second count. The plaintiff joined issue on the pleas, and joined in *demurrer. The demurrer was argued in Hilary Term last, *480] and judgment was given upon such demurrer for the defendant vide 9 C. B. N. S. 755 (E. C. L. R. vol. 99).

The issues in fact came on to be tried before Erle, C. J., at the sittings in Middlesex after Easter Term last, when a verdict was found for the plaintiff for 1601. damages, subject to the opinion of the Court upon the following case:—

The plaintiff, at the times of the representations and performances by the defendant hereinafter mentioned, was and is the duly registered author and proprietor of, and had and still has the sole liberty of representing and causing to be represented at any place or places of dramatic entertainment in Great Britain, a certain duly registered play or dramatic piece or entertainment composed by him, intituled 'Gold," and the plaintiff was then the author of and the duly registered proprietor of a subsisting copyright in the said play of "Gold," as, and which then was, a duly registered book, and also the author of and the duly registered proprietor of a subsisting copyright in a certain other duly registered book, being a tale, novel, or story, intituled "It is never too late to mend," published by him.

The aforesaid play or dramatic piece or entertainment was composed and duly registered as such by the plaintiff'; and the said play was also duly registered as a book, and the plaintiff was the proprietor of the copyright therein, and the same was published by him before the composition or registration of the said book intituled "It is never too late to mend," and before the existence of any copyright therein. The said last-mentioned book was founded upon the said play or dramatic piece or entertainment so then also published as a book. The said play or dramatic piece or entertainment, before the representation or performance by the defendant as hereinafter mentioned, had been represented and performed with the plaintiff's license, for reward to the plaintiff, at certain places of dramatic entertainment in Great Britain.

*181]

After the said play or dramatic piece or entertainment of the plaintiff called "Gold" had been composed and duly registered by the plaintiff, and had been so performed and represented with the license and consent for reward to the plaintiff, and after the registration and publication of the same as a book, and after the registration and publication of the said book intituled " It is never too late to mend," the defendant, who then was and is the licensed proprietor of a certain place of dramatic entertainment in Great Britain called "The Grecian Theatre," represented and performed and caused to be represented and performed at the said Grecian Theatre on eighty different occasions a certain play or dramatic piece or entertainment intituled "Never too late to mend." The author of the said last-mentioned play or dramatic piece or entertainment, who as such was paid by the defendant for each of the said last-mentioned performances and representations, composed it principally by dramatizing the plaintiff's said novel "It is never too late to mend," and partly from his own head, without having seen or heard of the plaintiff's said play or dramatic piece or entertainment or book intituled "Gold," or being acquainted with its contents. But such author became aware of the existence of the

plaintiff's said play and book intituled "Gold" within less than three weeks after the first of the said eighty performances and representations aforesaid.

The defendant was not the author of the said play or dramatic piece or entertainment entitled "Never too late to mend," so represented and performed by him at the said Grecian Theatre: and there was not any evidence to show whether he knew that in any respect it resembled or was (if it was) a piracy of the plaintiff's said play or dramatic piece or *entertainment or book called "Gold." But, after the defendant had several times represented and performed [*482 at his said theatre the said play or dramatic piece or entertainment called "Never too late to mend," the plaintiff gave notice to the defendant that they were representations and performances of divers parts of the plaintiff's said play or dramatic piece or entertainment called "Gold," and an infringement of the plaintiff's sole liberty of representing the same and causing the same to be represented at any place or places of dramatic entertainment in Great Britain; and the plaintiff then required the defendant to cease from all such further representations or performances, excepting with the license of the plaintiff, which the plaintiff offered to give to the defendant, as he had previously given to other persons, for reward to be paid to the plaintiff; but the defendant refused to pay the plaintiff the amount required by him for such license; and, after such notice, and without any license from the plaintiff, the defendant on seven occasions represented and performed and caused to be represented and performed as before at the said Grecian Theatre the said play or dramatic piece or entertainment called "Never too late to mend."

