209 U.S. 1 (2017), White-Smith Music Publishing Company v. Apollo Company

Citation:209 U.S. 1, 28 S.Ct. 319, 52 L.Ed. 655
Party Name:White-Smith Music Publishing Company v. Apollo Company
Case Date:February 24, 1908
Court:United States Supreme Court

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209 U.S. 1 (2017)

28 S.Ct. 319, 52 L.Ed. 655

White-Smith Music Publishing Company


Apollo Company

United States Supreme Court

February 24, 1908




While this Court is not bound under the doctrine of stare decisis by the decisions of lower federal courts which have not been reviewed by this Court as to the construction of a federal statute, or by the decisions of the highest courts of foreign countries construing similar statutes of those countries, where all of such decisions express the same views on the subject involved, the omission of Congress, when subsequently amending the statute, to specifically legislate concerning that subject may be regarded by this Court as an acquiescence by Congress in the judicial construction so given to the statute.

While the United States is not a party to the Berne Copyright Convention of 1886, this Court will hesitate to construe the Copyright Act, as amended March 3, 1891, in such manner that foreign authors and composers can obtain advantages in this country which, according to that convention, are denied to our citizens abroad.

What is included within the protection of the copyright statute depends upon the construction of the statute itself, as the protection given to copyright in this country is wholly statutory.

The amendment of § 4966, Rev.Stat., by the Act of January 6, 1897, 29 Stat. 481, providing penalties for infringements of copyrighted dramatic or musical compositions, did not enlarge the meaning of previous and unamended sections.

A "copy" of a musical composition within the meaning of the copyright

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statute is a written or printed record of it in intelligible notation, and this does not include perforated rolls which, when duly applied and properly operated in connection with musical instruments to which they are adapted, produce the same musical tones as are represented by the signs and figures on the copy in staff notation of the composition filed by the composer or copyright.

The existing copyright statute his not provided for the intellectual conception, even though meritorious, apart from the thing produced, but has provided for the making and filing of a tangible thing against the duplication whereof it has protected the composer.

Considerations of the hardships of those whose published productions are not protected by the copyright properly address themselves to Congress, and not to the courts.

147 F. 226 affirmed.

The facts are stated in the opinion.

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DAY, J., lead opinion

MR. JUSTICE DAY delivered the opinion of the Court.

These cases may be considered together. They are appeals from the judgment of the Circuit Court of Appeals of the Second Circuit (147 F. 226) affirming the decree of the Circuit Court of the United States for the Southern District of New York, rendered August 4, 1905 (139 F. 427), dismissing the bills of the complainant (now appellant) for want of equity. Motions have been made to dismiss the appeals, and a petition for writ of certiorari has been filed by appellant. In view of the nature of the cases, the writ of certiorari is granted, the record on the appeals to stand as a return to the writs. Montana Mining Co. v. St. Louis Mining Co., 204 U.S. 204.

The actions were brought to restrain infringement of the copyrights of two certain musical compositions, published in the form of sheet music, entitled respectively, "Little Cotton Dolly" and "Kentucky Babe." The appellee, defendant below, is engaged in the sale of piano players and player pianos known as the "Apollo," and of perforated rolls of music used

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in connection therewith. The appellant, as assignee of Adam Geibel, the composer, alleged compliance with the Copyright Act, and that a copyright was duly obtained by it on or about March 17, 1897. The answer was general in its nature, and, upon the testimony adduced, a decree was rendered, as stated, in favor of the Apollo Company, defendant below, appellee here.

The action was brought under the provisions of the Copyright Act, § 4952 (3 U.S.Comp.Stat. Supp. 1907, p. 1021), giving to the author, inventor, designer, or proprietor of any book, map, chart, dramatic or musical [28 S.Ct. 320] composition the sole liberty of printing, reprinting, publishing, completing, copying, executing, finishing and vending the same. The circuit courts of the United States are given jurisdiction under § 4970 (3 U.S.Comp.Stat. 3416) to grant injunctions according to the course and principles of courts of equity in copyright cases. The appellee is the manufacturer of certain musical instruments adapted to be used with perforated rolls. The testimony discloses that certain of these rolls, used in connection with such instruments, and being connected with the mechanism to which they apply, reproduce in sound the melody recorded in the two pieces of music copyrighted by the appellant.

The manufacture of such instruments and the use of such musical rolls has developed rapidly in recent years in this country and abroad. The record discloses that, in the year 1902, from seventy to seventy-five thousand of such instruments were in use in the United States, and that from one million to one million and a half of such perforated musical rolls, to be more fully described hereafter, were made in this country in that year.

It is evident that the question involved in the use of such rolls is one of very considerable importance, involving large property interests and closely touching the rights of composers and music publishers. The case was argued with force and ability, orally and upon elaborate briefs.

Without entering into a detailed discussion of the mechanical

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construction of such instruments and rolls, it is enough to say that they are what has become familiar to the public in the form of mechanical attachments to pianos, such as the pianola, and the musical rolls consist of perforated sheets, which are passed over ducts connected with the operating parts of the mechanism in such manner that the same are kept sealed until, by means of perforations in the rolls, air pressure is admitted to the ducts which operate the pneumatic devices to sound the notes. This is done with the aid of an operator, upon whose skill and experience the success of the rendition largely depends. As the roll is drawn over the tracker board, the...

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