
    HENRY D. PALMER, Plaintiff and Appellant, v. ROBERT M. De WITT, Defendant and Respondent.
    The statutes o£ copyright in England and in this country do not in any manner affect the common law ownership of literary composition before publication, and until publication an author and his assignees have a proprietary right in the author’s production of which they are not deprived by the statute, and which the court will protect against invasion.
    By the act of Congress of February 3, 1831 (by which act all previous acts were repealed), it was intended to furnish protection to authors for wrongful appropriations of their works, by providing a means of continuing .in effect their common law right after publication, and not to wholly deprive them of such common law right. Such right ends with publication; and the only publication contemplated by the framers of the copyright law is a publication in print, and not in any other mode.
    It is evident that, in view of the common law right of authors, existing and recognized at the passage of the act, and the settled belief that such right continues until actual publication or dedication by the author, Congress merely intended to enable authors to retain their proprietorship after printing and publishing.
    The supplementary act of August 18, 1856, extends to authors of dramatic compositions ” the same protection that is afforded to authors of other works by the act of 1831, and in addition to the sole right to print and publish, they are given the sole right to act, perform, and represent such composition, or to cause them to be acted, performed, and represented on any stage or public place during the period for which the copyright is obtained. This act (1856) contains also a prohibition against representation of copyrighted plays without the proprietor’s consent, similar in terms to the ninth section of the act of 1831.
    The fact found in this case, which it is claimed was a publication of the play in question, was that on the 15th day of February, 1868, and for a great number of times thereafter, the comedy was publicly performed and represented at the Prince of Wales Theatre in the city of London, by and with the sanction of the author.
    It was not found that the comedy had ever or anywhere been represented without the -sanction of the author, or that it was ever put in print by him or by his authority. The only publication, therefore, which could be claimed, was its representation at the theatre on various occasions and in the presence of large audiences.
    A single or a great number of public performances, conducted under the authority of the author, will not justify a felonious obtaining of the manuscript for purposes of printing and publishing. The right of obtaining the manuscript, or of its contents, does not depend upon the manner of procuring it, but upon whether the author has parted with his rights by publication.
    To give a literary composition value, or to make it property recognized by the common law, the author must be allowed to use it before the public, and if, having submitted it once to a public hearing, it is to be deemed a publication so as to take away the proprietary right, and to deprive the author of the benefit of copyright laws, then obviously the common law means nothing, and there is no property in literary work.
    
      
      [Decided December 3, 1870.]
    The law intended to secure to the author the beneficial results of his labors, and to protect him from any piratical invasion of Ms rights, until he has done some act inconsistent with an exclusive ownership, and wMch shall amount in judgment of law to publication.
    It may be assumed that it is not intended in any case to surrender property in a literary composition so long as the author of it retains it in manuscript, and uses it before the public for Ms private pecuniary benefit.
    Therefore there can be no presumption against literary ownersMp arising from the mere frequency of performance. Such performances are not inconsistent with a continued proprietorship, but are wholly consistent with and necessary to the enjoyment of the property.
    Public representation is not publication, and does not entitle any person, without the author’s consent, to procure it in any way for purposes of publication.
    Any surreptitious procuring of the literary property of another, no matter how obtained, whether from memory or otherwise, if ib is unauthorized and without the knowledge or consent of the owner, and obtained before publication by him, is an invasion of his proprietary rights, if the property so obtained is made use of to his injury.
    If carrying away in the memory of a spectator, or otherwise surreptitiously obtaining the contents of a play, is without the consent of, or unauthorized by the owner, and therefore an infringement of his property in the play, the act is not excused by the omission of the owner to notify the audience that they will not be allowed or are forbidden to carry it away in that manner.
    The result upon tMs whole case is, that there was no such publication by the plaintiff or by Ms assignor of the play in question, as to deprive the plaintiff of Ms common law right of property in it.
    That public representations of the play were not a publication of it, so as to take away such common law right.
    That there is no presumption in favor of the lawfulness of the manner in wMch the defendant obtained the play.
    That the burden is upon him, to show that it came into his possession in a lawful manner, and that, having failed to show thé lawfulness of Ms possession, he should be deprived of it.
    Before Monell, Jones, and Freedman, JJ.
    Appeal from a judgment.
    This action was brought to obtain an injunction restraining the printing and publishing, by the defendant, of a drama or comedy called “ Play.”
    The complaint alleged that immediately prior' to February, 1868, T. W. Robertson, of London, England, the author of the drama, sold to the plaintiff the exclusive right of performing the drama upon the stage, and printing and publishing the same, within and throughout the United States. That at the time aforesaid the drama was an unpublished composition, and had not been, nor had it since been, printed, or published in print, by the author, or by any one with his consent, or by the plaintiff or by any one with his consent; nor had it, since the 1st of February, 1868, been printed or published in print by the plaintiff, or by any one with his consent. That the drama had not been produced or publicly performed on any stage in this country, or elsewhere, until subsequent to the sale thereof to the plaintiff, a/nd that the first performance thereof was on the fifteenth day of February, 1868, in the city of London, at the Prince of Wales Theatre, mid under the sanction of the amthor • hut that the author did not thereby confer upon or abandon to the defendant, or to any other person, the right of printing or publishing the drama. That on the tenth day of February, 1868, the plaintiff received from the author a manuscript copy of the drama in consummation of the aforesaid purchase.
    The complaint then alleged that the defendant, without the knowledge or consent of the plaintiff, and in disregard and violation of his proprietary right, had printed and published, and offered for sale, printed copies of the drama.
    The answer of the defendant, after denying (among other things) that the author, by its public representation in London, did not thereby confer upon or abandon to the defendant, or to any person, the right or privilege of printing or publishing the drama, alleged, upon information and belief, that the drama was, during the months of February and March, 1868, with the sanction of the author thereof, many times publicly performed or represented in the presence of large audiences, at one or more of the principal theatres in London, England, and that the tickets admitting the spectators to said performance contained no notice or prohibition against carrying the said comedy away by memory or otherwise, and using, printing, or publishing the same, nor was any notice to that effect posted in any of the theatres, in view of the spectators.
    
      And the defendant alleged that he received the words of the comedy, and description of the arrangement, general stage directions, and divisions of acts and scenes, as published by him, from one or more persons, who obtained the same from its performance on the stage at suchpubTAc representations, while witnessing the same as such spectators.
    
