wete 'J1l!ima"./4cU and8.ipparen.tly:valid('and>tbey,s&&ln foO' me to come precisely' within the'spirit,alld the ibtent Qf.the act. The motiOD',should therefOre: be 'denieci,r;- I·, .;
CoPTRTGBT-"DRAllUTICl CoMPOSITION"-STAGE PANClIll.
the poetrY,Qf Qlotion bya .. graceful movemeu\i8,'oolbblDOO with 'an attractive arl'll:ngemellt of drapery, ilgbts, and shadows, nQ !,tory, pQrtraying no character, and depicting' 110 emotion, 18 not a , 9Ompositlon," withiJ:? tlIe tlIe copyrigll.t
Fuller against Minnie Renwood for of. copypght. On motion for preliminary inDenied. ," '" ' " ', was a stage dance, which is described in copyrighted composiiio,p:
SERPENTINE DANCE, :BY, }!'AlWl: LoUISE FULLER.
"stage: dark. Music. Valse. Dancer' enters In the dark, unseen, and stands'lit back of stage, up center. Lights thrown sUdd1mly from right and left first entrallcl's,on dancer;center.: Piclure: :press held high above head fr9m,the back ,anA front., Afterthe,picture the dance begins, dancer ,H'lld,iplf dress high the hea!!.". ,1'he ,slow, sliding, valse Ploves the tW9' fights following like a then, with a backward rnovetnent to time of musie, and several turnsvrt'ft<lhI'B center again. Then the same down to [eft comer and back. Then !\\lith a 'rolmdmovement from one Side to the' othE-r, she danl'es down byseveral"whirls or tU,r!,!s which bring dancer baCK to center. (All this time the dress Is h!:'ld up above the head behind as in thep[cture In the beginning.) She makes two turns, dropping dress. which the two whirls or turns bring into place. She takes drf',ss up at each sidA, turns' bOdy from side to side, s wingi ng dress from one side li)w In front to hilih at.:back, formillg a half umbrella shape over the head, first .with one sille of,dtess and then tb"other. (This mvvement can be termed the -Umbrella ,Movement,' and preliJellts a effect.) The dancer stands at cel)ter, catches up dreliJs at each side:towat,ds the, bottom. holds it high at each,side"and mQves?an,ds from right to left, imitating a spiral shape, daneingtowards footlights." Wilen reaching footlights, changl's straight moveof !tfIII B, and, keepin'gsame gives a roUnding, swerving movement that,causes dress to'llssume the shape of a large flower; the petlll8 being thedT,e$8 in tnotion. ',l'hlln several qUick turns Up towards back, (dress up on eacq ,s\de,) qUick run ,down stage t(), ihecenter, followed by several and, twining ,the skirt over,poth armsl,drops,onone, knee, holding dresS,ltpbehind head toforlll backgl:ound. , (This picture is a very p;racefulclim,aJt and finish to tahleau of the dance.) Picture.' Lights off. Darkness. Lights up, aljd' 'dancer gone. co (Fillale of first tableau.) ·
FULLER ',II., B£MIS.
