Victor Herbert v. Shanley Company No 427 John Church Company v. Hilliard Hotel Company No 433
| Decision Date | 22 January 1917 |
| Docket Number | Nos. 427 and 433,s. 427 and 433 |
| Parties | VICTOR HERBERT, Harry B. Smith, et al., Petitioners, v. SHANLEY COMPANY. NO 427. JOHN CHURCH COMPANY, Petitioner, v. HILLIARD HOTEL COMPANY and Henri de Martini. NO 433 |
| Court | U.S. Supreme Court |
Messrs. Nathan Burkan and William J. Hughes for petitioner in no. 427.
Messrs. Levi Cooke, Abraham S. Gilbert, and Francis Gilbert for respondent in No. 427.
Messrs. Louis J. Vorhaus, Moses H. Grossman, and William Grossman for petitioner in No. 433.
[Argument of Counsel from page 592 intentionally omitted] Messrs. Charles J. Campbell, Frank A. K. Boland, and Levi Cooke for respondents in No. 433.
These two cases present the same question: whether the performance of a copyrighted musical composition in a restaurant or hotel without charge for admission to hear it infringes the exclusive right of the owner of the copyright to perform the work publicly for profit. Act of March 4, 1909, chap. 320, § 1(e), 35 Stat. at L. 1075, Comp. Stat. 1913, § 9517. The last-numbered case was decided before the other and may be stated first. The plaintiff owns the copyright of a lyric comedy in which is a march called 'From Maine to Oregon.' It took out a separate copyright for the march and published it separately. The defendant hotel company caused this march to be performed in the dining room of the Vanderbilt Hotel for the entertainment of guests during meal times, in the way now common, by an orchestra employed and paid by the company. It was held by the circuit court of appeals, reversing the decision of the district court, that this was not a performance for profit within the meaning of the act. 136 C. C. A. 639, 221 Fed. 229.
The other case is similar so far as the present discussion is concerned. The plaintiffs were the composers and owners of a comic opera entitled 'Sweethearts,' containing a song of the same title as a leading feature in the performance. There is a copyright for the opera and also one for the song, which is published and sold separately. This the Shanley Company caused to be sung by professional singers, upon a stage in its restaurant on Broadway, accompanied by an orchestra. The district court, after holding that by the separate publication the plaintiffs' rights were limited to those conferred by the separate copyright,—a matter that it will not be necessary to discuss,—followed the decision in 136 C. C. A. 639, 221 Fed. 229, as to public performance for profit. 222 Fed. 344. The decree was affirmed by the circuit court of appeals. 143 C. C....
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