Dr. Derek Miller on the History of Performance and Copyright



If you’ve ever tried to get permission to perform a play, you’ve probably encountered some issues having to do with theatrical copyright. But where did the concept of copyrighting theatrical works come from? What do the legal wrangles over who owns the rights to a performance say about the nature of theatre?



Those are some of the questions that Dr. Derek Miller tackles in his new book, Copyright and the Value of Performance, 1770-1911. Derek joins us to talk about some important legal cases that helped to establish copyright law in American and British theatre, as well as courtroom battles over everything from special stage effects to the American premieres of Gilbert and Sullivan’s best-known works.

piece of paper
Scrap of paper from Daly v. Palmer with definitions of the term "drama." Via the National Archives and Records Administration.


illustration of a railroad scene
The railroad scene from Augustin Daly's Under the Gaslight.

Additional Reading:

  • Alexander, Isabella. Copyright Law and the Public Interest in the Nineteenth Century. Oxford, UK: Hart, 2010.
  • Davis, Tracy C. The Economics of the British Stage, 1800–1914. Cambridge, UK: Cambridge University Press, 2000.
  • Gerland, Oliver. “From Playhouse to P2P Network: The History and Theory of Performance under Copyright Law in the United States.” Theatre Journal 59, no. 1 (2007): 75–95.
  • Hughes, Amy E. Spectacles of Reform: Theater and Activism in Nineteenth-Century America. Ann Arbor, MI: University of Michigan Press, 2012.
  • Pate, George. “Reinventing Performance, Reproducing Ideologies.” PhD Diss., University of Georgia, 2014.
  • Stephens, John Russell. The Profession of the Playwright: British Theatre, 1800–1900. Cambridge, UK: Cambridge University Press, 1992.
  • Walker, Julia A. Expressionism and Modernism in the American Theatre: Bodies, Voices, Words. Cambridge, UK: Cambridge University Press, 2005.
  • Wessel, Jane. “Possessing Parts and Owning Plays: Charles Macklin and the Prehistory of Dramatic Literary Property.” Theatre Survey 56, no. 3 (2015): 268–290.

You can subscribe to this series via Apple iTunesGoogle Play Music, or RSS Feed or just click on the link below to listen:


Michael Lueger: The Theatre History Podcast is supported by HowlRound, a free and open platform for theatremakers worldwide. It's available on iTunes, Google Play, and howlround.com. Hi, and welcome to the Theatre History Podcast. I'm Mike Lueger. If you've ever tried to get the rights to a theatrical production, you're probably at least somewhat familiar with copyrights and the theatre, but how do dramatic and musical works become things whose performance rights were owned by someone, either their creators or some other entity? That's what Dr. Derek Miller is exploring in his new book, Copyright and the Value of Performance, 1770 to 1911. Derek is the John L. Loeb Associate Professor of the Humanities in the Department of English at Harvard University. Derek, thank you for joining us.

Derek Miller: Thank you so much for having me, Mike. I'm really very grateful to be talking with you today and very excited to see this work finally come out from Cambridge University Press.

Michael: There's this term that keeps coming up in your work, and perhaps we should start there. You keep referring to something called a performance-commodity, this hyphenated term. What does the term mean, and why did you choose to use it?

Derek: That's a great place to start. This book, this project, has been about copyright in theatre and music, specifically the subset of copyright called the performance right, which is exactly what it sounds like. It's the right to perform a theatrical or musical work, and particularly the development of that right during the nineteenth century. I focus in my discussion on the United States and the United Kingdom, where there was a lot of back and forth between the law and also, of course, in the theatre and music industries.

What the law does when it is developing a copyright law is to define art as an artistic form. It defines drama and music as artistic forms. The thing they defined is not all of what makes drama or music dramatic or musical, and it's not all of what may be valuable about a given play or a song. But it is the copyrightable part of the play or a song. So the performance right defines a subset of a work, and I wanted a way to distinguish the legal thing, the thing that the law is describing and creating, that people then have a right to buy and to sell, from what we might be more accustomed to thinking about as all the different parts and pieces of a theatrical or musical work. So that's the commodity. The performance-commodity is the thing that the copyright law defines as legally ownable as a dramatic or musical work.

