|
The following is a Gaslight etext.... |
A message to you about copyright and permissions |
|
PLAYWRITING:
A HANDBOOK
FOR WOULD-BE
DRAMATIC AUTHORS.
BY
A DRAMATIST.
IN not very ancient days, dramatic authors had little, if any, rights at law over the representation of their works; and the only practical means they could adopt for protection was that of being careful that there was only one copy of their play, and that that copy did not get into the hands of unscrupulous persons, who would keep it, or make a copy of it, and so be able to perform the play without their consent. They must have had an anxious time.
In William IV.'s reign, however, a bill was obtained, principally through the exertions of Sir Bulwer Lytton, conferring upon dramatists a distinct control over the performance of their pieces, and subsequent legislation has steadily improved our position.
By Bulwer Lytton's Act--the first Act in which "stage right," as distinct from "copyright, the right of multiplying printed copies of a book," was recognised as a property--the author of a dramatic piece (the definition of which we settled in our last chapter) was given the "sole liberty of representing it, or causing it to be represented, at any place of dramatic entertainment in any part of the British dominions."
By "place of dramatic entertainment," it has been decided, by the Courts and the Act between them, to mean any place to which admission is charged for either directly or indirectly, or any place in which wine, beer, or spirits ("excisable liquor") shall be sold. A performance in such a place consitutes a public performance. In this way, Lady Campbell's garden, when As You Like It was played there, and a guinea charged for admission, would have been a "place of dramatic entertainment."
The payment for admission need not be by money taken at the doors, nor even by previous purchase of tickets. "The purchase of any article being made a condition for any person to see a stage play," is held by the Act to be proof that the performance is taking place "for hire," and no piece must be played "for hire" except in a place licensed for "dramatic entertainment." Some amateur dramatic clubs refuse to pay author's fees on the ground that the performances are private, that no money is taken at the doors, and no tickets sold. But I very much doubt, having regard to the words of the Act I have just quoted, whether their contention would hold good; and it would certainly be worth while for authors to club together and try a case. It could be argued that, although no money is taken actually on the night of the performance, still the membership to the club, which gives the right of admission, is always charged for, and that thus payment is "indirectly" taken, the purchase of membership in the club being made a condition for such right of entry. That the shirking of the unfortunate author's fees is a mean piece of artful dodgery goes without saying, and, if the few clubs (exceptions to an honourable rule) who practice it, could be compelled to act honestly, it would be better for themselves and society in general.
Lord Coleridge, it may be noticed, in "Shelley v. Bethell," declined to adopt, as exclusive test of the privacy of a performance, that "no charge was made for admission."
The definition of a "private" performance received its latest elucidation in "Duck v. Bates." The three judges, in that case, held that to constitute a performance a private one it was not sufficient merely that no money was taken, but the performance must be of a "domestic" character, and take place in a private building--not a building hired for the purpose.
Neither, at a private performance should any programmes be sold, or any collection be made.
The consent of the author of any piece to its performance or performances must, in strictness, be "first had and obtained in writing." But, of course, in practice the consent is, under ordinary circumstances, assumed.
Now, before we go any further, it may be as well to inquire here, into who is the "author" of a piece, and who is the proprietor and owner of the stageright therein.
As a general rule, as in the case of a man sitting down and writing a play "all out of his own head." The author is by law the proprietor. But, sometimes a writer is employed by a manager or other person to write for him, and then the case is not so simple.
