The Haymarket Theatre and Literary Property: Constructing Common Law Playright, 1770–1833

Colman the elder, in his agreements, had turned his own legal knowledge to good account.

—Richard Brinsley Peake, 1841

Between 1781 and 1785, Haymarket Theatre proprietor George Colman the Elder purchased the manuscripts and copyrights of five plays by comic dramatist John O’Keeffe: The Son in Law (first performed 1779),The Dead Alive (June 1781), The Agreeable Surprise (September 1781), The Young Quaker (1783), and Peeping Tom (1784).¹ Following the example of actor/author Charles Macklin, Colman maintained that, so long as these works remained unpublished, he had both a legal right to exclude others from publishing them and a legal right to exclude others from performing them. To that end, his successors at the Haymarket, his son, George Junior, and that gentleman’s brother-in-law, David Edward Morris, refused for nearly fifty years to authorize publication of the five O’Keeffe plays.

I shall argue that, by securing in court the exclusive rights they claimed in these works, Haymarket Theatre proprietors helped to construct a common law public performance right (or “playright”) in an unpublished (or “manuscript”) play.² The famous barrister Thomas Erskine and Lord Chancellor Eldon were key players in establishment of this principle, synopsized in 1836 by U.S. Supreme Court Justice Joseph Story in his Commentaries on Equity Jurisprudence, as Administered in England and America:

So, where a dramatic performance has been allowed by the author to be acted at a theatre, no person has a right to pirate such performance, and to publish copies of it surreptitiously; or to act it at another theatre, without the consent of the author or proprietor; for his permission to act it at a public theatre does not amount to an abandonment of his title to it, or to a dedication of it to the public at large.

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For nearly two hundred years, attorneys, judges, and scholars have discussed the decisions in Coleman [sic] versus Wathen (King’s Bench 1793, concerning an unauthorized performance of O’Keeffe’s The Agreeable Surprise) and Morris versus Kelly (Chancery 1820, concerning an unauthorized performance of O’Keeffe’s The Young Quaker).³ These cases were the earliest ones to raise an important question in Anglo-American copyright law: “Does the public performance of a manuscript work qualify as a publication of that work under the copyright statute?” Under copyright law of the period, if the answer was “yes”, then the public performance of a work allowed the public to use it in any way not proscribed by the copyright statute. If the answer was “no”, then the owner of the manuscript retained common law rights (or “literary property”) in the unpublished work. Following Coleman and Morris, courts in the United Kingdom and the United States eventually determined that the correct answer to the question is “no”: having publicly performed an unpublished work, manuscript owners retained their literary property in it. In the United States, this legal principle shaped the protection afforded unpublished dramatic works in the 19th century, sound recordings in the 20th century, and even Martin Luther King, Junior’s “I Have a Dream” speech.⁴

Because Coleman and Morris stand at the head of the performance-is-not-a-publication doctrine, they have attracted extensive comment over the years. I contribute to that conversation. Coleman and Morris are often misunderstood, both by theatre scholars who miss details of the law and by legal scholars who, having restricted analysis to the sketchy case reports, miss important details recorded by theatre professionals of the period.⁵ For example, in his “Commentary” about the Dramatic Literary Property Act of 1833 on the enormously useful “Primary Sources on Copyright” website, Professor Ronan Deazley states, “OKeeffe’s play [The Agreeable Surprise] had been published in London in 1782” and, on that basis, concludes that “Coleman perhaps should be understood as standing for no more than the proposition that the unauthorized performance of a published play was not considered unlawful in accordance with the existing legislation”. The 1782 London publication of O’Keeffe’s play was not with the manuscript...