221 F.2d 569 (2nd Cir. 1955), 181, Shapiro, Bernstein & Co. v. Jerry Vogel Music Co.

• Docket Nº: 181, 23385.
• Citation: 221 F.2d 569, 105 U.S.P.Q. 178
• Party Name: SHAPIRO, BERNSTEIN & CO., Inc., Plaintiff-Appellee, v. JERRY VOGEL MUSIC CO., Inc., Defendant-Appellant.
• Case Date: April 18, 1955
• Court: United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 569

221 F.2d 569 (2nd Cir. 1955)

105 U.S.P.Q. 178

SHAPIRO, BERNSTEIN & CO., Inc., Plaintiff-Appellee,

v.

JERRY VOGEL MUSIC CO., Inc., Defendant-Appellant.

Nos. 181, 23385.

United States Court of Appeals, Second Circuit.

April 18, 1955

Submitted Feb. 11, 1955.

Rehearing Denied June 8, 1955. See 223 F.2d 252.

Lee V. Eastman, New York City, for plaintiff-appellee.

Edwin McMahon Singer, New York City (Leo E. Falkin, New York City, of counsel), for defendant-appellant.

Before CLARK, Chief Judge, HINCKS, Circuit Judge, and SMITH, District judge.

SMITH, District Judge.

This is an appeal from an interlocutory judgment holding defendant an infringer of the renewal copyright in the instrumental music of '12th Street Rag', and holding defendant on its counterclaim

Page 570

not entitled to rights in the renewal copyright of a song by the same title. D.C.S.D.N.Y., 115 F.Supp. 754.

Euday L. Bowman had composed the piece as an instrumental piano solo in 1914. Bowman in 1916 by assignment transferred all his rights in the piece, including renewal rights, to J. W. Jenkins Music Company. In 1918 the Jenkins Company employed James S. Sumner to write a lyric for Bowman's music and Jenkins copyrighted the song in 1919. Plaintiff-appellee later acquired all renewal rights in the instrumental music and the renewal copyrights therein, and claims renewal rights in the song by assignment from the Jenkins Company.

In 1947 Sumner assigned to appellant Vogel Company all his rights in the song, including renewal rights. Appellant Vogel Company thereafter filed a claim with the Register of Copyrights to the renewal rights in the song, and published the song with Bowman's music and Sumner's lyric.

The trial court found that Sumner wrote the lyric as a special job assignment, outside the line of his regular duties for the Jenkins Company. This finding is not attacked on appeal.

It followed that Sumner had an author's rights in his product. His right to an original copyright passed to Jenkins under his original contract with Jenkins to write a lyric for Bowman's music. But his renewal rights he retained until his assignment to the appellant Vogel Company in 1947 as above stated. It is not disputed that appellant Vogel Company now possesses whatever Sumner's rights were in the renewal copyright of the song.

The trial court held...