154 F.2d 480 (2nd Cir. 1946), 178, Heim v. Universal Pictures Co.

Docket Nº:178.
Citation:154 F.2d 480, 68 U.S.P.Q. 303
Party Name:HEIM v. UNIVERSAL PICTURES CO., Inc., et al.
Case Date:February 16, 1946
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 480

154 F.2d 480 (2nd Cir. 1946)

68 U.S.P.Q. 303

HEIM

v.

UNIVERSAL PICTURES CO., Inc., et al.

No. 178.

United States Court of Appeals, Second Circuit.

February 16, 1946

Page 481

Plaintiff sued defendants for infringement of his statutory copyright to his song, 'Ma Este Meg Boldog Vagyok, ' asking an injunction and an accounting. The alleged infringement consists of the use of a portion of plaintiff's song in defendant's song, 'Perhaps, ' which formed part of a motion-picture, 'Nice Girl, ' produced by Universal Pictures Co., Inc., in which 'Perhaps' was sung. Franchetti, composer of 'Perhaps', was named as one of the defendants but was not served.

The plaintiff is a citizen of Hungary, resident in the United States since March 8, 1939. As he was inducted into the United States army in October, 1942, he was not available to testify in court, and his deposition was admitted in evidence at the trial. He is a successful composer who wrote the music for a well-known foreign produced motion-picture which brought the actress Hedy Lamar to the attention of American motion-picture producers. He wrote his song in Hungary between 1934 and 1935, and assigned his rights therein in 1935 to Rozsavolgyi & Co., a Hungarian publisher. The song was first published in Hungary on November 11, 1935. An American copyright was secured by the publisher on September 14, 1936, by a registration and the deposit of one copy of the best edition published in Hungary. The application and the registration certificate show the correct date of publication. The copy deposited bears the notice 'Copyright 1936 by Rozsavolgyi & Co. Budapest.'

A similar copy with the same notice, is attached to plaintiff's complaint. The copyright was duly assigned to plaintiff by the publisher on October 28, 1941, and recorded in the Copyright Office on March 6, 1942.

The plaintiff in his deposition testified that his song 'Ma Este Meg Boldog Vagyok' was sung in the Hungarian picture entitled 'Budai Cukraszda'; that this Hungarian picture 'Budai Cukraszda' was first shown in the United States in 1936; that this Hungarian picture, with his song recorded therein, was played all over the United States, in every big town where there are about 30, 000 or 40, 000 Hungarians; that in New York it was played every year for three or four weeks, because new Hungarian pictures could not be obtained; that his son was performed by him in the United States with an orchestra- with a piano- in the Yorkville Casino in New York City; that it was performed by various Hungarian orchestras and performers; that he played this song with an orchestra which he conducted and broadcast over the Hungarian station WWRL in Woodside, Long Island, in 1939 and 1940; that copies of this song were sold in New York City by a dealer by the name of Keleman Brothers, who secured these copies from Budapest, as the song was not published here.

Plaintiff further testified as follows: In the writing of his song he did not base any part of it upon any prior musical work; he definitely was not influenced at all by any prior works; and that every part of his musical composition was original with him. In Berlin, in 1930, for the first time he met Joe Pasternak, the producer of the film 'Nice Girl' for the Universal Pictures Co., Inc., in which the defendants' song 'Perhaps' was sung by the actress Deanna Durbin; from 1933 through 1937 he saw Joe Pasternak very often in Europe, but mostly in Budapest and in Vienna; Pasternak lived in a studio in Budapest, and the plaintiff also lived in the studio; that Pasternak, who represented the defendant Universal Pictures Co., Inc., in Europe at that time, had an office in the same studio where the Hungarian

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picture 'Budai Cukraszda' was produced.

Plaintiff said that he came to the United States on March 8, 1939. By letter, he subsequently 'contacted' Pasternak, who was then in California, through his agent, about his song 'Ma Este Meg Boldog Vagyok, ' because when Pasternak was in Hungary 'he liked it very much.' Plaintiff said that he does not claim that the lyrics of the defendants' song infringed upon his composition; but that only the verse of defendants' composition infringed upon the chorus of his composition, as the verse of the defendants' song is the same as the chorus of his song; and that 'where little changes are made they are unmusical.' He said that no part of the chorus of his song was taken from Dvorak's 'Humoresque'; that no part of the chorus of his song was taken from any music in the public domain; and that his song is a wholly original composition; that the Hungarian picture 'Budai Cukraszda' played in the State of California; but that he has never met Aldo Franchetti, the writer of defendants' song, 'Perhaps, ' or Andres DeSegurola, the writer of the lyrics of defendants' song.

