Piracy And Copyright
( Originally Published 1916 )
To discuss the matter of play piracy nowadays, is like reopening on old wound, for the offense has dwindled mightily within the decade. Still, with substantial modifications, it does continue.
Piracy is not to be confused with plagiarism, which I have considered at some length in earlier pages. Plagiarism is entirely in the department of the playwright, while piracy belongs to the manager. Piracy has particularly to do with unauthorized performance of a produced play; plagiarism is unacknowledged appropriation in whole or in part of another's literary or artistic work.
When play piracy was at its height in the United States'--say twenty to thirty years ago—the most persistent offenses were found in the West, probably because royalties were high and the long arm of the law, which in the theatrical sense stretched from the East, was not long enough to worry about. Piracy flourished there so well, in fact, that when, within the decade, producers united as the National Association of Producing Managers, mainly to overcome this evil, they found piracy organized into a system.
Most of the cases investigated by the association, were traced to the Chicago office of a man named Alexander Byers. For more than twenty years he had been a thorn in the sides of producing managers in duplicating plays and selling copies to others at slight increase over copying cost, even selling posters to go with them. It was found that copyright regulation then in force, was not stringent enough to touch him; so it was up to the association to secure passage of a copyright law broad enough to restrain piracy forever.
To this end, Lignon Johnson, reputed to be one of the best theatrical lawyers in the United States, and retained as counsel of the association, was directed to frame an adequate copyright bill. He did so, and accompanied his application to the Government by a list of flagrant offenses demanding protective measures. According to the old law, only actors and managers could be punished for participating in pirated performances; by the new arrangement, stenographers who copy plays as well as those who illegally sell copies, may be restrained. This copyright amendment was signed by President Roosevelt March 4, 1909, the last day of his administration.
By virtue of this new regulation, the Managers' Association brought Byers to trial before the Federal Court of Chicago on twenty specific charges, holding him for at least two reasons in connection with each play—sending a stenographer to copy the piece, printing the play, and circulating it or producing it. He was indicted fifteen times by the Federal authorities.
When Byers agreed to turn over his books and papers to the Government and assist it in trapping other play pirates, twelve of the indictments were dismissed, demurrers to two sustained, and only the fifteenth was held against him. This charge, to which he pleaded guilty, was that on August 26, 1910, he had sold a copy of " Baby Mine " to M. Stillman, of Vancouver, B. C., assuring the latter that the sale gave him production rights. This play previously had been written and copyrighted by Margaret Mayo Selwyn, who retained all rights and interests in the piece. Byers is now himself a member of the Managers' Association, enjoying its many advantages to the full.
THE CANADIAN SITUATION
Importance of international copyright was brought home when American plays were openly being pirated in Canada with practically no redress possible, for Canadian law failed, until recently, to protect dramatists, applying to plays only when published as books, and then not forbidding unauthorized production. Among American plays pirated in Canada, were " The Lion and the Mouse," " Get-Rich-Quick Wallingford," " Alias Jimmy Valentine," " The Deep Purple," " Baby Mine," " The Third Degree," " The Fortune Hunter," " Arizona," " The Man from Mexico," " Seven Days," " Polly of the Circus," and a number of others. The list was so long, in fact, that the Managers' Association investigated; and, presently, William A. Brady, then president, made public a letter from the Canadian Registrar of Copyrights, stating that any play copyrighted in England would be protected in Canada. This was the cue, then, for American authors to copyright their plays abroad. But even here was a difficulty that I shall take up presently in considering British provisions.
SIGNIFICANCE OF COPYRIGHT
Pause for a moment to inquire what copyright means. Nine out of ten persons believe it to be an excellent watch-dog, a good friend, an ominous threat, and a swift justice dispensed by an all-powerful, omnipotent thing called Government. When a playwright says that he has copyrighted his work, an admiring coterie of friends thinks that the Government has officially approved of his contribution to dramatic art. When copyright has been granted, the author feels that he controls the exclusive right of presentation, that anyone whose play even remotely resembles his, may not secure registration at all. It is a comfortable feeling.
But alas, even a most superficial investigation of the facts will dissipate these ideas. Theoretically, copyright aims at violators of justice; but practically, it punishes very few in proportion to the number at large. Tom, Dick, and Harry, with John Doe and Richard Roe, may each receive certificates of copyright upon the identical play, provided that the requisite number of copies have been deposited with applications, and that the full amount in fees has been paid. The underlying propriety of the matter must be determined in a court of law. Almost needless to say, it would be sheerly impracticable, as a measure to prevent copyright falling into wrong hands, for the Government to compare each new work for which protection is sought, with the thousands registered before it.
Copyright seems to exist for two purposes : to prevent theft and for assignment. In essence, it is just a registration; but the circumstances of that are so qualified, that the work to be copyrighted must actually be provided and not merely described.
HOW REGISTRATION IS SECURED
Application forms are supplied, upon request, by the Register of Copyrights at the Copyright Office, Library of Congress, Washington, D. C. If the work is reproduced in copies for sale—that is, such as in a book or in a magazine—one particular form is used; if it is not duplicated for sale and is intended for just stage presentation, a slightly different form is employed. It is only the unpublished play that is considered here. The filled-out application form (a small index card with spaces for the name and address of the copyright claimant, the names of author or authors and nationality, a brief title of the work, where the certificate of registration is to be sent, and for the name and address of the person remitting the one dollar statutory fee for registration), is enclosed with the money order and sent to the Register of Copyrights. One copy of the play is sent under separate cover.