    The action was tried by the court without a jury. Judgment was rendered in favor of the defendant, dismissing the complaint with costs, the court assigning as a reason therefor that the action had been tried (upon substantially the same facts as were before the court at Special Term) on a motion to dissolve the injunction, and that as, upon such motion, the questions involved had been examined and the injunction dissolved, he felt bound by such decision.
    The justice found the following facts:
    First—That on and prior to the first day of February, 1868, one T. W. Robertson, a resident of London and a citizen of Great Britain, was the sole author and composer of the drama mentioned in the complaint, called “ Play,”
    Second—That on said 1st day of February, 1868, the said Robertson, for a valuable consideration, executed and delivered to the plaintiff a certain instrument in writing, by which he sold, assigned, and set over to the plaintiff in this action the exclusive right and privilege of printing and publishing, enacting, performing, representing, and producing on the stage, licensing or permitting to be printed, published, enacted, performed, represented, and produced on the stage within and throughout the United States, the said drama called “ Play,” together with all his rights and privileges therein and thereto, as the author thereof, throughout the United States, and all benefits to be derived therefrom, and delivered to the plaintiff the manuscript of said drama.
    Third—That prior to the 15th day of February, 1868, the comedy of “Play” had not been printed, published, or performed.
    Fourth—That on the 15th day of February, 1868, and for a great number of times thereafter, the said comedy was publicly performed and represented at the Prince of Wales Theatre, in the city of London, by and with the sanction of said T. W. Robertson, in the presence of large audiences; and that the tickets admitting spectators to the performance, which were purchased by them,- contained no notice or prohibition against carrying the said comedy away, by memory or otherwise, and using or printing the same, nor was any notice' to that effect posted in said theatre, in view of such spectators.
    Fifth—That the defendant received the words of the comedy, and a description of the arrangement, general stage directions, division of acts and scenes, as presented by him, from one or more persons who had seen or heard the same publicly performed at said public representation in England.
    Sixth—That on the 25th day of March, 1868, the defendant rprinted and sold certain printed copies of the said comedy, identical in all respects with the plaintiff’s copy, and still openly offers for sale and sells copies of said comedy.
    Seventh—That, by reason of the acts of the defendant, the plaintiff has sustained damages incapable of computation, -in not having the exclusive sale of said comedy.
    The conclusion of law was, that the defendant was entitled to judgment—that the complaint be dismissed with costs.
    From the judgment entered thereupon the plaintiff appealed.
    
      Mr. William D. Booth for appellant.
    It will not be necessary to argue that the author of any liter-’ ary work has a right of property therein. The right has been too frequently recognized, declared, and protected by the courts to be any longer the subject of argument. In the language of Judge Hoar, “An author has at common law a property in his unpublished works which he-may assign, and in the enjoyment of which equity will protect his assignee as well as himself. This property continues until, by publication, a right to its use has been conferred upon, or dedicated to the public ” (Keene v. Kimball, 23 Monthly L. R., p. 673).
    
      In the language of Judge Duer (in Woolsey v. Judd), “ This right is still absolute and exclusive, and so long as the manuscript may exist unpublished, and its authj or his representatives may choose, it is,perpetual” (4 Duer, 39).
    This right of property possesses all the attributes of property, and passes to assignees, executors, administrators, or other personal representatives (Morris v. Kelley, 1 Jacob & W., 461; Webb v. Rose, 3 Swanston, 674; Tonson v. Walker, id., 672; Burnett v. Chetwood, 2 Merivale, 441, note; Thompson v. Stanhope, Ambler, 737; Macklin v. Richardson, id., 694; Duke of Queensberry v. Shebbeare, 2 Eden, 329).
    That this property passes by assignment has been held by the courts of this country as well (Keene v. Wheatley, 9 Am. Law Reg., 33; Keene v. Clark, 1 Abb., P. R., 88; Roberts v. Myers, 23 Monthly Law Rep., 396; Davenport v. Pilgrim, Judge Hoar, MS.).
    Even a limited or partial assignment of a copyright has been held good (Sweet v. Shaw, 3 Jurist, 219; Sweet v. Carter, 11 Simons, 562).
    The defendant’s counsel insists, however, that conceding to us a common law right of property, it has been taken away by the passage of the United States Statutes of Copyright, and that the State courts have no jurisdiction over the question.
    This proposition, which was seriously argued, has been twice the subject of judicial determination.
    In Woolsey v. Judd, 4 Duer, at page 385, Mr. Justice Duer says : “ There is probably no doctrine which, in general, is more fully sustained, and indeed established, by authority than that the author of an unpublished manuscript has an exclusive right of property therein at common law. * * * Nor has this Gom/mon la/w right been talcen away or abridged by the statutes that have been passed for the protection of copyright. In the ordinary sense of the term, its existence is prior to these statutes,.- and independent of their provisions.”
    In Little v. Hall, 18 Howard, U. S. R., p. 170, Mr. Justice McLean, recognizing the common law right of authors, holds, in effect, that section 9 of the act of 1831, so far from abridging the common law rights, gives the author a new tribunal, viz.: the United States courts, in which those rights may be protected.
    The absolute right of an author to his unpublished work being thus established, and the right of his assignee, even if holding under a local or limited assignment, being also established, let us now consider the question whether that right is lost by the public scenic representation of a drama upon the stage, in the presence of indiscriminate audiences, and where there has been no restrictive notice or reservation of proprietary rights.
    This is the main question, and we might almost say the only one, in this case.
    The very meaning of the word “publication” implies an abandonment of private right—a relinquishment—a dedication; while, on the other hand, the word “ representation,” meaning to portray, to delineate, to illustrate by action, does not imply either a relinquishment on the one part or an acquisition on the other.
    The very nature of a dramatic composition of itself precludes the idea that its representation is in effect a publication. The end and purpose for which it is created is, that it shall be nightly used and enjoyed; and it would be strange indeed if its chief or only use should work its instant destruction.
    Some analogy may be found in the public delivery of lectures or sermons; the literary or intellectual work of the author being continuously given before miscellaneous audiences, without prejudice to his proprietary rights (Abernethy v. Hutchinson, 1 Hall & Tweel, 28; Paley’s case, 2 Vesey, Jr., 23).
    It is difficult to conceive ant season why the beneficial USE WHICH A MAN CAN MAKE OF HIS OWN PROPERTY SHOULD BE THE MEANS OF DEPRIVING HIM OF IT.
    But the question whether or not scenic representation of a drama is such a publication of it as to divest its author of all proprietary rights, need not be here discussed on principle, for. it has been repeatedly judicially held that such rights are not lost.
    
