Play Titles
The next reported case, Weekes v Williamson (1886),1 was interpreted as meaning that a dramatist could not even secure the exclusive use of the title of a play. It concerned the dramatisation of Marcus Clarke’s His Natural Life. George Leitch was the first to stage a version of the novel, in Brisbane on 26 April 1886. (Not coincidentally, this was five years after Clarke’s untimely death. Copyright was then for the author’s life plus five years.)
George Leitch, 1890, by unknown photographer
State Library Victoria, Melbourne
Marcus Clarke, 1875, by S. Milbourn, Glenelg
State Library Victoria, Melbourne
Leitch contracted with the ‘Triumvirate’ (J.C. Williamson, Arthur Garner and George Musgrove) to perform his play in Adelaide, Melbourne and Sydney. On 14 May, while enroute to Adelaide, Leitch called in at the Melbourne Copyright Office and applied to have his script registered in Victoria, submitting a complete copy of the manuscript as evidence. However, he did not perform it in Victoria until later. Curiously, ten days earlier Marcus Clarke’s widow Marian had applied to register a play version on behalf of another leading actor manager, Alfred Dampier, who had her permission to have the play dramatised and agreed to pay her a £1 per performance royalty fee. (Dampier’s version had opened in Sydney only a few weeks after Leitch’s in Brisbane.) Marian Clarke did not leave a script nor gave any evidence that it had been performed in Victoria. Presumably she was trying to alter her non-existent legal position in the hope of receiving from Leitch at least royalty payments to support her and the six Clarke children, but she took no part in the subsequent court action.2
On 14 June, while Leitch was in Adelaide, a minor theatrical manager, Inigo Tyrrell Weekes, staged another version at the Mechanics’ Institute Hall in the Melbourne suburb of Williamstown. He used the longer title For the Term of His Natural Life and applied to register his play the next day, leaving a copy of Act 2 as an exhibit. When the Triumvirate announced that Leitch’s version would open in Melbourne at the Theatre Royal on the 26th, Weekes applied for an injunction. He conceded that anyone could dramatise and perform the novel but claimed that only he could use the title For the Term of His Natural Life or any variant of it, including the original shorter title His Natural Life which Leitch had used.
Weekes’ action illustrates many of the absurdities of the nineteenth-century laws on performing rights both in general and as they were applied in the Australian colonies. Marcus Clarke had not dramatised his book; it was therefore lawful for anyone to do so, without the permission of Clarke’s impoverished widow and without having to pay her either a contract price or a per-performance royalty. At the time of the court hearing, Weekes was the only playwright to have staged Clarke’s story in Victoria. The fact that Leitch had performed his play in Brisbane and, by this time, in Adelaide—and had registered the manuscript of his play in Melbourne—did not entitle him to any rights in that colony. (Weekes’ barrister went further and claimed that authors could not claim performing right in more than one colony, though this assertion was not commented on in the judgment.)
Leitch had anticipated such difficulties and had sent complete copies of his play both to the Lord Chamberlain’s Office and to Stationers’ Hall in London, to try to gain the Empire-wide benefits of the British legislation. Leitch was unusual in making several full copies of his script but, given the slowness of communications between England and Australia, he had at the time of the case no way of knowing whether or not his applications had been accepted there, nor any proof that he had even made such applications.
Although Weekes had submitted an Act of his play and Leitch an entire script copy to the Victorian Copyright Office, neither appears to have been put in as evidence, since Webb J. in his judgment complained that he could not compare the two plays since ‘I have neither the one nor the other before me’. Therefore, as he could not determine if there had been plagiarisation of one play by the other playwright, he threw out Weekes’ application. He did not specifically decide on the question of whether or not the name of a play could be protected by copyright law, and consequently this important commercial question also remained unanswered for another twenty years.
Finally …
Bland Holt, 1890s, by unknown photographer
State Library Victoria, Melbourne
Detail from the 1896 program for For England
State Library Victoria, Melbourne
It was not until 1896 that the actor-manager Bland Holt succeeded, in Holt v Woods,3 in establishing in law the practice of issuing a licence granting Australasian rights in a play. Holt had gained from the English author Sutton Vane a licence to perform Vane’s sporting and military melodrama For England, and was incensed when an American version of the play under a different title was announced for performance in Sydney.4 Owen C.J. compared the manuscripts and noted that ‘the infringement is of so barefaced a nature that the Court is unable to feel any sympathy for the defendants’. He complained of the difficulty he had in establishing the facts of this and earlier similar cases, since most of the pertinent documents were in London, and made each side pay their own costs because he had ‘had to act upon what I have described as more or less imperfect evidence’. Nevertheless, Holt got his injunction. Although the Chief Justice referred to the same judgment (Lord St Leonard in Jeffries v Boosey) which had been followed in the earlier cases, he opened up a useful distinction between copyright and performance right:
A dramatic representation is in its nature local; each representation can only take place in one locality; each representation is of a transient nature. It is not like the reproduction of copies of a book which acquire a tangible form and shape and can be handed on from hand to hand. Lord St. Leonards’ decision being based on the inconvenience that would arise from reproducing copies of a book, and that inconvenience being in my opinion inapplicable to dramatic representations, I am of the opinion that that decision does not apply to the present case.
