Primary Sources on Copyright (1450-1900)

www.copyrighthistory.org

Identifier: us_1856

Commentary on the Copyright Act Amendment 1856

Oren Bracha

School of Law, University of Texas

Please cite as:
Bracha, O. (2008) ‘Commentary on the U.S. Copyright Act Amendment 1856', in Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org

1. Full title

2. Abstract

3. Early Lobbying for Dramatic Copyright

4. Lobbying for the 1856 Amendment

5. Implications of Dramatic Copyright

5. References

1. Full title

An Act supplemental to an Act entitled An Act to amend the several acts respecting Copyright 1856

2. Abstract

An amendment to the Copyright Act that added for the first time in America a public performance entitlement in dramatic works. The commentary describes the origins of the agitation by playwrights for an exclusive public performance right in plays, the early lobbying efforts, and the campaign that led to the 1856 amendment. It concludes by briefly discussing how the new entitlement contributed to the general shift of copyright's intellectual framework from a limited textual reprint right to a general protection of an intellectual work.

3. Early Lobbying for Dramatic Copyright

No public performance right existed under American copyright law in the first half of the nineteenth century. Both ideological and economic factors were responsible for this situation. The assumption pervading early American copyright thought according to which copyright was a limited economic privilege of making verbatim reproductions in print[1] was not conducive to a public performance entitlement. The patterns of the early American theater profession were also unlikely to create a strong demand for such an entitlement. By the end of the eighteenth century the profession was relatively small and theaters were few. These were usually organized under the model of the stock company that was composed of actors and a manager - usually an actor himself - who shared the proceeds of each season on a pro-rata basis. Sometimes the playwright was the manager of the group as in the case of William Dunlap or an actor as in the case of John Howard Payne (1791-1852). When this was not the case playwrights were usually affiliated to a specific stock company. Payment of royalties was rare. The playwright's typical payment consisted of an employee salary, a lump sum, or sometimes the proceeds of a designated night. American playwrights often functioned as in house editors - since managers seldom took the risk of producing "native" plays, the majority of works they created during this period were adaptations of imported British or French drama.[2] Against this intellectual and economic backdrop, it is not surprising that unlike in Britain,[3] in the United States there was no known serious attempt to attain exclusive legal performance rights until the second quarter of the nineteenth century.

The agitation for a public performance entitlement that began in the 1830s and culminated in the 1856 amendment to the Copyright Act were intertwined with changes on the intellectual and material levels. The prevalent understanding of copyright gradually changed from a limited right of reprint to ownership of an intellectual work that entitled the owner to the market profits from any exploitation of the work, irrespective of changes of form and medium.[4] The emergence of a public performance entitlement fueled this conceptual change and was driven by it. At the same time the American theater profession underwent a significant transformation. The number of theaters, the cost of production, and the demand for American drama all increased. The stock company was replaced by a salary model in which the manager assumed the bulk of the risk and reaped the profit. Toward the mid-century the common model was that of a company - often a traveling company - that performed one long-running play, rather than a versatile repertoire. The most significant change was the rise of the "star system." The appearance of star-actors and the public demand for them created a sharp distinction between stars and stock actors, vested considerable power in the hands of the former, and often caused the substance of the play to be tailored for the specific star. While the majority of playwrights still worked in traditional patterns, a small number who wrote specifically for stars achieved some fame and better compensation.

The agitation for a dramatic public performance right originated among this new small group of playwrights. It reflected the paradoxical effect of their new status. These playwrights enjoyed a somewhat more powerful position than in the past and were motivated by a new group consciousness, but they often saw themselves as oppressed and deprived of the status and reward they deserved.

