Mills Music v. Cromwell Music

• Decision Date: 29 July 1954
• Citation: 126 F. Supp. 54
• Parties: MILLS MUSIC, Inc., Plaintiff, v. CROMWELL MUSIC, Inc., Defendant.
• Court: U.S. District Court — Southern District of New York

126 F. Supp. 54

MILLS MUSIC, Inc., Plaintiff, v. CROMWELL MUSIC, Inc., Defendant.

United States District Court, S. D. New York.

July 29, 1954.

COPYRIGHT MATERIAL OMITTED

Zissu & Marcus, New York City, for plaintiff (Leonard Zissu, Abraham Marcus and Alan J. Stein, New York City, of counsel).

Miller & Miller, New York City, for defendant (Morton Miller, Meyer Schwartz and Ivan L. Schwartz, New York City, of counsel).

LEIBELL, District Judge.

This is an action by Mills Music, Inc., a publisher, for the infringement of its copyright of the musical composition entitled "Tzena, Tzena", by the defendant, Cromwell Music, Inc., also a publisher.

The complaint pleads two claims or causes of action. The first alleges that about 1941, Issachar Miron (also known as Michrovsky), then a citizen of Palestine, and now a citizen of the State of Israel, composed the musical composition "Tzena, Tzena", consisting of two parts; that about 1947, Julius Grossman, a citizen of the United States, composed a third part to be added to the said composition; that about June 22, 1949 an organization known as the "Young Zionist Actions Committee" (hereinafter referred to as YZAC) published a book entitled "Songs of Israel" which included the three parts of the musical composition "Tzena", and that the said book was copyrighted in July 1949; that on June 16, 1950, the YZAC assigned to Grossman all rights and copyrights in the composition "Tzena" and all claims for infringement thereof; that on June 22, 1950, Miron and Grossman assigned their rights and copyrights, and claims and causes of action for infringement, to plaintiff; that plaintiff between June 22, 1950 and June 29, 1950, complied with the Copyright Law, and received from the Register of Copyrights a certificate of registration for the musical composition "Tzena", and has published the said musical composition in conformity with the Copyright Law, and thus became and now is the sole and exclusive proprietor of the said musical composition and of all rights and copyrights therein and of all claims for infringement; that since May 1950 defendant has infringed both said copyrights by publishing and selling a musical composition also entitled "Tzena" which was virtually a complete copy of plaintiff's copyrighted musical composition; that both plaintiff and plaintiff's assignor have given defendant notice in writing of defendant's infringement of plaintiff's aforesaid rights.

The second cause of action is based solely on Miron's composition, and the assignment thereof from Miron to plaintiff, about June 1950, together with his claims for copyright infringement. It omits the allegations of the first cause of action as to Grossman's third part, the YZAC publication of the "Songs of Israel", and the assignments by YZAC to Grossman and from Grossman to plaintiff.

The complaint prays for an injunction, damages, an accounting of defendant's profits and the other forms of relief usually sought in copyright infringement suits.

The defendant's amended answer, in addition to containing denials of plaintiff's two claims or causes of action, pleads several special defenses. The first special defense alleges that the complaint fails to state a claim on which relief can be granted; the second, that Miron and Grossman were not the original or first composers of the musical composition "Tzena" and that it was in the public domain for many years prior to their alleged composition; the third, that Miron and Grossman copied substantial portions of their composition from prior copyrighted works; the fourth, that Miron and Grossman waived all rights in the musical composition and dedicated it to the public.

For a first counterclaim defendant alleges that prior to June 22, 1950, Gordon Jenkins and Spencer Ross composed the musical composition "Tzena" and assigned it to the defendant, and that defendant used and sold the musical composition and promoted its sale and enjoyed unassailed ownership rights until plaintiff published its composition "Tzena"; that as a result of defendant's efforts the song became popular in the United States; that plaintiff's use will mislead the public; that plaintiff's publication is either the defendant's composition or is an unauthorized version thereof; that as a result plaintiff is improperly competing with defendant and has sent notices to persons in the music publishing business that plaintiff possesses the right to publish and deal in "Tzena"; that plaintiff has notified phonograph record publishers not to recognize defendant as the owner of the rights to "Tzena"; that all of plaintiff's acts and conduct have greatly damaged defendant.

