Palmer v. De Witt

40 How. Pr. 293

• Court: The Superior Court of New York City
• Decided: July 1, 1870
• Status: Published

Opinion

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., N. S., 130), the learned justice was unable to distinguish the case from that of Keene agt. Clark (5 Robt., 38). He says 56 the main question in this case was substantially decided by this court in the case of Keene agt. Clark"

There he says, it was expressly held, “ that when the spectators oí a public performance have not entered into some express or implied understanding with its proprietor, limiting the use they make of the knowledge der jfed 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 memory,” and the learned justice then says : u I do not see how this case can be distinguished in principle from the rule thus laid down.”

The case of Keene agt. Clark had been decided, and the opinion, from which the foregoing was quoted, had been published before the defendant’s answer in this actio n was prepared | and it was intended to bring this case within the dictum contained in that opinion, by alleging the public performance'oí the play in London, without notice or prohibition against carrying away the" comedy, with stage directions and divisions of acts and secnes, 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 question in the case of Keene agt. Clark 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 it 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 agt. Clark, 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 Miss 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 j she then alleged that she had produced the play at a certain theatre in the city of ¡New 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 previously.

On the trial, which was before a jury, evidence was given of the performance of the play at various places in the United States, the Britsh 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 pi a in - tiff and the exceptions sent tn the general term to be heard in the first instance. No 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 te 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 a plaintiff’s witnesses had paid her when he performed the play; Third, 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 ease, 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 laws first, in excluding evidence of the number of times defendant had acted the playj second, of the amount paid for a license to act the play f 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 j that she had not 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 themselves, 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 beeen 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 put 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 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 it performance, has been held not to surrender its proprietorship to the public; * * * but in the case of a public theatrical performance, 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 agt. Clark 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 judical 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 beer settled by a long series of decisions (Miller agt. Taylor; 4 Burr, 2303; Donaldson agt. Beckett, 4 Burr, 2408; Beckford agt. Hond, 7 Term., 616 ; Woolsey agt. Judd, 4 Duer, 389; Stone agt. Thomas, 2 Am. Law. Reg., 228; Roberts agt. Myers, 23 Law Rep., 396; Keene agt. Wheatley, 23 Law. Rep., 440; Boucicault agt. Wood, 16 Am. Law Reg., 539; Jones agt. 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 8 Anne; but in Donaldson agt. 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 agt. 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 securing to authors, under its provisions, “the sole right and liberty of printing,” &c. To the same effect is the case of Dudley agt. Mayhew, (3 N. Y., 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 composition before publication, and I am, therefore, of the opinion that, until publication, an author and his assignees has 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 8, 1831, (by which act all previous acts were repealed), provided that authors, on complying with the provisions of the act, should have u the sole right and liberty of printing, representing, publishing, and vending their booksand the fourth section declares that no person shall be entitled to the benefit of the act unless he shall, before publication, deposit a printed 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—may print, reprint, publish, and vend. First, he may print, and then he may publish and vend. To secure this prvilege, he must deposit a "printed" copy of the title-page? and that must be done before publication (Baker agt. Taylor, 2 Blatchf. 85) so that he must print at least the u title-page” before be can secure the protection of the act. If the act gave merely . the exclusive right to print? without securing also the exclusive right io publish the printed matter? it would be of no value to the 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 agt. 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 agt. Crittenden, 4 McLean, 301, and 5 Id., 36; Pulte agt. Derby, Id., 332 ; Little agt. Hall, 18 How. U. S., 170.)

The supplementary act of August 18, 1856, extends to authors of a "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 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 valuer, 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 copyrighted plays, without the propietor’s consent, similar in terms to the ninth section of the act of 1831. The provisio 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 agt. 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 agt. Meyers, (13 Mo. Law Rep., 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 in 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 1

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 owneris 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 15th day of February, 1868, and for a great number of times thereafter, the comedy was publicy 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, 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 the author, would j ustify a felonious obtaining of the manuscript for purposes of printing and publishing. Yet, it necessarily, I think, goes to that ex-tent, 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 for 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.

The definition of .literary property, as given in Keene agt. Wheatley, (supra), is 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 Ms composition is the pecuniary value which it has to him, and not merely the amount of fame which 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 discription 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 value 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, his meaning?

If so, then any one who can obtain the manuscript, m 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, appropriate 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 ienefieial, results of his labors, and to protect him from any piratical invasion of his rights, until he has done some act inconsistent with an execlusive 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 j but one reading of a manuscript lecture, or one performane of a manuscript play, would not j 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 are 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, (Bourcicault agt. 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 construction 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 definition 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 Bourcicault agt. Delafteld, is not an authority upon any question of actual or constructive publication not arising under the English copyright law. Nor 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 u published” in our statute has been interpreted to mean, published in print, (Keene agt. 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 representions of the play were not the means through which the defendants were enabled to represent it, they should be enjoined. Judge Cadwalladeb, 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 agt. 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 obtaning a copyright.

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

In Bartlett agt. Chittenden, (4 McLean, 300 ; 5 Id., 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 further, and decided that permitting pupils or friends to take copies,° and that such copies could not be used in any way not contemplated by an author did not/abandon his right in his composition by the author.

And in Blunt agt. 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 ma1ke it a public document, which any one might copy.

And again, in Bourcicault agt. Wood, (16 Am. Law Reg., 539). In a very recent case ( Crowe agt. 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 defend ant of the play called “Mary Warner.” The play was written by Mr. Taylor for Miss Bateman, 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 a 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, a 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 Ms 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, except, perhaps, when it is procured by means of the memory alone,

I am aware that in the case of Keene agt. Wheatley, (supra), which is followed by Keene agt. Clark, (supra), and again by Crowe agt. Aiken, each of the learned judges seem to 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, &c., 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. This is the result of the learned opinion of Judge Cadwallader in Keene agt. Wheatley, (supra), in which view he has fortified himself by the citation of many cases ; and also of Judge Drummond, in Crowe agt. 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 agt. Clark, (ubi supra).

It seems to me that any surreptious procuring of the literary property of an another, no matter how obtained, if 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 admit that a play cannot lawfully be taken down by a shorthand 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 afterwards 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 had been feloniously taken from his possession I can see no difference.

In the case of Prince Albert agt. Strange, (2 De G. & Sma., 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 agt. Clark, 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 choose 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 this 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 surreptiously 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 agt. Wheatley, and Keene agt. Clark, and Crowe agt. 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 vicer chancellor says, in Prince Albert agt. Strange, (supra 689), 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, cannot lawfully 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 agt. 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 photograph 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 assignors 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 Ms 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 the opinion that the plaintiff is entitled to a judgment restraining the defendant from further printing or 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 reversed.

We were asked by the appellants 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.