Buck v. Swanson

Citation33 F. Supp. 377
Decision Date28 December 1939
Docket NumberNo. 562.,562.
PartiesBUCK v. SWANSON et al.
CourtUnited States District Courts. 8th Circuit. United States District Court of Nebraska

COPYRIGHT MATERIAL OMITTED

Louis D. Frohlich and Herman Finkelstein, both of New York City, and L. J. TePoel, of Omaha, Neb., for plaintiffs.

William J. Hotz, Sp. Asst. to the Atty. Gen., of Nebraska, John Riddell, Asst. to the Atty. Gen., of Nebraska, Gordon Diesing, of Omaha, Neb., and Andrew Bennett, of Washington, D. C., for defendants.

Before GARDNER, Circuit Judge and MUNGER and DONOHUE, District Judges.

GARDNER, Circuit Judge.

This is a suit in equity in which plaintiffs seek to enjoin the enforcement of Legislative Bill 478 of the State of Nebraska, Laws 1937, c. 138, and which by its terms became effective May 17, 1937.

The American Society of Composers, Authors and Publishers, a voluntary unincorporated association under the General Associations Law of New York, consisting of a large number of persons, firms and corporations who own or control copyrighted vocal or instrumental musical compositions, as authors, composers and publishers, through Gene Buck, its president, and certain individuals and corporations interested in copyrighted musical compositions are the plaintiffs. The secretary of state, the state treasurer, the auditor of public accounts, and the attorney general, all of the State of Nebraska, as well as the county attorneys of various counties of Nebraska, are the defendants.

The statute, the enforcement of which is sought to be enjoined, is too voluminous to be set out herein in haec verba, but it will be found in the subjoined note.1

There are approximately 1,000 composer members of the American Society of Composers, Authors and Publishers, hereinafter referred to as ASCAP, in the United States, and 123 publisher members who constitute the principal publishers of the country. Each member has assigned to the society the exclusive right of public performance for profit of his copyrighted musical compositions for periods of five years at a time, the present contracts between the society and its members expiring December 31, 1940. The society has issued blank licenses to the users of its copyrights, by which the latter are permitted to perform publicly for profit at any time, all the musical compositions owned, written or composed by members of the society without requiring further consent of the owner of the particular composition performed.

These blanket licenses include not only the right to perform the works of the members of the society, but also grant the right to perform the works of some 44,000 members of other similar societies throughout the civilized world, with which societies ASCAP has contracts authorizing such licenses.

In Nebraska there are some 350 dance pavilions and ballrooms of a class that are independent of taverns where dancing is carried on incidentally. There are ten radio stations operating within the state, of which one is affiliated with the Columbia Broadcasting Network and one with the National Broadcasting Network. The other stations initiate their own vocal and instrumental musical programs. A large number of theaters are users of music. There are 284,000 radio receiving sets in private homes, and about one-third of the population of the state at some time during the year attend dances and balls where music is played. In 1938 approximately $12,000 was collected by ASCAP from the theaters in the state. The largest radio station in Nebraska pays about $26,000 to the society annually. Another group of stations paid the society about $27,000 in 1938. There were 391 signed contracts with users of music in Nebraska introduced in evidence, upon which an aggregate of approximately $20,000 was paid ASCAP during 1938. The society is given, by its members, the exclusive right to make collections, fix prices, and otherwise carry on the public performance of all the musical compositions it controls. Some $6,000,000 was taken in for public performance rights by the society in the United States during 1938. Fifty per cent of its net commissions was divided among the composer members and the other fifty per cent was divided among the publisher members. These groups are classified, but the classification does not seem to have any material bearing upon the issues presented. Of the popular music necessary for the successful operation of radio stations, dance halls, hotels and theaters, the society has control of about 85% or 90% and also has control of from 50% to 75% of the standard or older music that is played occasionally. All of the large and more influential publishers of music in the United States are members of the society. The users of music in Nebraska can not successfully carry on their business except they deal with the plaintiff society because there is no place where nor person or agency to whom users of music in Nebraska may go in order to deal for public performance rights and negotiate for music in any substantial amount sufficient to meet the ordinary needs of music users in the state, except the society.

All the contentions of plaintiffs, as well as those of the defendants, go to the constitutional validity of the statute involved. Whether or not, under the common law of Nebraska the contracts between ASCAP and its members, and between it and the users of music in Nebraska, are valid or not, we need not consider. That issue is not before us, but the single question is the constitutional validity of the challenged statute.

It appears from the evidence that prior to the organization of the plaintiff society, an author or composer who had obtained a copyright for his production had no practical means of enforcing the exclusive right given him by the Copyright Act. He was not so equipped nor organized to discover violations of his rights, and it would require much time and a large amount of money to enforce his rights by means of litigation. Users of music, on the other hand, who wished to buy the rights of public performance for profit, were unable to ascertain who the copyright owner was and to whom to go. It was for the purpose of protecting the legal rights of its members in their copyrighted musical compositions against infringement by public performance for profit that the society was organized.

