.copyrighthistory.org

Identifier: uk_1833

Commentary on Dramatic Literary Property Act 1833

Ronan Deazley

School of Law, University of Birmingham, UK

Please cite as:
Deazley, R. (2008) ‘Commentary on Dramatic Literary Property Act 1833', in Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org

1. Full title

2. Abstract

3. Macklin v. Richardson (1770)

4. Coleman v. Wathen (1793)

5. Murray v. Elliston (1822)

6. Understanding Murray (1822)

7. James Planché and the Dramatic Writings Bill 1830

8. The State of British Theatre in the Nineteenth Century

9. Theatre in Nineteenth Century France

10. The Dramatic Literary Property Act 1833

11. The Dramatic Authors' Society and the Continued Decline of British Theatre

12. Problems with the 1833 Act

13. References

1. Full title

Dramatic Literary Property Act, 1833, 3 & 4 Will.IV, c.15

2. Abstract

Legislation conferring exclusive rights of public performance for dramatic works. The document contains the following associated material: Parliamentary Debates from Hansard: 13 (1832): 239-59 (uk_1832a); 16 (1833): 560-67 (uk_1833a), 19 (1833): 1220 (uk_1833b), along with the Bill to alter and extend Act with respect to Dramatic Writings 1830 (uk_1830), the Bill to amend Laws relating to Dramatic Literary Property 1833 (uk_1833c) and the Report from the Select Committee on Dramatic Literature (uk_1832).

This piece of legislation marks the first occasion on which the legislature provided the author of a work, in this case the dramatic manuscript, with two exclusive economic rights - the reproduction right (conferred by previous legislation such as the Copyright Act 1814) and the public performance right (conferred by the 1833 Act). The Act also illustrates the influence of continental models for protecting dramatic performances, in particular French and Belgian, on developments in Britain. After the Act was passed, the first British copyright licensing agency, the Dramatic Authors Society, was established.

The commentary describes the background to the Act. It considers the case-law prior to the passing of the Act including arguments as to the existence of a public performance right at common law, as well as setting the legislation within the context of a general parliamentary review in 1832 concerning ‘the State of the Laws affecting Dramatic Literature, and the performance of the Drama' in Britain.

3. Macklin v. Richardson (1770)

In the landmark decision of Millar v. Taylor (1769),[1] the Court of King's Bench held that an author had a copyright in his work at common law, a right which was not affected by the passing of the Statute of Anne 1710.[2] Lord Mansfield (1705-1793) held in favour of the existence of a perpetual right on the basis that it was "just, that an Author should reap the pecuniary Profits of his own Ingenuity and Labour". He continued: "It is just, that another should not use his name, without his consent. It is fit, that he should judge when to publish, or whether he will ever publish".[3] Following this decision, Lord Chancellor Apsley (Henry Bathurst) (1714-1794), in July 1770, ordered Taylor to account for all the copies he had sold, in addition to which he granted a perpetual injunction to the plaintiffs (including Millar's executors) preventing Taylor from printing the work again. Less than six months later, in December 1770, an argument was put to the court in terms that were strikingly similar to those of Mansfield's: "That [the publication complained of] was an invasion of the plaintiff's right and property, who might chuse whether it should be printed and published or not, and if it was, had the sole right to the profits arising from thence".[4] The case was Macklin v. Richardson (1770),[5] and it concerned the publication of a dramatic work, Love a la Mode, which Charles Macklin (1699?-1797) had never published, but which had been performed numerous times on stage since its first production in 1759.[6] The defendants, who were the proprietors of the Court Miscellany, or Gentleman and Lady's Magazine, had employed someone to attend a performance of the play and transcribe it, after which they had published the first Act in their magazine in April 1766.[7] They argued that, as the play had been publicly performed, that performance "gave a right to any of the audience to carry away what they could, and make any use of it"; moreover, they continued that "the plaintiff has not sustained, nor can sustain, any damage, as he has, and will continue to receive the advantage arising from the representation upon the stage".[8] Lord Commissioner Smythe (1705-1778) considered the defendants' arguments ill-founded:

"It has been argued to be a publication, by being acted; and therefore the printing is no injury to the plaintiff: but that is a mistake; for besides the advantage from the performance, the author has another means of profit, from the printing and publishing; and there is as much reason that he should be protected in that right as any other author."[9]

As a consequence, Macklin was granted a perpetual injunction and the defendants were ordered to pay his costs.

The decision and the arguments presented before the court are interesting in a number of respects. In the first instance, the timing of the decision is significant. Coming so soon after the decision of the Court of King's Bench in Millar, Macklin was free to argue for the protection of the court, not upon the Statute of Anne, but upon the common law right of an author in his work. In Millar all the judges had been in agreement that an author had the right to determine when first to disclose his work in print and this was the issue to which the court was now directed.[10] As Bathurst, who was sitting with Smythe, observed: "The printing it before the author has, is doing him a great injury".[11] That the work in question was capable of, indeed originally conceived for, performance upon the stage was not necessarily relevant. Also interesting is the defendants' argument that Macklin would in any event suffer no financial damage in that he would "continue to receive the advantage arising from the representation upon the stage". Is there, in this argument, or indeed in the court's decision, some tacit recognition of a performance right which Macklin reserved to himself so long as the dramatic work remained unpublished?

4. Coleman v. Wathen (1793)

Certainly Macklin himself considered (or at least asserted) that he had such a right. In the same year, 1770, he wrote to Tate Wilkinson (1739-1803), the proprietor of the York Theatre, concerning a production of Love a la Mode. About his play, he wrote as follows: "No lover can be more jealous of the favours of his favourite, than I am of the stolen pleasures of my Muse's favourite, ‘Love-a-la-Mode.'"[12] He continued:

"I will not consent to have it acted on the occasion you mention, or any other, and therefore I am sure you will not permit it. - I am sensible that several Companies act it; and the reason why they have hitherto done it with impunity is, because I was in Ireland: but now I am returned, and shall settle here, depend upon it, I shall put the law against every offender of it, respecting my property, in full force."[13]

The next year Macklin wrote to James Whitley, the manager of a strolling company of players, warning him that:

"[I]t is incumbent upon me to put a stop to the proceedings of Kennedy, Heaton, Miller, Wilkinson [that is, others who had performed the play], and every other person, respecting their acting Love-a-la-Mode. I shall begin with you, Sir, and your whole Company; and shall, as soon as I can, afterwards, prosecute the other Pirates of Love-a-la-Mode."[14]

He continued that "[i]f I can first get redress and future safety without the interference of a court of law, I shall not seek for it there; because I know it would be intolerably hard upon many, who can but ill afford it".[15] Macklin received the assurances he sought from Whitley, but not in exactly the terms that he might have hoped:

"I know that reason is the rock on which law is, or ought to be founded, and that unerring guide tells me, that I have not invaded either your literary property, or offended any part or parcel of the law, in looking on the exhibition, or by not preventing the performance of your Farce. But, Sir, my nature and education soar above the commission of wrongs. I should shudder at the shadow of an unprovoked injury; and, as I am impatient of bearing insult, am ever cautious of affronting: therefore, as a Gentleman, born and bred above meanness, I shall make you this concession; - that I will submit my conduct to the arbitration of any two sensible honest men - and, in the interim, to wipe away your anxiety, solemnly promise that, as it disturbs your peace, Love-a-la-Mode shall never be performed in my Company without your concurrence."[16]

Following this, Macklin's Memoirs record that "[t]his concession on the part of Whitely terminated all differences between the parties, and Mr. Macklin soon after returned to town, well pleased at what he had done".[17] They make no mention of any action taken against Kennedy, Heaton, Miller, or Wilkinson,[18] nor indeed any actual litigation whatsoever as regards the performance of that play or any other of his work.

