which reference has been made, Congress intended to cover and did cover all pearls in the two paragraphs and did not leave a class of pearls unenumerated. The words in paragraph 436 are to be taken as describing a condition in antithesis to that described in paragraph 434, under which, if strung or set, imported pearls are dutiable as jewelry. Such an interpretation provides a simple and workable test, permitting certainty and impartiality in administration which should preeminently characterize the operation of tariff laws, and fulfills, as we believe, the purpose of Congress.

We conclude that the similitude clause has no application and that upon the facts shown the pearls imported in this case were dutiable under paragraph 436 at ten per cent.

Judgment affirmed.

FERRIS v. FROHMAN.

ERROR TO THE SUPREME COURT OF THE STATE OF ILLINOIS.

No. 44. Submitted November 7, 1911.-Decided February 19, 1912. Although complainant may assert his own common-law copyright to his play, if he alleges that defendant has obtained a copyright for the play sought to be enjoined, and the defendant stands upon the copyright and is enjoined, a Federal right is set up and denied, and this court has jurisdiction to review the judgment, under § 709, Rev. Stat.

Under the law as it existed in 1894, after a play had been performed in England, t. rights of the owner to protection against the unauthorized production in England is only that given by the statutes; but the deprivation of common-law rights by force of the statutes was limited by territorial bounds within which the statute was operative.

Public representation in this, or in another, country of a dramatic composition, not printed and published, does not deprive the owner of his common-law right save by operation of statute.

223 U.S.

Argument for Plaintiff in Error.

At common law the public performance of a play is not an abandonmert to public use.

The purpose and effect of the copyright law is not to render fruits of piracy secure; and a copyright does not protect one producing a play which is substantially a copy of an unprinted and unpublished play, the common-law property right whereof is in another. 238 Illinois, 430, affirmed.

THE facts, which involve the right of authors to unpublished dramatic compositions and productions on the stage, are stated in the opinion.

Mr. Charles H. Aldrich, with whom Mr. Charles R. Aldrich, Mr. Charles G. McRoberts and Mr. L. E. Chipman were on the brief, for plaintiff in error:

Plaintiff in error properly claimed below that the play which he was presenting and against which the injunction was sought, was protected by copyright under § 4952, Rev. Stat., and that the assertion of common-law rights in & drama which had been copyrighted in England by its authors who were citizens of Great Britain was in conflict with the copyright arrangements between Great Britain and this country and the act of March 3, 1891.

The final decision of the Supreme Court of Illinois was against these claimed rights and a Federal question is therefore involved. Erie R. R. Co. v. Purdy, 185 U. S. 148, 153; C., B. & Q. Ry. Co. v. Illinois, 200 U. S. 561, 580, 581; Murdock v. Memphis, 20 Wall. 635; Pickering v. Lomax, 145 U. S. 310; U. P. R. R. Co. v. Colburn, 164 U. S. 383; Green Bay &c. Canal Co. v. Patten Paper Co., 172 U. S. 58, 68; Dale Tile Company v. Hyatt, 125 U. S. 46; Atherton v. Fowler, 91 U. S. 143.

There could have been no decision in favor of the plaintiff below that did not in effect deny the right claimed under the copyright laws of the United States by the defendant below. In such case there is a Federal question whether mentioned in the opinion of the court below or not. Erie R. R. Co. v. Purdy, 185 U. S. 148, 153; C., B. & Q. Ry.

Argument for Plaintiff in Error.

223 U.S.

Co. v. Illinois, 200 U. S. 561, 580, 581; Murray v. Chatterton, 96 U. S. 432, 441, 442.

The statute 5 & 6 Vict., c. 45, § 20, makes public performance of a dramatic work with the author's or owner's consent equivalent to the first publication of a book.

And in England it is held that performance in the United States with the owner's consent terminates the author's playright in England and makes the performing right publici juris. Boucicault v. Chatterton, 5 L. R. Ch. Div. 267; Boucicault v. Delafield, 1 H. & M. 597; 7 & 8 Vict., c. 12, § 19; Drone on Copyright, 583; Jefferys v. Boosey, 4 H. L. Cas. 815, 847, 852, 856; Chappell v. Purday, 14 M. & W. 303; Boosey v. Purday, 4 Ex. Rep. 145.

The performing right or playright had no existence at common law separate and apart from the manuscript of the author, but dates its origin from 3 & 4 Wm. IV, c. 15, and in this country from the act of Congress, August 18, 1856, 11 Stat. 138. Boucicault v. Chatterton, L. R. 5 Ch. Div. 269; Wall v. Taylor, 9 L. R. Q. B. D. 727, 730; Donaldson v. Beckett, 4 Burr. 2408; Jefferys v. Boosey, 4 H. L. Cas. 815, 920.

