
    Augustin Daly, Appellant, v. Lillian Walrath and Others, Respondents.
    
      Play — sale of the exclusive right to use it in ■the United States — effect of Us subsequent publication, with the author’s consent, in another country — evidence—use, by a witness, of the words ' ‘ as far as I know.”
    
    Where a German author, residing in Berlin, enters into a contract by which,he . sell's to a party in New York a play which he has written, with the original manuscripts in the German and English languages, for the United States of America, England, Canada and Australia--it being declared to be the intent of the agreement that the vendee should be in the above territory “the sole . and exclusive owner of the said stage work"aforesaid,” the author obligating himselE to keep the work in manuscript form and hot to allow the same to appear in the book trade in order that it might be protected under the laws of the United States — the subsequent publication of the play in hook form by a German firm with the consent of the author destroys all exclusive literary property therein so far as the United States are concerned; and the right of producing the play, either in literary form or upon the stage, becomes the property of any one who chooses to exercise it.
    In case of such a breach, by the author, of the contract not to publish the play, the vendee is not entitled- to enjoin a stranger to the contract from producing " it upon the stage in the United States.
    What evidence given by the members of the German publishing firm is compe- , tent" to show that the ..author,consented to the publication of the play by said firm, considered. .
    The use by a witness of the words “ as far as I know,” in an answer stating ■that a book was first printed and sold to the public by a certain firm in the .year 1890, held not to. subject the answer to the objection that it was hearsay, hut merely to indicate that the witness did not know of any earlier publication of the hook.,
    • Appeal by the plaintiff, Augustin Daly, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the cleric of the county of Eew York on the 24th day of September, 1897, upon the decision of the court rendered after a trial at the New York Special Term. -
    This appeal was transferred from the first department to the second department.. -
    
      ■ A. J. Dittenhoefer [David Gerber with him on the brief], for the appellant. _
    
      Charles Henry Butler, for the respondents.
   Willard Bartlett, J.:

Sometime prior to December 16, 1889, Herman Sudermann, of Berlin, a German author of distinction, wrote a play entitled Die Ehre, or, in English, Honor. ' Upon that date he entered into a contract with Emanuel Lederer, of Hew York, whereby he.sold to the latter the play aforesaid, with the original manuscripts in the German and English languages, for the United States of America, England, Canada and Australia, it being declared to be the intent of the agreement that the said Emanuel Lederer should be, in the ■above territory, the sole and exclusive owner of the said stage work aforesaid.” In this .contract Herman Sudermann obligated himself to keep the work in manuscript form, and not to allow the same to appear in the book trade, in order that it might be protected under the laws of the United States.

By a contract made on February 14, 1890, Emanuel Lederer sold to the plaintiff, who. is a well-known theatrical manager in Hew York, the exclusive right thereafter to produce and perform Die Ehre in English, in the United States, Canada and Australia. To this agreement was attached a paper, signed by the author, under ■date of -August I, 1890, at Berlin, confirming the sale by Emanuel Lederer to Augustin Daly evidenced by the preceding instrument.

The play in question has never been copyrighted in this country. In 1891, the defendant Francis Reinan purchased, at a book store in the city of Hew York, a printed copy of it in the German language, in a book which purported to be the fourth edition of the work, published by F..& P. Lehmann at Berlin. From this he made a translation of the drama into English, and the resulting version has been produced upon the stage in this country by the defendants, without asking or obtaining the consent of Messrs. Sudermann, Lederer and Daly, or any of them. It appears that later German editions were offered for sale and sold at book stores in Hew York and Chicago, published by the house of J. G. Cotta of Stuttgart, which succeeded F. & P. Lehmann in business; and that as many as sixteen editions had been published at the time of the trial.

The trial court has found that the publication .of the work in Germany was the result of a- contract between the publishers and the author ; and the defense rests upon the proposition that inasmuch as the drama has been published and sold with the authority and by the consent of the person who wrote it, all exclusive literary property therein has ceased, so far as this country is concerned, and, any one here now has a legal right to produce it, either in its literary form or on the stage, in German or English.

The rule relied upon by the respondents is thus stated by Air. -Dron'e in his well-known treatise on the law of Copyright: When a dramatic composition is published in print by authority, all common-law rights in it are lost. The composition becomes public property unless a valid copyright is secured under the statute. And tins is equally true whether the publication be made in one country or in another; whether in the United States or in Europe.” (Drone Copyright, 577.)

“ It is a proposition now so well settled as to be almost axiomatic,” said the Circuit Court of the United States in' the Maryland district, in the Iolanthe Case (15 Fed. Rep. 439, 442), “ that, except so far as preserved to liim by statute, when the composer of any work, literary, musical or dramatic, has authorized its publication in print, Ins control over so much as he has so published, and of the use which others may make of it, is at an end.”