The one dollar mentioned includes the cost of the " certificate of registration under seal." This certificate is only a small card, but it has the distinction of being admitted in court as " prima facie evidence of the facts stated therein." The entire cost of the copyrighting process is the one dollar fee, with three cents for the money order (remittance must be so made), two cents for the stamp on the letter inclosing it, the labor of filling out the card, of making the copy of the play, and doing up the parcel.
There is no charge for the parcel because the law provides that any postmaster shall, upon request, place a frank label upon it and mail it free of charge to its destination. He is also expected, if desired, to give a receipt for the parcel when it is delivered to him.
These steps are all that are taken by those persons who advertise that they will secure copyright for authors. This is no depreciation of their efforts, but a frank statement of the slight labor entailed. Copyright is readily obtained, as the Government is prompt and careful to explain.
The old law, whereby registration could be secured by filing a title in advance, was abrogated by the law of 1909.
A foreign citizen or subject may secure registration only when living in the United States at the time of depositing his work, or, when his native laws grant, by treaty, convention, or law, benefit, to American citizens, of essentially the same character as that given in the United States.
PRESENT COPYRIGHT LAW
While there has been and still is altogether too much literary pilfering and thievery in the United States—if it is reasonable to admit of any quantity at all—this country has profited by both painful and happy experiences of other nations.
Under the law of 1909, copyright is granted for a period of twenty-eight years from the date of first registration. The work may bear the author's name or pseudonym, or may be anonymous. It may be a translation, adaptation, or dramatization of another's copyrighted work, but as long as it is produced with the consent of the owner or owners of that work, it is regarded as a new piece, subject to copyright.
At expiration of the first period, an extension is granted for twenty-eight years more. The application for this extended time must be made to the Copyright Office and registered there within one year of the expiration of the first term.
If a copyrighted play is changed by the author, the work does not require re-registration unless the changes are 0f a substantial nature. The mere substitution of a new title does not necessitate fresh entry. A second copyright will protect new matter, but will not extend the term of copy-right in the older portions.
In no sense is copyright compulsory.
Infringement upon dramatic copyright is punishable by a fine of one. hundred dollars for the first unauthorized performance, and fifty dollars for every subsequent representation. Plagiarism, whether in produced or unproduced work, is actionable as an ordinary civil damage suit.
TRANSFER OF COPYRIGHT
As a drama is a negotiable thing, it may be made over from one person to another with all rights. This assignment must be recorded in a written instrument signed by the copyright proprietor. If the transfer is made in a foreign country, it must be formally declared before a United States consular official. Domestic assignments must be entered in the Copyright Office within three calendar months after making; foreign, six months.
There is no one international copyright as far as the United States is concerned. Most of the other nations subscribe to what is known as the " Bern Convention," a treaty signed at Bern, Switzerland, September, 1887. It provides that citizens or subjects of countries represented, shall enjoy, in each other country represented in that copy-right union, the same protection accorded native authors.
The United States was unable to subscribe to this convention because national copyright laws, which cover books as well as dramas, require, in lieu of a protective tariff, that all types and metals used be made in this country. But the United States has various separate treaties whereby, when an author registers his work at Washington, he automatically gains protection in Great Britain (including Canada, Australia, India, and the Colonies), Belgium, France, Switzerland, Germany, Italy, Denmark, Spain, Hungary, Portugal, Mexico, Sweden, Norway, Chile, Costa Rica, Holland, and, of course all possessions of his own land.
English copyright on plays by American citizens has long been subject to ambiguous interpretation; and in 1911 a new law was passed, primarily designed to clear up old complexities.
In July, 1914, Frederick F. Schrader, then editor of the New York Dramatic Mirror, and an authority on American copyright, attempted to clear the situation by writing to Bernard Weller, editor of the London Stage, and author of " Stage Copyright at Home and Abroad." Mr. Weller replied at length, deploring the ambiguity 0f clauses in the new law, and emphasizing the need of American publication in England or her possessions, or in some other country belonging to the copyright union, within fourteen days of United States issue. There is no stipulation as to the number of copies to be sold, says Mr. Weller; but publication must be bona fide. The American play not published at all is in a very doubtful position. Yet the common law right may make English infringement of a play by an American actionable, as it would that by a British subject.
The United Managers' Protective Association worked long and earnestly to secure definition of these rights, for a protocol of the Berlin convention, among other proclamations, made it possible for Britain, or any other country in the copyright union, to modify her relations with a non-union country not giving reciprocal protection—and America, be it remembered, requires resetting of all foreign works published in the United States, or a high duty on imports—while the new law itself made room for a possible proclamation by the king to adjust registration of foreign works.
The hoped-for Orders in Council were issued by King George V in February, 1915. They provided, by the common law right, that any person who pirates an American work for production in Great Britain, may be either fined or imprisoned. Term of copyright extended to Americans is the same as in the United States, as opposed to an Englishman's " life and fifty years." Orders are silent, how-ever, on American works made but not protected prior to the passage—or between coming into force of the Copy-right Act, July 1, 1912, and January 1, 1915, when the orders went into effect.
Credit for this proclamation is due to Lignon Johnson, counsel of the Managers' Association. He went abroad for the express purpose of securing it, and conferred with Premier Asquith and Mr. Buxton, head of the London Board of Trade. The matter was incorporated in the English law just before the final hearing and adoption of the copyright act by the British Parliament. President Wilson reciprocated with a proclamation protecting English music here from unlawful mechanical reproduction.
Rights secured under this law extend to all British do-minions save the self-governing Dominions of Canada and New Zealand, the Commonwealth of Australia, and the Union of South Africa, and Newfoundland.