One of the actors, a Mr. Mead, employed by the defendant in such representations and performances as aforesaid, and who had frequently acted in the said performances and representations of the plaintiff's said play intituled "Gold," was called as a witness on behalf of the defendant, and stated that he could not deny but that he might on one or two occasions, when performing in the said drama of "Never too late to mend" at the defendant's said theatre, have spoken a part of the plaintiff's said play or dramatic piece or entertainment called "Gold" not contained in the plaintiff's said book or novel,-being a few words at the end called the "Tag;" but that, if he did so, he did *it accidentally, the words of such tag floating in his mind [*483 might have come out mixed up with the strong similarity existing between the tag in the plaintiff's play of "Gold" and that in the drama called "Never too late to mend." That, in so doing, the said actor acted without the knowledge, authority, or direction of the defendant, and without being conscious that he had said anything not in the part set down for him to say by the defendant; and the said part of the plaintiff's said play called "Gold" so delivered by the said actor was no part of the composition of the said play or dramatic piece or entertainment called "Never too late to mend," nor was it contained in the licensed copy of the said last-mentioned play required by law to be left, and which was left, at the Lord Chamberlain's office, and no part of the part set down by the defendant for the said actor to say.

It was agreed between the parties that the pleadings in the action

on both sides should form part of the special case, as also the printed copy of the said play called "Gold," and the licensed copy of the said play called "Never too late to mend," left at the Lord Chamberlain's office as required by law, and also a published copy of the plaintiff's said book intituled It is never too late to mend," and the certificates of registration of the said play called "Gold," and of the said novel called "It is never too late to mend," which were all put in and proved at the trial: also, that the Court should be at liberty to draw any inferences or find any facts which in the opinion of the Court a jury ought to have drawn or found.

The question for the opinion of the Court was, whether the aforesaid representations and performances by the defendant at the said Grecian Theatre of the said drama called "Never too late to mend," so composed and written as aforesaid, were representations and performances of divers parts of the said play or *dramatic piece or entertain

*484] ment composed by the plaintiff intituled "Gold," and infringe

ments of his sole liberty of representing the same and causing the same to be represented at any place or places of dramatic entertaininent in Great Britain.

If the Court should be of opinion that the aforesaid representations and performances by the defendant at the said Grecian Theatre were representations and performances of divers parts of the said play or dramatic piece or entertainment composed by the plaintiff intituled "Gold," and infringements of his sole liberty of representing the same and causing the same to be represented at any place or places of drainatic entertainment in Great Britain, then the verdict was to be entered for the plaintiff as aforesaid, or for such amount as the Court should direct; but, if the Court should be of a contrary opinion, then a nonsuit was to be entered.

Mr. Reade, in person.-It stands admitted on the case, that, in January, 1853, the plaintiff wrote and registered and produced upon the stage a drama called "Gold," and that, in January, 1856, he also wrote and published and registered a novel, founded on the story in the drama, called "It is never too late to mend." It also appears that Mr. G. A. Conquest, the defendant's brother, dramatized the novel, calling his draina "Never too late to mend," and that this last-mentioned drama was produced by the defendant at the Grecian Theatre, as alleged in the first count of the declaration. [Lush.-Without any knowledge of the existence of the plaintiff's drama called “Gold."] Knowledge on the defendant's part that he is invading the plaintiff's right is quite unnecessary to constitute the offence of piracy: Lee v. Simpson, 3 C. B. 871 (E. C. L. R. vol. 54). The simple question here is, whether, if a man writes a play, and then casts its incidents into the shape of a *novel, he loses his copyright or his sole right *485] of representation in the play. The author of a dramatic piece has by the Dramatic Copyright Act, 3 & 4 W. 4, c. 15, the sole liberty of representing or causing it to be represented at any place of dramatic entertainment: and that right is confirmed by the 5 & 6 Vict. c. 45, s. 21. The 22d section of the last-mentioned statute enacts that "no assignment of the copyright in any book consisting of or containing a dramatic piece or musical composition shall be holden to convey to the assignee the right of representing or performing such dramatic

