unable to restrain the unauthorised public performance of his compositions by others. Lord Mansfield, in the very case which decided that music was within the Act of Anne, said: "A person may use the copy by playing it; but he has no right to rob the author of the profit by multiplying copies, and disposing of them to his own use.' The author is now placed on a level, in this respect, with the author of dramatic pieces commonly so called.

An introduction to a pantomime, which is the only written part of such an entertainment, is a dramatic piece within the protection of this Act. (a) It is not correct to say that such an introduction is not an entire and complete piece. (b)

PART I.

CHAPTER X.

musical compo

Where a person is employed by another to write for Authorship of reward paid to him a musical composition, to be used as sition accessory part of the representation of a dramatic piece, and as a to a play. mere accessory to such dramatic piece, the composer of the musical accessory has no copyright therein. The property in music so composed becomes vested in the employer, and he does not require the consent of the composer in order to represent it. This was decided by the Court of Common Pleas in the case of Hatton v. Kean, (c) where the plaintiff had been employed by the defendant to compose certain music to be performed during and as part of the representation of three of Shakespeare's plays. The musical composition was held to have become the property of Mr Kean, and the plaintiff was held never to have been, within the language of the statute, the owner or proprietor thereof. This case was followed and approved in Wallerstein v. Herbert, (d) where the composer of the musical accessories was employed to find an orchestral band, to procure and pay all the musical performers, and furnish all the musical instruments, to provide, lead, and perform overtures and entr'acte music, and the music incidental to the dramatic performances. In performance of his duties under this engagement he composed (a) Lee v. Simpson (3 C. B. 871).

(b) 3 C. B. 881, 882. As to what is a dramatic entertainment within 6 & 7 Vict. c. 68, see Day v. Simpson (18 C. B. N. S. 680).

(e) 7 C. B. N. S. 268; 29 L. J. 20, C. P. ; 1 L. T. N. S. 10. (d) 16 L. T. N. S. 453; 15 W. R. 838. See Keene v. Wheatley (9 Amer. Law Reg. 47), where A., in the general theatrical employment of B., was engaged in the office of assisting in the adaptation of a play for representation, and B. was held to be the proprietor of the additions so made, as products of his intellectual exertions in a particular service in his employment; on the principle that where an inventor in the course of his experimental essays employs an assistant, who suggests and adapts a subordinate improvement, it is in law an incident or part of the employer's main invention.

PART I. CHAPTER X.

Pianoforte score

of an opera.

the music for a drama called "Lady Audley's Secret," and it was held that he had no copyright in such music.

A pianoforte score of an opera is an independent musical composition separate and distinct from the opera itself; and where such pianoforte score has been arranged by a person other than the composer of the opera, it is incorrect to register the score as the composition of the composer of the opera. (a) "It seems impossible," says Cockburn, C.J., "to believe that any musician, however great his talent, whether as a composer or as an executant, from the mere circumstance of having the opera in its entirety before him, that is to say, with all the score for all the instruments, which neither eye nor mind could take in at the same time, could be able to play the accompaniment while singing the music of the opera at the piano. It requires time, reflection, skill and mind so to condense the opera score as to compose the pianoforte accompaniment. I cannot therefore bring myself to think that the pianoforte arrangement of the music of an opera, which originally consisted of vocal music and instrumentation to be executed by some half hundred instruments can be said to be anything else than a specific, separate, and distinct work from the opera itself."(b)

Whether a pianoforte arrangement of the score of an opera executed without the consent of the composer of the opera would be an infringement of his copyright therein, has not been expressly decided. In Wood v. Boosey, (c) Cockburn, C.J., carefully guarded himself against being understood to decide that it would not, and Blackburn, J., was of opinion that it would. Kelly, C.B., on appeal() says, "No doubt it is a piracy piracy of the opera, and the composer may maintain an action against the adapter or the publisher of the adaptation;" but it was not necessary to decide the point in that case.

As to the assignment of the rights treated of in this chapter, the infringement thereof, and the remedies for infringement, see the chapters on "Transfer," "Piracy," and "Remedies for Infringement," post.

(a) Wood v. Boosey (L. Rep. 2 Q. B. 340; 7 B. & S. 869; 15 L. T. N. S. 530; 36 L. J. 103, Q. B.; affirmed on appeal, L. Rep. 3 Q.B. 223; 9 B. & S. 175; 37 L. J. 84, Q. B.; 18 L. T. N. S. 105.)

(b) L. Rep. 2 Q. B. 350; 15 L. T. N. S. 530; 36 L. J. 103, Q.B. ; 15 W. R. 309.

(c) L. Rep. 2 Q. B. 350, 354. See the remarks of Lord Abinger, C.B., in D'Almaine v. Boosey (1 Y. & C. 288).

(d) 18 L. T. N. S 108; L. Rep. 3 Q. B. 223; 37 L. J. 84, Q. B. ; 16 W. R. 485.

CHAPTER XI.

PAINTINGS, DRAWINGS, AND PHOTOGRAPHS.

THE Copyright in paintings, drawings, and photographs dates from, and is altogether dependent on, the statute 25 & 26 Vict. c. 68. The preamble to that Act states that "the authors of paintings, drawings, and photographs have no copyright in such their works, (a) and it is expedient that the law should in that respect be amended."

PART I.