MichaelOkay, so I read the title of your book a moment ago, and it's focusing on the period of 1770 through 1911. What was the state of theatrical copyright law at the beginning of this period, and what laws came along during that period, particularly in the nineteenth century, to change that status?

Derek: The short version is, there isn't any specifically theatrical copyright law before this period. The first copyright statute is in 1710. It's called the Statute of Anne in the United Kingdom, and it protects printed texts. It's a copy right, the right to copy works in print, and it's intended to replace what had been an essentially monopolistic guild practice by the Stationers Company, the Printers' Guild. That law said nothing about protecting a play. It said nothing about music or songs. It was only about copying, and that was very narrow and very strangely defined.

In the US, prior to this period, you do have colonial copyright laws that are modeled after the Statute of Anne. The Constitution specifically grants Congress a right to create copyrights, and they did it almost immediately, starting in 1790. But these are very much copyrights through the eighteenth century, and though I do talk about a case involving Charles Macklin and a lawsuit over his afterpiece, Love a la Mode, it's an unusual sort of a piece, and it's a strange mingling of the copyright and performance, as I discuss in the book.

What happens then in the nineteenth century is that all of copyright law expands beyond this copy right to start thinking much more abstractly, so beyond the printed text on a page and into media such as performance, but also things like design. They start worrying about photography later in the nineteenth century. And as part of this process, the law starts worrying less and less about the specific material existence of a copyrighted thing and creates this more abstract idea of a copyrighted work. And when they do that, that's when they start to worry, what is the work? What counts as part of the copyrighted thing? What's fundamentally valuable and makes it part of the law's purview?

To be a little more specific about the legal process in the nineteenth century, performance rights, which are the concern of the book, there are a few key dates. First, in the UK in 1833, Parliament passes what's known as the Dramatic Literary Property Act. It's a process that's driven through reform by Edward Bulwer-Lytton, who is a playwright and also perhaps most famous as the writer of the line, "It was a dark and stormy night." In 1842, the Talfourd Act is passed. That's a major revision of extant copyright law that's led by Thomas Noon Talfourd, who wrote the play Ion and was also a lawyer, and it expands performance rights to include music.

As I discuss, though, in the book, both these rights take a while to get used. In the case of theatre, it takes really until the dissolution of the patent theatres in 1843 before you start seeing more people involved in suing over dramatic performance rights. Music rights are really slow in the UK. There's a lot of confusion about whether or not there is a musical performance right, well into the late nineteenth century. In the United States, the key date is a little later. It's 1856. Congress creates a dramatic performance right in an amendment to the copyright statutes. Musical performance rights in the US, again very tardy. In this case, the statute is very tardy. Not until 1897 is there a musical performance right in the United States.

During the same period, so we're talking from the early nineteenth century up to about the eve of World War I, there are a number of other laws that affect performance rights that come about. There are laws about copyright in lectures, there are international copyright laws, and things like in 1870 in the US, the right to dramatize a novel, to turn a novel into a play. So there are some other pieces that come along the way, but if you want to say what are the key dates, the answer is 1833 in the United Kingdom and 1856 in the United States. That's what you can hang your hat on.

Michael: We're going to start talking about some of these specific cases that you examine in a moment, but I have to say, having read through some of the book, it's really sort of fascinating and kind of funny in a way to watch these judges and lawyers argue over the very sort of specific concrete details of what makes this thing a specific work of art, when I think those of us who create or study art are so into the ambiguity of it. It doesn't have to be one thing. It's so striking in reading your accounts of these cases that we'll talk about in a moment, how focused they are on sort of these very concrete specifics, these categories, these definitions.

Derek: Yeah, absolutely. I mean, the law really wants to drill things down and be as precise as it can, because they know that on the one hand, they're making decisions about specific arguments and cases. You know, you doing my thing. But on the other hand, they're also trying to make they're resting on solid principles. One of the things that sort of fell out of the book project along the way, because there wasn't really anything to say other than just this is the way the world was, but the overlap between the legal world and the creative world. I mentioned already Bulwer-Lytton and Thomas Noon Talfourd. W.S. Gilbert, who comes, we'll discuss in a little while, I hope, was trained as a lawyer. The first Gilbert and Sullivan piece was Trial by Jury.