The exchange between Macklin and Whitely concedes that the dramatic work attracts the protection of the Statute of Anne as a particular form of literary property, but, while relying upon more informal mechanisms to resolve the question of the unauthorised performance of the play,[19] nevertheless leaves the legality of that issue contested. Not until Coleman v. Wathen (1793) was the issue considered before the courts.[20] In Coleman the plaintiff took an action against the defendant, under the Statute of Anne, for staging a production of the play, The Agreeable Surprise, which the plaintiff had purchased from its author, the Irish dramatist John O'Keefe (1747-1833). Erskine, counsel for Coleman, began by suggesting that the very performance of the play by the defendant (in Erskine's words, "so perfect a representation of the work") was sufficient to evidence that the work had been pirated in contravention of the 1710 Act. He then continued: "Besides, if this were not held to be a publication within the statute, all dramatic works might be pirated with impunity; as this was the most valuable mode of profiting by them".[21] Without bothering to hear the arguments on behalf of the defendant Lord Kenyon (1732-1802) observed as follows: "There is no evidence to support the action in this case. The statute for the protection of copy-right only extends to prohibit the publication of the book itself by any other than the author or his lawful assignees. It was so held in the great copyright case by the House of Lords. But here there was no publication".[22] To this, Buller J (1746-1800) added: "Reporting anything from memory can never be a publication within the statute. Some instances of strength of memory are very surprising: but the mere act of repeating such a performance cannot be left as evidence to the jury that the defendant had pirated the work itself".[23]

On first reading, Coleman suggests a plaintiff struggling to find a legal basis upon which to prevent the unauthorized performance of O'Keefe's play. Hence his rather tenuous argument that the nature of the defendant's production (that is its faithfulness to the original) necessarily indicated an unlawful printing of the work in contravention of the Statute of Anne. Why not argue the case upon the common law, especially if O'Keefe's work, like so many of Macklin's, remained unpublished? Although the report of the case makes no mention of the fact, O'Keefe's play had been published in London in 1782.[24] Whether this was known to the court can only be a matter for conjecture, but, given the contemporary understanding of the impact of the decision in Donaldson upon Millar,[25] this might explain why the plaintiff's complaint was in fact grounded squarely upon the 1710 legislation.[26] As such, Coleman perhaps should be understood as standing for no more than the proposition that the unauthorized performance of a published play was not considered unlawful in accordance with the existing legislation. Certainly, this was how it would later be relied upon by the counsel for the defendant in Murray v. Elliston (1822), a case to which we will come in due course.[27] By the same token, when the Select Committee on Dramatic Literature reported to the House of Commons in August 1832, it seems to have been the accepted practice, within the metropolis at least, that while plays remained unpublished, then, as regards the performance of the work, they remained the province of the author or the owner thereof, but that, once printed and published, they might be performed by any company without need for the author's (or the owner's) consent. As one witness who gave evidence before that Committee observed, "[i]t is understood in the minor theatres in London, that as soon as a piece is published they have a right to play it".[28]

5. Murray v. Elliston (1822)

In Macklin we have a decision of the court which prohibits the publication (in print) of a dramatic work much performed but which nevertheless remained unpublished; and with Coleman we have a decision which perhaps suggests no more than that the performance of a published play does not amount to an infringement of the existing copyright legislation. What then of the unauthorised performance of the unpublished play? In Morris v. Kelly (1820) an injunction was granted to prevent the performance of another of O'Keefe's plays, The Young Quaker, which at the time does not appear to have been published (in England at least).[29] Here then we seem to find some legal validation of Macklin's belief that the public performance of an unpublished work was indeed an unlawful violation of a playwright's ‘property'. And yet, we perhaps should also sound a note of caution before reading too much into the grant of the injunction. When Morris himself gave evidence before the Select Committee on Dramatic Literature in 1832 about the relevance and implications of the Coleman decision, he responded simply:

"But you get an injunction, and injunctions have never been refused whenever they have been prayed for. Covent Garden or Drury Lane formerly played several pieces belonging to the Haymarket theatre. I applied to the Court of Chancery, and prevented their playing most of the pieces I have named to you, Peeping Tom, the Agreeable Surprise, the Son-in-law, and particularly in the case of the Young Quaker..."[30]

That The Agreeable Surprise features amongst the list of the Haymarket's protected plays, in spite of Lord Kenyon's earlier decision, does indeed come as some considerable surprise. It does not seem that there was ever any problem in the early nineteenth century about persuading Chancery to grant injunctions as a matter of course to protect works, whether published or not. Nor does it appear that there was any want of litigation of this kind between theatrical producers at the time. As the Lord Chancellor remarked in Elliston v. Jones (1821):

"Disputes respecting theatrical property had lately become so frequent, that it might be adviseable to institute a separate Court for deciding them. The Court had traveled through almost all the theatres in the metropolis. The Circus, the Opera-House, Sadler's Wells, and Covent-garden, had alternately come under its consideration; and now it had unfortunately got to Drury-lane."[31]

In any event, with the case of Murray v. Elliston (1822) the question of what rights existed in a dramatic work was brought once again before the common law courts.[32]

In Murray the defendant had staged a production at the Theatre Royal, Drury Lane, based upon Byron's (1788-1824) work Marino Faliero, Doge of Venice, the copyright in which Byron had assigned to the bookseller, John Murray (1778-1843), who had published it the previous year.[33] James Scarlett, later Lord Abinger (1769-1844), argued the case for the plaintiff. He distinguished Coleman, which he explained "turned upon the words of the statute". His client's case, however, depended not upon the 1710 Act "but on the right of property which the plaintiff has in his work". "The moment such a right is established," he suggested, "the consequences must follow, that any injury done to the property is the subject of legal redress". He continued that "whether the right of property arise from the common law, or from the statutes relative to it, is in this case immaterial. For, if the statute makes a literary work property, the common law will give the remedy for the invasion of it".[34] Adolphus, for Elliston, grounded his defence squarely within the contemporary understanding of Donaldson,[35] that the majority of common law judges had decided that any action at common law was taken away by the Statute of Anne and that "the author was precluded from every remedy, except on the statute". In the case before him, however,e He continued"[t]he claim by the plaintiff ... is at variance with [that earlier] decision. For here, he contends for a far more comprehensive security, and one coexisting with that given by the statute, and restraining the public in points of which the statute takes no notice".[36] A theatrical production, he continued, was similar to a bona fide abridgement of a book, in which case the derivative work was "not in all reasonable strictness such as may be called the author's own book".[37] Persons go to the theatre, he maintained:

"[N]ot to read the work, or to hear it read, but to see the combined effect of poetry, scenery, and acting. Now of these three things, two are not produced by the author of the work; and the combined effect is just as much a new production, and even more so than the printed abridgment of a work. There are many instances in which works published have thus, without the permission of their authors, been brought upon the stage. The safe rule for the Court to lay down is, that an author is only protected from the piracy of his book itself, or some colourable alteration of it, and in that case the defendant is entitled to the judgment of the Court."[38]

Abbott CJ (1762-1832), and the rest of the King's Bench, held for the defendant: "[A]n action cannot be maintained by the plaintiff against the defendant for publicly acting and representing the said tragedy, abridged in manner aforesaid".[39]

6. Understanding Murray (1822)

It is not immediately clear how the decision of the court in Murray should best be understood. On the one hand, it might be read as falling in line with the decision of Coleman in which the unauthorized performance of a published play was considered legally permissible within the parameters of the Statute of Anne. However, in drawing a parallel between a lawful abridgement of a work and a theatrical performance of the same, Adolphus introduces more than an element of doubt as to the rationale behind the court's decision. All the more so, given that Abbott CJ himself seemed to agree with the argument that the production might indeed be understood as an ‘abridged' version of the original published play. On the other hand, then, acknowledging that the production was only lawful as it was akin to a bona fide abridgement by definition suggests an implicit recognition of a performance right in dramatic works even when they had been previously printed and published, and so contrary to the decision in Coleman.