*

piece or musical composition, unless an entry in the said registry-book [required by s. 11] shall be made of such assignment, wherein shall be expressed the intention of the parties that such right should pass by such assignment." By the combined effect of these two statutes, therefore, the author of a drama has two separate rights, which may be conveniently distinguished by the names of copyright and stageright, either or both of which he may assign; he may assign the one to A., the other to B. Suppose the plaintiff assigned the copyright, retaining the stage-right, he could not complain of an infringement of the copyright: or vice versa. If the defendant's drama of "Never too late to mend," partly copied from the plaintiff's drama of "Gold," had been published, the plaintiff would have had a remedy under the Act. Has he not an equal right to complain of an infringement of his stage-right? This question was discussed before Vice-Chancellor Wood in a case of Reade v. Lacy, 30 Law J. Ch. 655. It was there held, that, where the owner of copyright in a play wrote a novel founded upon it, to which he transferred several scenes from the play, and afterwards another person dramatized the novel, taking the same scenes from the novel, this is an infringement of the copyright in the play. "Some parts of this work," says the Vice-Chancellor, [*486 appear to be a copy of Mr. Reade's drama of 'Gold,' only with a different name. Mr. Reade has a copyright in the work 'Gold,' and, so long as he has it, nobody is entitled to reprint that work. But it is said that Mr. Reade having used the drama 'Gold' in the construction of the novel 'It is never too late to mend,' he has so far forfeited his copyright in the drama that the defendant is entitled to dramatize the novel, notwithstanding in doing so he makes use of a considerable portion of the dialogue that originally occurred in ‘Gold.' Now, I am far from conceding, except for the purpose of argument, that there is any right so to use the novel, even supposing the drama not to be in existence. How far a dramatic author may be entitled to use a novel without the permission of the author, for the purpose of writing a play, may be a question worthy of consideration.(a) I assume, solely for the purpose of argument, that there exists a right to go to the novel and work upon that novel; and then it is said, because the plaintiff has composed the novel from the drama, and the novel contains scenes which the author has put into his drama, he has not the least property in them, and they may be reproduced because it was done honestly and in ignorance that it was an exact reproduction of the drama. There can hardly be a stronger case than the present to try the question; for, in many places, the two dramas are identical. [His Honor referred to several passages in the two dramas which were verbatim the same.] The argument is, the plaintiff happens to have introduced a good deal of his drama into another book: he has used his own property in another place; and the defendant · says, 'I found your property in another place: I did not know you had used it in any other way. I did not think I was *invading [*487 your copyright, because I found it in another work, to which I contend I had a right to resort.' There really is nothing to try upon this part of the case." And the injunction was granted. The question

(a) Reader. Conquest, 9 C. B. N. S. 755 (E. C. L. R. vol. 99), had not at this time been decided.

here is, whether by the mere act of publishing his novel of "It is never to late too mend," the author forfeits his stage-right in the drama of "Gold."

Lush, Q. C., for the defendant.-It may be conceded that the plaintiff has all the rights he claims in his drama of "Gold." But it is submitted that the defendant's play of "Never too late to mend," constructed upon the plaintiff's novel, which was perfectly lawful, is as much an original production as the plaintiff's drama is; and that the authorship of that play draws with it the right to represent it on the stage. There is a close analogy between patent-right and copyright. There is, however, this difference between them:-The patent-right is given to the first inventor; and, if two men working independently of each other happen to hit upon the same invention, the first who obtains a patent for it shuts out the other; he has got the exclusive right. But, if two literary men treat on the same subject, each may have a copyright in his own production. The one cannot prevent the other from composing a similar work, provided no part of it is copied from his. [WILLIAMS, J.-The production of the one work in no way flows from the existence of the other.] Lord Mansfield, in Sayre v. Moore, 1 East 361, n., says: "The act that secures copyright to authors guards against the piracy of the words and sentiments; but it does not prohibit writing on the same subject. As in the case of histories and dictionaries: in the first, a man may give a relation of the same facts, and in the same order of time; in the latter, an interpretation is given of the identical same words. In all these cases the question of fact to come *before a jury is, whether the alteration *488] be colourable or not. There must be such a similitude as to make it probable and reasonable to suppose that one is a transcript of the other, and nothing more than a transcript. So, in the case of prints, no doubt different men may take engravings from the same picture. The same principle holds with regard to charts: whoever has it in his intention to publish a chart may take advantage of all prior publications. There is no monopoly of the subject here, any more than in the other instances; but, upon any question of this nature, the jury will decide whether it be a servile imitation or not." Copyright is, "the sole and exclusive liberty of printing or otherwise multiplying copies" of the party's own composition: 5 & 6 Vict. c. 45, s. 2. That cannot be invaded except by copying. The words of the 8 Anne, c. 19, were the same. The judgment of Lord Eldon in Matthewson v. Stockdale, 12 Ves. 270, goes upon the supposition, that, if two men treat on the same subject, if the work of each be original, there is no infringement by either. So also does the judgment in Longman v. Winchester, 16 Ves. 269; and again in Wilkins . Aikin, 17 Ves. 422. [WILLIAMS, J.-Suppose a drama published in England is translated into the French language in France,-would a reproduction of it in English from the French, in ignorance of its having been originally translated from English, be an invasion of the right of the original author?] That is substantially this question. If two authors go to independent original sources, each has a right. [ERLE, C. J.— Is the novel here an "original source?"] By original source is meant, any source open to the public. When Mr. Reade published his novel he gave out his conceptions to the world. No person could lawfully