      
      “The representation of a dramatic worh upon the stage is not a publication which will deprive the author or his assigns of this right of property ” (Keene v. Kimball, 23 Monthly Law Rep., 673).
    Judge Drummond, United States Circuit Court, in the case before him, on the subject of the common law right of an author to his unpublished work, says: “ He would have the right to perform his own plays, to authorize their performance, or he would have the right, of course, to dispose of his property, either in whole or in part, to any one that he chose ” (Boucicault v. Wood, 16 Am. Law Reg., 539).
    The closing part of this opinion is directly in conflict with the dictu/m of the late chief justice in Keene v. Clarke (5th Robertson), and sustains the ruling of Judge Jones, who presided at the trial. The attention of the court is especially called to the opinion of Sir Knight Bruce (2 De Gex and Smales, 692-718).
    And in the case of Keene v. Wheatley, 9 Am. Law Reg., 23, also reported in 23 Monthly Law Rep., 440, Judge Cadwallader, in an elaborate opinion, after discussing the effects of public performance upon the rights of literary proprietorship, says: “ All reasons founded in legal a/nalogies require that such cm ultimate proprietary dominion should be thus retained by cm author and his assigns /” and following out the decisions, the learned judge holds, “ The conclusion deduced under this head is, that as the, complainants prior theatrical publication was not the mea/ns of enabling the defendants fairly to bring out this play at their theatre, she is, on the ground of litera/ry proprietorship, entitled to a decree.” And he adjudges that the performance by the defendants in that case, notwithstanding there had been many prior public performances by the complainant herself, was “ an infraction of a proprietary right reta/i/ned by the complainant.” The decree was for the complainant, and damages assessed by the master.
    And in the case of Roberts v. Meyers (23 Monthly Law Rep., 396), Judge Sprague held that the long-continued public performance of the “ Octoroon ” at the Winter Garden Theatre was not such a publication as deprived the literary proprietor of the benefit of the copyright acts.
    In effect holding that the literary proprietor of a drama lost no rights by its scenic representation.
    We therefore hold it to be well settled law, in this country as well as in England, that the public scenic representation of an unpublished play is not such a publication, or dedication to the public, as to deprive the literary proprietor of his rights therein, except so far as such performances may have been the means of enabling others, by the use of their memory alone, to reproduce or print it.
    
      Mr. Ira D. Warren for respondent.
    In the United States an author has no exclusive property in a published work, except under some act of Congress (Wheaton v. Peters, 8 Peters, 591; Dudley v. Mayhew, 3 Com., 9).
    This drama was publicly performed in London for a great number of times, with no notice or prohibition of any kind prohibiting the spectators from making such use of the play as they saw fit.
    Such public representation on the stage, with the author’s consent, is a publication, and deprives the author, or his assignee, of any exclusive right to the play, as it has always been held in this country that the first publication without a copyright is a dedication to public use (Bartlett v. Crittenden, 5 McLean, 32; Pulte v. Derby, 5 McLean, 328).
    The word “publication ” means “ the act of publishing, or making public—divulgation: promulgation: proclamation: offering to the public.” The formal deela/ration made by the testator at the time of signing his will (Worcester’s Dictionary, 1151; Webster’s Dictionary. See “ Publish ”).
    This question, as to what is a publication, has received a judicial interpretation in at least two modern cases in England.
    Section 19 of the English Copyright Act is as follows, viz. :
    “ That neither the author of anv book, nor the author or composer of any dramatic piece or musical composition, etc., which shall, after the passing of this act, be first published out of her Majesty’s dominions, shall have any copyright therein, respectively,” etc.
    The plaintiff in Boucicault v. Delafield commenced his action in England to restrain the defendant from representing a piece called “ The Colleen Bawn,” on the ground that he had taken out a copyright in England.
    The defendant claimed that, under section 19, before quoted, his copyright was void on the ground that the play had been first published in the United States.
    It appeared that the play had been represented on the stage in Hew York, which was the only publication proved.
    The question was thus fairly presented, whether a representation is or is not apublication.
    
    Vice-Chancellor Sir W. Page Wood held that representing the piece on the stage was a publication, and decided against the plaintiff’s copyright, on the ground that the play was “ first published out of her Majesty’s dominions ” (Boucicault v. Delafield, 33 Law Jour., N. S., ch. 38).
    The same principle lies at the foundation of the decision of the General Term of this court in the case of Keene v. Clarke (5 Robertson, 38).
    This court there decided that frequent representations on the stage, without notice to the public of any reserved rights, was evidence of dedication to the public use, which would deprive the author of any exclusive right to the play.
    The court has found in this case the facts upon which the General Term decided Keene v. Clarke.
    The plaintiff’s theory requires this court to decide that publication means “ printing.” Such a definition of “ publication ” was never heard of before. It has been distinctly held that a representation on the stage was such a publication as to enable any party procuring it from such representation, as we did, to reprint the play (Keene v. Wheatley, 9 American Law Register, 92).
    
      This same principle was at the foundation of the decision of the courts of England in the cases cited by the appellant.
    The court held, in the case of Murry v. Elliston (5 B. and Ald., 657), and in Coleman v. Mathew (5 T. R., 245), that the author, having given his composition to the public in one form, was not entitled to its exclusive use in the other.
    In other words, having printed and sold his composition, after having obtained a copyright therefor, he could not retain the exclusive right at common law to its representation on the stage.
    We hold that the converse of that proposition is true in this case, that having given it to the public by frequent representations, without any restraint or condition, he has no exclusive right to print the play.
    This doctrine is fully sustained in this country in the case of Keene v. Wheatley and Clarke (9 American Law Register, pages 34, 79), and the distinction is clearly drawn between a publication which is a dedication to public use and a limited or qualified publication.
    An author has no longer a remedy at common law to protect his writings, except in the single instance where another fraudulently, or by the violation of some express agreement, or some implied confidence, surreptitiously obtains possession of the author’s manuscript or work.
    This will be found, on examination, to be the principle upon which every injunction has been sustained in the cases of lectures.
    In the United States we submit the State courts have no jurisdiction of such cases, and there no longer exists a copyright at common law.
    Sub. 9, § 8, of the Constitution of the United States provides, among many other things, that Congress shall have power “ To promote the progress of science and arts, by securing for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries.”
    This power, we submit, is exclusive, and the States have no right to legislate on the subject (Story on the Constitution, § 436).
    
