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01C performance is not publication

Where to Look in the Law

1909 Act: §§1(c),(d),(e)
1947 Act: §§1(c),(d),(e)
1976 Act: §101, definition of “publicly”

Copyright Office Publications for Laymen

“The following do not constitute publication: printing or other reproduction of copies, performing or displaying a work publicly, or sending copies to the Copyright Office.”  (Information Circular 3)

What the Supreme Court Ruled


Ferris vs Frohman

223 U.S. 424 (2-19-1912)

The play “The Fatal Card” (1894) was written by two British subjects, whose manager sold the American rights to Charles Frohman.  The play “was extensively represented under his supervision.  It was not copyrighted here.”

“George E. McFarlane made an adaptation of this play, called it by the same name, and transferred it to … Richard Ferris, of Illinois, who copyrighted it in August, 1900, under the laws of the United States, and later caused it to be performed in various places in this country.  The adapted play differed from the original in various details, but not in its essential features.”

The Supreme Court examined opinions as to whether British rules about abandonment applied (they didn’t), whether the fact of the first performances being in Britain compromised the common-law protection in the United States (they hadn’t), or whether there were applications of those laws pertaining to works that had been printed and published before the opportunity for copyright was lost (such provisions didn’t apply to this case).  The Court decided in favor of the original playwrights and their American representative:

“The public representation of a dramatic composition, not printed and published, does not deprive the owner of his common-law right, save by operation of statute.  At common law, the public performance of the play is not an abandonment of it to the public use.”

What the Lower Courts Ruled


Boucicault vs Fox

C.C.N.Y. (Oct. term 1862) ¤ Fed.Cas.No.1,691.

“Is there any evidence, in the case, that the plaintiff abandoned his rights to the public?  It appears, in the proof, that the play was performed at the Winter Garden, under the agreement, and, of course, with the consent of the plaintiff, for some six nights before the copyright was taken out.  This is all the evidence of an abandonment to the public.  From this the defendants argue, that such a public representation for profit, or, at least, to the theatrical public, including the profession of players, of the right to represent the play on stage.  No printed copy of the play having ever been circulated, it is not seriously contended that the plaintiff deprived himself of the right to print and publish it… .  The object of [the relevant 1856] statute is apparent, at a glance.  It is to secure to the author of a copyrighted play the sole right to its performance in any public place, after it is printed.  While it is in manuscript he needs no protection.  Manuscripts are protected by the common law, as well as by the 9th section of the act of February 3d, 1831.  Whether a copyright had been taken out by the plaintiff or not, the defendants would have had no right to the use of his manuscript play; and, although they had obtained a copy without the consent of the plaintiff, a court of equity would have promptly restrained them from any use of such copy, beyond what the plaintiff had authorized.  The reading of a manuscript lecture or discourse, or the performance of a manuscript play in public, does not confer upon the hearer any title to the manuscript, or any right to a copy, or to the unauthorized use of a copy, which may surreptitiously, or accidentally, pass into his hands… .  The copy taken by Stuart, whether with or without the consent of the author, was evidently intended by the latter for no other use than connected with its performance at the Winter Garden, and Stuart had no right to put it to any other use, and could confer none upon the defendants.  The common law protected this play, so long as it was in manuscript, or, at least, it was protected by equitable remedies… .  There can be no evidence of abandonment to the public of any rights growing out of the authorship of a manuscript, drawn from the mere fact that the manuscript has, by the consent and procurement of the author, been read in public by him, or another, or recited, or represented, by the elaborate performances and showy decorations of the stage.”


Crowe vs Aiken

C.C.,N.D.Ill. (12-31-1869) ¤ 6 F.Cas.904, Fed.Cas.No.3,441.

Crowe contracted with Taylor for his wife (“an actress of distinction known to the public as Miss Kate T. Bateman”) to star in the play Mary Warner, which was never printed and was always in manuscript.   Aiken was manager of a Chicago theater who staged a performance of the play never authorized by the playwright or his agents.  Tom Taylor of Great Britain wrote the play.  It was first performed in London at the Haymarket theatre.  The first U.S. run had been at Booth’s theatre in New York.  Aiken’s copy, it turned out, originated with a person in London who “obtained the same only from repeated representations on the stage at the Haymarket theatre”, then sold it to Robert M. DeWitt of New York; an “affidavit of DeWitt states that he furnished the defendant with a copy of the play.”  This edition of the play was “printed slips fastened together in pamphlet form.”