The most common argument for a public performance right to playwrights was the encouragement of native American drama. The Albion Magazine observed early in the 1840s: "[i]t is in vain to expect that the first talent in the country will exercise their faculties in this, the most difficult of all literary enterprises for so small a consideration." It concluded that in order "to see our first men coming forward to create Native Drama that shall reflect the honour of the country" managers "must pay European prices for it, nay, they should go beyond the European standard."[5] Some, like the playwright-actor John Howard Payne, translated this sentiment into and argument for extending copyright protection. "What are our laws on the subject?" he asked in 1835 and answered "[w]e have none." Payne described the typical response of a theater manager presented with an American play as follows: "'We are glutted with plays from England, which we must produce, because they bring with them a fame which will excite curiosity; and for these we have only to pay the promoters, who are salaried to smuggle over all the novelties."[6]

It is unclear how copyright protection could avail American playwrights who faced the difficulties described by Payne as long as the audience preference for foreign drama and the cheap availability of such plays persisted. Nevertheless, this was apparently the main argument behind the first public performance bill brought in 1841. The bill "To secure to the authors of dramatic works their property therein"[7] granted to "the author of a tragedy, comedy, play, opera, farce, or any other dramatic entertainment, or the translator of any such production from a foreign language" from the moment of publication "the sole right of representing, or causing to be represented, any such production, or any part thereof, at any place of public amusement within the United States." The right applied retroactively to works published in the preceding five years and its duration was fourteen years with no mention of renewal.

Little is known about the 1841 bill, but it is likely that the main figure behind it was the playwright and journalist Robert Montgomery Bird (1806-1854).[8] In an 1853 letter to George Henry Boker (1824-1890) who sought his advice on a new public performance bill, Bird remarked that "eleven or twelve years ago... I endeavored having an attack of the old ardor Scribendi... to get such a bill introduced into Congress."[9] Bird had both the means and the cause. In the early 1840s Bird was very politically active in the Whig party and he even engaged in a short-lived campaign for Congress.[10] As for cause, during the 1830s Bird had several experiences with the star actor Edwin Forrest (1806-1872) that left him disillusioned about the prospects of a career as a playwright. Reportedly, Bird's quarrels with Forrest over financial compensation and the possession of a manuscript in relation to plays written for Forrest had a dramatic effect on him. He "lost all interest whatever in drama, abandoned dramatic authorship, and never after frequented the theater, not even to witness his own plays."[11] Bird's grievances notwithstanding, the 1841 bill was tabled and forgotten.

The issue next appeared as part of Congressman Charles Jared Ingersoll's (1782-1862) ambitious attempt at copyright reform. In January 1844 Ingersoll introduced an extensive bill that attempted to overhaul the entire copyright regime.[12] The bill, surprisingly modern in its structure, included various novel extensions of copyright protection including a term of life of the author plus seven years[13] and protection for sculptural works[14] and ornamental designs.[15] It also created an exclusive public performance entitlement to "the author of any tragedy, comedy, play, opera, farce, or any other dramatic piece or entertainment, song, or musical composition... or his assignee."[16]

The details of the proposed exclusive performance entitlement are intriguing. The entitlement was broadly defined in two ways. First, it included not just dramatic works but also musical ones. Second, it bestowed on the owner the "sole liberty of representing, or causing to be represented or performed, at any place or places in the United States, any such production as aforesaid, not printed by the author thereof."[17] Unlike the 1841 bill there was no restriction of the right to performances at a "place of public amusement" and the right was not limited in time. The entitlement was supported by very strong, perhaps draconian, remedies including a choice of the greater of actual damages, the infringer's profits, or statutory damages of $200 for each unauthorized performance, as well as double costs of the lawsuit.[18]