      Indeed, the States have never attempted any legislation on the subject; it has been universally conceded that Congress alone had that power (Act of 1856, chap. 169, 11 Statutes at Large, 138).
    Suppose the legislature of this State had undertaken to pass an act, exactly in affirmance of what the appellant now claims to be the common law, and had declared that the State courts should have power to enforce it: would such an act be sustained ? Would not this court say, that power is wholly delegated by the Federal Constitution to Congress: they alone have this power ?
    Congress only has power to protect an author for “limited times.” This expresses clearly the intention to entirely do away with an author’s common law right, which was unlimited.
    If the right, under the statute and the common law right, both existed in a case of this character, the common law right is one without limit of duration, and would be wholly inconsistent with the statutory protection provided for authors.
    This question has been reviewed and passed upon in this country and in England, that the statute limited and controlled the common law right, and that there is no longer a copyright at common law (Donaldson v. Becket, 4 Burr. Rep., 2408, cited 2 Kent, 9 ed., vol. 2, 475; Wheaton v. Peters, 8th Peters U. S. Rep., 591; Dudley v. Mayhew, 3 Comstock, 15, 16; Ewer v. Coxe, 4 Washington C. C. Reports, 487).
    “ The actual law of nations’ knows no exclusive right of an author to the proceeds of his work, except that which is enforced by the municipal law of his own country, which can operate nowhere except in its own jurisdiction” (Curtis on Copyright, 22).
    Where, then, is the right of a resident and citizen of another country to come into the courts of common law in this, and ask a court of equity to give him such relief as the legislature of the State has no power to give him, and which the Federal Government has in express terms denied him, by refusing to give him the benefit of the copyright law ? (Curtis on Copyright, 148.)
    Admitting that an author has a common law right to protect •his manuscript from being printed and sold before publication, where the same is surreptitiously obtained, or where some agreement or implied confidence has been violated, which is the extent to which the cases have gone, yet we say in this case the defendant came rightfully by it.
    The court finds that he procured it from one or more persons, who obtained it from repeatedly hearing and seeing it performed at these public representations.
    They must, therefore, have obtained it in one of two ways— either by remembering the play from hearing it performed, or by surreptitiously copying the manuscript.
    It does not appear precisely how they obtained it, but it does appear that it was publicly performed on the stage without restriction or reservation, and the court will f resume that the parties took it from memory, and came rightfully by it (Colman v. Wathen, 5 T. R., 254; Keene v. Clarke, 5 Robertson).
    The author having by his own act enabled these parties to print and sell the play, cannot restrain them (Keene v. Wheatley, 9 Amer. Law R., 34).
   By the Court:

Monell, J.

In examining the questions in this case, I no longer feel controlled by the decision made at Special Term dissolving the injunction, which had been temporarily granted in the action; and unless that decision is founded on principle and sustained by authority, it is not improper for this court to disregard it.

In deciding the motion for a temporary injunction which was made at Special Term (7 Robt., 530, S. C. 5, Abb. Pr. R., N. S., 130), the learned justice was unable to distinguish the case from that of Keene v. Clarke (5 Robt., 38). He says the main question in this case was substantially decided by this court in the case of Keene v. Clarke.”

There, he says, it was expressly held, “ that when the spectators of a public performance have not entered into some express or implied understanding with its proprietor, limiting the use they make of the knowledge derived from being present at such performance, they cannot be restrained as to the use by them of so much of it as they can retain and carry away in their memoryand the learned justice says: “ I do not see how this case can be distinguished in principle from the rule thus laid down.”

The case of Keene v. Clarke had been decided, and the opinion from which the foregoing was quoted had been published before the defendant’s answer in this action was prepared ; and it was intended to bring this case within the dictum contained in that opinion, by alleging the public performance of the play in London, without notice or prohibition against carrying away the comedy, with stage directions and divisions of acts and scenes, and the procuring the same from one or more persons who had obtained the same from its performance while witnessing the same as spectators.

If the questions in the case of Keene v. Clarke required, or even authorized, the dictum which has been quoted from the opinion, and which seems to have controlled the decision at Special Term, it would conclude us upon this appeal. The defendant has brought himself clearly within the principles laid down in that opinion, and whether its decision meets our approbation or otherwise, it must be regarded as the law of this court until reversed by a higher tribunal, unless upon examination it shall be found that so much of that decision as has been regarded as authority was obiter dictum.

Having been a member of the court which pronounced the decision in Keene v. Clarke, and dissenting, as I did, from such decision, I am prepared to say that, in my judgment, there were neither facts nor questions in the case which required or allowed the decision to be placed upon any such ground as is embraced in the opinion of the court. To establish this, and to explain what might otherwise be thought to be a disregard of the decisions of my own court, a somewhat lengthy statement of the case is necessary.

That action was brought by Hiss Keene, who claimed to be the owner, by purchase from the author, of the play called Our American Cousin,” which was an unpublished manuscript, never having been acted or represented in public, nor printed nor published by the author, who was the literary proprietor of it, and to whose right she claimed she had, by purchase, succeeded; she then alleged that she had produced the play at a certain theatre in the city of Hew York, having made additions, alterations, and verbal changes in it.

The defendant, from whom she sought to recover damages for performing the play at another theatre, alleged that the play had, previous to its enactment by him, been published, and acted, and represented, and dedicated to the public constantly and frequently at various times in various theatres of the United States and elsewhere, during the period of five years previous.

On the trial, which was before a jwry, evidence was given of the performance of the play at various places in the United States, the British provinces, and Australia, both with and without the authority of Miss Keene. A question to one of the defendant’s witnesses, “ How often and where the play was acted by the defendant,” was excluded, and an exception taken. A verdict was directed for the plaintiff, and the exceptions sent to the General Term to be heard in the first instance. Ho request was made to submit to the jury any question of fact. The justice who tried the action decided that, upon the facts as shown, the plaintiff was entitled to recover.

There were five exceptions only which could be examined at the General Term—namely, the one already stated; second, to excluding evidence of the amount one of plaintiff’s witnesses had paid her when he performed the play; thvrd, to refusing to charge the jury that there was no evidence that the plaintiff had sustained any but nominal damages; fourth, to the direction to find a verdict for the plaintiff for the amount proved to be the defendant’s share of the net profits; and, fifth, to the motion to dismiss the complaint on the ground of the defendant not being a manager.