By the laws lived under by Taylor in England, presentation of a play amounts to publication, yet in the United States a lecturer and a clergyman don’t lose their exclusive rights upon presentation.  As U.S. law applied: “The representation of a play on the stage is not, at common law, a publication, depriving the author of his exclusive right to control the literary production.”

“[T]he mere representation of a play does not of itself dedicate it to the public, except, possibly, so far as those who witness its performance can recollect it, and that the spectators have not the right to secure its reproduction by photographic or other verbatim report, independent of memory.”


Jerome H. Remick & Co. vs American Automobile Accessories Co.

S.D.Ohio,W.D. (4-23-1924) ¤ 298 F. 628
6th Cir. (4-9-1925) ¤ 5 F.2d 411

“A performance, in our judgment, is no less public because the listeners are unable to communicate with one another, or are not assembled within an inclosure, or gathered together in some open stadium or park or other public place.  Nor can a performance, in our judgment, be deemed private because each listener may enjoy it alone in the privacy of his home. Radio broadcasting is intended to, and in fact does, reach a very much larger number of the public at the moment of the rendition than any other medium of performance.  The artist is consciously addressing a great, though unseen and widely scattered, audience, and is therefore participating in a public performance.”  (Quoted from the Appeals decision, which later was quoted approvingly in the Supreme Court decision for Twentieth Century Music Corp. v. Aiken, 422 U.S. 151 (1975))


Robert H. Nutt vs National Institute Incorporated for the Improvement of Memory

C.C.A. Conn. (3-11-1929) ¤ 31 F.2d 236.

Lectures were given to a paying audience, then copyright was obtained.  The presentations from the lecterns did not void the copyright.

Three lectures which made up a series called “How to Improve Memory” were protected by copyright held by National Institute, and were infringed by lectures on the same subject.  The author of the lectures had copyrighted them November 23, 1925, after the lectures had developed through gradual growth over three years, and assigned his copyright on December 6, 1927, to National Institute.  Robert Nutt was employed by them until October 1922, and had no training in the subject other than with them.  He delivered the infringing lectures December 14 and 15, 1927.  The amount of his copying was substantial, enough to constitute infringement.

It was argued that “assignor dedicated his work to the public before having it copyrighted.  This is based upon the fact that the lectures had been publicly delivered prior to the application of the copyright.  A public performance of a dramatic or musical composition is not an abandonment… . Only a publication of the manuscript, amounting to an abandonment of the rights of the author, will transfer it to the public domain.  The author of a literary composition, as a lecture, may profit from public delivery; but that does not constitute the kind of publication which deprives him of the protection of the copyright statute by later application.  Even where the hearers are allowed to make copies of what was said for their personal use, they cannot later publish for profit that which they had not obtained the right to sell.”


Columbia Broadcasting System and Allan Jackson vs Documentaries Unlimited

Supreme Court, Special Term, NY Co. (4-2-1964) ¤ 248 NYS.2d 809, 141 USPQ 310

Allan Jackson’s announcement of the assassination of John F. Kennedy, as broadcast by CBS, was incorporated into “a phonograph record for commercial distribution entitled JFK, the Man, the President, all without the consent of CBS or Jackson.”  It “embodied about one minute of Jackson’s announcement in its 43-minute record.”  Finding: “Rendering of performance before radio microphone does not constitute an abandonment of ownership of copyrighted material or dedication of it to public at large.”


Roy Export Company Establishment of Vaduz, Liechtenstein, Black, Inc., A.G., Filmverhuurkantoor De Dam B.V., and rbc Films vs Columbia Broadcasting System, Inc.

USDC SDNY (12-17-1980) ¤ 503 F.Supp. 1137

Roy Export Company Establishment of Vaduz, Liechtenstein, Black, Inc., A.G., Filmverhuurkantoor De Dam B.V., and rbc Films vs Columbia Broadcasting System, Inc.

