The Invention of Common Law Play Right

Abstract

In this paper, written for Berkeley’s symposium on the 300th birthday of the Statute of Anne, I explore the history of the common law public performance right in dramatic works. Eaton Drone dubbed the dramatic public performance right “playright” in his 1879 treatise, arguing that just as “copyright” conferred a right to make and sell copies, “playright” conferred a right to perform or “play” a script. I examine case law and customary theatrical practice in England, and find no trace of a common law play right before 1833, when Parliament established a statutory public performance right for plays. Similarly, in the United States, the first claims of a common law right to control public performances appeared only after Congress enacted a statutory dramatic public performance right in 1856. Courts and lawyers developed a common law literary property right to control public performances in order to permit the proprietors of dramatic works to recover even though there were formal defects in their U.S. copyright registrations. Eaton Drone then used those cases as a basis for embroidering a full-blown common law literary property right purportedly based in natural law. Courts adopted Drone’s version of common law play right and followed it for the next thirty years. (The breadth of the common law claim, however, made little difference to actual playwrights, who were deemed to have assigned their common law rights to the producers of their plays.) This history suggests that the rights that we perceive as inherent or natural are fundamentally contingent on what rights already have names and a path to enforcement.