When exceptions are heard in the first instance at a General Term, the questions of fact are not open to review, and as found by the jury are conclusive. The court cannot, in such case, set aside a verdict as being against the weight or contrary to the evidence ; the power of the court being confined exclusively to an examination of the questions of law presented by the exceptions taken at the trial.

It will be seen from the foregoing statement of the case that none of the exceptions ” involved the necessary or proper consideration of any question of fact, unless the exception to the direction to find a verdict for the plaintiff was sufficient to enable the court to look at the evidence with the view of ascertaining if there was any error in such direction. It may be said, however, of that exception, that it was too general to entitle it to be heard, and should therefore have been excluded.

The exceptions taken, in the order stated, called upon the court to say whether there was error as matter of law : first, in excluding evidence of the number of times defendant had acted the play; second, of the amount paid for a license to act the play; third, in not dismissing the complaint because there was no evidence of damage; and last, in directing a verdict for the plaintiff. In the latter exception, it must have been assumed that the evidence-established that the plaintiff was the proprietor of the play; that she had hot dedicated it to the public, nor published it, and that the defendant, by acting it without her consent, was liable in damages. The ownership of the original manuscript of the play, and the numerous times in which and various places where it had been publicly performed, were undisputed facts ; but the court, in directing the verdict of the jury, undoubtedly held that such frequency of performance did not of itself, whether with or without her consent, deprive the plaintiff of her proprietorship in the play. Had those facts, or either of them, been in dispute, and had the attention of the court been called to them by a request to submit such .facts to the jury, the question might fairly have been presented.

Ho such request, however, was made, and it could not be urged for the first time on an appeal, or on the hearing of exceptions, that there was error in withholding from the jury questions of fact proper for their consideration.

If, nevertheless, the decision of that case had been pnt on the ground that the undisputed evidence of the frequent performance of the play in various places was a publication of the play or a dedication of it to the public by the plaintiff, whereby she had lost her exclusive proprietorship in it, and therefore she could not recover, I should feel bound to follow it, so far as it could be made applicable to the facts of this case.

But I do not understand the decision was placed upon any such grounds. It is true, the learned chief-justice who wrote the opinion thought there was sufficient evidence, and that it ought to have gone to the jury, to say whether the plaintiff had not surrendered the play to the public. But as matter of law, the case does not hold that such frequent performance was either a publication or a surrender to the public, so that it would be no violation of any right of ownership in the plaintiff for any person to obtain the play in any way, and publish it in print. At most, it is held that whether such frequency ¡of performance was a publication, or would justify a presumption of surrender, was for the jury to decide; .and the court did not decide them as matter of law. The ground, therefore, upon which the case was decided was, that it is not unlawful for a spectator to carry away in memory and ;give to the world an unpublished literary production, the performance of which he has witnessed, or to the recital of which he has listened. No publication by the author, either in fact or by frequency of performance, is required to make it lawful to publish from memory; for a single performance or one delivery of a literary production may suffice as well as a hundred.

The learned chief-justice says : “ A limited communication of a literary or musical composition, by private lectures, recitations, or its performance, has been held not to surrender its proprietorship fo the public; * * * but in the case of a public theatricalperformance, the public are held entitled to make use of that faculty which is necessarily addressed by such representation, to wit, ¡the memory, for the purpose of repeating the contents of the play, even in performing it elsewhere, when the owner has laid no restraint upon such use of the knowledge so obtained, and retained by memory only.”

There is nothing, therefore, in the decision of Keene v. Clarke to prevent an examination of the question now before us; and we need not be embarrassed in the consideration of the case by views so ingeniously expressed, but which could be applicable only to a different case than was made at that time.

The case now before us was tried without a jury, and all the facts have been specially found by the court. The application of the law must be to such facts, and upon them we are to determine whether the judgment below is correct.

Whatever may have been the conflict of judicial opinion upon the effect of copyright laws upon the common-law rights of authors, it has never been disputed that, by the common law, an author has, until publication, a property in his literary work capable of being held and transmitted, and in the exclusive possession and enjoyment of which he and his assignees will be protected.

This has been settled by a long series of decisions (Miller v. Taylor, 4 Burr, 2303; Donaldson v. Beckett, id., 2408; Beckford v. Hond, 7 Term R., 616; Woolsey v. Judd, 4 Duer, 389; Stone v. Thomas, 2 Am. Law Reg., 228; Roberts v. Myers, 23 Law Rep., 396; Keene v. Wheatley, id., 440; Boucicault v. Wood, 16 Am. Law Reg., 539; Jones v. Thorn, 1 N. Y. Leg. Ob., 409).

It was at one time somewhat questioned in England whether such common-law right did not continue after publication, and was neither restrained nor taken away by the statute of 8 Anne; but in Donaldson v. Beckett, supra, the House of Lords held that the statute had taken away such common-law right, leaving authors without protection after publication, except under the statute. And the same view of the effect of our statute of copyright is taken by the Supreme Court of the United States in Wheaton v. Peters (8 Pet., 498, 661).

It was there held that the acts of Congress of 1790 and 1802 were not passed in reference to any existing right, but to originate a right after publication, by seeming to authors, under its provisions, “ the sole right and liberty of printing,” etc. To the same effect is the case of Dudley v. Mayhew, 3 N.Y. R., 9. But the statutes of copyright in England and in this country do not, as I think, in any manner affect the common-law ownership of literary compositions before publication, and I am, therefore, of the opinion that, until publication, an author and his assignees have a proprietary right in his production, of which he is not deprived by the statute, and which the court will protect against invasion. Let me, however, pursue this inquiry a little farther.

A reference to the acts of Congress will be sufficient to show, I think, that it was not intended to affect the common-law right.

The first section of the act of February 3,1831 (by which act all previous acts were repealed), provided that authors, on complying with the provisions of the act, should have “ the sole right and liberty of printing, representing, publishing, and vending their books;” and the fourth section declares that no person shall be entitled to the benefit of the act unless he shall, before publication, deposit sprinted copy of the title of the book in the Clerk’s office of the District Court; and the ninth section provides that if any person shall print or publish any manuscript whatever, without the consent of the author or proprietor, he shall be liable for damages and may be restrained by injunction.