Yet, on balance, there are a number of reasons for preferring the former reading. In the first place, intuitively, it would follow from the latter analysis that almost every new production of a published work would amount to an abridged, and so lawful, performance of the dramatic piece, in that every production would differ in terms of both ‘scenery' and ‘acting' than the last. That is, the judicial recognition of the existence of a performance right in a published work would be meaningless if every performance, on account of "the combined effect of the poetry, scenery, and acting", were to be considered an abridgement of that published work. In the second place, to return to the Select Committee's Report, the latter analysis is simply out of line with the practice and understanding of the theatrical agents of the time. Again, to quote from the Minutes of Evidence appended to the Report: "[I]t is generally considered that after a play is printed it is public property".[40] Third, when one turns to the account of the case in The Times on 5 May 1822 one is struck both by the fact that the analogy of the performance as fair abridgement occupies but one line of Adolphus' argument before the court, as well as by the substantial passage which precedes that one line in the newspaper report (which passage is omitted from the official law report):

"Where was the violation of property by representing a piece in whole or in part - by endowing a dead letter with breathing life, more than in reading and reciting a work, or even transferring its most exquisite scenes to the canvas? Or suppose this last transfer reversed, suppose someone could turn all Hogarth's inimitable prints into farces,[41] could the proprietor of the prints come forward and assert his right of action, because the prints were superceded by the living pictures of the stage? Miss Baillie's De Montfort,[42] and Mr. Milman's Fazio,[43]had both been acted, and the authors never thought of complaining in a court of law of the injury. As well might it be said that it was a violation of copyright to play a new sonata, or air, or overture, in a theatre."[44]

The public performance of print works, whether literary, artistic,[45] or indeed musical,[46] was simply not conceived as falling within the protections provided by copyright as traditionally understood. Until this point in time copyright, whether one considered it a common law or a purely statutory right, operated to prevent the unauthorised reproduction of a work in the same medium in which the protected work was given tangible form. Books, engravings, and musical scores were all considered to be, and protected as, print phenomena; similarly, the sculpture acts sought to prohibit the manufacture and sale of three-dimensional copies of "any new Model, or Copy or Cast made from such new Model".[47] Indeed Aston J (1717-1778), speaking in the majority in Millar, perhaps hints at this very point in discussing the nature of the rights enjoyed by an author in his written work at common law:

"Can it be conceived, that in purchasing a literary composition at a shop, the purchaser ever thought that he bought the right to be the printer and seller of that specific work? The improvement, knowledge, or amusement, which he can derive from the performance, is all his own: but the right to the work, the copy-right remains in him whose industry composed it."[48]

Finally, and perhaps most significantly, the decision in Murray neither gave rise to any further litigation along the same lines, nor did it preclude the subsequent demands and recognition of the need for a statutory protection for the same.

7. James Planché and the Dramatic Writings Bill 1830

The only case concerning a dramatic work, reported between the decision in Murray and the publication of the Select Committee's Report on Dramatic Literature in 1832, was Dolby v. Lowndes (1824), which did not concern the performance of a work, but rather the publication of a revised version of A New Wonder, a Woman never Vext by William Rowley (1585?-1626), the seventeenth century dramatist.[49] The play had been revised by James Robinson Planché (1796-1880) with the new title of A Woman never Vext, or the Widow of Cornhill and published by Dolby, after which Lowndes published an unauthorised edition.[50] Six years later Planché was also involved in bringing the cause of dramatic authors before Parliament for the first time. On 22 February 1830 leave was given to bring in a Bill to alter and extend the provisions of the [1814 Copyright Act] with respect to Dramatic Writings. George Lamb (1784-1834) and Sir James Mackintosh (1765-1832) were charged with the task of preparing and bringing in the same.[51] Planché, in his evidence before the Select Committee in 1832, revealed the extent of his personal involvement in securing the introduction of the Bill:

"I had the honour some time ago to submit to the House of Commons, through the medium of Mr.Lamb, a bill upon this subject; and I took the opinion of several legal and literary gentlemen, and it was proposed ... that unless the manager of a theatre could produce an attested permission from the author to play that piece, he should be fined a certain sum..."[52]

Turning to the Bill itself, it provided that the author of unpublished dramatic works was to have "as his own property, the sole liberty of representing or causing to be represented" the work, in any part of the United Kingdom or the British Dominions, and that the author of any work of drama to be published after the passing of the Act would have the right of representing the same for the duration of 28 years, and then, should he be living at the end of that time, for the duration of the residue of his natural life.[53] Anyone performing such works without the consent of the author was liable to be fined £10 for every performance, as well as damages and the double costs of suit.[54] The Bill further provided that any action had to be commenced within 12 months of the offence,[55] and, interestingly, specifically provided that "wherever authors, persons, offenders or others, are spoken of in this Act in the singular number or in the masculine gender, the same shall extend to any number of persons and to either sex".[56] The Bill however never made it out of the committee stage in the Commons.[57]

8. The State of British Theatre in the Nineteenth Century

In May 1832, the issue was once more brought to the attention of the Commons. This time, however, the catalyst for action lay, not with Planché or any other playwright, but with a series of prosecutions undertaken by the two major metropolitan theatres, Covent Garden and Drury Lane, against the minor theatres for performing ‘legitimate drama' (that is, spoken drama) in violation of the patents originally granted to them by Charles II (1630-1685) in 1662.[58] In particular, Moody notes, it was the "conviction of the Tottenham Street managers [of the City Theatre] at the King's Bench, not to mention a fine of £350, [which] convinced managers, performers and spectators alike of the urgent need to seek parliamentary authority for a change in the dramatic laws".[59] Similarly, Davis writes that, following the decision, "the minors sought reform through parliamentary means, holding numerous benefits for this purpose ... and tapping into popular unrest".[60] As a result, a petition was received in the Commons from various "Noblemen, Gentlemen, Merchants, Traders and others, residents of London" concerning the monopoly control that the Patent Theatres were exerting within the capital.[61] In short, the petitioners wanted the opportunity to see such works performed elsewhere than at Covent Garden and Drury Lane.[62] Following a further petition to the same effect from the residents of Westminster, Clerkenwell, and Lambeth,[63] Edward Bulwer-Lytton (1803-1873), a novelist who would later become a successful dramatist in his own right,[64] moved that a Select Committee be appointed to inquire into "the State of the Laws affecting Dramatic Literature, and the performance of the Drama".[65] There were, in Bulwer-Lytton's opinion, three main issues for consideration. The first concerned the privileges which the two principal theatres held, and how those privileges impacted upon both the preponderance and the quality of dramatic performance elsewhere within the capital, as well as the state of "the national drama" writ large.[66] The second concerned the role of the Lord Chamberlain as dramatic censor, whose prerogative authority had received statutory endorsement with the passing of the Licensing Act in 1737.[67] The third, unsurprisingly, concerned "the state of the laws regarding dramatic copyright".[68] On this he observed as follows:

"The state of the law regarding literary property was infinitely more harsh and inconsistent than that existing in France; but the state of the laws regarding dramatic copyright alone, would long be a proof how indifferent that House had been to the general claims of that property, which ought to be the most sacred of all, because it encouraged all - because it ennobled all - because it produced all - the property that is derived from intellectual exertion. The instant an author published a play, any manager might seize it - mangle it - act it - without the consent of the author - and without giving him one sixpence of remuneration. If the play was damned, the author incurred all the disgrace; if the play succeeded, he shared not a farthing of the reward ... [The author] had no power - no interest in the results of his own labour - a labour often more intense and exhausting than the severest mechanical toil. Was this a just state of things? The commonest invention in a calico - a new pattern in the most trumpery article of dress - a new bit to our bridles - a new wheel to our carriages - might make the fortune of the inventor; but the intellectual invention of the finest drama in the world, might not relieve by a groat the poverty of the inventor. If Shakespeare himself were now living - if Shakespeare himself were to publish a volume of plays, they might be acted every night all over the kingdom - they might bring thousands to actors, and ten thousands to managers - and Shakespeare himself, the producer of all, might be starving in a garret."[69]

That the designers of calico fabrics might grow fat while a penniless Shakespeare might starve presumably proved too much for the House to bear;[70] a Committee was appointed with Bulwer-Lytton as Chair.[71]

The Select Committee heard evidence throughout June and July and Bulwer-Lytton presented the Report to the House on 2 August 1832.[72] Of the authors who gave evidence to the Committee, while some complained about the treatment they had suffered at the hands of the metropolitan theatres,[73] all were broadly in agreement that, should the provincial theatres be required by law to make some small payment for the performance of their works, whether published or unpublished, then dramatic authors would be considerably better off. William Moncrieff (1794-1857), who had started life as a clerk in a London solicitor's office, suggested that were he to receive half-a-crown for every performance of his work, whether in London or elsewhere, "instead of being one of the poorest men, I should be one of the richest".[74] Planché proffered a somewhat more modest analysis, calculating that, if he were paid just five guineas for each performance of his work, then "at this moment I should be receiving 100l. a year from provincial theatres, without any detriment to their interests".[75] The problem of course would lie in policing and enforcing such legislation, and this was not a point lost upon the Committee. When David Morris, the proprietor of the Haymarket Theatre, was asked as to whether he thought an author might not be better off if the country theatres were obliged to pay for each performance of his work, he replied:

"[I]f anything, it would be a very inconsiderable sum, and when it was offered, it would be hardly worth a gentleman's consideration. I should conceive also that they would have the greatest difficulty in getting the money from a provincial manager, and from the uncertainty and thinness of their audiences, they could not afford it. At all events, they could not afford to give any considerable sum; it must be the smallest sum, and obtained with the greatest difficulty."[76]

Similarly, when Thomas Morton (bap.1764, d.1838) was asked whether "if a play was acted and pirated in the country, it would be worth the author's while to bring an action against the manager", he replied simply: "It would not".[77]

9. Theatre in Nineteenth Century France

Neither, however, were the Committee unaware of a potential solution to the problem of enforcement. Bulwer-Lytton, when he initially addressed the Commons, made reference to the fact that "[t]he state of our laws in this respect [are] scarcely credited in foreign countries",[78] citing the French and Belgium models of rewarding dramatic authors as a case in point. The advantages of the French model in particular surfaced again and again in the discussions before the Committee.[79] One exchange between Bulwer-Lytton and Peter Francis La Porte, then manager at Covent Garden, reads as follows:

"With respect to the manner of rewarding authors at Paris, does he not derive a profit from every time his play is performed?