Perhaps most strikingly, while the 1841 bill granted protection only from the moment of publication, the 1844 bill restricted protection to works "not printed and published" by the author or his assignees. Restricting the right to unpublished works appears not to had been an inadvertent omission, since the bill exempts "any dramatic piece or musical composition in manuscript" from the general registration and deposit requirement, and provides an optional rather than mandatory channel for registering the title, the details of the author, the details of the proprietor, and the time and place of its first performance in a special registry. The focus on unpublished works is interesting because a recurring argument in favor of a public performance entitlement was that it would encourage the dissemination in print of dramatic works. Thus, for example one writer called in 1849 for "ensuring of Authors' and Actors' rights in dramatic compositions by a fair and liberal copyright." The offered ground was that the existing legal situation deprived a dramatic author "of the right to publish, unless with detriment to his pocket" and deprived the public of having works "presented to them in good clear type, instead of from the mouth of a great tragedian."[19] Underlying this complaint, was most probably the fact that in the absence of legal protection many playwrights or those who purchased their works tried to regulate the public performance of plays by controlling the physical manuscripts and avoiding printed publication. The 1841 bill tried to solve this disincentive for publication by setting the publication date as the starting point of the protection's term.[20] The 1844 bill, by contrast, provided statutory protection against unauthorized performances for unpublished manuscripts. It may have been an attempt to let playwrights enjoy both worlds, to use legal protection and non-publication in conjunction as means for preventing unauthorized performances. The result, however, was odd. The bill, in a peculiar reversal of the claim that a public performance entitlement would encourage printed publication, forced playwrights who wanted to enjoy the protection to withhold publication, since it applied only to unpublished works.

Neither this nor any other aspects of the 1844 bill's public performance entitlement were ever tested or interpreted by a court. For unknown reasons Ingersoll's bill was never passed and extensive copyright reform would only occur in 1870.

4. Lobbying for the 1856 Amendment

A new wave of lobbying for a dramatic public performance entitlement occurred in the 1850s. By contrast to previous rounds, newspapers - mainly those of New York that by then was firmly established as the theatrical center of the nation - supplied more elaborate public deliberation of the question. Three arguments for protection recur in these publications and in private correspondence: recognition of the playwright as a member of a respectable vocation - a branch of authorship; securing the economic interest and just rewards of playwrights on a par with other authors; and encouraging the production of American drama.

In 1853 George Henry Boker wrote to Robert Bird asking his advice on his effort to pass a dramatic performance bill in Congress. Boker who may have been aware of Bird's attempt to secure such protection twelve years earlier had his own share of bitter commercial experiences, including uncompensated productions of one of his plays in London.[21] Bird's response supplies a fascinating glance at the motivation of the playwrights who lobbied for an exclusive performance right and the public justifications they devised. Bird advised Boker to go to Washington and "endeavor to enlist the feelings of a few leading members of the House."[22] He estimated that the "weakness of the bill - or the Cause it represents (which is also or ought to be, its strength) - is that nobody cares anything about it one way or the other."[23] Bird claimed that "the dramatic interest" is "so utterly insignificant" that Congress members were clueless about it and indifferent to it. The proposed strategy was thus that someone like Boker "who might claim the kindly personal consideration due to the Gentleman and literary man should devote a few days to the duty of explanation and advocacy."[24] Bird's strategy of explanation and advocacy before Congress by a prominent literary figure echoed Noah Webster's 1831 performance that played a major role in the passage of the 1831 Copyright Act.[25]

Reiterating his assessment Bird observed that

"Nobody knows or cares anything about the measure; but on the other hand, nobody that I know of makes any objection to it. There is absolutely no opposing interest. Neither managers nor actors have any interests against it; nor have publishers or readers... Some advantages will result from it to all. The theaters would have more new plays to produce-the publishers more copy to print-the public more books to read. The immediate advantage to writers would be not unimportant to them pecuniary-though no one would be taxed in consequence."[26]

Bird may have been right about the indifference of Congress members and the lack of any informed and organized opposition, but his claim that everybody, with no exception, stood to gain from the new entitlement was a hyperbole. If playwrights were to internalize a larger share of their plays' value through an exclusive performance entitlement, someone had to be "taxed."

