223 U.S. Opinion of the Court. jurisdictions according to the principles of the common law. Their right was not gone simpliciter, but only in a qualified sense for the purposes of the statutes, and there was no convention under which the authors' work became public property in the United States. See Saxlehner v. Eisner, 179 U. S. 19, 36; Saxlehner v. Wagner, 216 U. S. 375, 381. When § 20 of the act of 5 & 6 Vict., c. 45, provided that the first public performance of a play should be deemed equivalent, in the construction of that act, to the first publication of a book, it simply defined its meaning with respect to the rights which the statutes conferred. The deprivation of the common-law right, by force of the statute, was plainly limited by the territorial bounds within which the operation of the statute was confined. The present case is not one in which the owner of a play has printed and published it and thus, having lost his rights at common law, must depend upon statutory copyright in this country. The play in question has not been printed and published. It is not open to dispute that the authors of "The Fatal Card" had a commonlaw right of property in the play until it was publicly performed. Donaldson v. Beckett, 2 Bro. Cases in Parl. 129; Prince Albert v. Strange, 1 MacN. & G. 25; Jefferys v. Boosey, 4 H. L. C. 815, 962, 978. And they were entitled to protection against its unauthorized use here as well as in England. Wheaton v. Peters, 8 Pet. 591, 657; Paige v. Banks, 13 Wall. 608, 614; Bartlett v. Crittenden, 5 McLean, 32; Crowe v. Aiken, 2 Biss. 208; Palmer v. De Witt, 2 Sweeny, 530; 47 N. Y. 532. What effect, then, had the performance of the play in England upon the rights of the owners with respect to its use in the United States? There was no statute here by virtue of which the common-law right was lost through the performance of the unpublished play. The act of August 18, 1856 (11 Stat. 138, c. 169), related only to dramatic compositions for which copyright had been 223 U.S. Opinion of the Court. obtained in this country; its object was to secure to the author of a copyrighted play the sole right to its performance after it had been printed. Boucicault v. Fox, 5 Blatchf. 87, 97, 98. The same is true of the provisions of the Copyright Act of July 8, 1870 (16 Stat. 198, 212, 214; R. S. 4952, 4966), and of those of the act of March 3, 1891 (26 Stat. 1106, 1107), which were in force when the transactions in question occurred and this suit was brought. The fact that the act of March 3, 1891, was applicable to citizens of foreign countries, permitting to our citizens the benefit of copyright on substantially the same basis as its own citizens (§ 13), and that proclamation to this effect was made by the President with respect to Great Britain (27 Stat. 981), did not make the British statutes operative within the United States. Nor did that fact add to the provisions of the act of Congress so as to make the latter destructive of the common-law rights of English subjects in relation to the representation of plays in this country, which were not copyrighted under that act and which remained unpublished. These rights, like those of our own citizens in similar case, the act of 1891 did not disturb. The public representation of a dramatic composition, not printed and published, does not deprive the owner of his common-law right, save by operation of statute. At common law, the public performance of the play is not an abandonment of it to the public use. Macklin v. Richardson, Ambler, 694; Morris v. Kelly, 1 Jac. & W. 481; Boucicault v. Fox, 5 Blatchf. 87, 97; Crowe v. Aiken, 2 Biss. 208; Palmer v. De Witt, 2 Sweeny, 530, 47 N. Y. 532; Tompkins v. Halleck, 133 Massachusetts, 32. Story states the rule as follows: "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 Opinion of the Court. 223 U. S. 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." 