probably is, that if he does not actually take part as an actor, the defendant must be shown to have had some initiation in or control over the performance. In Parsons v. Chapman,1 an acting manager, who paid the performers' salaries, and was entitled to dismiss them, was held to have caused a dramatic piece to be represented within the meaning of 10 Geo. III. c. 28, sec. I. In Russell v. Briant, the defendant was the landlord of "The Horns" Tavern, at Kennington. His premises included a large assembly room which was hired for evening entertainments. The defendant furnished the platform and the lights, and allowed bills to be put up in the tavern, and tickets of admission to be advertised to be sold at the bar. At one entertainment a song, "The Ship on Fire," which in Russell v. Smith 3 was held to be a copyright dramatic piece, was sung. It was held that the defendant had not represented or caused to be represented the dramatic piece in question. Wilde, C.J., said that no one could be considered as an offender unless by himself or his agent he actually took part in the representation. In Lyon v. Knowles * the defendant let his theatre. He provided and paid for the scenery, lights, printing, advertising, band, doorkeepers, sceneshifters, and supernumeraries. His servants collected the money at the door, and he retained half the gross profits to recoup himself. The lessee brought his own company, and represented pieces of his own choice, the defendant having no control over any person employed in the representation. It was held that the defendant had not caused the piece to be represented within the meaning of the Acts. In Marsh v. Conquest 5 the defendant was the proprietor of a theatre, and his son, the acting manager, hired it for a "benefit." The Court held that the defendant came within the statute. Erle, C.J., delivered the judgment of the Court:

"It appears that the defendant is the proprietor of the Grecian Theatre, and the employer of the dramatic corps attached thereto; that his son,

4 (1863), 3 B. and S., 556; see this case and Russell v. Briant, supra, approved by Byrne, J., in Kelly's Directories v. Gavin & Lloyds [1901], 1 Ch., 374.

5 (1864), 17 C. B. (N.S.), 418.

the stage manager, hired for his benefit-night the theatre, together with. the company of actors, and servants, and lights, for the sum of £30; and that the son, in the defendant's theatre, and with the aid of his actors and actresses, musicians, servants, lights, and other paraphernalia, represented the dramatic piece in question, in violation of the plaintiff's sole and exclusive right of representing or causing it to be represented. I think the defendant is responsible for that representation. He was the proprietor

of the theatre, and had entire control over the establishment and all belonging to it, and what was done by his son was done with his permission."

In Monaghan v. Taylor1 the defendant was the proprietor of a music hall, and paid a singer to perform, leaving him his own choice of songs. The singer sang a copyright song. The Court held that the defendant came within the statute. This decision would not now apply to musical performing right, since, by the Musical Copyright Act of 1888, a proprietor is not liable unless he permits the performance knowing it to be an infringement. It is still applicable to dramatic performing rights. Suppose, for instance, the proprietor of a variety theatre hired the services of a troop of players, telling them to fill up twenty minutes on the programme with any dramatic scene they pleased. If they infringed a dramatic copyright, the proprietor would be liable.

It seems to be doubtful whether if B, acting entirely as the agent of A, causes C and others to perform a dramatic piece, he can be held liable if he took no part in the representation. In Parsons v. Chapman 2 Lord Tenterden, C.J., directed the jury that it was sufficient if the defendant caused the piece to be performed; and that it made no difference that he did so as an agent for others. This was a decision under 10 Geo. II. c. 28, and the principle should be the same under 3 & 4 Will. IV., and 5 & 6 Vict.; but in French v. Day Kennedy, J., took a different view. One of the defendants was the manager of a theatre. He received instructions for the production of the piece in question from the proprietor, and he could not engage or dismiss artistes; he was in every respect

1 (1886), 2 T. L. R., 685; but see Cole v. Gear (1888), 4 T. L. R., 245.

bound to conform to his employer's orders. Kennedy, J., said :

"The whole thing was carried on by the proprietor, who merely used the manager as his mouthpiece. I think I ought not to hold that a person in his position 'represented,' or 'caused to be represented,' the piece."

Knowledge.—In an action for infringement of dramatic performing right it is unnecessary to prove that the defendant knew the performance was an infringement.1

Innocent Agents.—All the actors who take part in an unlawful performance are within the section as "representing," and are liable to penalties.2

5

Licence. It is an infringement of performing right to perform "without the consent in writing of the author or other proprietor." See decisions on licence as to copyright in books.* The licence must be in writing, but it does not require to be written by the proprietor or signed by him or any one else." The secretary of a dramatic author's society may, if he has authority, grant a good licence on behalf of the authors." A part owner cannot grant a licence without the consent of the other part owners.8

SECTION X.-INFRINGEMENT OF MUSICAL PERFORMING

RIGHTS.

Substantial Part.-The rule that the taking of a part but not of a particle in infringement applies equally to musical compositions and to the performing rights therein. In D'Almaine v. Boosey the taking of airs from an opera and arranging them as quadrilles and waltzes was held to be an infringement of the copyright in the opera. Lord Lyndhurst said :

"Substantially the piracy is when the appropriated music, though adapted to a different purpose from that of the original, may still be recognised by the ear.”