When Bird arrived to the substantive arguments in favor of the bill, he enumerated many of the reasons that later would be repeated in the newspapers: a public performance entitlement "is likely to have a good effect in stimulating the efforts of men of genius in the United States in the drama;" playwright is "a branch of literature more neglected... than any other;" the protection will encourage publication of drama in print; and "all the European governments have by law recognized" such rights.[27] Bird concluded with a personal note, doubting that the bill "would ever be of any benefit to me," and observing that "if there had been such a law in existence twenty years ago, I should not have abandoned dramatic writing, as I did in what was the moment of Success and the period of youthful vigor and enthusiasm."[28]

Bird who wished Boker that "you and others... may escape the evils of the discouraging system under which I suffered"[29] died in 1854 and did not live to see the protection he advocated. It is unclear why the legislation Boker was agitating for delayed, but the next burst of activity happened in 1856. The passage of the 1856 amendment is often attributed to the lobbying efforts of Dion Boucicault (1820-1890) - an Irish-born actor and playwright who moved from England to the United States in 1853.[30] Contemporary sources, however, did not attribute such a leading role to Boucicault and usually mentioned Boker and the New York Senator William Henry Seward (1801-1872) as the important figures behind the amendment, sometimes referring to Bird as one of the authors of the bill.[31]

Newspaper references to the effort of securing "dramatic copyright" were almost uniformly supportive and repeated the same arguments. One recurring theme that expressed the playwrights' effort to attain respectability for their vocation was the emphasis that dramatists are authors. As a published letter from "Acorn" put it, "there are no laborers in the literary field deserving more encouragement than those whose energies are devoted to the elevation and advancement of drama and the stage."[32] From this equivalence between the author and the playwright followed the obvious question: "[w]hy is that the author who writes successful novels should have it in his power to make a fortune, while the one whose bent leads him to produce successful plays should be unrewarded?"[33] These claims where usually accompanied by observations on the wretched status of American dramatists who are "a kind of vagabonds to whom the law affords no protection"[34] and who "are treated in a manner more shameful than any authors have been treated since the days of Grab-street hacks."[35]

If the classification of playwrights as authors emphasized their just claim for enjoying the fruit of their intellectual labor, it also provided a public utility ground for their protection. The lack of a public performance protection was identified as "the real reason why there have been so few good American plays"[36] for "if Shakespeare had been an American, it would have been much more profitable for him to have made buttons than plays."[37] The new entitlement and the profits it would secure to playwrights was predicted to bring about "commencement and building up of something like a permanent and respectable national drama which will... push from the modern stage some of the vile trash, in the shape of hashed French, English, and German melo-dramas."[38]

These claims were often buttressed by juxtaposing the American situation with the protection of an exclusive performance entitlement in England and France where "a successful play is a source of perpetual emolument."[39] "Think," one essayist wrote, "with what envy our poor American author... looks upon this admirable and equitable protection of dramatic property on the other side!"[40] Interestingly, such observations gave rise not only to support of a similar protection in the United States but also to calls to American dramatists to emulate the organizational patterns from abroad in order to protect their interests. One writer asked "Why do not our dramatic authors form an Association for the purpose of protecting their interests, such as existing in Paris and London?"[41] Another recommended in addition to statutory protection "the formation of a Dramatic Authors' Society, to decide upon the terms to be made with managers for the representation of original pieces."[42] These recommendations would only be realized early in the twentieth century and with the establishment of the Dramatists Guild in 1919.

The lack of a formal trade organization notwithstanding, the few playwright lobbyists finally managed to get the protection they desired in August 1856. Although little is known about the legislative history of the 1856 amendment, it seems that, as Bird predicted, it attracted little opposition. The bill was introduced on April 10^th, 1856 by Senator Seward.[43] It was passed by Senate on July 16^th[44] after a short discussion in which the chair of the Judiciary committee Senator James A. Bayard (1799-1880) observed that "the only value of a copyright to a dramatic author really is to protect the representation of his production in theaters."[45] The House passed the bill on August 16^th,[46] and signed it into law two days later.[47]

