This Article explores playwrights' common law "play right." Since this conference celebrates the 300th birthday of the Statute of Anne, I begin in England in the 17th Century. I find no trace of a common law playwright's performance right in either the law or the customary practices surrounding 17th and 18th century English theatre. I argue that the nature and degree of royal supervision of theatre companies and performance during the period presented no occasion (and, indeed, left no opportunity) for such a right to arise. I discuss the impetus for Parliament's enactment of a performance right statute in 1833, and its decision, nine years later, to adopt a law that scuttled any nascent tendencies supporting the development of a common law performance right by equating public performance with publication for the purposes of copyright.
Litman, Jessica D. "The Invention of Common Law Play Right." Berkeley Tech. L. J. vol. 25, no. 3 (2010): 1381-425.
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