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Freedom of Memory v. Copyright Law: The American Première of Caste

Published online by Cambridge University Press:  23 January 2009

Daniel Barrett
Daniel Barrett
Affiliation:
Department of English, Iowa State University, Ames, Iowa, USA.
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Extract

Playgoers needed no special incentive to attend the opening of T. W. Robertson's Caste at the Broadway Theatre in New York on 5 August 1867. The same author's Ours had been the hit of the previous New York season, and the enthusiastic reception of his latest domestic comedy in London heralded its American appearance. A few days before the première, however, Broadway manager Barney Williams received an unwelcome piece of extra publicity: a temporary injunction against the forthcoming production had been granted by the New York Supreme Court to Lester Wallack, actor-manager of the renowned Wallack's Theatre. Although the essential facts of the subsequent hearing have been accurately preserved in Odell's Annals, the case deserves to be reopened and examined more carefully. To contemporary observers, the proceedings revealed the court's inability and unwillingness to protect the work of a respected English dramatist. Yet events following the judge's decision ultimately won for Robertson and Wallack the vindication denied by the court, and the case is now remarkable as a judicial ‘last stand’ against the legitimate rights of foreign authors.

Type
Articles
Information
Theatre Research International , Volume 8 , Issue 1 , Spring 1983 , pp. 43 - 52
Copyright
Copyright © International Federation for Theatre Research 1983

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References

Notes

1. Odell, George C. D., Annals of the New York Stage, VIII (New York: Columbia Univ. Press, 1936), 286–9.Google Scholar

2. Florence, W. J., ‘Lester Wallack’, North American Review, 147 (1888), 457.Google Scholar The year (about which Florence was uncertain) is confirmed by his reference to a production of The School for Scandal at the St. James's, in repertory at the time.

3. Under the provisions of the 1833 Dramatic Copyright Act (amended in 1842), an English dramatist or his heirs had complete control over the performance or publication of his plays in Great Britain. Although difficult to enforce, especially in the provinces, copyright extended to forty-two years from the date of the copyright performance (equivalent to the publication date of a book) or for seven years after the author's death, whichever period was longer. Until 1891, however, when an international agreement was signed, anyone could reproduce an English play in the United States, either on stage or in print, without compensation to the author. To hinder this practice, few dramatists had their works printed before 1891, especially since publishers' fees were negligible. If, as often happened, a play was pirated after having been copied or memorized, the author's only appeal in the United States was to non-statutory, or common, law.

4. Letter to Wallack, Lester, 10 10 1867Google Scholar, in Odell, , VIII, 289.Google Scholar

5. New-York Times, 6 08 1867, p. 3.Google Scholar

6. New-York Daily Tribune, 26 02 1866, p. 8.Google Scholar

7. Booth, Michael R., ed., English Plays of the Nineteenth Century, III (Oxford: Clarendon Press, 1973), 36.Google Scholar

8. This bill added approximately one million voters, mostly working-class householders, to the electorate of England and Wales. Political leaders considered Parliamentary reform an overdue but dangerous measure, one that could provoke an outbreak of the masses and an overthrow of the established order; even Disraeli, the bill's chief architect, called it ‘a leap in the dark’.

9. ‘The more we see of plays with a purpose the more we are convinced that the stage makes a very sorry discussion forum. The dramatist, like the preacher, can prove little, because no one can answer him, and, therefore, the less he seeks to prove the better. His chief “mission” … is to amuse, and the closer he sticks to his last the better for himself and the public’ ([London] Daily News, 8 04 1867, p. 2).Google Scholar

10. Statutes at Large and Treaties, of the United States of America, XI (Boston: Little, Brown, 1859), 138–9.Google Scholar

11. Macklin v. Richardson, 7 Eng. Rul. Cas. 66 (High Court of Chancery, 1766). See Matthews, W., ‘The Piracies of Macklin's Love À-La-Mode’, Review of English Studies, 10 (1934), 311–18CrossRefGoogle Scholar; Findlay, Robert R., ‘Macklin's Legitimate Acting Version of Love à la Modi’, PQ, 45 (1966), 749–60.Google Scholar

12. Boucicault v. Fox, 3 Fed. Cas. 977 (New York Cir. Ct. 1862). See Faulkner, Seldon, ‘The Octoroon War’, Educational Theatre Journal, 15 (1963), 33–8.CrossRefGoogle Scholar

13. New-York Times, 6 08 1867, p. 3.Google Scholar

14. Keene v. Kimball, 77 Am. 12 428 (Mass. Sup. Ct. 1860).Google Scholar

15. New-York Times, 8 08 1867, p. 3.Google Scholar Florence admitted he possessed a transcription of the original production; it would have been the source of the promptbook and partbooks for individual actors at the Broadway. This transcription, however, was not considered a pirated copy since Florence had not taken the lines directly from the manuscript or the actors' mouths, but had used his memory as a temporary repository for the script. Once he left the Prince of Wales's Theatre with no physical evidence of possessing the play, he was free to retrieve it when he chose and reproduce it in America.

16. New-York Herald, 6 08 1867, p. 6.Google Scholar

17. New-York Times, 8 08 1867, p. 3.Google Scholar

18. New-York Daily Tribune, 6 08 1867, p. 7.Google Scholar

19. New-York Times, 14 08 1867, p. 3.Google Scholar

20. The Times, 2 09 1867, p. 4.Google Scholar

21. New-York Daily Tribune, 6 08 1867, p. 5.Google Scholar

22. New-York Times, 6 08 1867, p. 4.Google Scholar

23. New-York Daily Tribune, 14 08 1867, p. 4.Google Scholar

24. 12 August 1867, p. 5.

25. Letter to T. W. Robertson in Odell, VIII, 288.

26. Letter to W. J. Florence, unidentified newspaper clipping, The Billy Rose Theatre Collection, Performing Arts Research Center, The New York Public Library.

27. Letter to Wallack, Lester, 10 10 1867Google Scholar, in Odell, , VIII, 288–9.Google Scholar

28. Florence, , p. 458.Google Scholar

29. New-York Times, 9 11 1875, p. 4.Google Scholar

30. Palmer v. De Witt, 7 Am. Rep. 488 (New York Sup. Ct. 1872).

31. Tompkins v. Halleck, 43 Am. Rep. 491, 493 (Mass. Sup. Ct. 1882).

32. Perhaps the most significant indication of their improved standing was the rapid increase in performance fees. Most writers testifying before a Select Parliamentary Committee in 1866 felt they were underpaid, since the lump sum they received for a piece (£50 per act at best) did not reflect its success or the manager's profit. The one exception was Boucicault, who had instituted a sharing agreement in 1860 whereby he collected half the receipts whenever his plays were performed in London or the provinces. By the 1880s the royalty system of payments was widespread, enabling dramatists to earn a comfortable income from the theatre alone.