llame as inftrst tableau, on dancer. Center of, stagE', up at back. Dancer picks up dress at each side, whirls it over each arm front wise until it is held plain across the front, and feet are clearly seen, then a dancing Btell follows. after whi(}h skirt is un· wound, and, lifting it up to back and down, the towards lifting the dress l1P 'a,nd down sidewise to the /tnd clo$ingofabugeflower; ..U ter reaching center down at footlights, she tui'ns' backto8udience, and the'l1gbts change to another color. Then by turning from'.right to left, and stooping with each turn. and manipulating and right to left; she forms a huge lily. turning the bOdy half flrOund at each step; and same thne dancing up to center at back, she turns;' iUldietlce, and lifting dress high from left to right and back '\Vith an upward movement, and bending body with each, half turn, forms a 'Nise as 'falfing to pieces, dancing down,center to footUglfts, returning to back 'of'stageafterwards wrth sevfmll tnrns."tben stands center; still fora moment, dress high areach side, then an Inward and"outwardmoveinent in frontthe dress forms waves or breakers like one Sees in, the surf at the seashore; ,. Dancer does this while dancing towards front, then qllickens and broadenstbllmotionwhile dancing liackwards to center, then It qUick .run down stage:anll picking up dress In front and holdjrg,it up,bends back to audience so that face can be clearly seen, holdi ng dress up as ballkgrollDd. (This presents a pazzlingand bewilderhlg fanciful picture. ) ,Picture. qghts off. Lights up, and dancer gone. '''(Ftnale of second , ' "Tableau III. "Stage thrQwn on as in ,sE'cond movement. Dancer seen ittcen'tpr. Dress held up at each side, Picture for a mompnt. Lights off. ,Light, oIl-at ,back,from left corners, making a strea,m,of light back. Dancer stands directlyin front of light, th,rows hqlding them high, figure as in a spider's web. This may qe'callljdthe 'Spider' or 'Transparent' movement or dance. Dance toright,and,back, to left, thpntocenter in front of light, holding dress in Thehstepping back, she dances in the stream of light, rnanipi,llatil)g dress, bending low to right and left, making two turns when the back light is tak,e l1 (jlff andthe front light thrown on. Dancer lifts dress high at't!j\cq side, and ,makes"dptourof entire stage, imitating a huge butterup center at i>ack, dancer turns b;:tck to anc:ibends back, looking at then up ag}lin, turning, dl'esshigh up in front, fonumg circles rLinning up and down in hiding tHe 4alicer, then dancing from left to right and right to left, down front, waving dress,to with several turDS, sinks on stage; tbel:ltl'ss,fl1,llilig over"and cOlup1etely hiding ttie dancer. Pictuleof Lights off. Gas on. Dancer " , ' go'ne. " . ' , "(Finish.y·
"Tab?eauII. ,"Stage dark.' lfuslc; Valse..
'by which the copyright was obtained
",And yonr orator shows that, bland by the aforesaid proceedings. sbe intended to obtain, hold, and possess. and now holds and possessfls by virtue thereof. not only the sole and exclusive right and liberty to print and publish such dramatic composition, but also the sole and exclusive right to act, perfo.rIIl. and represent the said dramatic c0J+!position. and cause it to be acted, pel.'forml'd, Il.l1d 'represented, on, any stage or public place, during tbe Whole -petiQd" (Qrwhioh the said was obtaJne4."
I'EDElaL :REPORTER , \"01.
The bill then states that the"'said dramatio composition was performed 'MadisotlSquare Theater, New York, '-With andpebuniary to her. ,It is then further l;i.verred:, " ·.. sll<;e;ess. profit w,as,r,the originality ,novel lllloturEl ot the mCldents, scenes, ·alld ·tableallS of saId \Vhicb conliista ofa series of faJ;ltastic, graceful, unique, niOI%' pleasing each of which ,portrlloYs, or represents ,dif. ferentC!haracteJ;s. and lloll"ofwhich appeal to thellense of the beautiful and 41ld your orator shows, that this composition was en· tirely'novel and unlike anY,dramatic incident, scelle. or tablllauknown to represented on any stage, or invented, by any author, have orator invented l\ndcomposedthe same ,in her said composition, and represented the, same, as aforesaid. ,And the said compositiQ';', ;was. as soon W! produced and represented by your orator, and ever since is now. regard¢, whenever it has been witnessed. to be one of thew,9!l,t novel. attractive. and graceful'and unique an(1 beautiful incidents on the public that the playing of,the and productions ever said caused to become famous in all parts of the United Sll\tes; and that said composition was repeatedly producel1 and represented, by aqd for tbe t+dvanlageOf your orator. in many cities of the United states, ,and everywhere to the great profit and credit of your orator." The infringement complained of is the production by defendant of this "dramatic composition" upon the public stage, with merely colorable alterations. I8af;tc N. Falk, for complainant. , "domplainant's creation iii a "dramatic composltMl," within the meaning of Re.v. St. §4952. A drama, is generally regarded as being.a composition the action is not narrated or described. but represented.' Drone. Ddpyr.587; Wand. 431. A pantomime is a "dramatic piece," within the meaning of 3 &; 4 Woo. IV. c. 15. Lee v. Simpson, 3 C. B. 871, 881. See" a1s.0' Russell v. 12 Q. B. 235. 