Best IP judgment never written: the runner-up

Last Sunday the jiplp weblog published David Flynn's winning entry in the "Best IP Judgment Never Written" competition -- and now we are delighted to publish the entry which came second -- Robin Fry's report on the might-have-been judgment in The Estate of Publius Ovidius Naso v William Shakespeare.  Congratulations, Robin -- and thanks for sharing your legal expertise and your erudition with us!

JUDGMENT 

Mr Shakespeare is a writer of 'popular entertainments'.  These are produced in 'Southwark' which is a disputatious parish of Surrey, my colleagues on the bench often reporting to me the licentiousness there.  I, however, put such matters out of my mind. 

A plaintiff's bill has been laid by the executor of the estate of Publius Ovidius Naso writing under the name 'Ovid', contending that the deceased's 'Pyramus and Thisbe' has been copied by Mr Shakespeare in his 'Romeo and Juliet' and thus infringes Mr Ovid's common law copyright. 

Evidence has been given (exceeding 217 folios in length) as to the similarities in the plot, structure and language between the two works. I do find that Romeo and Juliet is a striking representation of the other. 

The giving of such evidence has been constantly interrupted by brawls between aficionados of Mr Shakespeare's work and hierophants for, inter alia, Christopher Marlowe, the Earl of Oxford and Sir Francis Bacon who assert that Mr Shakespeare has in fact stolen their work and they are the writers of such work. 

 I put that all to one side and find that the fact that a work may be a piratical copy of another does not subvert the copyright in the first work nor does it render the writer or publisher in any way exempted from actions brought against them. Cary v Faden (1799) distinguished. 

Mr Shakespeare says that there are many similar stories, pointing to a manuscript of Mariotto and Gianozza by Masuccio Salernitano published in 1476 and a book of 'The Thirty Six Dramatic Situations' by Georges Polti. He dramatised to the court (with actors) the 29^th Situation  ('The Beloved is the slayer of a Kinsman of the Woman who loves Him' ). His peroration continued with an ambitious justification of copying under Ecclesiastes 1.9 'nihil novi sub sole" ("there is nothing new under the sun") and then proceeded to recite his 59^th Sonnet. 

Further, he points to numerous other infractions of the same story by Leonard Bernstein, Esq., in his futuristic 'West Side Story' and an 'electronically displayed' version by the quaintly named Mr Baz Lurhman. He maintains that Ovid lost his rights by failure to act, laches and dilution. I find nevertheless that each single performance or reproduction is a fresh tortious act. As to dilution, this has never been a part of copyright law: in my judgement, copyright can never be lost or invalidated by inaction. 

I addressed earlier the locus standi of the estate of Mr Ovid under the reciprocal copyright provisions between Constanța and England. That was conceded by the defence. 

However the plaintiff admits that no probate has been yet obtained in England and defendant so responds that the current executor has no proven title to sue. I have regard here to the principles set out by the Lord Chancellor in Spottiswode v Clarke namely that 

'The first question is to be decided is as to the legal right, and if the court doubts about that, it may commit great injustice by interfering until that question has been decided''. 

I therefore order this case adjourned sine die until the estate has obtained probate. 

Naturally one wishes to make advantageous use of such temporary interruption to these proceedings.  There have been produced to the court so-called 'VIP entry platinum cards' to the Globe Theatre which will allow me, and such of counsel here present, on occasions to attend at such theatre weekly until the next return date. 

Scrivener's note: Court clerk interrogates diary. Date six years hence announced. Consternation in court. Tipstaff summoned. Alleged trespass to person as Judge is kissed by a lady. 

Reported by Robin Fry, attorney-at-law