And there's a huge amount of overlap between the legal world and the artistic world that we're talking about here. There are plays set in courtrooms. There's people trained in the law. And then there are lawyers who are very involved, not only in writing plays but deeply involved with the theatrical world, who showed up in this project, people who are founders of The Players Club in New York, this sort of small set of lawyers who did copyright law for the theatre in the late nineteenth century in either country. And you come across their names again and again in these cases. They were friends of, and dining companions with, these people who are suing each other. And so, on the one hand, it can be a very dry, strained sort of relationship to theatre and music, but on the other hand, this was just the world they were in, and it was as if the theatrical world is today, a small community fundamentally.

Michael: Let's talk about some of these cases that you write about. Listeners might remember from our interview with Robert Davis the unscrupulous New York theatre manager, Thomas Hamblin, and he figures into this first case. Can you tell us the story of Joseph S. Jones and how he got involved with Hamblin, and what the resulting court case established?

Derek: Sure. Well, I'm sure Robert Davis can tell you about a million times more things about Thomas Hamblin than I can, but this is a funny case. The case is called Jones against Thorne, and it's a fun case, because I use it as an example of how when you argue about copyright and competition, the parties start thinking about economic and artistic value as linked together. Even before the advent of a performance rights statute in the United States ... this case is actually before there's a performance rights law, it's in the 1840s, it's 1841 ... they are arguing as though economic and artistic value are related in a particular kind of way that copyright law makes visible.

It's 1841, and Hamblin's Bowery at the time is just in terrible financial condition. This is the pits. Meanwhile, around the corner you've got the Chatham Theater, which is run by Charles Thorne, and Thorne is on a hot streak, including producing a pair of plays by Joseph S. Jones, The Carpenter of Rouen and The Surgeon of Paris. Jones happened to be employed by Hamblin at the time, so Hamblin, I assume, goes to Jones and says, "Hey, Joe, let me produce your play, The Surgeon of Paris, and we'll mount it the same day as old Charles Thorne at the Chatham Theater, and we'll put him out of business, and everyone will come see our production." And he says, "Let's also sue Thorne for violating your rights to produce the play." So that's what they try.

The court says, "No, no. Mr. Jones, when you wrote the play, you were employed by Mr. Pelby in Boston, and Mr. Pelby therefore owns the plays, and he had every right to sell them to Charles Thorne. You have no rights to tell him not to do the play." So that's how the case comes out, but what's fascinating in the case to me is the way that the newspapers are talking about it. I've got a lot of evidence here from the New York Herald, which goes all in for Thorne, and they argue that by trying to shut down Thorne's production, Jones and Hamblin of the Bowery Theatre are limiting the audience's ability to compare the artistic products at the Chatham and the Bowery. It's sort of a free trade argument that they're making.

In other words, according to Thorne and to the Herald ... Thorne actually writes an editorial that appears in the Herald ... if the productions are allowed to compete with each other, both theatres are going to do even better artistic work than they would otherwise. They say Hamblin is trying to shut down artistic competition and to give you a bad product, but we're in favor of a good product and letting Thorne do the play. Legally, actually, the case is sort of a weird, unimportant footnote, in terms of the legal precedent it establishes, but it helped in studying this case to teach me how theatrical copyright battles get both parties thinking about the relationship between a work's artistic value and its monetary value.

Michael: Now, one that might be a little bit more important in establishing case law is a case called Russell v. Smith. Why was that one important in defining what's eligible for copyright?

Derek: Russell v. Smith is a British case. It's from the late 1840s, and it's a fascinating lawsuit, because it involves a song. It's an important precedent for dramatic performance rights law, but it's a song. The song is called “The Ship on Fire”, and it was written by a man named Henry Russell. I was trying to think of a good analog for Henry Russell to talk about when I knew we were having this conversation. It was sort of a public radio kind of performance shtick. I don't know, a Garrison Keillor or Mark Russell, is he the satirist? He composed these songs, and then he'd go on tour, and he'd play and perform the songs. They weren't just lyrical numbers. They were sort of narrative and dramatic ballads.