The consequences of this judgment, as summarised in the headnote, must have made the major actor-managers sleep more soundly the night after judgment was handed down: ‘The proprietor in Great Britain of the sole right of representing a dramatic work can ... assign to another that right in the Australian colonies, and the assignee can sue in his own name in those colonies to restrain the infringement of the right’.
Scene Painters
Four years earlier a South Australian case Fishburn Brothers v Adelaide Cyclorama Company Limited (1892), had established new legal guidelines for another vital section of the theatre industry – the work of scene painters – and incidentally provided an opportunity for the testing of the international agreements reached under the Berne Convention of 1886.5 A ‘Professor’ Bruno Piglhein of Munich had painted a panoramic picture entitled ‘Jerusalem and the Crucifixion of Christ’. Because Germany was a signatory to the Berne Convention, he was entitled, from 3 May 1886, to the copyright in his painting ‘throughout Her Majesty’s dominions ... with the same rights as those enjoyed in Germany’. The Glasgow company Fishburn Brothers, which had secured the exhibition rights, consequently moved to prevent the rival Adelaide Cyclorama Company from exhibiting an alleged copy of the painting ‘in Hindley-street’.
Detail from Bruno Piglhein’s original Cyclorama of Jerusalem. https://panoramacouncil.org/news/?nID=1641
A major complication in the action was that the British Fine Arts Copyright Act of 1862, unlike the other copyright acts of the same parliament, had neglected to make any mention of, or provision for, the colonies, and arguably did not apply in them. In the judgment, the Full Court of the Supreme Court of South Australia was obliged to assess the relative merits of different pieces of sometimes conflicting legislation, but ultimately the Berne Convention was held to apply in the British colonies, and ‘a painting executed by a German artist in Germany and assigned to a British subject is entitled to copyright in the colonies’.
The Title of a Play (Again)
The right of authors and their assignees to the exclusive use of the title of a play, which Weekes v Williamson had failed to determine, was finally established in the early years of the twentieth century by two cases, the first in New South Wales and the other in Victoria. In Broadhurst v Nicholls (1903),6 the plaintiffs were the proprietors in NSW of a popular comedy called The Wrong Mr. Wright and the defendant was the proprietor of another play called variously Jane and The Other Mrs. Benson, but which he had now named The Wrong Mrs. Wright. A perpetual injunction against the defendant’s use of this name was granted by Simpson C. J. in Equity; however, since his judgment was not based on the exclusive right to a title but rather on the grounds that this retitling was ‘calculated to deceive the public’, the law of copyright was not directly tested on this question.
A less equivocal conclusion was reached in the Victorian case, Meynell v Pearce, in 1906.7 This judgment also eliminated another curious anomaly: the fact that those second- or third-rank theatre companies who performed mostly in public halls and other non-licensed theatres were thought to be outside the ambit of the copyright legislation and therefore able to pirate plays at will. (One of the claims in Weekes v Williamson had been that Weekes’ performance at the Williamstown Mechanics’ Institute Hall was not a performance at a ‘theatre’ in the meaning of the Copyright Act.)
Scene from Meynell and Gunn’s successful production of The Fatal Wedding. State Library Victoria, Melbourne.
Meynell v Pearce followed the very successful production at the Melbourne Theatre Royal on 17 March 1906 of a famous melodrama, The Fatal Wedding. After the Meynell Company’s season had concluded, a Mrs. Pearce performed another play at the Town Hall, St. Kilda, and the Excelsior Hall, Point Melbourne, using the title The Fatal Wedding Day but with the word Day in smaller type on a separate line:
The Fatal Wedding
Day
Doubtless this was also calculated to deceive the public, but Mrs. Pearce’s defence included the assertions that copyright did not extend to titles—the actual play performed was quite unlike The Fatal Wedding—and that in any case she had not performed it in a theatre. Cussen J. rejected both points. He held that Meynell was entitled to exclusive use of the title not only as a trademark but also because he had been assigned the performing rights to the play in Australia. His Honour also took a commonsense approach to the definition of a theatre: ‘in this context the word “theatres” means places at which the play is performed’. More apparent loopholes in the law of copyright were at last plugged.