2 Story, Eq. Jur., § 950. It has been said that the owner of a play cannot complain if the piece is reproduced from memory. Keene v. Wheatley, 9 Am. Law Reg. 33; Keene v. Kimball, 16 Gray, 545. But the distinction is without sound basis and has been repudiated. Tompkins v. Halleck, supra. And, as the British statutes did not affect the commonlaw right of representation in this country, it is not material that the first performance of the play in question took place in England. In Crowe v. Aiken (1870), supra, the play "Mary Warner" had been composed by a British subject. It was transferred to the plaintiff with the exclusive right to its representation on the stage in the United States for five years from June 1, 1869. It had not been printed with the consent either of the author or of the plaintiff. It was first publicly performed in London in June, 1869, and afterwards was represented here. The court (Drummond, J.), held that the plaintiff by virtue of his common-law right was entitled to an injunction restraining an unauthorized production. In Palmer v. De Witt (1872), supra, the suit was brought to restrain the defendant from printing an unpublished drama called "Play," composed by a British citizen resident in London. The plaintiff on February 1, 1868, had purchased the exclusive right of printing and performing the play in the United States. On February 15, 1868, it was first performed in London. It was held that the common-law right had not been destroyed by the public representation and the plaintiff had judgment. In the case last cited, and apparently in that of Crowe v. Aiken, the transfer to the plaintiff antedated the public performance, but neither decision was rested on that distinction. In Tompkins v. Halleck (1882), supra, an unpublished play called "The World" had been written in England where, after being presented, it was assigned by the author to a purchaser in New York. It was acted in that city and then transferred to the plaintiffs with the exclusive right of representation in the New England States. The plaintiffs' common-law right was sustained and an unauthorized performance was enjoined. Our conclusion is that the complainants were the owners of the original play and exclusively entitled to produce it. Their common-law right with respect to its representation in this country had not been lost. This being so, the play of the plaintiff in error, which was substantially identical with that of the complainants, was simply a piratical composition. It was not the purpose or effect of the copyright law to render secure the fruits of piracy, and the plaintiff in error is not entitled to the protection of the statute. In other words, the claim of Federal right upon which he relies is without merit. Judgment affirmed. REITLER v. HARRIS. ERROR TO THE SUPREME COURT OF THE STATE OF KANSAS. No. 99. Submitted December 13, 1911. Decided February 19, 1912. A state statute which makes special entries in public fecords prima facie, but not conclusive, evidence, of the validity of the proceedings referred to deals with rules of evidence and not with substantive rights. One is not deprived of his property without due process of law by a statute making entries in public records prima facie, but not conclusive, evidence, of the validity of the proceedings referred to. A contract of sale of state lands, on which periodic payments are to be made, with forfeiture in case of non-payment is not impaired by Opinion of the Court. 223 U.S. a subsequent state statute making the official entries in public records prima facie, but not conclusive, evidence, of the validity of proceedings for forfeiture. The statute of Kansas of 1907, c. 373, making entries of default and proceedings for forfeiture made in usual course of business in the records of sales of school lands prima facie, but not conclusive, evidence of the validity of forfeiture proceedings, is not unconstitutional either as depriving one who had previously purchased lands under the act of 1879, c. 161, § 2, of his property without due process of law, or as impairing the obligation of the contract under the act of 1879. 80 Kansas, 148, affirmed. THE facts, which involve the constitutionality of certain provisions of the laws of the State of Kansas in regard to sale of school lands, are stated in the opinion. Mr. F. Dumont Smith for plaintiff in error. Mr. Frederic deC. Faust, with whom Mr. A. C. Dyer and Mr. L. M. Day were on the brief, for defendant in error. MR. JUSTICE Van Devanter delivered the opinion of the court. This was an action in a District Court of the State of Kansas to recover the possession of a quarter section of land to which the parties were asserting adverse claims under the school-land laws of the State. The plaintiff's claim originated in a contract of purchase with the State, whereby he was required annually to pay interest on the unpaid purchase price at a stipulated rate. He failed for three years to comply with that requirement, and proceedings looking to a forfeiture of his rights under the contract resulted, in 1901, in a notation of forfeiture, as hereinafter explained. The defendant claimed under a like contract, made in 1902, upon the supposition that all rights under the prior contract had been extinguished. |