So he had this traveling show, and he'd sing his ballads, and this guy Henry Smith comes along and says, I can do that, and he does that, including doing Russell's own songs. He's sort of following Russell along from town to town. This starts in the US, and then Russell comes back to the United Kingdom, and Smith follows him there. Russell gets sick of this and sues. He sues under the performance rights statute, the Dramatic Literary Property Act, and he says, "Smith, you have no right to perform my song, ‘The Ship on Fire.’" Smith's attorneys say, "Well, that's a nice argument, except your song isn't dramatic." And so the courts have to decide, is this song, “The Ship on Fire,” or more specifically the performance of this song, covered by the Dramatic Literary Property Act?

The courts end up looking very closely at the song. They quote passages of it. If the song is dramatic, then Smith has violated Russell's performance right and has to stop performing it. The courts look at it, and they say, "Yes, this is a dramatic song, and Mr. Smith, you cannot do this anymore." The reason they say the song is dramatic ... and here's where the legal precedent comes in ... is that the song represents characters in action. At various points, Russell adopts the voice of characters in this story. It's a story about a ship catching fire and sinking, and then people being rescued.

At various points, he adopts the voice of a character. So he'll say the ship crackled, and the flames flamed and stuff, and then a mother says, "O Lord, save us all" or something like that. I'm not remembering the lyrics off the top of my head. Not particularly memorable. But this enactment that pushes beyond narration is what makes the work dramatic. The court decides that the essence of drama is this embodiment of action, and if you're embodying action, there is drama, and therefore a dramatic performance right.

Michael: Let's move on to another kind of calamity. Rather than ships on fire, let's talk about railroad accidents, specifically the origin of that cliché where a character's tied to a train track, and they make a last second escape. There is an important copyright case called Daly v. Palmer, which involves, among other things, the origin of that cliché. Could you tell us about Daly v. Palmer?

Derek: Yeah. This is a wonderful lawsuit, and it goes on for decades. It actually ends up ultimately at the Supreme Court, involving some procedural and financial matters. The core of the case, though, is decided in the late 1860s. A lot of great theatre and literary historians have written about this case. It's definitely the most famous lawsuit that I discuss in the book. Daly in Daly v. Palmer is Augustin Daly, the playwright, adapter, producer, director, one of the great figures of the late nineteenth century American stage. He also produces stuff in the UK eventually. Daly writes ... this is pretty early in his career ... he writes this hit melodrama called Under the Gaslight. The play has, as you mentioned, this famous scene. It gets known as the Railroad Scene, that's how famous it is. And now it's a cliché. The character is tied to the railroad tracks, the train is coming on, and they're rescued at the last second, and the train rushes by. Great effect, huge applause, big money.

Palmer in Daly against Palmer is Harry Palmer. He's just the producer, though. The important figure on the other side of this case is actually the other playwright, Dion Boucicault. I'm sure many of your listeners will know Dion Boucicault, an Irish writer, an actor who has a huge career on both sides of the Atlantic throughout the nineteenth century. A brief Boucicault aside, if I may, Boucicault is often credited with pushing for the 1856 performance rights law in the United States. I've seen no evidence of that anywhere. This is a thing that seems to have just made it into his biography. He did write about theatrical copyright in some US publications. He definitely invented the copyright performance, which I also talk about in the book, but there's no evidence that he had anything to do with the law in the United States.

He's also a wonderful figure, because he's insanely litigious. The University of Kent has a marvelous archive, including boxes from his solicitor of material that they went through, and I use some of it in the book, including bills that he sent Boucicault, saying what they discussed at various meetings. He's a fabulous figure, as many theatre historians know, and his relationship to the law is really wonderful.

Anyway, Boucicault writes this play. He's actually adapting another play. It's called After Dark, and he sees how well this Railroad Scene in Daly's play is doing, and he says, "I'm going to have a railroad scene too." And so he writes a railroad scene into After Dark, and that's what Palmer is going to stage in New York. Daly sues, and he says, "You have no right to produce your play, because it has that scene in it, and that's my scene." Here's the thing. The events of the scene are the same. They both have what we would now think of as the clichéd setup of the Railroad Scene. You've got railroad tracks, you've got an innocent victim, you've got an onrushing train, you've got a rescue. Fine, but not a single character is the same, and no dialog matches.