CHAPTER XI

duration of the

Sect. 1 enacts that "the author, being a British subject Nature and or resident within the dominions of the Crown, of every t original painting, drawing, and photograph which shall be or shall have been made either in the British dominions or elsewhere, and which shall not have been sold or disposed of before the commencement of this Act, and his assigns shall have the sole and exclusive right of copying, engraving, reproducing and multiplying such painting or drawing and the design thereof, or such photograph and the negative thereof, by any means and of any size, for the term of the natural life of such author and seven years after his death."

A photograph of an engraving or picture is a photograph in which copyright is given by this section. In a recent case, (b) it was contended in argument that photographs taken from engravings or pictures are not "original" photographs within the meaning of the statute, and therefore that no copyright existed in them, to which Blackburn, J., replied: "It does not appear from the language of the Act that the word 'original' was intended to apply at all to photographs; but if it does, what photograph can be original if a photograph from a picture of an artist is

not so ?"

for another.

Sect. 1 contains a proviso "that when any painting or where work is drawing, or the negative of any photograph, shall for the first sold to or made time after the passing of this Act [29th July, 1862] be sold or disposed of, or shall be made or executed for or on behalf of any other person for a good or valuable consideration, the person so selling or disposing of or making or executing the same shall not retain the copyright thereof, unless it be expressly reserved to him by agreement in writing, signed, at or before the time of such sale or disposition, by the vendee or assignee of such painting or drawing, or of such negative of a photograph, or by the person for or on whose (a) See the opinion of Abbott, C.J., in De Berenger v. Wheble (2 St. N. P. 549).

(b) Graves's case (20 L. T. N. S. 877; L. Rep. 4 Q. B. 715).

PART I

behalf the same shall be so made or executed, but the copyCHAPTER XI. right shall belong to the vendee or assignee of such painting or drawing, or of such negative of a photograph, or to the person for or on whose behalf the same shall have been inade or executed; nor shall the vendee or assignee thereof be entitled to any such copyright, unless, at or before the time of such sale or disposition, an agreement in writing, signed by the person so selling or disposing of the same, or by his agent duly authorised, shall have been made to that effect."

Registration.

By force of this section the copyright in a painting, drawing, or photograph made for or on behalf of any other person for a good or valuable consideration, is altogether gone, unless (1) it be either expressly reserved to the author by the vendee or assignee "by agreement in writing signed at or before the time" of sale or disposition, or (2) it be conferred on the vendee or assignee "at or before the time of sale or disposition" by "an agreement in writing by the person so selling or disposing, or by his agent duly authorised."

Sect. 2 provides that nothing contained in the Act "shall prejudice the right of any person to copy or use any work in which there shall be no copyright, or to represent any scene or object, notwithstanding that there may be copyright in some representation of such scene or object." This means that, though the owner of a particular photograph, &c., may have the sole right of multiplying copies of it, nobody else shall be prevented from taking a fresh photograph, &c., of the same object or place. (a)

Sect. 4 provides as to registration that "there shall be kept at the Hall of the Stationers' Company, by the officer appointed by the said company for the purposes of the Act 5 & 6 Vict. c. 45, a book or books called "The Register of Proprietors of Copyright in Paintings, Drawings, and Photographs," wherein shall be entered a memorandum of every copyright to which any person shall be entitled under this Act, and also of every subsequent assignment of any such copyright; and such memorandum shall contain a statement of the date of such agreement or assignment, and of the names of the parties thereto, and of the name and place of abode of the person in whom such copyright shall be vested by virtue thereof, and of the name and place of abode of the author of the work in which there shall be such copyright, together with a short description (a) Per Blackburn, J., Graves's case (20 L. T. N. S. 881; L. Rep. 4 Q. B. 722).

PART I.

of the nature and subject of such work, and in addition thereto, if the person registering shall so desire, a sketch, CHAPTER XI. outline, or photograph of the said works."

This section also provides that "no proprietor of any such copyright shall be entitled to the benefit of this Act until such registration, and no action shall be sustainable nor any penalty be recoverable in respect of anything done before registration."

This renders registration necessary on the part of an assignee before he can sue for the penalties imposed by the Act in case of infringement; but it does not make it necessary that all or any previous assignments should also be registered, or that the copyright of the original author should be registered. It is enough that the assignment to the person suing has been registered. (a)

The Act requires that the memorandum of registration Sufficiency of should contain amongst other things "a short description of description. the nature and subject of the work, and in addition thereto, if the person registering shall so desire, a sketch, outline, or photograph" of the work. The question has been raised in two cases, what is a sufficient "description of the nature and subject" of the work within the meaning of this section? In Ex parte Beal (b) it was contended that the entry of the name "Ordered on Foreign Service" was not a sufficient description of a picture of a young officer in a railway carriage taking leave of a lady, nor the entry of the names "My First Sermon" and "My Second Sermon" a sufficient description of a picture and a photograph representing respectively a child looking with eyes wide open at its first sermon, and fast asleep at its second. The Court of Queen's Bench, however, thought that the requirements of the statute had been sufficiently complied with.

"Is not the object of the Legislature," said Blackburn, J., "that enough be stated to identify the production, and that the registration must be bona fide? that a man shall not first claim one thing, and then sue for another? The description must be such as shall earmark the subject." In answer to an argument that the object of the registration was like that of the registration of a patent, viz., to give notice to everyone of certain things which he is not to do, Blackburn, J., said, "That is not the object. Penalties are imposed on persons who copy the work of others. The person who does so must in most cases know that he is (a) Graves's case (20 L. T. N. S. 881; L. Rep. 4 Q. B. 722).

(b) 9 B. & S. 395; L. Rep. 3 Q. B. 387; 18 L. T. N. S. 285; 37 L. J. 161, Q. B.