(A curious footnote is that, in 1907, an Elizabeth Pinn brought an action in Melbourne against Clyde Meynell, stating that in the years 1898–99 she had written a novel with that title which she’d sent to London and which had been read by the major publishers Macmillan who ‘returned the manuscript without publishing the book’. When she saw the play of The Fatal Wedding, she alleged, ‘in her opinion it was a piracy of [her] book’. She lost the case, and it cost her 5 guineas.)8 The play had first been staged on Broadway in 1901.
The Commonwealth of Australia Takes Over Copyright Law
The power to legislate in the area of copyright was one of the powers ceded to the Commonwealth by the colonies at Federation, and in 1905 the first Commonwealth Copyright Act was enacted, which took effect in 1907. Between 1901 and 1907 however a legal anomaly could still exist in situations where a play was performed and registered in one state, and pirated, performed, and registered in another.
This occurred in the New South Wales case of Denham v Fuller (1901),9 which concerned that most controversial (and, at this time, lucrative) of all local dramatic subjects, the Kelly Gang. Fuller was the lessee and manager of Sydney’s Empire Theatre and had subcontracted the first half of each evening’s variety program to a Mr Coulter, who presented dramatic sketches of about an hour’s duration. One of these was a version of the Kelly Gang legend, a story which another actor-manager, Arnold Denham, had also presented with great success in Sydney two years earlier, and for which he had claimed authorship and registered the performing right in New South Wales. Denham applied in the District Court to recover damages he claimed were due to him for the unauthorised performance of his play.
Scene from Alfred Dampier’s 1890 production of Robbery Under Arms. State Library of New South Wales, Sydney.
Information about this case comes from a report of a subsequent appeal to the Full Court which omits some details of the original trial evidence, so the facts of the matter are difficult to establish with certainty. However, it appears that both Denham’s and Coulter’s plays were plagiarised from an earlier Kelly Gang play written by Reginald Rede and staged by Dan Barry’s company in Victoria, but which had not been performed in New South Wales. As proof of this would have led to Denham’s claim to authorship of ‘his’ play being discredited, it is obvious why he did not want this evidence led. Since it would have been damaging to Coulter’s and Fuller’s reputations as well, counsel for Fuller attempted on other grounds to discredit Denham’s claim that he held an exclusive performing right in New South Wales.
When these defences failed, Fuller’s barrister then attempted to introduce as new evidence the certificate of registration for Rede’s play in the state of Victoria, claiming that this showed that Denham was neither the author, nor the assigned copyright holder for the state of New South Wales, of the play he had presented. However, no notice had been given of this defence as required under the Act, and the trial judge refused to allow the evidence to be admitted. Denham was awarded damages of £21. Fuller appealed to the Full Court, where the original decision was upheld, but with some expressions of regret from one of the judges (Owen J.) that there was nothing in the original judge’s notes on which he could justify overturning his decision. The net result was that Denham, the first pirate in New South Wales of a popular play written and staged in Victoria,10 gained the same exclusive legal rights as the original author and copyright holder, Reg Rede, although this is unlikely to have occurred if the defence evidence had been properly led.
(Readers of this account should not shed too many tears on Reg Rede’s behalf. He had for some years been an actor in Alfred Dampier’s Robbery Under Arms stage production and Rede’s The Kelly Gang play was a thinly rewritten version of that play, including scenes featuring two comic Irish policemen (he’d been one) which are virtually identical and presumably transcribed from his ‘side’. Denham probably knew shorthand (he later worked as a librarian), went to Melbourne and saw Dan Barry’s 1898 production at the Alexandra Theatre, transcribed the script, and hurried to Sydney and had a local company stage it, giving him exclusive rights in NSW. As we can see, playwriting was not always an honourable profession.)11
1 July 1912, after and just before
The British Copyright Act of 1911, enacted in Australia and in effect from 1 July 1912, effectively did away with all the residual weaknesses in the earlier legislation. In particular, the copyright for a story written in one narrative mode automatically extended to other modes; dramatists could no longer pirate written stories at will. It was no longer necessary to perform a play before registering it; copyright and performing right were fused and began at composition rather than at first publication or performance. In England it was no longer necessary to register literary works at all, and this function of Stationers’ Hall in London ceased in 1923 when Canada, which had not passed the British legislation, enacted similar laws.12 The author’s rights were extended to 50 years after their death—and backdated. Marcus Clarke’s daughter Marian Marcus Clarke reclaimed his copyright, and both play and film versions in the 1910s and 1920s had to negotiate with her.