Without contradiction, the evidence shows the following: Plaintiff's agent, Foreign & Domestic Music Corp., wrote to Pasternak, as follows:

'November 4th, 1940

'Mr. J. Pasternak

'Universal Pictures Company, Inc.

'Universal City, California.

'Dear Mr. Pasternak:

'We are pleased to announce that (Emery H. Heim) Hadju Imbre of Budapest who you know very well is under contract with our company. We are sending you under separate cover some of his outstanding compositions published in Hungary and here. Included in this lot are:

'Dumaparti Randevu

'Budai Cukraszda

'Red Bizom Afelesegem

'Tokai Rapszodia

If interested in using any of the songs please be good enough to communicate with this office.

'Very truly yours, 'Foreign & Domestic Music Corp. 'Samuel Cummins'

On November 19, 1940, Pasternak, on the stationery of the Universal Pictures Company, Inc., replied from California, as follows:

'November 19, 1940

'Mr. Samuel Cummins,

'Foreign & Domestic Music Corp.

'230 E. 41st Street,

'New York, N.Y.

'Dear Mr. Cummins:

'I have your letter of the 14th and the music which I have noted.

'I am sorry to tell you that at the present time I would not be interested because I have most of the music set for my three forthcoming productions. Perhaps at some time in the future I can use some of your material. Many thanks for sending in your suggestions to me.'

Celia B. Cohen, the secretary and treasurer of the Foreign & Domestic Music Corporation, testified that she mailed to Joe Pasternak the letter of November 4, 1940, and also the musical compositions mentioned in said letter, one of which was Budai Cukraszda. She further testified that when the letter of Joe Pasternak dated November 19, 1940, was received by the Foreign & Domestic Music Corporation, the music was not enclosed and was never returned thereafter. She also testified on cross examination that the corporation was owned and controlled by plaintiff and two others, and that plaintiff was the 'most active member of the corporation' but did not alone determine its policies.

Plaintiff's attorney served a notice upon the attorney for the defendants to produce upon the trial of this action the contract between Pasternak and the Universal Pictures Co., Inc., but the same was not produced; but instead the attorney for defendant stipulated that Pasternak was the producer of the film 'Nice Girl, ' in which the defendants' song 'Perhaps' was sung by the star Deanna Durbin, and that Pasternak had charge of the production of the film; that as such producer Pasternak had the power to determine the use or exclusion of the use of the song if he so desired; that all songs controlled by Universal Pictures Company and used in their pictures are published by Robbins Music Corp. and that the song 'Perhaps' was such a song; and that the Universal Music Corporation is a subsidiary of Universal Pictures Co., Inc., and that the copyright to the song 'Perhaps' was held in its name.

Plaintiff called as a witness one Adler who, in open court at the trial, testified as an expert on music that there is a substantial similarity between the 'verse' of the defendants' song and the 'chorus' of plaintiff's

Page 483

song, 1 And that in his opinion there was a substantial taking of that 'chorus' in defendants' 'verse.'

After cross examination, he testified on redirect that, as a musician, if he heard the chorus of the plaintiff's song, he would not say that they would bring to his mind any similarity with 'Humoresque.'

Samuel Cummins, as witness for plaintiff, testified on examination before trial that plaintiff transferred the song to Foreign and Domestic Music Corporation, of which he, Cummins, was general manager, under a written agreement which had been destroyed in a fire; the corporation had never published the song or done anything with it; no musical arrangement had been made of the song for commercial performance, it had never been submitted to anyone for performance, and had never been submitted to any recording company.

Franchetti did not appear at the trial. Defendants put in evidence his deposition taken in California on December 5, 1942, at the instance of defendants. It consisted of written, direct interrogatories and cross interrogatories. In that deposition he said that he is a prominent musical composer and conductor, having received a diploma of professor of music from the Royal Conservatory of Milan in 1907; for many years had played practically every musical instrument and had conducted orchestras all over the world; composed about two thousand songs and about one hundred and fifty major works, such as symphonies, orchestra poems and operas, having received the David Bispham gold medal for his opera 'Namiko-San' which was performed all over the United States; and since 1937 had been in the regular employ of Warner Bros., motion picture studio in California. He further testified that he wrote his song for himself about December, 1939, with no intention to sell it; that the words were...

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