Unlike the 1841 and 1844 bills, the 1856 amendment did not attempt to create a separate playwright protection which was distinct from general copyright protection. It provided, instead, that any copyright "granted under the laws of the United States to the author or proprietor of any dramatic composition, designed or suited for public representation, shall be deemed and taken to confer upon the said author or proprietor, extend to his heirs or assigns, along with the sole right to print and publish the said composition, the sole right also to act, perform, or represent the same, or cause it to be acted, performed, or represented, on any stage or public place during the whole period for which the copyright is obtained."[48] This meant that the exclusive right of public performance was treated as an additional entitlement. It applied only when the dramatic work satisfied all the requirements for copyright protection and its general terms, such as registration and publication. Its general terms, such as duration, were identical to that of the general copyright protection in the work. The entitlement was limited to performances on "any stage or public place" but there was no requirement that the infringing use be commercial. The stated remedy for infringement was damages and cost of suit, but the option of equitable remedies was explicitly preserved. Probably due to pressure from playwrights who were worried about effective enforcement, the amendment created a form of statutory damages. It provided that "such damages in all cases... [will] be rated and assessed at such sum not less than one hundred dollars for the first, and fifty dollars for every subsequent performance."[49] Soon after the amendment was passed "Acorn" - a staunch supporter of the new entitlement - complained that ".[i]t is to be regretted... that the penalty of literary pirates was not fixed at five hundred instead of one hundred dollars."[50]

5. Implications of Dramatic Copyright

It appears that soon after the new public performance entitlement was passed a fair number of playwrights took advantage of it and registered their works. Early in September 1856 one newspaper reported that "[n]o sooner was the passage of the law telegraphically announced, than all the great American dramatists in New York hastened en masse to register the titles of their plays." According to this report the first work to be registered was "the great American comedy in one act (taken from the French) entitled ‘My Wife's Mirror,' by Mr. E.G.P. Wilkins." Third in chronological order but first in quantity was Dion Boucicault with nine plays. However, "to the majority" of these plays Boucicault's "claim was questioned by two members of the dramatic profession in the city, Mr. Chanfrau and Mr. Albertine."[51] By the last week of the month another newspaper reported the registration of "the first dramatic copyright in Philadelphia" in the play "Law and Fashion" by Thomas H. Elliot.[52]

Some other reports that followed the passage of the 1856 amendment were somewhat less celebratory and more skeptical of predictions of a surge of original American creation that would be spurred by the new entitlement. An article that appeared in September 1856 in the New York Daily Times, supplied a much more sarcastic version of the stampede of "all the great American dramatists" to "the tumble-down District Attorney's office in College-place" in order to register their woks.[53] It described the scene as follows:

"For some days subsequent to the passage of the Act Murray-street was haunted by singular-looking men with long hair and inky finger-nails, each with a bundle of soiled paper under his arm or sticking out of his coat pocket, in case where the coat had a pocket that would hold anything. All these gentlemen wore an expression of mingled triumph and anxiety. They cast curious glances at each other, and eyed each other's bundles with ill-disguised curiosity. The fact was every one of the distinguished dramatists was alarmed, lest his companion should be about to copyright a version of his play; for these dramatic rivulets had one source-fountain-head-Paris;"[54]

The article went on to wittingly explain how the first original dramatic works to be registered were all copies of French plays or of each other. It concluded with the hope "in a year's time, to behold inscribed there a goodly array of original pieces, about whose authenticity there can be no dispute."[55]

Intriguingly, in November 1856 a few Boston newspapers reported an "Arrest under the Dramatic Copyright Law."[56] According to the report, "the strong arm of the law was placed upon J. Munroe, F.A. Munroe, and F. Harrington"[57] who were accused of performing a play identical in all but the names of the characters to Dion Boucicault's "Violet." It is possible that the report was confused, as evidenced by the fact that it referred to the sum of $100 as "the maximum punishment for each infringement," when in fact this was the statutory sum of minimum damages for the first infringement. Nevertheless, as the common wisdom is that during this period copyright was purely a civil regulation and had no criminal aspect, it appears that further research of the actual enforcement practices is necessary.

