Harms, Inc. v. Sansom House Enterprises, Inc.

• Decision Date: 29 April 1958
• Docket Number: 13267.,Civ. A. No. 13265
• Citation: 162 F. Supp. 129
• Parties: HARMS, INC., and Bourne, Inc., v. SANSOM HOUSE ENTERPRISES, INC., and Muse-Art Corporation. LEO FEIST, INC., Crawford Music Corporation and Williamson Music, Inc., v. The LEW TENDLER TAVERN, INC., and Muse-Art Corporation.
• Court: U.S. District Court — Eastern District of Pennsylvania

162 F. Supp. 129

HARMS, INC., and Bourne, Inc., v. SANSOM HOUSE ENTERPRISES, INC., and Muse-Art Corporation.

LEO FEIST, INC., Crawford Music Corporation and Williamson Music, Inc., v. The LEW TENDLER TAVERN, INC., and Muse-Art Corporation.

Civ. A. Nos. 13265, 13267.

United States District Court E. D. Pennsylvania.

April 29, 1958.

COPYRIGHT MATERIAL OMITTED

George E. Beechwood, Philadelphia, Pa., Bernard Korman, New York City, for plaintiffs.

Harry A. Rutenberg, Philadelphia, Pa., for Sansom House, Inc., and Muse-Art Corp.

Norman H. Fuhrman, Philadelphia, Pa., for Lew Tendler Tavern, Inc.

LORD, District Judge.

These are companion cases which were consolidated for the purposes of trial. The points of law involved are identical, and the facts very similar. Accordingly, counsel stipulated at trial that the first-captioned case, Civil Action No. 13265, should be governed by the second. Therefore, the findings of fact, discussion and conclusions of law herein will be confined to the second case, Civil Action No. 13267.

The action is brought by three music publishers as respective claimants of the copyrights in four musical compositions. Unauthorized public performance of this popular music is alleged to have taken place on July 5, 1951, at Lew Tendler's restaurant in Philadelphia. Plaintiffs have set up the infringements of the four compositions as separate causes of action, and seek injunctions, damages of not less than $250 in each cause of action, costs and attorneys' fees. Their complaint alleges that the wrongful acts of defendants have caused and are causing irreparable injury to plaintiffs, for which they are without any adequate remedy at law.

After denial of their motion for non-suit at the close of plaintiffs' testimony, defendants elected to offer no testimony, and moved for dismissal. Upon denial of that motion, defendants rephrased it, designating it as a motion for judgment on the record.

Ruling upon the latter motion was reserved pending further argument of counsel and the submission of briefs. And now the Court, after trial, examination of the pleadings, and consideration of briefs and arguments, makes the following

Findings of Fact

1. Plaintiff, Leo Feist, Inc., was on July 5, 1951, and still is a corporation duly organized and existing under the laws of the State of New York, engaged in the business of publishing, vending and otherwise marketing copyrighted musical works.

2. Plaintiff, De Sylva, Brown and Henderson, Inc., (whose former corporate name was Crawford Music Corporation) was on July 5, 1951, and still is a corporation duly organized and existing under the laws of the State of New York, engaged in the business of publishing, vending and otherwise marketing copyrighted musical works.

3. Plaintiff, Williamson Music, Inc., was on July 5, 1951, and still is a corporation duly organized and existing under the laws of the State of New York, engaged in the business of publishing, vending and otherwise marketing copyrighted musical works.

4. Defendant, The Lew Tendler Tavern, Inc., was on July 5, 1951, and still is a corporation duly organized and existing under the laws of the State of Pennsylvania, operating a business for profit at 227-229 South Broad Street, Philadelphia, Pennsylvania.

5. In connection with the operation of such place of business and as part of the entertainment provided there, and for the purpose of attracting trade thereto, musical compositions were and are publicly performed for profit, for the entertainment and amusement of patrons attending such place, and to make such place of business an attractive place for the patronage of the general public.

6. Defendant, Muse-Art Corporation, was on July 5, 1951, and still is a corporation duly organized and existing under the laws of the State of Pennsylvania, engaged in the business of transmitting and furnishing performances of musical compositions to restaurants, taverns and other public places, for profit, by arrangement with the owners or operators of such establishments.

7. Plaintiff, Leo Feist, Inc., was on July 5, 1951, and still is the proprietor of the copyright in the musical composition "Blue Heaven."

8. Plaintiff, De Sylva, Brown and Henderson, Inc., (whose former corporate name was Crawford Music Corporation) was on July 5, 1951, and still is the proprietor of the copyrights in the musical compositions "Smile, Darn Ya, Smile" and "Together."

9. Plaintiff, Williamson Music, Inc., was on July 5, 1951, and still is the proprietor of the copyright in the musical composition "If I Loved You."