The English act was passed to give the right of performance and was brought about by the decision in Murray v. Elliston, 5 B. & Ald. 657; Chappell v. Boosey, 21 Ch. Div. 232, 241.

The public performance of a drama is in all respects analogous to the right to multiply copies of a book. It is not a common-law right distinct from the manuscript. Cases supra and Wheaton v. Peters, 8 Pet. 590; Banks v. Manchester, 129 U. S. 123, 151; White-Smith Music Co. v. Apollo Co., 209 U. S. 1, 15.

The statutes and decisions cited make public performance of the play a "publication" equivalent to the publication of a book and the word should have the same meaning in the law of literary property in this country if that equality of right with respect to such property as between

223 U.S.

Argument for Plaintiff in Error.

the citizens of the United States and those of the Kingdom of Great Britain intended by the international copyright arrangement and the acts passed to carry it into effect is not to be defeated.

There can be but one publication and it makes no difference where this is made if with the consent of the author cr proprietor. The Mikado Case, 25 Fed. Rep. 183; Drone on Copyright, pp. 293, 295 and 577; Boucicault v. Wood, Fed. Cases, No. 1683; Pierce v. Bushnell Mfg. Co. v. Werckmeister, 72 Fed. Rep. 54; 7 Amer. & Eng. Ency. of Law, 2d ed., p. 528, sub. Copyright; 25 Cyc. 1495, and cases cited.

The contention of defendant in error is rendered presumptively unsound by the history of the struggle for international copyright arrangements. 2 Sen. Doc., 24th Cong., 2d Session, Doc. 179, and Messages of President therein; Report Royal Commissioners on Copyright; § 4971, Rev. Stat.; Act March 3, 1891, 26 Stat. 1106-1110.

It was not the intention of Congress to give to foreign citizens and composers advantages in this country which, according to the international copyright convention, were to be denied to citizens of this country abroad. WhiteSmith Music Co. v. Apollo Co., 209 U. S. 1, 15.

No copyright can be obtained in this country after a publication in this or any foreign country. Rev. Stat., $4956.

Publication puts an end to common-law rights and all rights of the author or proprietor, unless he at the same time takes steps to initiate and secure statutory rights. Drone on Copyright, pp. 100-104; MacGillivray on Copyright, 36-38; Mercantile Agency v. Jewelers' Pub. Co., 155 N. Y. 241; Mifflin v. White Co., 190 U. S. 260; Mifflin v. Dutton, 190 U. S. 265.

The two rights do not coexist in the same composition. Drone on Copyright, pp. 100-104; Bobbs-Merrill Co. v. Straus, 210 U. S. 339, 346; Fraser v. Yack, 116 Fed. Rep.

Argument for Defendants in Error.

223 U.S.

285; Mercantile Agency v. Jewelers' Pub. Co., 155 N. Y. 241; Tompkins v. Halleck, 133 Massachusetts, 32, 36.

The claim that this proposition should be limited by adding the words "in the same country," or equivalent words, as contended by counsel for defendant in error, is without foundation.

Copyright in a book or drama is the exclusive right of the owner to multiply and dispose of copies; this is where the drama is treated as a book. Playright is the exclusive right of public performance of the dramatic or musical composition. There is no reason why one should cease upon publication, or when devoted to unrestricted public use, and not the other.

Mr. Levy Mayer for defendants in error:

This court has no jurisdiction of the present writ of error. Appleby v. Buffalo, 221 U. S. 524; Waters-Pierce Oil Co. v. Texas, 212 U. S. 86; Harding v. Illinois, 196 U. S. 78; Howard v. Fleming, 191 U. S. 126; Home for Incurables v. New York, 187 U. S. 155; De Lamars v. Nesbitt, 177 U. S. 523; Sayward v. Denney, 158 U. S. 180.

The public performance in England of a manuscript play which under the British statutes is made a publication and deprives the author of his common-law right of exclusive representation, does not deprive the author of such common-law right in this country where public performance is not deemed a publication. Crowe v. Aiken, 2 Biss. 208; S. C., Fed. Cas. No. 3441; Palmer v. De Witt, 2 Sweeny, 530; S. C., 40 How. Pr. 293; aff'd 47 N. Y. 532; Tompkins v. Halleck, 133 Massachusetts, 32; Drone on Copyright, 118-121, 554, 574; Wandell, Law of the Theater, 479; 25 Cyc. 1497.

At common law and before the passage of copyright statutes an author had an exclusive property right in his manuscript. Cases supra, and see Drone on Copyright, 102.