It is evident that Congress intended to furnish protection to authors, and to secure them from wrongful appropriations of their works, by providing a means of continuing in effect their common-law right after publication, and not to wholly deprive them of such common-law right. For it is, as we have seen, well settled that such right ends with publication, whatever that may be. It is, I think, also equally clear that the only publication contemplated by the framers of the copyright law is a publication in print, and not in any of the other modes which have been suggested.

The language of that act is—mag print, reprint, publish, and vend. First, he may print, and then he may publish and vend. To secure this privilege he must deposit a “printed ” copy of the title-page, and that must be done before publication (Baker v. Taylor, 2 Blatchford, 85), so that he must print at least the title-page” before he can secure the protection of the act. If the act gave merely the exclusive right to print, without securing also the exclusive right to publish the printed matter, it would be of no value to authors; so that it is evident, that in view of the common-law right of authors, existing and recognized at the passage of the act, and the settled belief that such right continues until actual publication or dedication by the author, Congress merely intended to enable authors to retain their proprietorship after printing and publishing. In the case of Baker v. Taylor (supra), printed copies of the book had been, sold before the deposit in the Clerk’s office, which was held to warrant the inference of actual publication, so as to defeat the application for a copyright, and it is intimated that the publication contemplated by the act was a publication in print. This view is strengthened by the ninth section, which expressly protects the proprietorship of a manuscript, and makes it unlawful to print or publish it without consent. If it had been intended to destroy the common-law right, and to require in all cases a copyright to secure the ownership of an unpublished work before printing, then the provisions of the ninth section are wholly inconsistent with such intention, as by that section the common-law right is recognized, continued, and preserved.

This view of the statute is in accordance with Bartlett v. Crittenden (4 McLean, 301, and 5 id., 36); Pulte v. Derby (id., 332); Little v. Hall (18 How. U. S. Rep., 170).

The supplementary act of August 18,1856, extends to authors of dramatic compositions ” the same protection that is afforded to authors of other works by the act of 1831, and in addition to the sole right to print and publish, they are given the sole right to act, perform, and represent snch compositions, or to cause them to be acted, performed, and represented, on any stage or public place, during the period for which the copyright is obtained.

In extending the privileges of the copyright law to dramatic compositions, it was necessary to secure to authors, not alone the right to print and publish, which is of little comparative value, but also the sole right to act and represent, which constitutes their chief value ; and which right, unless expressly protected by statute, would not continue after printing and publishing. The act of 1856 contains also a prohibition against representation of copyright plays without the proprietor’s consent, similar in terms to the ninth section of the act of. 1831. The proviso in the act of 1856, that nothing therein shall impair any right to act a dramatic representation, which right shall have been acquired by any manager, actor, or other person previous to the securing of the copyright, very clearly recognizes rights acquired previous to application for copyright, and continues the common-law rights of proprietors; and is in accordance with what was said in Wheaton v. Peters (8 Pet., 591, 662), that, independently of the copyright law, an assignee of a manuscript would be protected by a court of chancery.

In respect to the act of 1856, Sprague, J., says in Roberts v. Meyers (13 Mo. Law R., 397), that the prior act secured to authors the exclusive right of printing and publishing; and it was only because publication did not embrace acting or representation, that such act was passed, superadding that exclusive right to those previously enjoyed.

This reference to and examination of the copyright laws, and of the cases cited, leaves it free from doubt that such laws are merely ancillary to the common-law rights of authors, and continue them after publication hi print, but in no way impairing such rights, so long as the literary composition remains in manuscript, or is not printed; and, in the case of dramatic compositions, superadding the sole right to represent after publication. Whenever an author gives his composition to the public, he loses his exclusive right to its publication, unless protected by the copyright laws. Hence, where the common-law right of property of an author is invaded, the sole questions involved are—first, has there been a publication, so as to take away, or put an end to such common-law right ? and second, has such publication been with the consent or by the authority of the author %

It will not, I think, be claimed that an unauthorized or surreptitious publication in print of a literary composition before publication by the author would defeat the owner’s right of property and leave him without protection. If that was so, the copyright laws would, in such case, give no security, inasmuch as the benefit of the statute can be obtained only before publication. Whether any surreptitious publication, otherwise than in print, can deprive an author of his property, will be examined hereafter.

The fact found in this case, which it is claimed was a publication of the play in question, was, that on the 15 th day of February, 1868, and for a great number of times thereafter, the comedy was publicly performed and represented at the Prince of Wales Theatre, in the city of London, by and with the sanation of the author.

It was not foimd, nor was there any evidence, that the comedy had ever or anywhere been represented without the sanction of the author, or that it was ever put in print by him, or by his authority. The only “publication,” therefore, which can be claimed, was its public representation at the theatre on various occasions and in the presence of large audiences.

It was not claimed on the argument, but was conceded, that the number of public representations of the play was not material upon the question of actual publication, and it was contended that one public performance was sufficient to deprive an author of all proprietary right. The concession, however, did not go to the extent that a single, or indeed a great number of public performances, conducted under the authority of another, would justify a felonious obtaining of the manuscript for purposes of printing and publishing. Yet it necessarily, I think, goes to that extent, for, as I shall presently endeavor to show, the right of obtaining the manuscript, or of its contents, does not depend upon the manner of procuring it, but upon whether the author has parted with his rights by actual publication.

The value to an author of his literary composition, beyond the fame it secures him, is in the amount of money it returns; and the amount of money he gets depends chiefly upon the appreciation of the public. If a composition never comes to- the knowledge of the public, its author does not obtain either their applause or money.

It might as well never have been created, or lie in the author’s drawer, unread.

Such is the definition of literary property, as given in Keene v. Wheatley (supra), namely, the right which entitles an author, or his assignees, to all the use and profit of his composition. The property, therefore, which a composer ordinarily has in his composition is the pecuniary value which it has to him, and not merely the amount of fame he may acquire; and such pecuniary value is necessarily and wholly dependent upon the means which he may lawfully employ to bring his production before the public, and the approval of the public of his work; and there is no other property in that description of literary composition. When a right of property in the invention or creation of an author is recognized as an inherent right by the common law, it assumes that the thing to be secured and protected is of valuó to the owner. The law does not regard as property a thing entirely worthless.

If a literary composition, therefore, derives its value from, and becomes property because of, the use which can be made of it before the public, and such value is increased or diminished in proportion to the extent of its use, then it becomes very important to know where and when the author’s literary property in it terminates.