So the court has to decide, are the events in this scene, in the abstract, dramatic? The court writes a really long decision that says yes, the events are dramatic, because action is the essential thing in drama, and they say, "Palmer, you cannot go and stage this play."

Michael: And one of the other kind of knotty legal issues that is still kind of fascinating is that it brings up the question of whether this special effect, the idea in this case of a train supposedly rushing onstage, should be something that they may be talking about in terms of getting a patent rather than a copyright. What's the distinction there, and what does it say about how we traditionally view spectacle versus character and dialog?

Derek: Right. First of all, you can absolutely patent effects in the theatre, and people did, and there's a great collection of theatrical patents, a dual volume, I think published by the Society of Theatre Research. But one thing I came across in my archival research on this case ... and by the way, a lot of these cases are found in government archives. The government keeps great records, and the National Archives, both in the US and the UK, have tremendous volumes of material from some of these cases that I was able to look through. But one thing I came across in looking at Daly against Palmer is, the defense originally tried to make a deal with Daly and pay him essentially a license to do part of the scene. But what they thought they were renting from him wasn't the action of the scene, it was actually how he was staging the train effect. They wanted to rent the effect from him.

The court actually says, no, no, no. The effect is not something you can copyright, and there's a whole nother case in which they say this very explicitly, a case called [Serana 00:19:28] against Jefferson. You can't own the effect, but you can own the action. So one of the things that's fascinating about Daly against Palmer is, on the one hand, the case comes down very firmly against a copyright in technical effects, and in that sense, it's somewhat anti-spectacular. On the other hand, as I said, there's no character or dialog overlap between the two scenes, so they could have said look, the characters are different, the dialog is different, the scene is different. Period, end of story, go ahead and do your play, Mr. Boucicault and Mr. Palmer. But they said the opposite. They said that the spectacle of the narrative situation itself, as enacted on the stage, warranted legal protection.

One of the things that this then underlines is the way in which that dialog between art and law is going on. The nineteenth century spectacular melodrama is only viable because courts allow it to be viable. If they'd said otherwise here, the development of spectacular melodrama might have been very different. It might have been sort of cut off right at its head. If anyone could copy your spectacle, it might not have been worth trying to produce it, and theatre might have gone in a very different direction for twenty or thirty years. So there is this back and forth between the law and art that I think you see very clearly in a case like this, where there's a particular aspect of the form that's being developed.

MichaelThese have been a lot of kind of knotty, difficult issues when it comes to sort of figuring out the dramatic qualities of a work and what you can and can't copyright. As you mentioned, it takes even longer to figure out some of the issues involving music. Can you talk about how nineteenth century law developed when it came to deciding who had the rights to a given piece of music?

Derek: Music is a fabulous counterexample, because it's clear that the value of music was in selling sheet music, and that affects the development, or rather lack of development, of performance rights for music through much of the nineteenth century. It's entirely about the written text. Musical copyright was all about owning a melody. Business of music was the business of music publishing. Yeah sure, you paid a composer for their work, but then you went and you rearranged it six million different ways, for piano, for chorus, for brass quintet, for organ, for soprano, for tenor, for bass. Then you sold it to anyone who would buy it. Performances were for advertising your song. That's what performances were. So that's how the industry viewed the value of performance. It was the free thing you gave away so that they'd come pay for the copy of the music from you. It's an entirely different attitude towards where value is located in music as a commodity.

Michael: What happens when you put the two together, the chocolate of a music and the peanut butter of drama? Then you've got this sort of third entity that is even more difficult to sort of figure out in legal terms. You mentioned that the arrival of Gilbert and Sullivan's work in the United States had a lot to do with answering the questions that come up there. What do you do with music and drama together? What can you tell us about Gilbert and Sullivan's legal troubles?

Derek: Well, I'll do my best. It's a long, complicated story involving a handful of lawsuits in sequence, and the latter half of my second chapter walks through their experiences in the United States. It boils down, though, to two main issues. The first one is actually an international copyright problem. Gilbert and Sullivan are British, and until 1891, the Chase Act, they had no legal rights in the United States whatsoever. As British citizens, they were not entitled to US copyright. So everything that they wrote and published was fair game. But anything they didn't publish still might be coverable by what's called common law copyright. Essentially, if you haven't published something, others can't just come and decide to publish it without your consent.

