White-Smith Music Pub. Co. v. Apollo Co.

• Citation: 147 F. 226
• Decision Date: 25 May 1906
• Docket Number: 216,221.
• Parties: WHITE-SMITH MUSIC PUB. CO. v. APOLLO CO. (two cases).
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

147 F. 226

WHITE-SMITH MUSIC PUB. CO. v. APOLLO CO. (two cases).

Nos. 216, 221.

United States Court of Appeals, Second Circuit.

May 25, 1906

Charles E. Hughes, for appellant.

C. S Burson, for appellee.

A. H Walker, for Auto-Music Perforating Co.

Before LACOMBE, TOWNSEND, and COXE, Circuit Judges.

PER CURIAM.

The questions raised in these cases are of vast importance and involve far-reaching results. They have been exhaustively discussed in the clear and forcible briefs and arguments of counsel. We are of the opinion that the rights sought to be protected by these suits belong to the same class as those covered by the specific provisions of the copyright statutes and that the reasons which led to the passage of said statutes apply with great force to the protection of rights of copyright against such an appropriation of the fruits of an author's conception as results from the acts of defendant. But in view of the fact that the law of copyright is a creature of statute, and is not declaratory of the common law, and that it confers distinct and limited rights which did not exist at the common law, we are constrained to hold that it must be strictly construed, and that we are not at liberty to extend its provisions, either by resort to equitable considerations or to a strained interpretation of the terms of the statute.

We are therefore of the opinion that a perforated paper roll, such as is manufactured by defendant, is not a copy of complainant's staff notation, for the following reasons It is not a copy in fact. It is not designed to be read or actually used in reading music as the original staff notation is; and the claim that it may be read, which is practically disproved by the great preponderance of evidence, even if true, would establish merely a theory or possibility of use, as distinguished from an actual use. The argument that, because the roll is a notation or record of the music, it is therefore a copy, would apply to the disc of the phonograph or the barrel of the organ, which, it must be admitted, are not copies of the sheet music. The perforations in the rolls are not a varied form of symbols substituted for the symbols used by the author. They are mere adjuncts of a valve mechanism in a machine. In fact, the machine or musical playing device is the thing which appropriates the author's property and publishes it by producing the musical sounds, thus conveying the author's...