Marian Marcus Clarke, 1900, by Waller, Sydney
State Library Victoria, Melbourne
Steele Rudd, c.1910, by May and Mina Moore, Melbourne
State Library Victoria, Melbourne
From 1912 copyright registration was voluntary, but a work still had to be registered before a court action could be commenced and, as above, early registration was the best way of proving they had written the work first. Consequently, many writers and theatre managers continued to register their works, and some in fact failed to realise that it was no longer necessary to have a play performed before registering it. As a result, between 1907 and 1969 a large number of Australian playscripts, many of performed but unpublished plays, were deposited and are now held in the National Archives of Australia.13
By a curious atavistic oversight, the Australian Government which as noted earlier had set up a Commonwealth Copyright Office in 1905 (effective from 1907) which required the authors of both published and unpublished works to submit a copy for filing, allowed that office to continue to exist after the new 1912 act became law, although it had no precise legal purpose nor powers to enforce its functions effectively. It was not closed until 1969. When it did close, an unfortunate consequence was that writers—unpublished poets, novelists, playwrights, those writing scripts for the radio and screen industries, etc—could no longer prove the primogeniture of their work. As a result, soon after, the Australian Writers’ Guild set up an independent script registration service. This important function continues today and now holds ‘more than 10,000 scripts’.14
A last restraint against dramatic piracy and unauthorised adaptation before the 1912 Act was that public opinion seems to have been well in advance of legal precedent. Consequently, there was widespread public pressure on the major theatrical managers to behave honourably, even if they were not legally obliged to do so. George Leitch, like Alfred Dampier, started paying Marian Clarke a per-performance royalty for his version of For the Term of His Natural Life after the Sydney Bulletin drew attention to her plight.15 Dampier also paid Rolf Boldrewood twenty shillings per performance for his stage version of Robbery Under Arms, but the first Australian playwrights (as distinct from novelists) known to have received a per-performance royalty rather than simply selling a script outright were Bert Bailey and Edmund Duggan, whose contract with William Anderson for The Squatter’s Daughter in 1907 has survived in the Bailey Papers in the National Library.16
Steele Rudd’s notoriously poor contract with Bailey five years later for On Our Selection was drawn up by Bailey and agreed to in all innocence by Steele Rudd. It was based on the earlier contract but with many clauses and provisions deleted and was a much weaker agreement.17 It is also not coincidental that On Our Selection was rushed onto the Sydney stage in May 1912 only eight weeks before the new copyright legislation—which would have given Rudd legal rather than simply moral backing for his negotiations—became law. Bailey’s real and binding contract for the stage version of On Our Selection was not with Rudd at all but with Beaumont Smith, who had staged a copyright reading of his version in 1908, and consequently was able to negotiate with Bert Bailey for a fifty-percent share of the profits.18 Steele Rudd was therefore the last as well as the most important Australian playwright who had to negotiate under the old legislation, and to be seriously disadvantaged by it. The imperfect laws covering intellectual property go a long way towards explaining why early Australian dramatists in general found their trade to be a singularly unrewarding one.
Endnotes
1. 12 VL.R. 483.
2. CRS A2389 vol 2 entry nos 2624, 2639, 2673, National Archives of Australia (ACT).
3. 17 N.S.W.R. 36.
4. In addition to the court report, see Bland Holt Papers, MS2244, items 168, 178, 185, 192, National Library, Canberra.
5. L.R. 20.
6. 20 W.N. (N.S.W.) 70.
7. VL.R. 447.
8. Kalgoorlie Miner, 18 June 1907, p. 5.
9. W.N. (N.S.W.) 19, 135.
10. Garnet Walch, The Williamsons, Being A Brief Account of the Careers of Mr and Mrs J.C. Williamson. Together with Facts and Figures Relating to the Firm of Williamson, Garner, and Musgrove (Melbourne: William Marshall, 1885), p.22. I am grateful to Professor Veronica Kelly for drawing my attention to this obscure source.
11. That’s not the half of it. For a full account of this extraordinary saga of appropriation and cut-and-pasting, see my Introduction to The Kelly Gang in Australian Plays for the Colonial Stage.
12. 12 VL.R. 483.
13. Commonwealth Record Series A1336, Australian Archives, Canberra.
14. ‘Script Registration’, Australian Writers’ Guild,, awg.com.au, accessed 19 December 2025.
15. See Richard Fotheringham, ‘Introduction’ to Alfred Dampier and Garnet Walch, Robbery Under Arms (Sydney & St Lucia: Currency/ADS, 1985), p. li.
16. Bert & Tim Bailey Manuscript Collection, MS6141, folder 102, National Library, Canberra.
17. Bailey Coll, folder 102. I discuss this at greater length in In Search of Steele Rudd (Brisbane: UQP, 1996).
18. For details of Smith’s copyright performance, see Hobart Mercury, 25 August 1908. (I am grateful to Eric Irvin for drawing my attention to this newspaper reference.) For the copyright agreement between Bailey and Smith, see CRS A1336/1, item 2391, National Archives of Australia (ACT). I cover this matter in greater detail in my biography In Search of Steele Rudd (Brisbane: University of Queensland Press, 1996).
