137 F.2d 534 (9th Cir. 1943), 10314, Piantadosi v. Loew's, Inc.

Docket Nº:10314.
Citation:137 F.2d 534, 59 U.S.P.Q. 174
Case Date:June 02, 1943
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 534

137 F.2d 534 (9th Cir. 1943)

59 U.S.P.Q. 174




No. 10314.

United States Court of Appeals, Ninth Circuit.

June 2, 1943

Rehearing Denied June 30, 1943.

J. M. Danziger, of Los Angeles, Cal., for appellant.

Milton H. Schwartz and Herman F. Selvin, both of Los Angeles, Cal., for appellee.

Before WILBUR, MATHEWS, and STEPHENS, Circuit Judges.

STEPHENS, Circuit Judge.

In an action for the infringement of a copyright on a musical composition the District Court granted the motion of one of the defendants for a summary judgment. Plaintiff appeals.

Plaintiff complains of three defendants, Loew's Ncorporated (hereinafter called Loew's), Metro-Goldwyn-Mayer Corporation (hereinafter called M-G-M) and Leo Feist, Inc., and makes the following allegations. Plaintiff composed the music of the song 'That's How I Need You', and Joe

Page 535

McCarthy and Joe Goodwin wrote the lyric. With his co-authors plaintiff secured a copyright in 1912 and renewed the same by application filed June 1, 1939. The copyright was infringed by defendants by means of Wallace Beery's rendition of the song in the motion picture 'Barnacle Bill.' The use of the song was not licensed by plaintiff or by either of his co-owners. Plaintiff gave notice of infringement to Loew's and to M-G-M. Leo Feist, Inc., a music publisher, purportedly licensed the use, but the license was without right. Feist, Inc., claims to own the copyright on the music, and without right obtained a renewal of the copyright.

Loew's and M-G-M answered as follows. Leo Feist registered the song for copyright in 1912, and with the writers of the lyric, McCarthy and Goodwin, obtained a renewal May 22, 1939. Both before and after the date of renewal, and prior to any use of the song by these defendants, McCarthy and Goodwin assigned their rights to renewal to Feist, Inc. Plaintiff tried to renew the copyright June 1, 1939, but his action was ineffectual since he was not entitled to renew it. Feist, Inc., licensed Loew's to use the composition. The music was composed by plaintiff as an employee of Feist under an employment contract making Feist, and consequently his successor Feist, Inc., the owner of the composition and any copyrights thereof.

The Vice-President of Lowe's and M-G-M, Sam Katz, answered interrogatories propounded by plaintiff in a sworn statement to the following effect. M-G-M transferred all its assets to Loew's in 1937 and has done no business since. Letters between Loew's and Feist, Inc., evidence the terms of the license to Loew's, for which Loew's paid Feist, Inc., $515.64 on July 21, 1941, Attached to the affidavit is a copy of the employment contract between Leo Feist and plaintiff, dated August 23, 1909. Under its terms Feist employed Piantadosi to write musical compositions, and Piantadosi conveyed to Feist the publishing and other rights in his music, written during the period of the contract, including the right to copyright and renew copyrights. Also attached are two assignments, signed by lyric writers McCarthy and Goodwin respectively, and dated November 25, 1939, transferring all rights in 'That's How I Need You' under the renewal of the copyright therein to Feist, Inc. Also attached are prior assignments dated September 18 and September 28, 1936, executed by the two writers to Feist, Inc., transferring all rights in the song, including all renewals of the copyrights and the right to renew the copyrights subsisting. Loew's own 51% of the stock of Robbins Music Corporation, which has a controlling interest in Feist, Inc., but Loew's actually has no control of the Robbins Corporation as it cannot elect more than one-half of the directors.

Loew's and M-G-M made a motion for a summary judgment, which was supported by the affidavit of Abe Olman, secretary and general manager of Feist, Inc., and of Robbins Music Corporation. He sets forth the following facts. 'That's How I Need You' was copyrighted by Leo Feist as proprietor, for he was the employer for whom the work had been made for hire by Piantadosi and he had received assignments from McCarthy and Goodwin, Leo Feist, Inc;, succeeded to the business of...

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