The control or prohibition of combinations in restraint of trade and the prohibition of monopolistic practices is recognized as a proper exercise of the police power of the state. Nebbia v. New York, 291 U.S. 502, 54 S.Ct. 505, 78 L.Ed. 940, 89 A.L.R. 1469; Waters-Pierce Oil Co. v. Texas, 212 U.S. 112, 115, 29 S.Ct. 227, 53 L.Ed. 431; Bayside Fish Flour Co. v. Gentry, 297 U.S. 422, 56 S.Ct. 513, 80 L.Ed. 772; Crescent Cotton Oil Co. v. Mississippi, 257 U.S. 129, 42 S.Ct. 42, 66 L. Ed. 166; Central Lumber Co. v. South Dakota, 226 U.S. 157, 33 S.Ct. 66, 57 L.Ed. 164; Paramount Pictures v. Langer, D.C., 23 F.Supp. 890. While regulation of such public practices as are deemed to be contrary to the public policy of the state is a proper exercise of its police power, yet the exercising of such power is subject to the restrictions imposed by the Federal Constitution, which must, of course, be recognized as the supreme law of the land. A state statute, though enacted in pursuance of the police power, is void if in contravention of any express provision of the Federal Constitution or of a valid federal statute, or if it constitutes an interference with matters that are within the exclusive scope of federal power.

The Act of March 4, 1909, Chap. 320, Sec. 1 (e), 35 Stat. 1073, Title 17 U. S.C.A. §§ 1-63, enacted pursuant to the grant of power in Article 1, Section 8 of the Constitution, was intended to grant valuable enforcible rights to authors and publishers without burdensome requirements, in order to afford greater encouragement to the production of literary works of lasting benefit to the world. Washingtonian Pub. Co. v. Pearson, 306 U.S. 30, 59 S.Ct. 397, 83 L.Ed. 470. The policy and purpose of the statute is to grant to the individual the right to control the use of the production covered by the copyright. Of course, the Act gives him no right to combine with others to insure control of prices and the consequent power of monopoly of an entire field by combination. Plaintiffs urge necessity as a justification or warrant for their organization. It is urged that without some such means of protection, the individual copyright owner is helpless to protect his rights, but if the statute violates no rights guaranteed to the plaintiffs by the Constitution or laws of the United States, the motive for the organization or acts of ASCAP, however impelling is not material.

It is contended that the state statute deprives copyright owners of the right to control public performance for profit of their copyrighted musical compositions apart from the sale of sheet music. The copyright is distinct from the material object copyrighted. It is an intangible incorporeal right in the nature of a privilege or franchise quite independent of any material substance such as the manuscript or the plate used for printing. King Features Syndicate v. Fleischer, 2 Cir., 299 F. 533. The owner of the copyright has the right to dispose of it on such terms as he may see fit, or he may decline to dispose of it on any terms. He has an individual right of exclusive enjoyment similar to that of a patentee of an invention. United States v. Dubilier Condenser Corp., 289 U.S. 178, 53 S.Ct. 554, 77 L.Ed. 1114, 85 A.L.R. 1488; United States v. American Bell Telephone Co., 167 U.S. 224, 17 S.Ct. 809, 42 L.Ed. 144; Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 4 S.Ct. 279, 28 L.Ed. 349; American Tobacco Co. v. Werckmeister, 207 U.S. 284, 28 S.Ct. 72, 52 L.Ed. 208, 12 Ann.Cas. 595; Caliga v. Inter Ocean Newspaper Co., 215 U.S. 182, 30 S.Ct. 38, 54 L.Ed. 150; Rubber Tire Wheel Co. v. Milwaukee Rubber Works Co., 7 Cir., 154 F. 358. The society as an assignee of the rights...

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13 cases
  • Remick Music Corp. v. Interstate Hotel Co. of Nebraska
    • United States
    • U.S. District Court — District of Nebraska
    • December 9, 1944
    ...from its other parts, thus rendering the whole act invalid; and that the injunction sought should be allowed. Buck v. Swanson, D.C.Neb., 33 F.Supp. 377, 387, 388. Appeal was taken to the Supreme Court of the United States, which, on May 26, 1941, delivered its opinion, written by Mr. Justic......
  • Monroe v. Pape
    • United States
    • U.S. District Court — Northern District of Illinois
    • September 18, 1963
    ...rights accruing under federal laws); Caldwell v. Alabama Dry Dock & Shipbuilding Company, 5 Cir., 161 F.2d 83, 85 (same); Buck v. Swanson, D.C., 33 F.Supp. 377, 387 (a state statute, though enacted in pursuance of the police power, is void if in contravention of any express provision of the......
  • Allied Artists Pictures Corp. v. Rhodes
    • United States
    • U.S. District Court — Southern District of Ohio
    • July 10, 1980
    ...of Nebraska the right of public performance for profit granted by the prior Copyright Act. Id. at 543 (quoting from Buck v. Swanson, 33 F.Supp. 377, 388 (D.Neb.1939)).19 Accordingly, the Court will address plaintiffs' assertions to determine if the Ohio Act is preempted by the Copyright Act......
  • Buck v. Gibbs, 12.
    • United States
    • U.S. District Court — Northern District of Florida
    • August 5, 1940
    ...27 F.2d 556; American Tobacco Co. v. Werckmeister, supra 207 U.S. 284, 28 S.Ct. 72, 52 L.Ed. 208, 12 Ann.Cas. 595"; Buck v. Swanson, note 6, supra 33 F.Supp. 387. For the reasons herein stated, the injunction prayed for will be granted against the enforcement of the 1937 Act and as to Secti......
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