First of all, it has been decided, in "Shepherd v. Conquest," that a man cannot be hired at so much wages to write a play. Literature is, very properly, not permitted by our Courts to be dealt with on the same footing as tinkering or tailoring. You can engage a carpenter at two pounds a week to make a table for you, and when that table is made it belongs to you. But if you engage a dramatist as your servant, and set him to work to write a play, that play, when done, is not yours but his. In "Shepherd v. Conquest" the proprietors of the Surrey Theatre employed a Mr. Courtney to go to Paris for them and adapt a certain French piece then being played there, they paying him travelling expenses, and a weekly salary. This was done, the adaptation being called Old Joe and Young Joe, and the Surrey Managers took possession of it, under the belief that Mr. Courtney having been, as it were, their paid workman in the matter the result of his work belonged to them. Courtney, who, to say the least of it, seems to have been pretty sharp, however, in spite of this, dealt with the piece as his own, and the court upheld him in doing so. Chief Justice Jervis in his judgment, said: "that the intention of the legislature in the enactments relating to copyright was to elevate and protect literary men; that such an intention could only be effectuated by holding that the actual composer of the work was the author and proprietor of the copyright, and that no relation existing between him and an employer who himself took no intellectual part in the production of the work could, without an assignment in writing, vest the proprietorship of it in the latter"; and he decided that as no such assignment in writing had been made the piece still belonged to Courtney.
But where the manager or other person who is bringing out the play arranges and plans the production himself, and employs one or more authors to write special parts--mere accessories to the whole scheme--then the portions so written by those authors belong not to them, but to the manager--the organiser of the whole scheme.
In this way, presuming, as I believe was the case, that Mr. Irving employed Mr. Frank Marshall to make for a specified sum the alterations and additions required in Werner, those alterations and additions belong not to their author, Mr. Marshall, but to their author's employer and the organiser of the whole production, Mr. Irving, and this without any assignment from Mr. Marshall.
This principle was fixed in "Hatton v. Kean." Mr. Kean had "organised" a play, and had employed Mr. Hatton to compose a piece of music as part of the performance. Held: "that the music so composed by the direction and under the superintendence of the defendant, and as part of the general plan of the spectacle," was the property of the defendant. In all subsequent cases of the kind the same ruling has held good.
In a similar way, an author can engage other writers to assist him in his work. He might engage one man to write songs to be sung by one or more of the characters, and another man to write him a curse for the villain to pronounce, and a third man to write him a love scene, and yet the whole play would belong to him, just as a picture, that his pupils have helped him to paint, belongs to an artist.
All that is necessary is that the portions and matter so composed by the employes shall be accessory to the whole, and shall be a "part and parcel" of it, and not independent pieces, and that they shall be composed under the direction, and with the intellectual assistance of the employer.
Sir J. Leach, with reference to this subject,
said, in "Barfield v. Nicholson," "I am of opinion
that under the statute the person who forms the plan, and
who embarks in the speculation of a work, and who employs
various persons to compose different parts of it, adapted to
their own peculiar acquirements The mere suggestion of the subject by another
person, and even his alterations and improvements (?) do not
give him any title to any share in the authorship. Even his
giving you the whole plot would not entitle him to any such
share, except with your consent. Joint authorship or "
collaboration," as it is termed, must be the result of
preconcerted joint design.
And now with regard to the vexed and
complicated question of "adapting" plays from novels and
tales.
Up to within a few months ago--that is up to
the Spring of 1888, anyone could legally "adapt," or, in
plain language, steal, another man's novel or tale, and make
a play of it without his consent and without paying him one
halfpenny, or acknowledging him in any way.
By the disgraceful condition of our copyright
laws no "stageright" in his work is reserved to the author
of any novel--and by the word "novel" please remember I mean
to include any tale, or story, or poem, published either by
itself or in any magazine, or newspaper, or journal. He can
prevent its being printed and sold without his permission,
but he cannot prevent its being acted.
In "Reade v. Conquest," Mr. Reade
wrote a novel called "It's Never Too Late to Mend." Another
man adapted it for the stage without Reade's consent, and
such adaptation was played at the Grecian Theatre. Held
"that representing the incidents of a published novel in a
dramatic form upon the stage, although done publicly and tor
profit, is no infringement of copyright." Mr. Reade won this
particular case in the end, but it was upon an entirely
distinct argument.