USCA (3-4-1982) ¤ 672 F.2d 1095
Chpln_standing.jpg (21183 bytes)

This summary addresses facts also given under fair use.   “In 1973, CBS began work on a retrospective of Chaplin’s life, intended for use as a film obituary when Chaplin died.  CBS soon learned, however, that the plaintiff held all rights in the films involved here and that, despite repeated requests, plaintiffs would not grant CBS permission to use the films.  The plaintiffs explained their refusal by informing CBS that they had begun production on their own ‘definitive’ Chaplin biography, The Gentleman Tramp, and therefore would not relinquish their copyright advantage.”  Rather than use public domain films, CBS sought the “gems” of the comedian’s films.  A lengthy compilation of such scenes had been prepared with skill under authorization of the copyright owners and had been broadcast in 1972 in connection with Chaplin’s appearance at the Academy Awards.

“Charlie Chaplin died on December 25, 1977.  Although CBS had its ‘rough cut’ biography [containing public domain film] ready for showing, the network elected not to use it, preferring instead to use [for about 40% of their program] a copy of the Compilation obtained from NBC.  NBC had kept a videocassette of the Compilation from its 1972 telecast of the Academy Awards and had provided CBS News with a copy of the videotape on the assurance that CBS would show only brief portions of the excerpted films and only on its regular nightly news program.  The copy, however, appears to have found its way to Russell Bensley, director of the CBS Special Events Unit.  Although Bensley knew of the plaintiffs’ repeated refusals to grant CBS permission to use excerpts from the copyrighted films, and although Bensley was unable to reach Schneider or Rothman [both of whom were among the four people who created the Compilation] to make an eleventh-hour plea for reconsideration, CBS decided to put together a new version of a Chaplin biography, incorporating, with minor editing, the Compilation obtained from NBC.  The newer version, heavily dependent on what CBS knew to be copyrighted material, was broadcast on December 26, 1977, in preference to the legally less vulnerable ‘rough cut.’”

CBS challenged whether the Compilation could enjoy copyright protection in that no statutory copyright had been taken out on it by the plaintiffs, and in that (as part of the Academy Awards broadcast on which the Academy of Motion Pictures Arts & Sciences [AMPAS] held statutory copyright) the statutory copyright associated with it was not in the plaintiffs’ name.  The Court held that the AMPAS broadcast was “divestive” rather than “investive” insofar as it controlled copyright on the components of the broadcast, which was a compilation in itself which in turn incorporated the Compilation of Chaplin scenes.  Because AMPAS had obtained only a one-use license for the Compilation, AMPAS never had ownership interest and thus never had “investive” interest subsequent to the broadcast.  Further, AMPAS argued that the broadcast was a performance rather than a publication.

“The possibility that AMPAS acquired a statutory copyright in the Compilation may be readily rejected.  It is axiomatic that copyright is a protection for an original work.  Without an assignment from the proprietor of a component, the compiler of a collective work cannot secure copyright protection for preexisting components that he did not create; protection is available only for that part of his product that is original with him—for what he has added to the component works, or for his skill and creativity in selecting and assembling an original arrangement of those works, even if no new material is added.  For example, when the plaintiffs created the Compilation, they became eligible for copyright protection (common-law or statutory) because the Compilation is an original creative work, distinct from the films on which it draws.  But AMPAS made no creative contribution to the Compilation.  Without any assignment from the plaintiffs of proprietary rights in the Compilation, the statutory rights AMPAS may have acquired in the telecast can extend only to its original contribution to that collective work, not to the pre-existing Compilation.

“The possibility that the 1972 telecast placed the Compilation in the public domain must also be rejected… . [T]hat one-time showing of the Compilation was only a ‘performance’… [R]igorous standards apply in determining when distribution of copies of a work constitutes a ‘publication’ sufficient to cause a loss of common-law copyright without acquisition of statutory protection.  We therefore conclude that the Compilation is not in the public domain.”  CBS lost on every charge.  (All quotes from the Appeals case, which affirmed the District Court case.)


Cases Summarized in Other Sections

McCarthy & Fischer, Inc. vs White et al. (launch this) had to do with the distribution of sheet music to be publicly sung but not sold.

The cases in the page for copyright abandonment should be read by those wanting more examples of performance not being publication.




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