1 Lee v. Simpson (1847), 3 C. B., 871, at p. 883.

2 Duck v Mayeu (1892), 8 T. L. R., 339.

3

3 & 4 Will. IV. c. 15, sec. 2.

4 Supra, p. 118.

5 Roberts v. Bignell (1887), 3 T. L. R., 552; Eaton v. Lake (1888), 20 Q. B. D., 378.

6 Morton v Copeland (1855), 16 C. B., 517.

8 Powell v Head (1879), 12 Ch. D., 686.

7 Ibid.

9 (1835), I Y. and C. Ex., 288.

This test, however, will hardly apply to the piracy of an adaptation where the air or melody is a non-copyright one. A comparison of the actual notes and treatment of the phrases would have to be made.

Public Performance. It has been contended that the protection afforded by 3 & 4 Will. IV. c. 15 to musical compositions is only an exclusive right of performance in places of dramatic entertainment. That is the protection given to dramatic pieces, and it was said that 5 & 6 Vict. c. 45, in applying 3 & 4 Will. IV. c. 15 to musical compositions did not give them a wider protection than dramatic pieces had. In Wall v. Taylor1 the Court held that this view was wrong. Bowen, L.J., said :—

"I think the answer is this, that what is called in the argument a 'condition' of recovering a penalty in sec. 2 of 3 & 4 Will. IV. c. 15 is nothing of the kind, but part of the definition of the offence upon which the penalty is to be incurred. . . . The right granted is the privilege of representing at places of dramatic entertainment. . . Now sec. 20 of 5 & 6 Vict. c. 45 creates a new right of property as to a musical composition, and gives the author and his assigns the sole liberty of representing or performing it. That is the right given, and sec. 21 says that the person who shall have that right 'shall have and enjoy the remedies given and provided' in the Act of 3 & 4 Will. IV. c. 15. Why read into that word 'remedies' that the second section of that Act is only to be put in force not where there is an infringement of that right, but where there has been a representation or performance at a place of dramatic entertainment."

The view of Cotton, L.J., in the same case was that the remedies of 3 & 4 Will. IV. c. 15 were not applicable unless the musical composition was performed in a place of dramatic entertainment; but that in every case of public performance there was a remedy under 5 & 6 Vict. c. 45 for damages and injunction. Since the Musical Copyright Act of 1888 the distinction between these opinions has become immaterial, for in every case in which the performance is actionable at all the Court may assess the damages as it thinks proper.

Causing to be Represented. The offence is representing or

1 (1883), 11 Q. B. D., 102.

"causing to be represented." As to what the latter includes see page 139, on performing right in dramatic pieces. The liability for "causing to be represented" differs from that in the case of dramatic pieces in that since the Copyright (Musical Compositions) Act, 1888, "the proprietor, tenant, or occupier of any place of dramatic entertainment or other place at which any unauthorised representation or performance of any musical composition shall take place . . . shall not by reason of such representation or performance be liable to any penalty or damages in respect thereof, unless he shall wilfully cause or permit such unauthorised representation or performance, knowing it to be unauthorised." 1 In respect of those who are not proprietors, tenants, or occupiers the liability is the same as in the infringement of dramatic performing right.

SECTION XI.-REMEDIES FOR INFRINGEMENT OF DRAMATIC PERFORMING RIGHT.

An action for

2

1. Penalty of 40s. for each performance, or the defendant's profits, or the actual damage sustained, whichever be the greater.

2. Injunction.3

3. A full and reasonable indemnity as to costs.*

Action must be brought within twelve calendar months of the offence.5

151 & 52 Vict. c. 17, sec. 3. Wright, J., has held that a knowledge that the music contained the statutory notice reserving performing rights is not of itself sufficient evidence that the proprietor knew the performance to be unauthorised. Moul v. Coronet, Nov. 30, 1901. 2 Not a true "penalty," but in the nature of liquidated damages, Adams v. Batley (1887), 18 Q. B. D., 625; Saunders v. Will [1892], 2 Q. B., 18; see Fitzbull v. Brooke (1844), 2 D. and L., 477.

3 See p. 86.

4

3 & 4 Will. IV. c. 15, sec. 2, provided “double costs of suit." This was amended by 5 & 6 Vict. c. 97, sec. 2, to a "full and reasonable indemnity as to all costs, charges, and expenses.' This probably means nothing more than ordinary party and party costs, Reeve v. Gibson [1891], 1 Q. B., 652; Avery v. Wood [1891], 3 Ch., 115; but it would seem that as the costs are given by statute they are not in the discretion of the Court, and must be awarded to a successful plaintiff, Reeve v. Gibson [1891], 1 Q. B., 652; Hasker v. Wood [1885], 54 L. J. Q. B., 419; Judicature Act, 1890, sec. 5. Sec. 2 of 5 & 6 Vict. c. 97 is repealed by the Public Authorities Protection Act in so far as that Act applies.

5 3 & 4 Will. IV. c. 15, sec. 3.