- He does.

Does he really bona fide obtain it?

- He does.

How is it in the provinces?

- In the provinces it is divided into classes, and each town, according to its importance, pays a certain sum for each play nightly.

How does the author know that his play has been performed?

- There is an agency in every town, and it is collected every year.

Is it pretty regularly remitted?

- Always.

What sum does the author generally receive from the profits?

- In the large places, such as Lyons and Marseilles, which are supported by the government, they receive nearly one half what they receive in Paris; in minor towns they receive according to a scale, I could not say exactly at present.

Does it not rest with the author to allow his play to be performed or not; and if he chose to say, "I am not disposed to take the terms you offer me," might not he refuse to have it performed?

- There are no terms, except the 12 per cent upon the receipts.^[[80]^]

But he might refuse to have his play performed?

- Yes.

Is not his play for a certain number of years the property of his wife and children?

- For 10 years; there is now talk of making it a downright inheritance forever.

Do you not consider that that would be a great encouragement to persons to produce plays that would be permanent?

- Decidedly.

And it would tend to give a lofty character to the drama?

- Decidedly." [81]

Thomas James Thackeray (1796-1877), writing in the same year as the Select Committee carried out their investigation, outlined the various benefits of the French system, in the following terms:

"The representation of a work creates for the author a triple right:- pecuniary emolument - free admission to the theatre - and tickets ... In order to secure the receipts due to authors, several precautions have been prescribed by the laws. The theatres are forbidden to change the titles of pieces which have been performed, as it might prevent the author from recognising his own, and thereby deprive him of the means by which he could claim his remuneration. Moreover, the managers are bound to keep a register, wherein they are obliged to inscribe, and to have signed by the police officer on service at each representation, the pieces which are performed, in order that the number of representations of each may be ascertained ... The principles which regulate the rights of authors in the capital, are the same in the provincial theatres. ... The difficulty of keeping up a correspondence with the theatres of each department, of collecting the receipts at different and remote points of the country, have given rise to the appointment of certain agencies, which are named to collect and to recover all claims due to authors. These agencies, which take the appellation of Dramatic Correspondents, represent the authors from whom they have received legal powers, and, with their deputies in each town, can exercise all the rights the authors themselves possess. Under this title they recover all the claims that are due. ... Authors find it their interest to employ agents who represent them with regularity and at a small expense. Provincial theatres have in their agents the convenience of arranging with a few persons, instead of the numerous proxies authors would be obliged to appoint."[82]

Ultimately, a variation of this French model would take root within Britain as a result of the securing of the Dramatic Literary Property Act 1833 and the subsequent founding of the Dramatic Authors' Society later that year.

10. The Dramatic Literary Property Act 1833

When Bulwer-Lytton laid the Committee's Report before the Commons, as to the rights of dramatic authors, it read as follows:

"In regard to Dramatic Literature, it appears manifest that an Author at present is subjected to indefensible hardship and injustice; and the disparity of protection afforded to the labours of the Dramatic Writer, when compared even with that granted to Authors in any other branch of Letters, seems alone sufficient to divert the ambition of eminent and successful Writers from that department of intellectual exertion. Your Committee, therefore, earnestly recommend that the Author of a Play should possess the same legal rights, and enjoy the same legal protections, as the Author of any other literary production; and that his Performance should not be legally exhibited at any Theatre, Metropolitan or Provincial, without his express and formal consent."[83]

In the next Parliamentary session, on 12 March 1833, Bulwer-Lytton, along with a Mr. O'Connell,[84] was ordered by the House to bring in a Bill to amend the Laws relating to Dramatic Literary Property.[85] Less than three months later the Dramatic Literary Property Act 1833 was passed.[86] The Bill as originally presented to the House was very much modelled on Planché's Bill from 1830 subject to three significant changes. In the first place, whereas the 1830 Bill provided a performance right for unpublished works and works printed "after the passing of this Act", the 1833 Bill extended this protection to include works that had been printed "within Seven years before the passing of this Act" also.[87] In the final version of the Act, this seven year period was extended to ten years.[88] Second, a proviso was introduced to ensure that any arrangements concerning the authorised performances of existing works made prior to the passing of the Act would remain unaffected by the legislation.[89] And third, the Bill considerably increased the penalties for breach. Whereas the 1830 Bill had provided that anyone infringing against the legislation were liable to be fined £10 for every performance, as well as damages and the double costs of suit, the 1833 Bill set out that "every such offender shall be liable for each and every such Representation to the payment of the sum of Fifty Pounds, as and by way of liquidated damages to the Author ... together with double costs of suit".[90] Again, however, this was altered by the time the Act received the Royal Assent to provide that liability would amount to "not less than Forty Shillings [that is, £2], or to the full Amount of the Benefit or Advantage arising from such Representation, or the Injury or Loss sustained by the Plaintiff therefrom, whichever shall be the greater Damages".[91]

Moving from the differences between the statute and its previous incarnation in the guise of Planché's 1830 Bill, let us consider one or two points as to the substance of the Act itself. The protected subject matter included "any Tragedy, Comedy, Play, Opera, Farce, or any other Dramatic Piece or Entertainment". The nature of the protection concerned the performance of these works "at any place or places of Dramatic Entertainment whatsoever" throughout the United Kingdom and the British Dominions.[92] As regards the duration of that right, published dramatic works were protected for 28 years from the day of first publication of the same and "if the Author or Authors, or the Survivor of the Authors" was still living at the end of that time then for the remainder of his life. This model was clearly based upon the term of protection set out in the Copyright Act 1814. However, unlike the 1814 Act, or indeed any previous copyright legislation, this provision acknowledges, albeit awkwardly, situations of joint authorship in the production of cultural goods such as plays and dramatic pieces. As for the duration of protection for unpublished works, the statute did not impose any finite term.[93] It is of some interest in this regard that the duration of the statutory right, that is the right of representing the work, should not be determined by the first exercise of that right. If the term of protection for printing and reprinting a work was contingent upon the point of first publication, then why not similarly link the statutory right to perform the work to the date of first public performance? And yet, given the evidence presented before the Select Committee, it is entirely understandable that the legislature should set out a statutory protection for the unpublished dramatic work that aligned itself with the common assumptions and practices underpinning the general operation of the theatre trade at this time, but that also functioned to attribute the same status to the unpublished dramatic work as the unpublished literary work enjoyed in relation to the contemporary understanding of the interplay between Millar, Donaldson and the Statute of Anne.

11. The Dramatic Authors' Society and the Continued Decline of British Theatre

Soon after the 1833 Act was passed the Dramatic Authors' Society (DAS) was established for the purpose of sponsoring the publication of dramatic works, identifying copyright violations, and, most importantly, collecting fees for its members.[94] The DAS was, in effect, Britain's first copyright collecting society. Many of those authors who had given evidence before the Parliamentary Select Committee numbered among its first members. Indeed Douglas Jerrold (1803-1857) was named the Society's first Chairman, and Thomas Serle, its first Secretary. About its role in collecting fees, Stephens writes as follows:

"[T]he day-to-day business of fee collection in the 1830s appears to have been delegated to John Miller, the theatrical booksellers and publisher ... who also became the DAS's first publisher of members' plays. The scale of fees which applied to the provinces took into account the genre and length of the play, the size and status of the theatre in which it was to be produced, and, in special cases, the eminence of the author concerned. ... [I]t was normally possible for responsible managers to negotiate a composite fee for performing the plays of any dramatist on the Dramatic Authors' Society list, lasting up to a whole season at a time."