Defendant's second counterclaim is based on defendant's registration of a copyright to the musical composition "Tzena". It alleges that prior to June 22, 1950, Gordon Jenkins and Spencer Ross composed the musical composition "Tzena"; that they assigned their rights to the composition to defendant; that defendant's composition contains a large amount of material wholly original with defendant's assignors; that defendant thereafter copyrighted the musical composition by depositing in the Copyright Office in Washington copies of defendant's composition and has published the composition since June 22, 1950, with a notice of copyright thereon; that thereafter plaintiff published and sold its musical composition "Tzena"; that plaintiff's said musical composition infringed the defendant's copyright to defendant's damage, after notice of infringement sent by defendant to plaintiff.

The amended answer prays for an injunction, damages, an accounting of profits and the other relief usually sought by a claimant in a copyright infringement action.

Plaintiff's reply denies the allegations of the two counterclaims and asks their dismissal.

At the pre-trial conference before Judge Bondy defendant amended its amended answer to plead as an additional defense that plaintiff comes into court with "unclean hands" in that, it is alleged, the plaintiff first learned of the musical composition when it was broadcast extensively over the radio; that plaintiff became interested therein at the instance of plaintiff's attorney; that plaintiff conspired with plaintiff's attorney to enter into agreements with Grossman, Miron and YZAC for the purpose of asserting claims against defendant for the profits defendant earned as the result of defendant's exploitation of the song; that plaintiff's publications and sales of the musical composition were made in bad faith; and that plaintiff is barred from maintaining this action under the equitable doctrine of "unclean hands".

At the pre-trial hearing the parties agreed as to the genuineness of a number of exhibits without conceding their competency, relevancy or materiality.

The issues were formulated by the pre-trial judge in accordance with a stipulation of the parties, as follows:

"1. That the complaint fails to state a claim.

"2. That plaintiff is not the copyright proprietor of the musical composition and cannot maintain the present action for infringement.

"3. That the musical composition published by the plaintiff was and is in the Public Domain.

"4. That substantial portions of plaintiff's composition are copies or appropriations from prior works.

"5. That plaintiff's assignors and plaintiff dedicated the composition to the public and waived all rights in the composition.

"6. That plaintiff unfairly competed with the defendant.

"7. That the plaintiff infringed upon the defendant's copyright.

"8. That the plaintiff comes into Court with unclean hands."

* * * * * *

Issachar Miron, formerly Stefan Michrovsky, was born in Poland in 1919 and lived there until 1939, when he went to Palestine shortly before the start of World War II. Palestine was a British protectorate. He became a citizen of Palestine and a soldier in the British Army's Jewish Brigade. He was in the 2nd Company of the Palestinian Buffs. Michrovsky was a musician. He became ill in 1943 and left the Palestinian Army. Israel became a state in 1948. He was in the Israeli Army between 1948 and 1950.

His deposition in this case was taken in this country between December 7, 1950 and March 14, 1951. He testified that he wrote the song "Tzena" in the latter part of 1941, when he was with the Jewish troops of the British Army in Haifa, at the Peninsular Barracks. He described the occasion for writing the music as follows:

"I remember it as if it were today. I got some words that had been written by another soldier in the 22nd Company; the name of this soldier was Jehiel Hagges. The words were brought to me by a lance corporal, whose name is Blum. He showed me the words, and he asked me to compose the music as quickly as possible so that he could take them back when he returned to the 22nd Company. Blum was originally from the 2nd Company to which I belonged, but for a certain time he worked in the 22nd Company as an instructor. When I saw the words, I felt that I could compose a melody for them. I was very enthusiastic when I wrote this melody and I can say that I wrote the music, I might say so, with the blood of my heart."

Miron wrote the music in five or six hours, on the same day that he received the lyric from Hagges through Blum. The song was to be used in a celebration in the 22nd Company in which everyone was to participate. Miron went to the canteen gymnasium that evening and played the melody for the soldiers. It was a strong, gay melody, yet very simple so that the soldiers were able to sing it. Miron was a musician. He played several instruments, including the piano. A soldier named Hillel, a member of the battery, sang the song at the first performance.

When Miron wrote the music for "Tzena" he worked sitting on his bed, with the lyric before him and a pencil and paper. He consulted no musical works. He copied from no one. The melody was his own composition. He had written another melody entitled "Song of the Regiment", for which...