## Facts

- An author created a dramatic play that existed only in manuscript and had not been printed or otherwise distributed as a text.
- The author permitted public performances of the play, including performances in London and New York.
- The author assigned to Palmer exclusive rights in the United States, including the right to first publication and the rights to print, publish, and perform the play.
- De Witt, a publisher, obtained the play’s text from persons connected with the English performances, not from Palmer.
- De Witt printed and sold copies of the play in the United States without Palmer’s consent.
- Palmer sued for injunctive relief and an accounting, asserting a common-law property right in the unpublished manuscript and the exclusive right to control first publication.

## Issues

1. Whether an author (or assignee) has a common-law property right in an unpublished dramatic work that includes the exclusive right to first publication and to restrain unauthorized printing.
2. Whether prior public performance of a dramatic work constitutes “publication” that extinguishes common-law protection in the manuscript and permits others to print and sell copies without consent.
3. Whether federal copyright statutes displace state-law enforcement of common-law rights in unpublished works.

## Decision

- The New York Court of Appeals affirmed judgment for Palmer.
- The court held that an unpublished literary or dramatic work is protected as property at common law, including an exclusive right to first publication enforceable by the author or assignee.
- The court held that public performance of a play is not a “publication” that dedicates the manuscript to the public or terminates the common-law right to control printing and publication.
- The court upheld equitable relief, including an injunction against further unauthorized publication and an accounting of profits.

## Legal Principles

- Unpublished literary and dramatic works are protected as property at common law; the owner may control and restrain the first printing and publication.
- The right to perform a dramatic work and the right to print and publish it are distinct; permission to perform does not imply consent to publish copies.
- Public performance alone does not constitute publication that divests the owner of common-law protection in an unpublished manuscript.
- Common-law protection of unpublished works may be enforced in state court and is not extinguished merely because federal copyright law governs rights after publication.
- Common-law rights in unpublished works are assignable; an assignee may seek injunction and accounting for unauthorized printing and sale.

## Conclusion

The court recognized enforceable common-law property rights in an unpublished play, ruled that public performance does not amount to publication, and affirmed injunctive and accounting remedies against a publisher who printed and sold the play without the assignee’s authorization.


Palmer v. De Witt, 47 N.Y. 532 (N.Y. 1872)