Under this doctrine,, the publication by the author of the text of a" drama, in a printed book, destroys his playright, or right to control the representation of the drama on the stage. (Drone Copyright 583; The Mikado Case, 25 Fed. Rep. 183.) After Sudermann therefore, had transferred to Lederer, and Lederer had transferred to the plaintiff, the exclusive right to produce and perform Die Ehre in English in the United States, the plaintiff had acquired the author’s common-law right of representing the play in this country; but that right became the property of any one who chose to exercise it, when, the original play was .subsequently published and sold in book form with Sudermann’s authority, if it was iii fact ' so published and sold.

To justify their'production of the play, then, it was essential for the defendants to show that Sudermann consented to the publication by the houses of Lehmann and Cotta; for it has been held that the consent of the author in such a case must be affirmatively proved by the party who relies upon it. (Boucicault v. Wood, 2 Biss. 34.) I think that the defendants sustained their burden in this respect. The purchase of various editions of the book in New York, and'Chicago was proved by the defendant Reinan; but the circumstances, concerning the relations between the author and the publishers had to be sought by means of a commission to examine witnesses in Germany. The testimony of Alfred Kroner and Johann Wilhelm Spemann was taken in this way. Both gentlemen had been members of the Lehmann publishing firm at Berlin, and were members of the Cotta publishing firm at Stuttgart. Mr. Kroner testified that the book containing Die Elvre was first printed, sold and offered to the public by F. & P. Lehmann in the year 1890. He prefaced this statement by the words “ as far as I know,” and counsel for the . plaintiff, therefore, objected to the evidence, and moved to strike it. out as hearsay. This motion was properly denied. The qualifying clause merely indicates, I think,, that the witness did not know of any earlier publication of the book than that which he mentioned.. Fie then stated that J. G. Cotta, of Stuttgart, became the publisher of the book, he believed in 1891, and that sixteen editions had been published and offered for sale, each edition consisting of 1,060 volumes He testified that the written contract under which the publication was made was in the possession of the firm of Cotta, and, therefore, in his own control, but declared that he was unable to-furnish a copy of the contract without Mr. Sudermann’s consent,, nor could he state the contents without such consent; but he added that each time a new edition had been published, Mr. Sudermann had received a fee from the publishers, the amount of which, however, the witness would not disclose. A motion was made to strike out this testimony concerning the fee; the court denied it, and the plaintiff excepted. I think it was properly allowed to remain in the case. On the present appeal it is argued that this evidence does not suffice to show any payment to Sudermann, because upon the cross-interrogatories it appeared that the knowledge of the witness on the subject was based merely upon the fact that he had ordered the payments for the last editions. Mr. Kroner, howéver, answered further: “ For each edition, Mr. Sudermann gets a fixed fee that always reached him by an order to his banker at Berlin. Receipts by Mr. Sudermann are always sent in return, but without Mr'. Sudermann’s consent, I cannot produce them or copies of them.” This testimony is characterized as incompetent, because it merely states a conclusion. Doubtless it is objectionable so far as it indicates the contents of the .receipts mentioned, but I see no ground for rejecting the first phrt •of the answer, to the effect that the author got a fee for each edition, ■sent to his, banker at Berlin.

The testimony of Mr. Kroner was corroborated by that of Mr. Spemann, the other witness examined under the commission; and •even if some of the objections to the evidence given by Mr. Kroner -are entitled to greater weight than.I have given to them, it seems to me that the fact that Mr. Sudermann authorized the publication of the book from which the defendants obtained the play in question :is sufficiently established by Mr. Spemann’s answer to the 13th .interrogatory. There was no objection in behalf of the plaintiff to the interrogatory, nor was there any motion to strike out the answer. I quote from the appeal book: “ Thirteenth. Were the publications of said composition made by F. & P. Lehmann and by the publishing house of J. G. Gotta made without or with the authority and consent and approval of the author or his agents % To the thir-t teenth'interrogatory he deposes: Quite sure — wdth the consent of the author.”

This evidence makes it plain that Sudermann has violated his contract with Lederer not to publish the play. The breach of his covenant with Lederer, however, does not cdnfer upon Lederer or upon the plaintiff, as Lederer’s assignee, any right to enjoin the .defendants from producing the play which Sudermann has seen fit to make -common property by publishing it in disregard of his agreement. As Mr. Justice Barrett observed in his opinion upon dissolving the preliminary injunction herein : “If an author could thus grant licenses for all the world, except-his own country, and then publish in his'own country without such publication affecting the rights of his licensees, there would be but little need of an international copy-night law.”

■In the last point upon their brief the learned counsel for the -appellant suggests the proposition that the right of the owner of a -dramatic composition to produce it upon the stage is distinct from his right to multiply copies, and that the right of stage representation is not lost or surrendered Avhen the author exercises his right to " publish the play. They concede, hoAvever, that the case of The Jewelers' Mercantile Agency v. Jewelers' Weekly Publishing Co. (155 N. Y. 244) may be considered so far an authority against them on this point that they do not care to elaborate their views on the subject.

I think that the decision at Special Term was correct, and should he affirmed.

All concurred.

Judgment affirmed, with costs.  