Page:Copyright, Its History And Its Law (1912).djvu/208

 room during the changes, Judge Ray, in the U. S. Circuit Court in New York, declined to grant relief, adding that as a mere spectacular composition such "sketch" was not properly a dramatic composition. The English law was construed in 1848 in Russell v. Smith, when a song "The ship on fire," in which dramatic action Wcis exhibited by the singer alone without costume or scenery, while seated at the piano, was construed to be a "dramatic piece" — the action being "not related but represented." In 1872, in Clark v. Bishop, a music hall song "Come to Peckham Rye" was similarly protected as a "dramatic piece." But in 1895, in Fuller v. Blackpool Winter Gardens Co., it was held that the song " Daisy Bell," though sung in character costume, was not a "dramatic piece" because its representation did not require acting or dramatic effect. Later decision construed the act of 1833 to cover only spoken words, the English Court of Appeal holding in Scholz v. Amasis in 1909, through Lord Chief Justice Farwell, that only substantial copying of written dialogue, and not of a plot or situation, constitutes infringement, and in Tate v. FuUbrook in 1908, that the writer of the dialogue is the sole author of the musical sketch though devised and staged by another. But in two cases, one by Moore in 1903 and one by Eraser in 1905, against George Edwardes, English juries gave heavy damages where the scenarios for musical comedies submitted to that theatrical manager had been made the basis for musical comedies by other writers afterward produced at Daly's Theatre, London.

The opinion of Judge Blatchford was quoted and maybe followed by the U. S. Circuit Court of Appeals in New York, in 1909, in Harper v. Kalem Co., which said through Judge Ward: "The artist's idea of describing by action the story the author has written in words is