On a more general level, the introduction of a public performance entitlement in dramatic works was part of the fundamental transformation of copyright's framework in the nineteenth century. In this process the traditional conception of copyright as limited to verbatim reprints was supplanted by a new understanding of copyright as the exclusive entitlement to enjoy all the profits from exploiting an intellectual work. This involved two different ways in which copyright's scope of protection was expanded. The first one was the steady expansion of the range of infringing reproductions in print which came to include increasing levels of abstractions and declining degrees of similarity far beyond verbatim reproduction.[58] The dramatic public performance entitlement was the harbinger of a second and different sort of expansion. With its legislation in 1856 for the first time American copyright protection went altogether beyond reproduction in print. The fact that a public performance of a protected work was deemed infringing irrespective of reproduction in print was a novelty. It strongly expressed the rising notion of protecting the market profits attributable to a certain intellectual work, irrespective of changes of form or medium. In an 1879 article in the Atlantic Monthly the jurist Arthur G. Sedgwick diagnosed the connection between the new understanding of copyright and the public performance entitlement in dramatic works. He described it as follows:

"When we speak of copyright, we generally have in mind copyright in books, and the word is unfortunately chosen to express the notion of property in ideas, because the only sort of ownership it suggests is that which may be enjoyed through the multiplication of copies. But it is apparent that this is an accidental result of the process of manufacture used for books... Now it so happens that there are, with a certain sort of literary composition, two ways of making use of the ideas. A play may be either printed or acted, and the latter of the two methods of deriving profit from it is in the case of most plays much the most important. This fact, however, though it is now obvious enough does not seem to have occurred at all to the lawyers who drew up the first English copyright statute, and it is only in comparatively recent times that the important consequences that flow from it have been fully recognized."[59]

Sedgwick's wonder at the drafters of the Statute of Anne was anachronistic, of course. For those early eighteenth century drafters it was as natural to assume that copyright was limited to preventing verbatim reprints as it was for Sedgwick to observe that it covered any way of producing market profits by using ideas. Still, he clearly identified the new understanding of copyright and the way it was entangled with protection for dramatic works. In the following decades the pioneering public performance entitlement was gradually joined by other new entitlements that further severed copyright's attachment to reproduction in print and entrenched the new dominating idea of protecting the value of an intellectual work that could take many forms.

The addition of the new entitlement also played a role on the first level of copyright's expansion. Although there is no strict logical connection between the two, setting copyright loose from its grounding in printed reproduction fueled the abstraction process. Some of the most significant cases where the scope of protection was expanded to previously uncovered remote degrees of similarity involved infringement by public performance. In the most notable of those cases - Daly v. Palmer[60] - Dion Boucicault discovered that the public performance right for which he lobbied was a double-edged sword. The plaintiff Augustine Daly (1838-1899) claimed that a scene from his play "Under the Gaslight" involving a rescue of a victim tied to railroad trucks was copied in the play "After Dark" by Boucicault that was about to be launched in Henry D. Palmer's theater in New York. Virtually all the specific details and the dialogue of the railroad scene were changed in Boucicault's version. Nevertheless the court found that "[a]ll that is substantial and material in the plaintiff's ‘railroad scene' has been used by Boucicault, in the same order and sequence of events, and in a manner to convey the same sensations and impressions to those who see it represented"[61] and enjoined defendant's play. Judge Blatchford explicitly connected this broad understanding of copyright protection to the unique performative aspects of a dramatic composition. He observed that "[s]uch a composition, when represented, excites emotions and imparts impressions not merely through the medium of the ear, as music does, but through the medium of the eye as well as the ear. Movement, gesture, and facial expression, which address the eye only, are as much a part of the dramatic composition as is the spoken language which addresses the ear only; and that part of the written composition which gives direction for the movement and gesture, is as much a part of the composition, and protected by the copyright, as is the language prescribed to be uttered by the characters."[62] A note published in the American Law Review the following year identified the significant expansion of copyright's scope embodied in the decision and observed that it "may be said to advance in literary law the doctrine of romantic equivalents, analogous to the doctrine of mechanical equivalents of the patent or mechanical law."[63] It seems that the public performance context that, by its nature, marginalized the importance of comparing specific texts, induced courts to reach high levels of abstraction when undertaking infringement inquiries.