In 1836, when the Society issued a notice as to the scale of charges to be paid by provincial theatres, it ranked the non-metropolitan theatres as either first,[95] second,[96] or third-class.[97] Theatres would then pay different fees depending both upon the length of the work (whether one act, two act, or a work of three acts or more) and their class ranking. So, for example, a first class theatre putting on a five act play would pay 10s. a night, whereas a third class theatre staging the same piece would only pay half that amount.[98] In Stephens' words, "[a]s an agency for fee collection, especially in the provinces, it was indispensable".[99] One impact, however, of this new licensing arrangement is commented upon by Moody as follows:

"[T]his scheme probably contributed to the commercial demise of legitimate drama, for according to the scale of fees ... three-act dramas now commanded the same fees as legitimate tragedies and comedies. In other words, illegitimate plays were now valued in the marketplace at the same price as tragedy and comedy. The Society had simply abandoned any commercial distinctions between the values of tragedy and burlesque, comedy and melodrama in favour of the cold, economic logic of supply and demand; these new prices confirmed the commercial triumph of illegitimate genres."[100]

In any event, despite the introduction of the legislation, and the founding of the DAS, the material situation of dramatists did not immediately improve. Indeed, if anything, throughout the next two decades it got steadily worse. Stephens captures the economic climate for the playwright at this time:

"If the 1840s were bad for the dramatist, the 1850s were the financial doldrums. As the value of dramatic property plummeted the expectations of playwrights such as Tom Taylor, Shirley Brooks, and even a veteran like Planché were limited to the ‘wretched sum' of £50 or £100 per act ... Low as these figures are, they pale by comparison with the unhappy fate of playwrights compelled to sell at or near the bottom of the market. A pantomime by Edward Leman Blanchard was worth £10 a time to the Surrey, Marleybone and Sadler's Wells theatres in 1851 but only 2 guineas to George Conquest at the Grecian in the East End."[101]

Various reasons for the general decline in the dramatic arts were proffered and discussed before the Select Committee in 1832 including the incompetent management of theatres in general, the high salaries which actors demanded, and excessive production costs.[102] Such factors continued to depress the theatrical market, and so authors' fees, regardless of the intervention of the legislature.[103]

12. Problems with the 1833 Act

Problems with the legislation came to light with the first case to be decided under the 1833 Act: Cumberland v. Planché (1834).[104] Planché had, in 1828, sold the copyright in several plays, including The Greeneyed Monster, to Cumberland; prior to the assignment he had also granted the right of performing the piece to the Haymarket. After the Act, however, both plaintiff and defendant claimed the right to represent the piece under the new legislation. Cumberland based his claim upon a particularly literal reading of the statute which provided "the author of any such production, printed and published within ten years before the passing of this act by the author thereof ... or the assignee of such author" with a representation right for 28 years. Pollock, for Cumberland, argued that the reference to an "assignee" could only mean the assignee of the copyright under the existing legislation (that is, the right to print and publish), in that prior to the 1833 Act there existed no other right (such as a performance right) to assign. Scarlett, on behalf of Planché, argued on point of principle:

"The intention of the late Act was to confer a new privilege upon the author. That privilege cannot have been assigned away by the author before he possessed it ... The general object of the [Act] was to encourage genius; and therefore the new privilege must have meant to be conferred on the author."[105]

Denman CJ (1779-1854), and the rest of the court, held in favour of the plaintiff: "It appears to me that the plaintiff is the assignee spoken of in the late Act. In the early part of the Act, this is the kind of assignee spoken of; for it is the only kind there could then be".[106] Littledale J (1767-1842) concurred: "We cannot, therefore, say that ‘assignee' means the assignee of the privilege created by the Act. The author may, perhaps, lose some privileges by this construction; but it seems to me that the Legislature intended to give the right of representation to the persons entitled to the copyright".[107]

Regardless of the manner in which Denman's reading of the legislation operated to disenfranchise the playwrights of works already in print of the benefits of the new legislation, to the benefit of those booksellers responsible for printing the same, the Dramatic Literary Property Act 1833 represents a pivotal moment in the history of the development of copyright within Britain. It is noteworthy in terms of the evident and explicit influence which the French experience exerted in providing a model both for the protection of dramatic works per se, as well as the means of policing and enforcing that protection. In this regard the formation of the Dramatic Authors' Society is of considerable importance in providing a peculiarly British example of the collective management and distribution of performance fees, a prototype for future copyright collecting societies to come. More significantly, though, for the first time the legislature provided a protection for a particular kind of work, the play, which transcended the tangible medium in which the protected work was ordinarily published. Lord Chancellor Smythe in Macklin had commented upon the two means by which an author might profit from a dramatic work - publication and performance.[108] With the 1833 Act the legislature was giving explicit legal recognition to the latter.[109] This was also the moment then in which ownership of the work, in this case the play, could give rise to a multiplicity of legally protected economic rights - the forerunner to the ‘bundle of rights' with which copyright today is now so readily associated.[110]

Arguably, the significance of this development should not be overstated. The 1833 legislation was in any event still decidedly ‘pre-modern' in that, like the various copyright acts which preceded it, it was an ad hoc and subject-specific response to a problem concerning a particular disaffected social group,[111] in this case, playwrights. While the new legislation ensured that dramatic works could not be performed without the owner's authorisation, the legislators did not consider it necessary or appropriate to prohibit the dramatization and performance of ‘non-dramatic' literary works on the stage, a practice which was well-established long before the passing of the 1833 Act. Thomas Dibdin (1771-1841), for example, regularly adapted Walter Scott's (1771-1832) novels for the stage, dramatizations which, Moody recounts, "attracted thousands of spectators to the Surrey [as] West End carriages swept across Waterloo Bridge to St. George's Fields to see realised on stage the works of the nation's most celebrated novelist".[112] Indeed, in one instance, in 1822, Dibdin was able to stage an adaptation of Scott's novel, The Pirate, within a fortnight of its first appearance in the bookshops of London.[113] When the issue first came before the courts, in Reade v. Conquest (1861), the defendant's contention that "representing the incidents of a published novel in a dramatic form upon the stage, although done publicly and for profit, [was] not an infringement of the plaintiff's copyright therein" was considered to be correct.[114] Moreover, this situation would remain unchanged until the passing of the Copyright Act 1911.[115]

13. References

Government papers and legislation

Statute of Anne, 1710, 8 Anne, c.19

Licensing Act, 1737, 10 Geo.II, c.28

Models and Busts Act, 1798, 38 Geo.III, c.71

Copyright Act, 1814, 54 Geo.III, c.156

Dramatic Literary Property Act, 1833, 3 & 4 Will.IV, c.15

Copyright Amendment Act, 1842, 5 & 6 Vict., c.45

Copyright Act, 1911, 1 & 2 Geo.V, c.46

Report of the Select Committee to inquire into Laws affecting Dramatic Literature, 1831-32, Paper No.679, VII., 1

Cases

Marsh v. Conquest (1864) 17 CB (NS) 418

Elliston v. Jones (1721) The Times, 1 March 1821

Millar v. Taylor (1769) 4 Burr. 2303

Donaldson v. Becket (1774) 4 Burr. 2408

Macklin v. Richardson (1770) Amb. 694

Coleman v. Wathen (1793) 5 D. & E. 245

Morris v. Kelly (1820) 1 J&W 481

Murray v. Elliston (1822) in The Times, 4 May 1822

Dolby v. Lowndes (1824) The Times, 22 November1824

Cumberland v. Planché (1834) 1 AD & E 580

Norton v. Shelders (1838) The Times, 6 Dec. 1838

Lee v. Simpson (1847) 3 C.B. 871

Russell v. Smith (1847) The Times, 14 May 1847

Russell v. Briant (1847) The Times, 11 Dec. 1847

Russell v. Smith (1848) 12 QB 217

Morton v. Copeland (1855) The Times, 23 May 1855

Reade v. Conquest (1861) 9 CB (NS) 755

Reade v. Lacy (1861) 1 J. & H. 524

Toole v. Young (1874) 9 LR 523, 527

Wall v. Taylor (1883) 11 QBD 102

Duck v. Bates (1884) 12 QBD 79

Books and articles

Arnold, S., and O'Keefe, J., The Agreeable Surprise, a Comic Opera, (London: Bland, 1782)

Baillie, J., De Monfort (London: Longman, Hurst, Rees & Orme, 1807)

Barrett, D., "Play Publication, Readers, and the ‘Decline' of Victorian Drama", Book History, 2 (1999): 173-87

Burroughs, C.B., Closet Stages: Joanna Baillie and the Theater Theory of British Romantic Women Writers (Philadelphia: University of Philadelphia Press, 1997)

