Copyright and the Value of Performance, 1770–1911 by Derek Miller (review)

Some of the most characteristic features of nineteenth-century theatre, in Britain and the United States, could be attributed to the law governing rights over print and performance. These include the prevalence of adaptations, of piracy controversies, and of litigation, particularly over the exclusivity of plays, performances, and staging. Playwrights struggled to control the acting and printing of their plays, managers to prevent others capitalizing on their risks and innovations, poets and novelists to prevent unauthorized dramatization of their writing. These struggles developed from, and in turn influenced, the law’s designation of copyright and performance rights. Derek Miller’s book explores the legal and theatrical history—and the theoretical implications—of what he calls this “crucial definitional period,” in which “nineteenth-century jurists [served as] some of the most influential critics of their age” (2, 67). During this span, the British and American legal systems remained in “close conversation,” regularly citing each other’s statutes and case law, just as their performance industries developed along mutually informative lines (26). Meanwhile, parallel discussions about rights over the printing and performance of music, which Miller also examines, sometimes shadowed decisions about drama and sometimes opposed them.

Miller examines statutory provision, plus the precedent-setting cases that are so important in both countries’ common-law systems, as well as public commentary, the writings of actors and managers, and lawyers’ letters and bills. His book elucidates details such as the peculiar disclaimers commonly appended to acting editions: “printed but not published” (because “publishing” a text meant forfeiting rights over its production); or practises such as the copyright performance, a pro forma staging intended to establish exclusive rights either to dramatize a novel or to perform a play first produced in another country. These often feature in nineteenth-century theatrical histories, but glancingly in relation to individual cases or issues. Miller recognizes them as part of a complicated story, the development of what he calls a “performance commodity” (4), as the law increasingly acknowledged the economic value of performance (and its constitutive elements, including acting, staging, music, and so on). He suggests that a shift from aesthetic to economic definitions of music and drama played an essential part in the industrialization of the theatre, through an “emergent economy of performance” (9).

Miller’s study will be invaluable to nineteenth-century theatre historians, most obviously for its lucid discussion of disputes (for example, over the ownership of orchestral arrangements, sensational incidents, scenic effects, or actors’ improvisations), but also for its appendix, which outlines major legislation and litigation affecting performance rights in the two countries. The book also offers intriguing new perspectives on the origins of the infamous old theses about the nineteenth-century “Decline of the Drama” and its consequent resurrection as “Modern Drama” (20, 15). Miller suggests that these narratives were already under construction in the copyright law debates that accompanied the performing arts’ “own crisis of value within capitalism” (21).

However, the book is not, primarily, a history. Miller’s real object is to identify the theoretical assumptions encoded in these debates, particularly the ideas of music and drama enshrined in them. The development of theatrical copyright and performing rights necessitated arguments over what drama is, who owns it, and whose interests it should serve (monarch, nation, public, literature, commerce). Analysis of these legal arguments reveals an ongoing consideration of the stakes in the staging, performance, printing, or reproduction of theatre and music.

Miller’s four chapters are only roughly chronological, often overlapping and returning to revisit cases from different perspectives. Broadly, his first examines the early (pre-1833) discourse that contributed to the development of performance rights; the second analyzes lawsuits that helped to define works as theatre or as music; the third focuses on those that recognized non-authorial input into theatricality (audiences, actors, managers); and the fourth interprets the effects on theatre and music of new laws between 1833 and 1911. There is also a coda, which identifies parallels...