236. "A composition. in the in which that worll is used in the act of 1856. is a written or literary work invented and set hiorder. Adramatic composItion is such a work in which the narrative is. notrelated. but is represented bydialogne and action. ... ... "',A pantomime iS,a ,species of theatrical entertainment in which the the use of words. A whole action is represented. by gesticulation, written work, consisting ",holly of directions set ill"()1'der for conveying the ideas of op 3 stage or pUblic place,bY melins of characters who represent the Iiarrative 'W;holly by action, is as nlucq,adramatic'composition, forpublic representation. as if or dialogue were used in it to conve, SOme of the ideas. ... If< III Movement, gesture, and which address the eye only, are as much a part of the. as is the spoken language, which addresses the ear only; and that part of the written composition which gives direction for the movement and gestul'e is as much a part of the composition, and protected by the ,is the language prescribed. uttere<lby the characters. And this is entirely irrespective of the set of the stage, or of the machinery or mechanical appliances, or of what is called, in the language of the stage, 8cenery.orthe wOI:k of tlte scene painter." Daly v. Palmer, 6 Blatchf. 264. 268. '
AieXandeT&: Green, for defendant.
, ,Gircuit J\l(lge. Whatever maybl) the language of the opinion in Daly v. 6 Blatchf. 264, the'decision is not 'authority
AMERICAN SOLID LEATHER BUTTON CO.
STATE NAIL 00.
for the proposition that complainant's performance is a dramatic composition, within the meaning of the copyright act. It is essential to such a composition that it should tell some story. The plot may be simple. It may be but the narrative or representation of a single transaction; but it must repeat or mimic some action, speech, emotion, passion, or character, real or imaginary. And when it does, it is the ideas thus expressed which become subject of copyright. An examination of the dflscription of complainant's dance, as filed for copyright, shows that the end sought for and accomplished was solely the devising of a series of graceful movements, combined with an attractive arrangement of drapery, lights, and shadows, telling no story, portraying no character, depicting no emotion. The merely mechanical movements by which effects are produced on the stage are not subjects of copyright where they convey no ideas whose arrangement makes up a dramatic compo·sition. Surely, those described and practiced here convey, and were devised to convey, to the spectator, no other idea than that a comely woman is illustrating the poetry of motion in a singularly grllceful fashion. Such an idea may be pleasing, but it can hardly be called dramati(). Motion for preliminary injunction denied.
EMPIRE STATE NAIL April 22,1892.)
tCireuU Court. S. D, NfJIP York.
t'aOCE88 PATBNT-BILL FOR INFRINGEMENT-DBMURRER.
A bill which sets forth a patent for a "process" of making furniture natls. and then alleges that defendant, "in infringement of the aforesaid letters patent, II did wrongfully "make, use, and vend to others to be used, furniture nails embracing the improvement set forth and claimed II in said patent, is demurrable for want of a sumcient allegation of infringement of the process.
In Equity. Suit for infringement of letters patent No. 270,239, issued January 9, 1883, to J. Wilson McCrillis, for an "improvement in the process of manufacturing funliture nails and analogous articles." Heard on demurrer to the bill. Demurrer sustained. The bill, after alleging the issuance of the patent, averred "that defendant, well knowing the premises and the rights" secured to your orator as aforesaid, but contriving to injure your orator, and to deprive it of the benefits and advantages which might and otherwise would accrue from said inventions, * * * did, * * * in violation of its rights, and in infringement of the aforesaid letters patent No. 270," 239, unlawfully and wrongfully, and in defiance of the rights of your orator, make, use, and vend to others to be used, furniture nails embracing * * * the improvement set forth and claimed in the aforesaid letters patent No. 270,239." The bill prays that the defendant may be compelled to account for and pay to your orator the income thus unlawfully derived from the violation of the rights of your orator, v .50F. no. 11-59