Byron, G.G.N., Marino Faliero, Doge of Venice, An Historical Tragedy, in five acts, (London: Murray, 1821)

Davis, T.C., The Economics of the British Stage, 1800-1914 (Cambridge: Cambridge University Press, 2000)

Dibdin, T.,The Pirate: A Melodramatic Romance (London: Barnes, 1822)

Ganzel, D., "Patent Wrongs and Patent Theatres: Drama and the Law in the Early Nineteenth Century", PMLA, 76 (1961): 385-92; Moody, 41-47

Gaunt, W., The World of William Hogarth (London: Jonathan Cape, 1978)

Hart Milman, H., Fazio A Tragedy, (Oxford: n.p., 1815)

Kinservik, M.J., "Beyond Romanticism: New Books on Late Eighteenth and Early Nineteenth-Century British Drama", Eighteenth Century Studies, 35 (2001): 109-115

Liesenfeld, V.J., ed., The Stage and the Licensing Act 1729-1737 (New York & London: Garland Publishing, 1981)

Liesenfeld, V.J., The Licensing Act of 1737 (Wisconsin: University of Wisconsin Press, 1984)

Macklin, C., Memoirs of the Life of Charles Macklin. Edited by Kirkman, J.T. 2 vols. (London: 1799), 1: 395-403

Moody, J., Illegitimate Theatre in London, 1770-1840 (Cambridge: Cambridge University Press, 2000)

Nicoll, A., World Drama: From Æschylus to Anouilh (London: Harrap & Company, 1949)

Sherman, B., and Bently, L., The Making of Modern Intellectual Property Law (Cambridge: Cambridge University Press, 1999)

Shellard, D., and Nicholson, S., with Handley, M., The Lord Chamberlain Regrets ... A History of British Theatre Censorship (London: The British Library, 2004)

Stephens, J.R., The Censorship of English Drama, 1824-1901 (Cambridge: Cambridge University Press, 1980)

Stephens, J.R., The Profession of the Playwright: British Theatre 1800-1900, (Cambridge: Cambridge University Press, 1992)

Thackeray, T.J., On Theatrical Emancipation and the Rights of Dramatic Authors (London: Chapple, 1832)

[1] Millar v. Taylor (1769) 4 Burr. 2303; see: uk_1769.

[2] Statute of Anne, 1710, 8 Anne, c.19; see: uk_1710.

[3] Millar v. Taylor, 2399.

[4] Macklin v. Richardson (1770) Amb. 694, 695.

[5] Ibid.

[6] For a personal account of the play's first performance and subsequent success, see Charles Macklin, Memoirs of the Life of Charles Macklin, J.T. Kirkman, ed., 2 vols. (London: 1799), 1: 395-403.

[7] This litigation actually commenced in 1766; however, as Millar was already before the courts at that time, it was decided to hold the case until the resolution of the King's Bench litigation.

[8] Macklin v. Richardson, 696.

[9] Ibid.

[10] In defining the right under discussion in Millar, Lord Mansfield commented as follows: "The property in the copy ... is equally an incorporeal right to print a set of intellectual ideas or modes of thinking, communicated in a set of words and sentences and modes of expression. It is equally detached from the manuscript, or any other physical existence whatsoever"; Millar v. Taylor, 2396.

[11] Macklin v. RIchardson, 696.

[12] Macklin, 2: 32.

[13] Ibid., 33.

[14] Ibid., 40-41.

[15] Ibid., 41.

[16] Ibid., 43-44.

[17] Ibid., 45.

[18] They do refer to a further letter which Macklin sent to Tate Wilkinson in 1772: "Mr. Macklin, being still apprehensive that Mr. Tate Wilkinson intended to treat the public with the representation of Love-a-la-Mode, wrote to him on that head, and [was] afterwards assured that Mr. Wilkinson had no idea of purloining Sir Archy any more"; ibid., 47.

[19] It seems that this was very much how Macklin controlled the performance of his plays. One witness giving evidence before the House of Commons Select Committee on Dramatic Literature, in 1832, commented as follows: "Macklin, for a considerable time, held the pieces he wrote in his own power, and threatened to prosecute country managers that performed his plays"; Report of the Select Committee to inquire into Laws affecting Dramatic Literature, 1831-32, No.679, VII., 1, 136.

[20] Coleman v. Wathen (1793) 5 D. & E. 245.

[21] Ibid.

[22] Ibid.

[23] Ibid.

[24] S. Arnold and J. O'Keefe, The Agreeable Surprise, a Comic Opera, (London: Bland, 1782).

[25] That is, what common law rights might have existed in a literary (or indeed a dramatic) work were upon publication of the work nevertheless supplanted by the protections of the legislation.

[26] Note, however, the exchange in the Evidence given before the Select Committee on Dramatic Literature in 1832: "[Mr T. Morton]: [T]here was a case, I think, where Mr.Coleman, senior, brought an action against some one for acting one of O'Keefe's pieces at Richmond, the Son-in-Law, I believe. It came to a hearing, and I think Lord Kenyon, but I dare not speak positively to it, I think Lord Kenyon held that a performance was publication. [T.S. Duncombe, in the Chair]: That was an unprinted play, of which the proprietors of the Haymarket had bought the copyright entirely? - Yes, of O'keefe, and it was said that it would be necessary for Mr. Coleman to prove special damage before a jury; as well as my memory serves me, however, Mr. Coleman failed in obtaining what he considered justice"; Select Committee Report, 143. However, not only are Morton and Duncombe discussing the wrong play, but O'Keefe's The Son-in-Law was also published by T. Cadell in London in 1781. About The Son-in-Law, however, D.E. Morris, proprietor of the Haymarket Theatre also observed: "The farce of the Son-in-Law, written by O'keefe, the sum paid for that was 40 guineas; it was produced in 1779, and the sum paid was 40 guineas; it is a manuscript now belonging to the Haymarket theatre"; Select Committee Report, 150.

[27] In the report of Murray v. Elliston (1822) in The Times, 4 May 1822, Adolphus, counsel for the defendant, is reported as commenting that "[t]he case of Colman v. Walthen then was an express authority to show that the representation of a play after it had been printed was no violation of property"; ibid.

[28] Mr David Osbaldiston, proprietor of the Surrey Theatre; Select Committee Report, 97. Similarly see ibid., 136, 141, 144-45, 149-50, 227.

[29] Morris v. Kelly (1820) 1 J&W 481. As regards the unpublished status of the work, the report of the case notes as follows: "It also appeared that the author, in an address prefixed to a collection of his writings, published several years since, expressed his regret that an inconsiderate disposal of these works prevented their appearance in that publication"; ibid. While the play does not appear to have been published in England until much later in the nineteenth century [see Dick's Standard Plays, No. 915, The Young Quaker, (London: 1888)], the play had been published in Ireland as early as 1784: John O'Keefe, The Young Quaker, (Dublin: 1784).

[30] Mr D.E. Morris, proprietor of the Haymarket Theatre; Select Committee Report, 153.

[31] Elliston v. Jones (1721) The Times, 1 March 1821.

[32] Murray v. Elliston (1822) 5 B. & Ald. 657; for a commentary on the decision see J.R. Stephens, The Profession of the Playwright: British Theatre 1800-1900, (Cambridge: Cambridge University Press, 1992), 88-89.

[33] G.G.N. Byron, Marino Faliero, Doge of Venice, An Historical Tragedy, in five acts, (London: Murray, 1821). Indeed Murray had published the work on 21^st April 1821, after which Elliston was promising a performance of the same, at Drury Lane, only three days later.

[34] Murray v. Elliston, 658-59. There is a slightly different account of Scarlett's argument in The Times: "Mr. Scarlett contended ... [That] [t]his case was essentailly different from that of "Colman v. Wathen," 5. Term Reports 245, which was an action to recover penalties under the statute 8^th Anne, c.19, for the representation of O'Keefe's farce of the Agreeable Surprise, where the Court held that the case was not within the words of the provision. That statute, undoubtedly, referred only to publication by means of the press; but the common law right of an author was not thus restricted. As soon as the legislature gave or confirmed to an author a property in his works, it encircled these works with all the protection appertaining to every other species of property"; Murray v. Elliston (1822) The Times, 4 May 1822.

[35] See: uk_1774.

[36] Murray v. Elliston, 659.

[37] Ibid., 660.

[38] Ibid.

[39] Ibid., 661.