To give it value, or to make it property recognized by the common law, the author must be allowed to use it before the public; and if, having submitted it once to a public hearing, it is to be deemed a publication, so as to take away the proprietary right, and to deprive the author of the benefit of copyright laws, then, obviously, the common law means nothing, and there is no such thing as property in literary work.

Can it be said that once delivering a lecture upon a scientific or literary subject before a public audience will forever thereafter deprive the author of his property in the ideas invented or created, and which represent, by a combination of words, hi-meaning ?

If so, then any one who can obtain the manuscript or access to it, or who, by employing the art of stenography or by the exercise of memory, can carry it out of a public lecture-room, may, without the consent or knowledge of the author, appros priate and use, for his own emolument, the literary production of another person.

I cannot believe there is so little foundation for, or so narrow a limit to, the proprietary rights of an author in his literary labors.

I believe the law intended to secure to him the beneficial results of his labors, and to protect him from any piratical invasion of his rights, until he has done some act inconsistent with an exclusive ownership, and which shall amount, in judgment of law, to a publication.

There can be no fixed rule determining when an author has surrendered his literary property. Printing his composition and giving it public circulation would fix the period of surrender in such a case; but one reading of a manuscript lecture, or one performance of a manuscript play, would not; and if one does not, what greater number, can it be said, will ?

The value to the author of a lecture or of a play, who derives emoluments from its delivery or representation before public audiences, is not limited to one performance. It may extend to any greater number, and the hundredth performance may bring more ample returns than the first. So that it may fairly be assumed that it is not intended, in any case, to surrender property in a literary composition, so long as the author of it retains it in manuscript, and uses it before the public for his private pecuniary benefit.

Therefore I think there can be no presumption against literary ownership arising from the mere frequency of performance. Such performances arc not inconsistent with a continued proprietorship, but are wholly consistent with, and necessary to, the enjoyment of the property.

The question of what constitutes publication is not much enlightened by any of the adjudicated cases which have come under my observation. Most of the cases involve considerations arising from copyright laws, and do not undertake to determine when or in what manner an author may be said to surrender his property in his literary work.

The case most relied on by the defendant, Boucicault v. Delafield (33 Law Jour., N. S., ch. 38), arose under the English statute of copyright. That statute provides that one public representation or performance of any dramatic piece shall be deemed sufficient, in the comtruction of the act, to be a publication of the work. It was accordingly held, in an action to recover a penalty imposed by the statute, that public performance of the drama in the United States, before taking out a copyright in England, was a publication within the statute. Words used in a statute to define the meaning of particular parts of it, are never extended beyond the statute, and have, therefore, no controlling effect, except in the interpretation of the statute They define the intent and meaning of the law-makers, and are made to extend the statute to cases not otherwise, recognized as coming within its purview. But the legislature cannot, by merely expressing the intent of the law in respect to a particular statute, affect the meaning of words used in other statutes, or deprive them of the significance which they receive from settled principles of the common law. The definitions in the Code of Procedure (§ 462, et seq.), it will not be pretended, are conclusive of the meaning of the words, except within the statute.

The case, therefore, of Boucieault v. Delafield is not an authority upon any question of actual or constructive publication not arising under the English copyright law. Uor is it entitled to any more weight than the statute itself, which is a mere legislative interpretation of what, for certain purposes, shall be deemed a publication of a dramatic piece.

Our statute of copyright has no such exception as is contained in the statute of Anne; and the word “published” in our statute has been interpreted to mean, published in print (Keene v. Wheatley, 9 Am. Law R., 92). In the case last'cited, a bill was filed in the Circuit Court of the United States to restrain the performance by the defendants of a manuscript play, which was claimed to be the literary property of the plaintiff. The case turned upon the evidence of the manner of obtaining the play by the defendants, and it was held that, as it appeared that the plaintiff’s own theatrical representations of the play were not the means through which the defendants were enabled to represent it, they should be enjoined. Judge Cadwallader, in his very elaborate opinion, asserts the doctrine, at least as far as this, that public representations of a play may be a publication, so as to authorize an author to produce it from memory, although he denies the right of • a reporter to note the words—a distinction not very clearly defined. That point, however, was not necessary to a decision of the case, and the dictum may, therefore, be rejected. Upon the subject of publication, I will here refer to some of the cases either holding or sustaining that a representation of a play is not necessarily a publication of it, so as to deprive the author of his property in it.

Judge Sprague so held in Roberts v. Meyers (23 Monthly Law Reg., 396). He said it was not a publication within the meaning of the copyright law, and did not prevent an author obtaining a copyright.

It is affirmed by Judge Hoar in Keene v. Kimball (23 Monthly Law Reg., 669), where he says: “ The representation of a dramatic work upon the stage is not a publication which will deprime the author or his assignees of their right of property.”

In Bartlett v. Chittenden (4 McLean, 300, 5 ib., 32), it was held that the author of a lecture did not dedicate the manuscript to the public by using it for the purpose of instructing others. That case went farther, and decided that an author did not abandon his right in his composition by permitting pupils or friends to take copies; and that such copies could not be used in any way not contemplated by the author.

And in Blunt v. Patten (2 Paine, 397), a deposit by the author of his work in a public office, such as a chart in the Navy Department, was held not to make it a public document, which any one might copy.

And again, in Boucicault v. Wood (16 Am. Law Reg., 539). In a very recent case (Crowe v. Aiken, not reported), decided by Judge Drummond, in the Circuit Court of the United States for the District of Illinois, an injunction was asked for to restrain the representation by the defendant of the play called “ Mary Warner.” The play was written by Mr. Taylor for Miss Bate-man, and the manuscript was transferred to the plaintiff.

It was publicly represented in London and in the United States, but was not printed. The defendant alleged that the play was obtained from a person in London, who procured it from repeated representations on the stage at the Haymarket Theatre, and that there was no “ restriction ” against any of the spectators using such play as they saw fit.

After a lengthened examination of the questions, the court decided to grant the injunction. In the opinion the ground is distinctly taken that a representation is not a publication, and any manner of obtaining it without the consent of the author or owner, except by memory,” is a violation of his proprietorship.

As far, therefore, as this case depends upon an actual or constructive publication of the play by the plaintiff or his assignee, the clear weight of authority is, that public representation is not publication, and does not entitle any person, without the author’s consent, to procure it in any way for purposes of publication, ex-eept, perhaps, when it is procured by means of the memory alone.