But, and here's where the economics come back in, Gilbert and Sullivan and their producer, Richard D'Oyly Carte, made a ton of money selling their sheet music and librettos, even to audiences before they walked into the theatre. People would read along with the Gilbert and Sullivan librettos. You can see great examples of this enacted in that wonderful Mike Leigh film, Topsy-Turvy. If listeners don't know that film, I highly recommend it. It's a fabulous film about Gilbert and Sullivan and the making of The Mikado. It was sort of a lodestar for my work on this project. Any event, they made a lot of money selling these music and librettos, and they were stuck trying both to control unauthorized performances of their work in the United States, but they also didn't want to not sell their music and librettos, because that was where the real money was.

Second factor for Gilbert and Sullivan: US law has a dramatic performance right when they're doing their work, but it has no musical performance right. Now, why does this matter? Well, it mattered, because here was what happened. Helen Lenoir, who's Carte's secretary and later wife ... and on a side note, she's been left out of or marginalized in most narratives. She's clearly the driving force behind this litigation in the United States. She was the one on the ground in the US doing all the legwork and negotiating with the lawyers. So Lenoir ends up with a pair of Boston lawyers, [Costin 00:24:25] and Alexander P. Brown, and what they figure out is this legal strategy.

The legal strategy is, we want to get courts to acknowledge that even if Gilbert and Sullivan publish text, melodies, and harmonies of their new operetta, that is to say, even if they publish a full piano-vocal score, the orchestrations, which they did not publish, were still valuable and essential aspects of the operetta, and anyone who performed a Gilbert and Sullivan operetta with orchestration was diminishing the value of their work, and they should be stopped from doing so.

So that's the strategy, and they try it with three different cases. The first case, they actually use an oratorio by the French composer Charles Gounod. It's called The Redemption. And they get the courts to rule exactly what they'd hoped. The court says, "Hey, the orchestration is an essential part of this work, and therefore it's protected." They try it for two more cases with their own operettas, and the courts deny them both times. Ultimately, the judge refused to recognize that Sullivan's orchestrations were dramatic, and therefore refused to protect them.

By the way, they had claimed a statutory performance right in the United States by purporting to have an American composer make the published piano arrangement. This was a total lie, which Sullivan admitted to later in some of his writings, but the courts accepted the lie, so they assumed that there was a statutory copyright in some of this, at least in the accompaniments. But the orchestrations, they said look, the orchestrations are not dramatic. They looked at the operetta, and the final case involved, in fact, The Mikado, the most famous of their works, and they said Sullivan's music is music, it's not drama, and US law only protects dramatic performance, and so you have no performance right in your orchestrations.

And as I discuss in the book, this is isn't an obvious decision at the time, because there are active debates in the musical world about the relationship between music and drama and about the value of orchestration. The latter, you can see in things such as the expansion of new instruments into the orchestra, or the former, you'll see in Richard Wagner's theories of music drama in particular.

One of the wonderful things about this work is, as I said, these lawyers know their stuff. Alexander Brown, the Gilbert and Sullivan attorney, writes an article in I think it's the Atlantic, a few years after the last case, recounting their strategy and what they did. He quotes Wagner and says Wagner would have totally disagreed that orchestrations aren't dramatic. His whole aesthetic was about making orchestrations dramatic. So they were very self-conscious and aware about the relationship between their legal and aesthetic arguments. But the upshot of Gilbert and Sullivan's litigation was that anyone was legally able to perform their operettas in the US without the authors' permission.

Michael: Just as a kind of side note from this sort of focus on Gilbert and Sullivan, you mentioned that in just sort of a wonderful coincidence, written versions of Pirates of Penzance were actually so valuable that they led to both theatre managers and pirates of the copyright variety taking some extraordinary measures. Could you just briefly tell us about some of that?

