INJUNCTION, Theatrical, a term applied to a mandate issued by a court of equity, to compel or prevent the performance of some act for which money damages would not prop erly compensate the injured party. Relief by injunction in matters pertaining to theatricals is probably more frequently sought than in any other business or profession, and prece dents in law established in this class of cases have become of considerable importance. At first, courts of this country and England re fused to grant injunctions against actors for the purpose of compelling them to perform their contracts, a learned justice saying; °The court could not regard as law the old adage that 'a bird that can sing and will not sing must be made to But latterly, when the service of an actor became recognized and it was made to appear clearly that an actor or singer, by intelligence, education and other artistic accom plishments and talents, was of extreme im portance to one who had invested money in the production of a play or opera it was held that a court of equity would by injunction enforce a covenant in a contract. But this has simply gone to the extent of compelling a fulfilment of the contract, or forcing the artist to remain idle during its term. The services of every actor will not be enjoined. He must actually possess some exceptional merit, so that his services may be termed special, unique and extraordinary, and it must be shown they can not be fulfilled by any other person. without injury to the employer. In the case of Lumley v. Wagner, the courts of England enjoined Johanna Wagner, a prominent prima donna of the early 50's from appearing at Covent Garden Opera House, London, in violation of her contract with Lumley; and then for the first time the British courts asserted their authority over contracts of actors, and granted an injunction forbidding her rendering pro fessional services for any but her original employer.
In the United States, the Federal courts recognized the right of a manager to have the exclusive services of his employee, and in Mc Call v. Braham an injunction was granted which prevented Lillian Russell from violating her contract In the State courts, the case of Augustin Daly v. Fanny Morant Smith (49 How. Pr. 150), Superior Court Justice Freed man also appreciated the fact that the ancient rule had been abrogated and the modern one compelling actors to live up to their agreements, as other individuals, was there enforced. The contract must unquestionably be fair. The rights of both parties to it must be equal. In otter words, if the contract gives the manager the right to terminate it by giving notice before the expiration of the contract, a like right of termination must also be given the actor; and as stated before, the actor's services must be special, unique and extraordinary. In this latter connection, it seems uncertain where to draw the line. In the case of Carter v. Fergu son the court refused to grant an injunction to Mrs. Leslie Carter against William J. Ferguson, an actor, saying that his services were not so special and unique as to warrant a court of equity's interference. In Charles Hoyt v. Loie Fuller, the court granted an injunction against the dancer, holding that a serpentine dance in the performance of which she became famous, warranted the court's interference by injunction.
In George Edwardes, the London manager, v. Cissie Fitzgerald, the New York Supreme Court granted an injunction against Miss Fitzgerald, on the theory that a certain wink of her eye used in a play was of special merit, and a draw ing card. In Harris v. Sparks, an injunction was granted against John Sparks, the Irish comedian, the ground being that his portrayal of an Irish character was special, unique and extraordinary. While in the still later case of Shubert Brothers v. Aimee Angeles, imitations given by the performer were considered so spe cial, unique and extraordinary as to warrant the granting of an injunction. Each case, however, must be determined by its own peculiar circum stances. In the Harrison Grey Fiske v. Tyrone Power case, the court refused to grant an in junction against Tyrone Power, although his ability as an actor was exploited in the news papers, on the ground that his services were not so special, unique and extraordinary as to justify an injunction. But in guarding the rights of an actor, the courts will see that no advantage has been taken of him by the man ager, and that the manager for whom he is to perform is of such financial responsibility as to insure the salary of the actor. In the case of Rice v. D'Arville, Edward E. Rice, the theatrical manager, sought to restrain Camille D'Arville from performing for others; but on the defense that Rice was insolvent and in debted to her on a previous contract, Justice Oliver Wendell Holmes, then of the Massachu setts Supreme Court, would not compel her to perform for Rice.
Injunctions in the theatrical profession are not confined to actors and actresses, but are often invoked to prevent the piracy of a play or the use of a name. Where a play or a scene from a play has been copyrighted, the Federal courts alone have jurisdiction of the matter, and will by injunction prevent anybody from per forming or producing it as their own. When there has been no copyright the common law protects the work, as well as its title; and the use of a similar name,. or a name which is apt to deceive the public into the belief that it is the one already used by an author, will likewise be enjoined. An instance is the case of Charles Frohman v. Arthur Fraser, where the use of the title •Sherlock Holmes" was enjoined, this name having been adopted by William Gillette as the title of a play, notwithstanding the name had been used by A. Conan Doyle as the title of his novel. In that case the court held that Mr. Gillette having first used the name in con nection with a theatrical production was en titled to all emoluments arising from it. Not withstanding the numerous attempts to avoid the principles of law applicable to this class of cases, it matters not whether it is the actor who is involved or the theatrical manager, the Amer ican courts are humane, equitable, just and careful, and invariably zealously guard the in terests of those engaged in the theatrical pro fession, as well as those engaged in an com mercial business. See INJUNCTION; MENT BY INJUNCTION; COURT; EQUITY; CHAN CERY; CONTEMPT; LAW, etc.