I am aware that in the case of Keene v. Wheatley (supra), which is followed by Keene v. Clarke (supra), and again by Crowe v. Aiken, each of the learned judges lean to the opinion that an auditor may use his memory as a means of procuring a represented play, and may then lawfully print and publish it. The reason seems to be, that as there can be no power over or restriction of the use of the memory, therefore such use is not unlawful.

It is enough, however, perhaps, for the present case, to say that, even if it is true that an auditor at a public representation may lawfully carry away the play in his memory, and afterwards put it in writing, and from such writing print and publish, there was no evidence in this case to bring it within that rule. The finding of the court is, that the defendant received the words of the comedy, etc., from one or more persons who had seen or heard it performed. That finding is not enough to justify the conclusion that the person or persons who saw or heard the public performance had brought it in their memories from the theatre.

The burden of proving the manner in which the play was procured was upon the defendant, and he was bound to show that he had obtained it in a lawful way. There are no presumptions in his favor. The right of the plaintiff as owner before publication was absolute, and could be defeated only by showing that the defendant had obtained the play through the memory of an auditor. Tins is the result of the learned opinion of Judge Cadwallader in Keene v. Wheatley (supra), in which view he has fortified himself by the citation of many cases; and also of Judge Drummond, in Crowe v. Aiken (supra).

But I am compelled to dissent from the opinions of the learned judges in those cases, so far as it is intimated that a spectator may, upon witnessing the public performance of a play, rightfully commit it to memory, and then publish it to the world; and also from a qualified view, of the same character, entertained by the learned late chief-justice of this court, as expressed in his opinion in Keene v. Clarke (ubi supra).

It seems to me that any surreptitious procuring of the literary property of another, no matter how obtainedif it was unauthorized and without the knowledge or consent of the owner, and obtained before publication by him, is an invasion of his proprietary rights, if the property so obtained is made use of to his injury. Each of the learned justices adroit that a play cannot lawfully be taken down by a short-hand writer from the lips of the actors during a public performance.

If taken thus by a stenographer, is it different, in its legal effect and resulting consequences, from committing to memory and afterwards writing it out? In principle it is not. They are only different modes of doing the same thing, and, if without the author’s consent, are alike injurious to his interests. The objection is not to the committing a play to memory, for over that no court can exercise any control, but in using the memory after-wards as the means of depriving the owner of his property. Such use, it seems to me, is as much an infringement of the author’s common-law right of property, as if his manuscript has been feloniously taken from his possession. I can see no difference.

In the case of Prince Albert v. Strange (2 De Gex & Smales, 652), a workman employed to take impressions from copper plates of etchings made by the plaintiff, not intended for publication, took impressions for himself and sold them to the defendant. It was held an infringement of the plaintiff’s proprietary right, and an injunction was granted and the impressions ordered to be destroyed.

The pleadings and proofs in this case were shaped so as to bring it within one of the propositions of the learned late chief-justice in Keene v. Clarke, and it is accordingly found as a fact that the tickets admitting spectators to the performances contained no notice or prohibition against carrying the comedy away, by memory or otherwise, and using and printing the same, nor was any notice to that effect posted in the theatre in the view of the spectators.

Whatever means a prudent man may adopt to prevent his property from being feloniously taken from him, it cannot, I think, be successfully contended that, if he chooses to take the risk, he may not leave it exposed without mark or other sign, to designate it as his property; or that, by thus exposing it, he. would lose his title, and could not afterwards recover it, or its value, from one who tortiously took it.

A wrong-doer cannot get title to property, or escape the responsibility of his tortious or felonious act, merely because the owner has failed to give public notice or warning that it was not to be stolen.

If carrying away in the memory of a spectator, or otherwise surreptitiously obtaining the contents of a play, is without the consent of, or unauthorized by, the owner, and therefore an infringement of his property in the play, the act is not excused by the omission of the owner to notify the audience that they will not be allowed or are forbidden to carry it away in that manner.

Upon a careful consideration, therefore, of the subject, I have not been able to appreciate the distinction which the learned judges in Keene v. Wheatley, and Keene v. Clarke, and Crowe v. Aiken have attempted to draw between different modes of obtaining the contents of a manuscript play from its public performance. They are equally objectionable, and are merely different modes of depriving an author of his literary property; and therefore any mode which effectuates that purpose is unlawful. The vice-chancellor says, in Prince Albert v. Strange (supra), that as to property of a private nature, which the owner, without infringing on the right of any other, may and does retain in a state of privacy, a person who, without the owner’s consent, express or implied, acquires a knowledge of, cornnot la/wfully avail himself of the knowledge so acquired to publish, without his consent, a description of the-property.

That opinion goes quite as far as is necessary to destroy the distinction alluded to.

There is another case to the same effect. In Turner v. Robinson (10 Irish Chy., 132), a painting on public exhibition for private emolument was seen by spectators, some of whom, from recollection, arranged themselves in tableau, representing the figures in the painting, and were photographed.

The sale of engravings made from such photographs was restrained by injunction. The mode adopted for carrying into execution what was denounced by the court as an unlawful act, was the same in the Irish case as was approved of in the two cases alluded to, namely, in the memories of the spectators; and the case is therefore opposed, as an authority, to the distinction referred to.

My conclusions upon the whole case are, that there was no such publication by the plaintiff or by his assignor of the play in question as to deprive the plaintiff of his common-law right of property in it.

That public representations of the play were not a publication of the play, so as to take away such common-law right.

That there is no presumption in favor of the lawfulness of the manner in which the defendant obtained the play.

That the burden is upon him to show that it came into his possession in a lawful manner; and that, having failed to show the lawfulness of his possession, he should be deprived of it.

I am .therefore of opinion that the plaintiff is entitled to a judgment restraining the defendant from further printing oi« publishing the play, and requiring him to deliver up to be destroyed such as are now in print, and that therefore the judgment appealed from should be reverséd.

We were asked by the appellant’s counsel, if we came to the conclusion that the judgment below was erroneous, to pronounce an absolute judgment in his favor, and not to send the case back for a new trial. But in the uncertainty of the law on the subject of ordering judgment absolute at General Term, we think it safest to refuse the request.

The judgment should be reversed and a new trial ordered, with costs to the appellant, to abide the event.

Jokes, J., dissented.  