“H.M.S. PINAFORE” IN COURT.

Globe, Volume XXII, Issue 2105, 22 November 1880, Page 3

“H.M.S. PINAFORE” IN COURT.

An action was tried in the Supreme Oo Melbourne (says the “Argus ”), on November Ist, before His Honor Mr Higinbotham and a special jury of six, in which Messrs W. S. Gilbert and Arthur 8. Sullivan, tho authors of tho comio nautical drama “ H M.B. Pinafore,” sued Mr W. H. Lingard, the actor, for damages for infringing their copyright by taking part in the production of tho piece at the Academy of Music in June last, without having their permission to produce the piece. There were two counts in the declaration, one claiming as damages the full amount of the benefit or advantage arising to the defendant from the representation of the piece ; tho second claiming 40s for each night the piece was produced. The defendant pleaded—first, not guilty; second, that the plaintiffs were not the composers of the piece ; third, that they were not the proprietors of it; fourth, that what he did was done by the leave and licence of the plaintiffs. Mr M'Farland and Mr Williams appeared for the plaintiffs. There was no appearance on behalf of the defendant. Mr M'Farland stated that tho action was brought by the plaintiffs against the defendant to recover damages for infringement of a copyright in the comio opera of “ H.M.S. Pinafore,” of which the plaintiffs were the authors and proprietors. The defendant had infringed the copyright by producing the piece at the Academy of Music for eight weeks last year. The action was brought under 3 and 4 William IV., cap. 15, seo. 2, which provided that “ if any person shall, during the continuance of such sole liberty as aforesaid (namely, the sole liberty to the author of any dramatic piece to represent it, or cause it to be represented, at any place of dramatic entertainment,) contrary to the intent of this Act, or the right of the author or his assignee, represent or cause to be represented, without the consent in writing of the author or other proprietor first had and obtained, at any place of dramatic entertainment any such production as aforesaid, or any part thereof, every snob offender shall be liable for each and every such representation to the payment of an amount of not lees than 40s, or to the full amount of the benefit or advantage arising from such representation, or the injury or loss sustained by the plaintiff therefrom, whichever shall be the greater damages to the author or other proprietor of suoh production so represented as aforesaid, contrary to tho true intent and meaning of this Act to be recovered, together with double costs of suit, by suoh author or^ other proprietor in any court having jurisdiction in such cases in that part of the United Kingdom or of the British dominions in which the offence shall be committed.’’ As the defendant had by his pleas denied that he had represented or caused to be represented the piece, it would be necessary to give evidence on that point, but proof would be given that Mr Lingard had proposed the production of the piece, and had acted in it on the stage ; that he had made an arrangement by which he and his wife were to receive £6O per week for the firet two weeks, £7l for eaoh subsequent week, and one-third the profits. The piece was played for eight weeks, and the salary received by defendant was £570; his share of tho profits was £l3, showing that all the profits were swallowed up by his salary. No doubt the arrangement was made with intent to evade the Act. The plaintiffs could go either for the 40s per night or for the whole advantsge arising from the performance j and ae to the latter, they might claim the whole of the receipts at the theatre. However, they only went for the £570 salary received by Mr Lingard, and £l3, his share of the profits. The second it was almost unnecessary to prove, as it did not matter whether the plaintiffs were the composers of the piece or not, as they were registered as proprietors of it at Stationers’ Hall, and by the Act 5 and 6 Viet., cap. 45, see. 11 a copy of the registration was made prima facie evidence of the fact of proprietorship. The fourth plea of leave and license it was for the defendant’ to prove, but ha was not there that day to establish it. James O’Meara said he was a clerk, and had been employed at the Academy of Music to take tho moneys from the performances of « Pinafore ” in June, 1879. The piece was played for eight weeks, and the total receipts were £3457 5s- The defendant took part in the performance every night—he took the part of the First Lord, Sir Joseph Porter. He had something to do with the stage business. Joseph Aarons said that Mr Lingard came to him in the second week of May, 1879, about the production of “ H.M.S. Pinafore.” The licence of the theatre was in his (witness’s) name, but Mr J. L. Hall was lessee, Defendant eaid that ho had just come from America, that ho had brought the books of “ H.M.S. Pinafore” with him, and asked if it could be produced. He said that Gilbert and Sullivan were the authors of the play—that he had brought bills with him whioh could be posted about the town. Witness referred him to Mr Hall. Shortly afterwards he came with Mr Hall, and again proposed to produce the piece and find the printing that he had brought with him from America. He wanted £75 a week and a third of the profits. Hall objected, but agreed to give him £6O a week for the first two weeks. Mr Wills was lessee of the theatre when the play was produced, but witness represented him. Defendant received £570 for salary and £l2 or £l3 for profits. That included the salary of Mre Lingard. On behalf of the plaintiffs a copy of the registration of them at Stationers’ Hall as proprietors of the piece was put in ; also an order requiring them to give security for costs to the amount of £IOO ; also an order obtained by tho defendant for a commission to examine witnesses in England on the defendant giving £IOO security for costs. It was sworn by Mr Fox, clerk to the plaintiffs’ attorney, that defendant had not proceeded with the commission.

This closed the evidence, and in reply to a question from his Honor, Mr M'Farland said that the plaintiffs relied upon the first count, claiming the|salary and profits received by the defendant. His Honor summed up, stating that the action was brought against the defendant for wrongful representation of this piece in violation of the rights of the plaintiffs as proprietors as well as authors of the play. The Act of the Imperial Parliament, which extended to the British possessions and colonies as well as to Great Britain, gave the author and proprietor of a dramatic piece the right of the exclusive representation of it, and if any person violated that right without the consent of the author or proprietor, he was answerable in damages. The plaintiffs were entitled to claim as (penalties the largest of any three penalties—4oa for each night of representation, the advantage arising to defendant from the production of the piece, or the loss they had sustained. They preferred to claim the amount of advantage received by the defendant. There were four pleas, but the defendant did not appear to support any of them. The onus of proving the first three rested on the plaintiffs, and as to the first and third, the evidence was given. There was however, no evidence to support the second except the statement of the defendant himself that Gilbert and Sullivan were the authors of the piece. That statement, however, was evidence on which the jury were at liberty to say that the plaintiffs were the authors of the piece. The Foreman—Oan we allow the defendant for the amount of printing he brought with him from America ?

His Honor—That is a proper subject for your consideration. I think you may deduct it, but we have no evidence what that amount is. The Foreman—Can we allow the defendant hie expenses while living here ? His Honor —No, I think not. The Foreman—The amount paid to Mr Lingard included the salary of his wife. Are we at liberty to deduct anything for that ? His Honor said that the arrangement vas made to pay the defendant the sum, and he did not think there could be any deduction for what he paid his wife. The jury, after a short deliberation, gave a verdict for plaintiffs ; damages, £582.