Derek: Yeah, there were some fabulous stories about all the Gilbert and Sullivan material. One thing I already mentioned is, they do a famous copyright performance of Pirates of Penzance. They actually premiere Pirates in the United States. So one thing is this copyright performance. Because of the vagaries of British law in the period, in order to claim British copyright, people decided you had to perform it first in the United Kingdom. It's not clear that this was the legal truth, but this is what people decided. So before the US premiere, the world premiere of Pirates of Penzance, the official one, there was this one-off performance in Paignton, which is near Torquay, that the local touring company of HMS Pinafore got up sort of at the last minute, with the most recent viable version of the script that they had. Technically, that was the world premiere. It was advertised the day before, and you can even see online a poster for it. They had to shift the date at the last minute, because they didn't have the right version of the text.

It was a weird story. Carte got this idea from Boucicault. He spoke with Boucicault in the United States, and it's where he figured out that idea. So yes, Pirates of Penzance premiered in Paignton, near Torquay, and then had its real, honest-to-goodness world premiere in the United States. Later on, there are new strategies they use. One thing they do is, they keep these orchestrations under wrap. Who knows if the stories are true, but they told courts that theatre managers would come and offer the first violinist huge sums of money to borrow their part and copy it. So they kept them under lock and key and were very wary of that.

But one of the other interesting effects of these copyright lawsuits is that because their legal rights were so uncertain, and the courts ultimately said nonexistent, Carte and his authors developed a really expansive aura of authenticity around their productions, and particularly the production of The Mikado. They were trying to send a message to audiences, "Hey, don't go to that pirated performance, because our production is the real one, and it has these things about it that you won't get anywhere else." That authenticity was something that Carte very consciously constructed, both in his work developing the production and then in the press afterwards.

For example, he imported his cast directly from the UK, pre-rehearsed. They all were doing the London version of the production, the Savoy Theatre version of the production. He wanted Sullivan to conduct the premiere. Sullivan was actually in the US when Mikado premiered, but he was in California, visiting with his family. He did, on his way back, conduct in New York, and then gave a curtain speech in favor of international copyright law in the United States.

But the most amazing piece I've come across about this work is what Carte did with costumes. One of the things he advertised with his Mikado was that they had very authentic Japanese costumes. The way in which the show's claim to authentic Japan matches up with the production's claim to being the authentic Gilbert and Sullivan. It's a fascinating mirroring process. But Carte has claimed the production had these authentic costumes, using real Japanese silks, that he bought mostly from stores in Paris. When his main rival, John Duff, was trying to mount his production, Carte went and bought up all the remaining Japanese fabric he could find in Paris and London, so that Duff would not be able to claim, "Come see the real Japanese fabrics onstage."

What you see coming through these copyright battles, one of the sort of strange effects, is a new rhetoric about authentic productions, which Carte starts to define here in the 1880s through his US productions, and then extends over the Savoy's practices over the next few decades, when they start exporting their productions overseas in different configurations, something that, for instance, Tracy Davis talks about in her book on the economics of the British stage.

Michael: You also write about censorship and how that overlaps with copyright law. Can you tell us a little bit about that?

Derek: Right. One of the things that copyright law allows some courts to do in the nineteenth century is to essentially exert control over what gets put onstage, because in theory, if you say this has no copyright, you're saying an author can't realize any value from it, economic value from it, because you can't monopolize it. In fact, if you say, you don't have any right to prevent other people from doing it, things that one might want to censor, for example, the display of partially nude women onstage, which is one case I discuss, tends to proliferate rather than to disappear.

I discuss some cases involving The Black Crook, which is often thought of as the first American musical. That's from the 1860s. And also cases involving, a case called Barnes against Minor, which is a very strange lawsuit, in which courts are really looking at how bodies are onstage and getting very concerned about bodies just being on display. And they use the copyright law in very strange ways and interpret the precedents in strange ways, to try to suppress these kinds of performances by suppressing their economic value. As I said, though, the outcome isn't always what courts had hoped it would be.

Michael: You write about how defining what qualifies for copyright, all these legal battles that we've been discussing, that also means making judgments about what constitutes drama or a musical. What does all this legal hair-splitting tell us about what theatre is and how we value it?

Derek: Well, theatre historians and theatre critics are obviously a long way from thinking about a play as an autonomous artwork. We don't have that habit these days, a thing that might be valuable or not valuable, solely because of its formal properties. We tend not to think that way anymore, but it's also, I think, challenging to understand precisely how a performance or a work's artistic elements are related to the outside world, particularly the world of commerce. I think that one is the hardest to understand. Copyright law, then, is an essential piece of this story, because it connects the language of commerce, defining what you do and do not own, to the language of art, what is and is not drama or music.

