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384            On the right to the performance

been duly taken into account for a long time, and to the ever
practical French legislation it was inconceivable to leave
such an important branch of industry as the theater without
judicial protection. It is true that there, if a play has already
been published and staged elsewhere, a theatre does not have
to ask the author's consent for a performance on its stage: it
may proceed with this immediately, but it must also pay the
author a share (tantième ['royalty']) of the takings from each
performance, and the author is entitled to take legal steps to
claim this share. Here it is presupposed that if an author wrote
a play for the stage, he cannot have anything against it being
produced at a specific theatre, as long as he is not deprived of
the revenues from such a performance. Indeed, as a result of this
assumption and of also taking the author's profit into account, the
personal insult (injuria) is cancelled, for the latter
consisted in the fact of exposing the author to a risk without due
compensation, thereby effectively turning him, against his will, into
the partner of a societas leonina.* A French author is, moreover,
entitled to submit his play solely for publication and not for
production on the stage.
      On the whole, I do not see why these stipulations should not
be introduced into our country, too. A statute book which recognises
reprinting as illegal may very well, without any doubts whatsoever,
determine that no theatre is entitled to stage a play merely because it
has appeared in print. It is, however, harder to decide whether in the
case of a published play a theatre must obtain the express permission of
the author, or if the mere fact that the play has been printed allows
one to presuppose that the author agrees to its production as long as
he receives appropriate remuneration. Wherever shares of the takings
are earmarked for the author, such an assumption is conceivable, but
not so in those cases where the theatres




* A 'lion's partnership', that is, a society where all the profits go to
some of the partners in exclusion of the rest. This term was coined
in Roman law, in allusion to the well-known fable where a lion and
various other animals enter into a partnership for hunting, and the
lion ends up taking all the prey! Cf. the phrase 'the lion's share'.
Reference: Bouviers Law Dictionary (1856), consulted online at:
http://www.legallawterms.com