In "Toole v. Young" the same ruling
was maintained. Mr. Hollingshead ("one Hollingshead" as the
reports have it, as if there were room in this world for two
John Hollingsheads), wrote a novel and published it in
Good Words. H.P. Grattan "adapted" that novel
for the stage, and the piece was performed under the title
of Glory. Held "that however shabby and
discreditable it may seem" (I am quoting the Judge's words)
"any person has a right to dramatise the novel without being
liable to an action on the ground that Mr. Hollingshead had
the copyright."
Other cases could be cited, but they would
merely go to prove the same fact, viz., that the work of a
man's brain, if put into "book" form, could be sneaked from
him, and acted on the stage, not only without the
interference of, but with the actual protection of the Law!
The only safeguard that the author of a novel
had against us "dramatists" was the expensive, cumbersome,
and, for many of them, quite impossible plan of dramatising
their story themselves, and getting it publicly performed
before they published it as a book.
But we have changed all that. The Law remains
the same as opposed to honesty and justice as it was before.
Theoretically you can still appropriate stories and "adapt"
novels to the stage, but practically, except in the very
unlikely event of the famous decision in Warne v.
Seebohm being reversed, the theatrical Dick Turpin's long
career is over.
By a legal quibble, as brilliant as that
raised for the defendant in Shylock v. Antonio, a
long-standing evil has been swept away. Trickery has been
called upon to take up the lance for Justice against Law;
and to the delight of all decent men, Law has been defeated.
The Little Lord Fauntleroy case is too familiar
just at present to need recalling; but, to make this chapter
complete, I will briefly state it.
Mrs. Burnett wrote a book called "Little Lord
Fauntleroy," and assigned the English copyright to Messrs.
Warne. A Mr. Seebohm "adapted" the story to the stage, as
thousands of adapters before him had adapted thousands of
novels; and the piece was played at the Prince of Wales's
Theatre. Mrs. Burnett, through Messrs. Warne, objected, as
thousands of adapted novelists had before objected; and went
to law, as tens of objecting novelists had done before, to
enforce her objections; and everybody laughed at her, and
said she was only throwing her money away, and that she was
bound to lose the day, as all her predecessors had.
But Mrs. Burnett's legal advisers were
geniuses, and they won the day for her; and, now that they
have shown how easy and simple it is for a novelist to
protect his property, there is little fear of thieves
breaking through and stealing in future. The Copyright Act,
as I have already pointed out, does not protect an author
against having his story acted on the stage; but it does
most emphatically assert that no one shall multiply copies
of his book, or of any part of his book. "Very
well," said Mrs. Burnett's counsel to Mr. Seebohm, "play
Little Lord Fauntleroy as much as you like. We
cannot prevent that. But you have sent a copy of the play
you have made out of the novel to the Lord Chamberlain. In
that copy of the play there are passages; taken from the
novel. You have thus multiplied copies of parts of the
novel. The Copyright Act forbids you to do this, and the
copy of your play in which such copy parts occur is forfeit
to our clients; and we demand of the Lord Chamberlain that
he give it up." This plea was successfully upheld by
the Court, and the copy of the play lodged for licensing
purposes at the Lord Chamberlain's office was given up to
Messrs. Warne; and as the Lord Chamberlain cannot or will
not license a play unless a copy of it is in his possession,
and as no play can be performed without his license, the
piece had to be withdrawn.
It has been suggested in some quarters that
Seebohm might have evaded the law by cutting out the
portions of the book he desired to use, and pasting them on
the pages of his play; it being argued that this would not
be multiplying copies, but only using up copies bought from
the rightful owners. But the idea will not bear
consideration by anyone acquainted with law. Whether the
copy was faked up with scissors and paste, or written out it
would be just the same--the work of the would-be pirate; and
the copy would be issued by him, not by the owner of the
copyright, the only person entitled to issue copies.
Of course, all this cannot prevent ideas and
suggestions being taken from novels; nor is it desirable
that it should do so.