So when a copyright lawsuit comes about, and the court says, "This is dramatic," or "That's not an important part of music," the court is granting an economic privilege to this or that aspect of a work. In other words, the court is doing precisely that translation, putting the artistic form into a language that commerce understands, namely, the language of property rights, which is what the copyright law is.

Now, a huge part of this work took place in the nineteenth century, which is where my book is focused, but courts, they're still doing this. It still matters. You see some strange marginal cases. There's one, it's not related to the theatre or music, but there was, I think, a Third Circuit decision about a public artwork in Chicago, and the artwork was a garden planted with seasonal flowers. The city or the owners or whoever wanted to take back some of the land they'd given to that art, and instead to put in a bench or a Starbucks or something, who knows? The artist ... There is now a law where visual artists have a right to say, "No, you can't change my work," because once you've given away a work of visual art, you've given away the thing, and so change is sort of harder to control.

The court said, well, you don't have copyright in this garden, because it's not ... the phrase is "fixed in a tangible medium of expression". In other words, because the flowers bloom and die, it's not a stable entity, and therefore you don't have copyright in it. But copyright scholars I heard from this case about thought this was a terribly bad decision, but it's exactly the kind of what is and isn't art, what counts as the borders and the boundaries of the artwork, that I saw in the nineteenth century in these theatre and music cases.

I talk in the epilogue about some wonderful lawsuits about Jesus Christ Superstar, and courts in those cases spent time saying, is this rock opera dramatic? After all, it was based on this concept album. Is it really narrative? What's the relationship between music and drama in this show? Or another weird example, this is one of my favorite examples of the way that music and theatre and performance rights have developed in the twentieth century, music today has what's called a compulsory license. Once a work of music has been recorded and published for the first time, anyone has an absolute right to make their own recording of that work, as long as they pay a fee.

So John Adams writes a whole new opera, and it gets recorded by Naxos, and Justin Bieber comes along and does a cover album of it. Can't do anything about it. He's allowed to do that. Now, theatre, as I'm sure many of your listeners know, has no compulsory license. You always have to negotiate a license directly from, theoretically, the playwright but often a publisher. This ends up in some famous disputes. For example, there was a production of Endgame at the American Repertory Theatre in the 1980s, which Samuel Beckett worked to shut down, because it was set in an abandoned subway station rather than the nondescript room that the text describes. Edward Albee was another person very controlling about productions of his work, and there's a wonderful scholar named George Pate, who's got a book that he's working on about precisely this subject.

Now, why do playwrights get to exert that kind of control over performances of their work, and composers don't? Well, that imbalance is a product of nineteenth and early twentieth century lawmaking and advocacy, that reflects the artistic and commercial values at that moment in time. But then it affects the way we think about the value of music and drama now. It carries forward into the present day, and we can't unimagine a world in which music doesn't have a compulsory license and theatre does, because that's not the world we live in, and it changes how we think about what's valuable about a playwright's work and how we should be using it and treating it.

So when we think about what theatre and music are and what they have been historically, I think it's essential that we recognize how the commercial value of these art forms affects their artistic definitions and the ambitions of those art forms. The nineteenth century development of performance rights laws is a key period in that recent history, a history we're still living with to this very day.

Michael: We'll post links and additional information in our show notes that will let you explore the development of performance rights. Derek, thank you for introducing us to the history of theatrical copyright.

Derek: Thank you, Mike. It was a real pleasure speaking with you, and I'm very grateful for the opportunity to speak with you and share this work with your listeners.

Michael: If you'd like to continue today's conversation, please visit howlround.com and follow HowlRound and @TheaterHistory on Twitter and Facebook. You can also visit our website at theatrehistorypodcast.net, where you can find links to all of our episodes, and you can email your questions and comments about the show to theatrehistory@theatrehistorypodcast.net. A big thank you to the staff at HowlRound, who make this show possible. Our theme music is The Black Crook Gallop, which comes to us courtesy of the New York Public Library Libretto Project and Adam Roberts. Thanks as well to [Tip Kress 00:38:40], who designed our logo. And finally, thank you for listening.

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