The dramatic public performance entitlement had its origin, not in philosophical debates over the nature of copyright but in the struggle of American playwrights for material benefits and status. Nevertheless the widespread legitimacy it seems to have enjoyed in the 1850s lobbying campaign was aided by the changing intellectual framework of copyright. At the same time the new entitlement also contributed to the process of change. It unmoored copyright from its traditional attachment to reproduction in print and paved the way for further moves in that direction.

5. References

Governmental papers and legislation

British

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

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

American

Copyright Act 1831, 4 Stat. 436, 436-39 (1831)

Cases

American

Daly v. Palmer, 6 F. Cas. 1132 (C.C.S.D.N.Y. 1868)

British

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

Books and Articles

Bernheim, Alfred L. The Business of the Theater (New York: B. Blom, 1964)

Bradley, Edward Sculley. George Henry Boker, Poet and Patriot (Philadelphia: University of Pennsylvania Press, 1927)

Fawkes, Richard. Dion Boucicault: A Biography (London, New York: Quartet Books, 1979)

Foust, Clement E. The Life and Dramatic Works of Robert Montgomery Bird (New York: Knickerbocker Press, 1919)

McConachie, Bruce A. Melodramatic Formations: American Theater and Society, 1820-1870 (Iowa City: University of Iowa Press, 1992)

Moses, Montrose J. The American Dramatist (Boston: Little, Brown, and company, 1925)

Sanjek, Russell. American Popular Music and Its Business: The First Four Hundred Years (New York: Oxford University Press, 1988)

[1] See the commentary for us_1853b.

[2] See Alfred L. Bernheim, The Business of the Theater (New York: B. Blom, 1964).

[3] In Britain there were several attempts to obtain protection for public performance under either the Statute of Anne or the common law. By and large, these attempts were unsuccessful although the case law was somewhat ambiguous. A statutory public performance entitlement to dramatic works was added in 1833 in the Dramatic Literary Property Act, 1833, 3 & 4 Will.IV, c.15. See generally Ronan Deazley's commentary on uk_1833.

[4] See the commentaries on us_1841 and us_1853b.

[5] Quoted in Montrose J. Moses, The American Dramatist (Boston: Little, Brown, and company, 1925), 86-87.

[6] Quoted in ibid.., 89.

[7] See us_1841b.

[8] Sanjek writes that Bird "used his Washington connections during the 1840s in an unsuccessful effort to have the law changed." Russell Sanjek, American Popular Music and Its Business: The First Four Hundred Years, vol. 2 (New York: Oxford University Press, 1988), 33.

[9] Reprinted in Clement E. Foust, The Life and Dramatic Works of Robert Montgomery Bird (New York: Knickerbocker Press, 1919), 147-150.

[10] Ibid., 125-126. The 1841 bill was introduced by a fellow member of the Whig party-Senator William Campbell Preston (1794-1860).

[11] Foust, The Life and Dramatic Works, 71. Foust attributes this report to Bird's wife.

[12] See us_1844. The original bill was introduced on January 3, 1844. Many important amendments including the protection for public performance of dramatic works were added on January 18, 1844.

[13] Ibid., Sec. 3.

[14] Ibid., Sec. 21.

[15] Ibid., Sec. 24

[16] Ibid., Sec. 19.

[17] Ibid.

[18] Ibid., Sec. 20. The section also explicitly preserved the right to receive an injunction in equity.

