Edward B. Marks Music Corp. v. Jerry Vogel Music Co.
| Decision Date | 26 January 1944 |
| Docket Number | No. 187.,187. |
| Parties | EDWARD B. MARKS MUSIC CORPORATION v. JERRY VOGEL MUSIC CO., Inc. |
| Court | U.S. Court of Appeals — Second Circuit |
Arthur E. Garmaize, of New York City, for appellant.
Arthur F. Driscoll, of New York City, for appellee.
Before L. HAND, CHASE, and FRANK, Circuit Judges.
The plaintiff appeals from a judgment, dismissing its complaint after trial in an action for the infringement of the copyright of a song. The infringement is conceded, but the defendant justifies on the ground that it is in equity a joint owner of the copyright. The facts, which are not in dispute, are as follows. In the year 1893, one, Edward B. Marks, composed the words for a song entitled, "December and May," which he took to a publisher of songs, named Harding, who bought it. Harding, without Mark's knowledge, engaged one Loraine, to compose music for the words, which Loraine did; and on November 9, 1893, Harding duly complied with the requirements of the then existing copyright law, published the song, and secured the copyright upon it as a "musical composition." Marks and Loraine never met until years later, and had not therefore worked in conjunction, except that Marks intended the words to be set to music which someone else should compose, and that Loraine understood that he was composing music for those particular words. On November 11, 1920, within the year before the copyright expired, Marks applied for a renewal of the copyright upon the song as a "musical composition", and procured a certificate of renewal to himself as author; and this renewed copyright is now vested by assignment in the plaintiff. Loraine never applied for renewal, but he assigned all his rights in the song to the defendant on July 20, 1940.
We decided in Maurel v. Smith, 2 Cir., 271 F. 211, that if one of several authors took out the copyright in his own name upon a joint work, the copyright was valid, but the copyright owner held it upon a constructive trust for the other authors. This we extended to the renewal of a copyright in Silverman v. Sunrise Pictures Corporation, 2 Cir., 273 F. 909, 19 A.L.R. 289. Carter v. Bailey, 64 Me. 458, 18 Am.Rep. 273, turned upon the fact that there was no equity in the plaintiff's bill, but assumed that the co-tenant might be liable at law, as he always has been in equity (Minion v. Warner, 238 N.Y. 413, 144 N.E. 665, 41 A.L.R. 1412); it accords with what we have held. Hence, if the song was the joint work of Marks and Loraine, when Marks took out the renewed copyright, it was valid, but he held it upon a constructive trust for Loraine, as does the plaintiff, his assignee. There only remains to be decided whether the song was a joint work, or a "composite", as that phrase is used in §§ 23 and 24 of the Copyright Act, 17 U.S.C.A. §§ 23, 24. The plaintiff says that it was the second, and that therefore Marks could and did separately renew the copyright upon the words.
As we have said, the original copyright was of the song as a "musical composition," and the renewal was in the same terms, the work being described as a "song and cho." (song and chorus). So far as appears, Marks therefore never meant to renew the copyright for the words alone, though we will assume that that made no difference, if he was entitled to do so. He was not; the song was not a "composite" work, and it had to be renewed as a whole, or not at all, for it was the indivisible product of "joint authors." So far as we know, the first definition of "joint authorship" is in Levy v. Rutley, L.R. 6 C.P. 523: "a joint laboring in furtherance of a common design" (per Keating, J., p. 529); an agreement "to write a piece, there being an original joint design," (per Montague Smith, J., p. 530). This definition I accepted in Maurel v. Smith, D.C., 220 F. 195, when that case was before me in ...
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