10. On July 5, 1951, the compositions "Blue Heaven," "Smile, Darn Ya, Smile," "Together" and "If I Loved You" were publicly performed for profit at the premises of the defendant, The Lew Tendler Tavern, Inc.

11. The said performances were furnished to defendant, The Lew Tendler Tavern, Inc., by defendant, Muse-Art Corporation by transmission over leased telephone wires, pursuant to an arrangement made between the two defendants.

12. Neither defendant had received permission from plaintiff, Leo Feist, Inc., to perform the composition "Blue Heaven," from plaintiff, De Sylva, Brown and Henderson, Inc., to perform the compositions "Smile, Darn Ya, Smile" and "Together," nor from plaintiff, Williamson Music, Inc., to perform the composition "If I Loved You" on July 5, 1951 at said premises of defendant, The Lew Tendler Tavern, Inc.

13. The performances on July 5, 1951 of the said musical compositions caused injury and damage to the plaintiffs, which damage cannot be accurately ascertained or computed.

14. The defendants, Muse-Art Corporation and The Lew Tendler Tavern, Inc., in their answer, pleaded as an affirmative defense in paragraphs 13, 26, 38 and 49 that plaintiffs and the American Society of Composers, Authors and Publishers have formed and effectuated a conspiracy to monopolize the entire field of musical composition in violation of the Anti-Trust Laws and have been guilty of discrimination to the damage and prejudice of the defendants. No evidence was offered at the trial of these cases to sustain said allegations, although the defendants were not denied opportunity to do so.

15. Plaintiffs were required to employ counsel who rendered extensive services in the prosecution and trial of this action, and plaintiffs are entitled to be reimbursed therefor.

Discussion

Ownership of the copyrights is uncontradicted. During the trial, plaintiffs introduced certificates of copyright registration, issued by the Copyright office, for the four compositions named in the complaint. Those certificates are prima facie evidence of the facts contained therein under Section 209 of the Copyright Law, Title 17 U.S.C.A.; Jerry Vogel Music Co. v. Forster Music Publishers, 2 Cir., 1945, 147 F.2d 614, certiorari denied 1945, 325 U.S. 880, 65 S.Ct. 1573, 89 L.Ed. 1996; Berlin v. Evans, D.C.E.D.Pa.1924, 300 F. 677; Edward B. Marks Music Corp. v. Borst Music Pub. Co., D.C.D.N.J.1953, 110 F. Supp. 913. And, as the Berlin case said, in the absence of contradiction, that prima facie evidence was sufficient.

Section 1(e) of the Copyright Law, 17 U.S.C.A., provides that the copyright proprietor shall have the exclusive right "to perform the copyrighted work publicly for profit if it be a musical composition."

In construing Section 1(e) of the Copyright Law, the courts have uniformly adopted the view that any performance at a restaurant to which the public is admitted and where food and beverages are sold, is given for the purpose of profit and, if unauthorized, is an infringement of the right granted by this section. Herbert v. Shanley, 1917, 242 U.S. 591, 37 S.Ct. 232, 61 L.Ed. 511.

That case involved copyrighted music played in the dining room of the Vanderbilt Hotel for the entertainment of guests during meal times by an orchestra employed and paid by the hotel company. Mr. Justice Holmes, writing for the court, said:

"If the rights under the copyright are infringed only by a performance where money is taken at the door they are very imperfectly protected. * * * It is enough to say that there is no need to construe the statute so narrowly. The defendants' performances are not eleemosynary. They are part of a total for which the public pays, and the fact that the price of the whole is attributed to a particular item which those present are expected to order, is not important. It is true that the music is not the sole object, but neither is the food, which probably could be got cheaper elsewhere. The object is a repast in surroundings that to people having limited powers of conversation, or disliking the rival noise, give a luxurious pleasure not to be had from eating a silent meal. If music did not pay it would be given up. If it pays it pays out of the public's pocket. Whether it pays or not, the purpose of employing it is profit, and that is enough." 242 U. S. at pages 594-595, 37 S.Ct. at page 233.

The teachings of that decision have been adopted and followed in an apparently unbroken line of cases since 1917. In 1931 the United States Supreme Court answered in the affirmative the following certified question:

"Do the acts of a hotel proprietor, in making available to his guests, through the instrumentality of a radio receiving set and loud speakers installed in his hotel and under his control and for the entertainment of his guests, the hearing of a copyrighted musical composition which has been broadcast from a radio transmitting station, constitute a performance of such composition within the meaning of 17 U.S.C. § 1(e) 17 U.S.C.A. § 1(e)?" Buck v. Jewell-La Salle Realty Co., 1931, 283 U.S. 191, 51 S.Ct. 410, 75 L.Ed. 971.

Following that case, it was held that musical copyright was infringed by unlicensed performance for profit where a hotel received the music by radio and "piped" it to the guestrooms of such hotel. The musical outlets were subject to the control of the guests. These intramural broadcasts were...