[19] "Things Theatrical" Spirit of the Times: A Chronicle of the Turf, Agriculture, Field Sports Life, January 20, 1849.

[20] It remained ambiguous whether an unpublished manuscript was protected by common law copyright against unauthorized public performance. In England there existed a chancery case where an injunction was issued against unauthorized performance of an unpublished play protected by common law copyright without supplying a clear reasoning. Morris v. Kelly (1820) 1 J&W 481. No case law on this issue existed in the United States at this time.

[21] See Edward Sculley Bradley, George Henry Boker, Poet and Patriot (Philadelphia: University of Pennsylvania Press, 1927), 120.

[22] Bird to Boker January 31 1853, reprinted in Foust, The Life and Dramatic Works, 147-150.

[23] Ibid.

[24] Ibid.

[25] Copyright Act 1831, 4 Stat. 436, 436-39 (1831). See the commentary for us_1831.

[26] Bird to Boker in Foust, The Life and Dramatic Works.

[27] Ibid.

[28] Ibid.

[29] Ibid.

[30] For claims that Boucicault was the main motivating force behind the 1856 amendment see 2 Sanjek, American Popular Music and Its Busines 33; Richard Fawkes, Dion Boucicault: A Biography (London, New York: Quartet Books, 1979).

[31] See e.g. "Dramatic Copyright," New York Daily Times, June 24, 1856; "Dramatic Copyright," New York Daily Times, August 1, 1856; These two sources also mention "Judge Conard" as one of the main figures behind the legislation.

[32] "Letter from Acorn," Spirit of the Times: A Chronicle of the Turf, Agriculture, Field Sports Life, September 6, 1856.

[33] "Dramatic Copyright," New York Daily Times, June 24, 1856.

[34] "The Right of Lecturers," New York Daily Times, October 31, 1855.

[35] "Copyright in a New Phase," American Publishers' Circular and Literary Gazette, June 28,1856.

[36] "Dramatic and Musical Matters," New York Herald, August 25, 1856.

[37] "Dramatic Copyright," New York Daily Times, June 24, 1856.

[38] "Letter from Acorn," Spirit of the Times: A Chronicle of the Turf, Agriculture, Field Sports Life, September 6, 1856.

[39] "Dramatic Copyright," New York Daily Times, June 24, 1856.

[40] Ibid.

[41] "Dramatic Copyright," New York Daily Times, January 19, 1856.

[42] "Dramatic and Musical Matters," New York Herald, August 25, 1856.

[43] 47 Journal of the Senate 243 (April 10, 1856).

[44] 47 Journal of the Senate 456 (July 16, 1856).

[45] 32 Cong. Globe 1647 (July 16, 1856).

[46] 52 Journal of the House 1490 (August 16, 1856).

[47] 47 Journal of the Senate 643 (August 18, 1856).

[48] See us_1856.

[49] Ibid.

[50] "Letter from Acorn," Spirit of the Times: A Chronicle of the Turf, Agriculture, Field Sports Life, September 6, 1856.

[51] "The New Dramatic Copyright Act," North American and United States Gazette, September 12, 1856.

[52] New York Daily Times, September 24, 1856.

[53] "Plays and Playwrights," New York Daily Times, September 9, 1856.

[54] Ibid.

[55] Ibid.

[56] "Arrest Under the Dramatic Copyright Law," Boston Daily Advertiser, November 24, 1856; "Arrest Under the New Dramatic Copyright Law," The Boston Daily Atlas, November 24, 1856.

[57] Ibid.

[58] See the commentaries for us_1841 and us_1853b.

[59] Arthur Sedgwick, "International Copyright by Judicial Decision," Atlantic Monthly, February, 1879.

[60] 6 F. Cas. 1132 (C.C.S.D.N.Y. 1868).

[61] Ibid., at 1138.

[62] Ibid., at 1137.

[63] 3 Am. L. Rev. 453 (1869).