[40] Mr D.E. Morris, proprietor of the Haymarket Theatre; Select Committee Report, 141.

[41] In fact, in 1811 Dennis Lawler wrote a play, Industry and Idleness, which was based upon Hogarth's series of prints; see Matthew J. Kinservik, "Beyond Romanticism: New Books on Late Eighteenth and Early Nineteenth-Century British Drama", Eighteenth Century Studies, 35 (2001): 109-115 (114). See also Gaunt, who makes note of a pantomime written in 1733 by Theophilus Cibber, the son of Colley Cibber, entitled The Harlot's Progress "and dedicated to ‘the Ingenious Mr Hogath' in spite of [it] making nonsense of his work"; William Gaunt, The World of William Hogarth (London: Jonathan Cape, 1978), 73.

[42] Joanna Baillie, De Monfort (London: Longman, Hurst, Rees & Orme, 1807). For more on Baillie see Catherine B. Burroughs, Closet Stages: Joanna Baillie and the Theater Theory of British Romantic Women Writers (Philadelphia: University of Philadelphia Press, 1997).

[43] Henry Hart Milman, Fazio, A Tragedy (Oxford: n.p., 1815).

[44] Murray v. Elliston (The Times).

[45] See: uk_1735.

[46] See: uk_1777.

[47] Models and Busts Act, 1798, 38 Geo.III, c.71, s.1.

[48] Millar v. Taylor, 2342; emphasis added. Elsewhere he comments: "I am of opinion that the publication of a composition does not give away the property in the work; but the right of the copy still remains with the author; and that no more passes to the public, from the free will and consent of the author, than an unlimited use of every advantage that the purchaser can reap from the doctrine and sentiments which the work contains. He may improve upon it, imitate it, translate it; oppose its sentiments: but he buys no right to publish the identical work"; ibid., 2348.

[49] Dolby v. Lowndes (1824) The Times, 22 November1824.

[50] Although the newspaper report does not indicate how the case was resolved, Planché, giving evidence before the Select Committee comments upon it in the following way: "Mr Lowndes, the printer, reprinted the old play, and sent it into Covent Garden as the acting play. Mr. Dolby, who had bought my copyright, proceeded against him in Chancery, and stopped him, but at the cost of 30l. to himself, he having given me 50 guineas for the copyright"; Select Committee Report, 216.

[51] Journal of the House of Commons (CJ), 85: 92. For the subsequent history of the Bill in the Commons see CJ 85: 98, 117, 128, 150, 157, 161, 167, 174, 222. In June 1829 Mackintosh had presented a petition to the house, on behalf of Charles Burke: "[C]omplaining of the imperfect state of the law for the protection of Literary Property. The right hon. Gentleman observed, that the rights of authors in their literary productions were less respected by the law and the tribunals of this country, than in any other having pretensions to literary character. Persons of the highest literary fame had had their dramatic productions represented on the stage wholly against their consent. Lord Byron and Mr Millman had had to complain of abuses of this kind, but they were without redress. The petitioner had to complain of a similar abuse. He had written a tragedy, which the proprietors of one of the large theatres had brought out on the stage against his consent. He now prayed for the enactment of a law, that no person shall, during the period of an author's life, and, in the case of death, for the period of fourteen years from the first publication of the piece, perform any tragedy &c. without the consent of the author"; CJ, 21: 1701-02. At that time Lamb also added that "it was extremely hard upon authors, that when they produced a work of dramatic character, intending it only for the press and not for the stage, they should, by the cupidity of managers in bringing it out for representation, be put, nolens volens into the very disagreeable situation of damned authors"; ibid., 1702.

[52] Select Committee Report, 215.

[53] Clause 1; the later part no doubt based upon the term of copyright protection set out within the 1814 Act.

[54] Clause 2.

[55] Clause 4.

[56] Clause 5.

[57] For a possible explanation as to why the Bill failed in 1830, see the question of the Chair to Mr. J. Poole, during the evidence given to the 1832 Select Committee: "Have you considered the manner in which, supposing such a law was passed, the money would be obtained from the provincial theatres, because formerly, when this law was in contemplation, the gentlemen who did contemplate it were given to understand that there would be very great difficulty in obtaining from the managers of the country theatres the sum due to the author ..."; Select Committee Report, 190.

[58] The original patents concerning both Covent Garden and Drury Lane were granted by Charles II to Thomas Killigrew and William Davenant permitting the performance of "tragedies, comedies, plays, operas, music, scenes and all other entertainments of the stage"; quoted in Jane Moody, Illegitimate Theatre in London, 1770-1840 (Cambridge: Cambridge University Press, 2000), 10.

[59] Moody, 43.

[60] Tracy C. Davis, The Economics of the British Stage, 1800-1914 (Cambridge: Cambridge University Press, 2000), 33.

[61] CJ, 87: 328. On the patent theatres and their relationship with other theatres within London see: Davis, 17-41; Dewey Ganzel, "Patent Wrongs and Patent Theatres: Drama and the Law in the Early Nineteenth Century", PMLA, 76 (1961): 385-92; Moody, 41-47; Allardyce Nicoll, World Drama: From Æschylus to Anouilh (London: Harrap & Company, 1949), 437; J.R. Stephens, The Censorship of English Drama, 1824-1901 (Cambridge: Cambridge University Press, 1980), 5-6.

[62] The proprietors of both Covent Garden and Drury Lane submitted their own petition to the Commons a week later; CJ, 87: 354-55.

[63] CJ, 87: 360.

[64] While Lytton's first play, The Duchess de las Vallière (1837) was not a commercial success, by the end of the decade he had become the most successful playwright of the times, able to secure £600 each for the right to perform Richelieu (1839), The Sea Captain (1839) and Money (1840); Stephens, 47-48.

[65] Hansard, 3^rd Ser., 13 (1831): 239. About Bulwer-Lytton's motion, Ganzel writes as follows: "As a political neophyte, he needed a cause and he found one in the theatre, whose wretched state was generally decried. In espousing its legal reform, Bulwer saw a means of advancing not only the cause of drama but also his own political fortunes. On 31 May 1832, therefore, he presented a motion for the creation of a select committee to investigate the state of dramatic literature. He was not seeking information, for his speech showed him to be well-informed on theatrical matters. Neither was he impartial; his mind was clearly made up: he was anti-monopoly, anti-censorship, and pro-copyright"; Ganzel, 384.

[66] He framed the question as follows: "How far is it expedient for the public, that privileges and enactments of this monopolizing description should be continued; how far is it expedient that the minor theatres should be suppressed, and the exclusive patents of the two great theatres should be continued?"; Hansard, 3^rd Ser., 13 (1831): 239.

[67] On this point Bulwer-Lytton remarked that "[t]he public taste, backed by the vigilant admonition of the public Press, might, perhaps, be more safely trusted for the preservation of theatrical decorum, than any ignorant and bungling Censor, who (however will the office might be now fulfilled) might be appointed hereafter; who while he might strain at gnats, and cavil at straws, would be without any other real power than that of preventing men of genius from submitting to the caprice of his opinions"; ibid., 245. On the Licensing Act, 1737, 10 Geo.II, c.28, in general see: Stephens, The Censorship of English Drama, 5-16; Vincent J. Liesenfeld, ed., The Stage and the Licensing Act 1729-1737 (New York & London: Garland Publishing, 1981); Vincent J. Liesenfeld, The Licensing Act of 1737 (Wisconsin: University of Wisconsin Press, 1984); Dominic Shellard and Steve Nicholson, with Miriam Handley, The Lord Chamberlain Regrets ... A History of British Theatre Censorship (London: The British Library, 2004), 8-11.

[68] Mr. Sheil, who spoke in support of Bulwer-Lytton's proposal put the question thus: "[W]hether means ought not to be taken, to give to dramatic writers a privilege analagous to that which was conferred, through the medium of copyright, on other authors"; Hansard, 3^rd Ser., 13 (1831): 256.

[69] Ibid., 246-47.

[70] Bulwer-Lytton's proposal was did not however proceed unopposed. See the comments of Sir Charles Wetherell, and Sir Edward Sugden, who both objected to the formation of the Select Committee; ibid., 248-50, 258-59.

[71] George Lamb, who had introduced Planché's Bill the previous year, was also a member; CJ, 87: 360.

[72] CJ, 87: 546.

[73] See for example the testimony of Douglas Jerrold (Select Committee Report, 156), and William Moncrieff (ibid., 175).

[74] Select Committee Report, 176.

[75] Ibid., 215.

[76] Ibid., 152.

[77] Ibid., 144-45. Moncrieff, giving evidence before the Committee, explained how an unauthorised production of his work, Giovanni in London, had been performed at Drury Lane, and continued: "I applied to a lawyer, and he said he should want 80l., therefore, as I had not 80l. to dispose of, I had no means of preventing their performing it"; ibid., 175. The sum asked by the lawyer for securing the injunction was in fact eight times more than Moncrieff had ever received for the performance of the play; ibid.

[78] Hansard, 3^rd Ser., 13 (1831): 247.

[79] See for example: Select Committee Report, 123-26, 176, 193, 214-16.

[80] This was the standard payment received by authors from the Parisian theatres; ibid., 123.

[81] Ibid., 126.

[82] T.J. Thackeray, On Theatrical Emancipation and the Rights of Dramatic Authors (London: Chapple, 1832), 28-30. Note also Thackeray's observation that "[a] foreign author has the same right in his works in France as a native, provided he conform himself to all the formalities imposed on natives"; ibid., 31.

[83] Select Committee Report, 5.

[84] O'Connell had seconded Bulwer-Lytton's original motion to establish the Select Committee in May 1831; Hansard, 3^rd Ser., 13 (1831): 248.

[85] CJ, 88: 160. At the same time it was also ordered that Bulwer-Lytton perpare and bring in a Bill for licensing Theatres, and for the regulation of Dramatic Performances in the Cities of London and Westminster. About this Bill Stephens writes that "it was rejected by a small majority in the House of Lords in 1833 and a decade of continued theatrical frustration ensued before it was safe to reintroduce the Bill, in modified form, and restore long-awaited free trade to the London theatres"; Stephens, The Censorship of English Drama, 9. See the Theatre Regulation Act 1843, 6&7 Vict., c.68; see also: Moody, 41-47; Ganzel, 391-92.

[86] CJ, 88: 470. For the passage of the Bill through the Commons, see CJ, 88: 165, 192, 213, 246, 310, 366, 454.

[87] A Bill to Amend the Laws relating to Dramatic Literary Property, Sessional Papers, 1833 (73) II, 117, clause 1.

[88] Dramatic Literary Property Act, 1833, 3 & 4 Will.IV, c.15, s.1.

[89] Ibid.

[90] A Bill to Amend the Laws relating to Dramatic Literary Property, clause 2.

[91] Dramatic Literary Property Act, 1833, s.2. As with the original draft, the penalty for infringement would also include the double costs of bringing the litigation. It seems to be the case that, when evidence of an infringing performance was established, plaintiffs were generally only awarded the minimum penalty of 40 shillings; see for example: Norton v. Shelders (1838) The Times, 6 Dec. 1838; Lee v. Simpson (1847) 3 C.B. 871; Russell v. Smith (1847) The Times, 14 May 1847; Russell v. Briant (1847) The Times, 11 Dec. 1847. See also the notice issued by the Dramatic Authors' Society, in 1836, that "The society expects managers to transmit files of their bills to Mr Miller ... Persons who do not choose to furnish this information play the pieces at their own peril, and in some cases the penalty (40s.) has been sued for and obtained"; reproduced in Stephens, The Profession of the Playwright, 196.

[92] What constituted a "place of dramatic entertainment" gave rise to a number of cases including: Russell v. Smith (1848) 12 QB 217; Wall v. Taylor (1883) 11 QBD 102; Duck v. Bates (1884) 12 QBD 79. In Wall v. Taylor Brett MR observed that the very act of "performing a dramatic piece makes the place where it is performed a place of dramatic entertainment"; ibid., 108. However, in Duck v. Bates Brett MR subsequently tempered this sentiment in commenting that: "[I]n order to come within the prohibition of the statute, a place need not be kept habitually for the exhibition of dramatic entertainments: it is not correct to say that the statute is infringed only when the place is habitually used for dramatic entertainments. It seems to have been supposed that I said that the representation of a dramatic piece ... makes the place where it is performed a place of dramatic entertainment. I believe I did not say so; but if I did, I was wrong. I do not pretend to have expressed myself with sufficeint clearness, but I do not think that my words will really bear that construction ... From [the wording of the legislation] it is obvious to me that there is some place where a dramatic piece may be represented without an infringement of the statute: if it is not a place of dramatic entertainment, no breach is committed ..."; ibid., 846.

[93] So long as the dramatic work remained unpublished then the right to represent the work would lie with "the author thereof or his assignee".

[94] Stephens writes: "James Planché asserts that the Dramatic Authors' Society was founded on or immediately after 10 June 1833, following the Royal Assent to Bulwer-Lytton's Dramatic Literary Property Act. It seems likely, however, to have had a less formal status at least a year or so previously - possibly as early as 1830 or 1831 - as a grouping of disaffected playwrights agitating through parliamentary means, in the reformist spirit of the age, for redress on the two key issues of the patent monopoly and dramatic copyright"; Stephens, The Profession of the Playwright, 174-75.

[95] Such as Dublin, Liverpool and Manchester.

[96] Such as Brighton, Bristol and Portsmouth.

[97] Such as Chelmsford, North and South Shields, and Coventry.

[98] See Stephens, The Profession of the Playwright, 195-96; this practice was later abandoned in favour of a pricing strategy that provided individual prices for individual plays.

[99] Ibid., 174. See Morton v. Copeland (1855) The Times, 23 May 1855, for an example of litigation taken by the DAS on behalf of its member authors.

[100] Moody, 164.

[101] Stephens, The Profession of the Playwright, 49.

[102] On the decline in the theatre throughout the first half of the nineteenth century see Daniel Barrett, "Play Publication, Readers, and the ‘Decline' of Victorian Drama", Book History, 2 (1999): 173-87.

[103] It was not until the 1860s, and the emergence of a profit-sharing model of authorial reward, pioneered by the dramatist Dion Boucicault, and influenced by his experience in North America, as well as his familliarity with the French model of remuneration, that playwrighting became a more viable and financially secure prospect for the professional dramatist. In general see Stephens, The Profession of the Playwright, 51-83.

[104] Cumberland v. Planché (1834) 1 AD & E 580.

[105] Ibid., 584-86.

[106] Ibid., 586. He continued: "[T]he assignee here takes the whole right of the author. And in the run of ten years, this will not injure authors"; ibid.

[107] Ibid., 587.

[108] Macklin v. Richardson, 696.

[109] In this regard even the most ardent advocates of copyright at common law thought nothing of accepting the concept of a post-publication performance right as entirely a creature of the statute. Marsh v. Conquest (1864) 17 CB (NS) 418, concerned whether an assignment under the 1833 Act, which had not been registered in accordance with the provisions of the Copyright Act 1842, was nevertheless sufficient to enable the assignee to claim for the statutory penalties for an unlawful performance of the work. In holding that the plaintiff could recover under the legislation, Erle CJ observed as follows: "It is true that the sole right of representation did not exist at common law ... [b]ut, the statute having made that a property, is it not subject to all the incidents of property, one of which is that it shall be assignable? Unless there be anything in the statute to prohibit it, I am prepared to hold that the power to assign the right of representation does exist"; Marsh v. Conquest, 426.

[110] With the passing of the Copyright Amendment Act, 1842, 5 & 6 Vict., c.45, both publication and performance rights in dramatic works were brought together within one single piece of legislation; see: uk_1842.

[111] B. Sherman and L. Bently, The Making of Modern Intellectual Property Law (Cambridge: Cambridge University Press, 1999), 61-62.

[112] Moody, 37.

[113] Dibdin's dedication in the published version of his play reads as follows: "Mr. Dibdin has most sincerely to thank the unexampled exertion of every Performer and Artist, whose zeal and perseverance enabled him to produce the following piece in Fourteen days from the publication of the original Novel"; T. Dibdin, The Pirate: A Melodramatic Romance (London: Barnes, 1822).

[114] Reade v. Conquest (1861) 9 CB (NS) 755, 765; see also Toole v. Young (1874) 9 LR 523, 527, in which Cockburn CJ, summarising the decision in Reade, commented that "[it] establishes this proposition, that an author has a right to convert a novel written by another person into a drama without infringing the copyright existing in the novel". Note, however, the decision in Reade v. Lacy (1861) 1 J. & H. 524, in which a dramatization of a novel which was based upon a play previously written by the plaintiff, was considered to be a breach of the copyright subsisting in the original play.

[115] Copyright Act, 1911, 1 & 2 Geo.V, c.46, s.1(2)(c).