354 F.Supp. 1183 (S.D.N.Y. 1973), 66 Civ. 3864, Rosette v. Rainbo Record Mfg. Corp.

Docket Nº:66 Civ. 3864.
Citation:354 F.Supp. 1183
Party Name:177 U.S.P.Q. 631 Marion ROSETTE, Plaintiff, v. RAINBO RECORD MANUFACTURING CORPORATION et al., Defendants.
Case Date:February 26, 1973
Court:United States District Courts, 2nd Circuit

Page 1183

354 F.Supp. 1183 (S.D.N.Y. 1973)

177 U.S.P.Q. 631

Marion ROSETTE, Plaintiff,



No. 66 Civ. 3864.

United States District Court, D. New York

Feb. 26, 1973

Page 1184

Zissu, Marcus & Stein, New York City, for plaintiff.

Hofer, Rich & Grubman, New York City, for defendants.

GURFEIN, District Judge.

The plaintiff in this action is the composer of children's songs which were either adapted by her from classic children's nursery rhymes or were original compositions. In her 42 count complaint she charges that the defendants infringed her copyrights by manufacturing and selling records containing thirty-three

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(33) compositions. Thirty-three counts are premised on statutory copyright claims; the remaining nine (Counts 19, 26, 28, 30, 32, 34, 36, 38 and 40) charge common law copyright infringements. Jurisdiction is alleged generally under 17 U.S.C. § 1 et seq. and under 28 U.S.C. § 1338(b). The plaintiff seeks injunctive and monetary relief, including treble damages and attorneys' fees.

The defendants deny that they have infringed the plaintiff's alleged statutory or common law copyright as set forth in the complaint. The defendants further contend, inter alia, that they are not proper defendants in this suit since Rainbo was merely a record presser and not a "manufacturer" within the meaning of 17 U.S.C. § 1(e).

The defendants seek dismissal of twenty counts on the ground of prior publication. 1 Nine of these are the common law counts and eleven are statutory copyright claims. Dismissal is sought of two counts, 41 and 42, on the ground that the plaintiff has failed to show ownership of the copyrights involved. The remaining eleven counts and all the other counts as well are said to be time barred by limitation and because the plaintiff allegedly failed to file notices of use until after the alleged infringements had occurred.

A trial was held to the Court on October 10-11, 1972.


The plaintiff is a graduate of the Peabody Conservatory and a member of ASCAP. In 1949 she formed Lincoln Records Co., a corporation wholly owned by herself and her husband. The plaintiff testified at the trial and was the only witness on her behalf. Mrs. Rosette is the composer of the thirty-three compositions here at issue. The schedule showing the count of the complaint, the date of the copyright, the first recording date and the filing date of notice of use is set forth in the margin. 2


The plaintiff admitted in her testimony that the compositions Chicken Licken (count 13); Pussy Cat, Pussy Cat (counts 18 and 19); Jack and the Beanstalk (count 23); Pinocchio (counts 25 and 26); Mary had a Little Lamb (counts 27 and 28); Ding Dong Bell (counts 29 and 30); Fiddle Dee Dee (counts 31 and 32); Goosy Goosy Gander (counts 33 and 34); Where has my Little Dog Gone (counts 35 and 36); Alice in Wonderland (counts 37 and 38); and Old King Cole (counts 39 and 40) were recorded, manufactured and continuously sold by the plaintiff and her company for many years before the plaintiff or her company obtained a statutory copyright of the compositions. Phonograph records of Chicken Licken and Jack and the Beanstalk were sold to the general public approximately one and one-half years before the date on which the copyrights were obtained, and the copyrights for Pinocchio, Mary had a Little Lamb, Ding Dong Bell, Fiddle Dee Dee, Goosy Goosy Gander, Where has my Little Dog Gone, Alice in Wonderland and Old King Cole, were obtained between ten and thirteen years after the recordings of these compositions were sold throughout the United States by the plaintiff and her companies. As to the other compositions whose recording date she recalled, the plaintiff testified that the recordings were not released until after the copyright registration had been secured. With respect to the compositions Old Mother Hubbard (count 5), Hobbledy Horse (count 8), The Weez

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Wump (count 14), The Pied Piper (count 15) and Little Red Hen (count 20), she could not recall the dates of recording but she believed that there could have been no prior publication of these compositions since it was her practice to register her compositions prior to their release on phonograph records. The defendants introduced no proof of prior sale of phonograph records with respect to any of the counts except those conceded by the plaintiff in her own testimony.


The plaintiff introduced into evidence fourteen long playing records and testified that she had purchased them about December 1964, give or take one year. According to Mrs. Rosette the Playtime Albums numbered 106, 107, 108, 109, 111, 112, 116, 117 and 118 and the Carousel Albums numbered 806, 807, 808 and 812 contained exact duplications of her compositions which are the subject of this action and were in fact the same mechanical reproductions which she had authorized earlier. She testified that the names of the songs on these albums had been varied slightly in some cases.

The plaintiff also introduced the Schwann Long Playing Record Catalog for 1964 which enters records "only on authority of written or printed information sent to us by the manufacturer." That catalog listed for sale the Playtime albums numbered 106, 107, 108, 109, 111 and 112 referred to above.

The defendant Jack Brown is President of the defendant Rainbo Record Manufacturing Corporation. Together with the defendant Harold Markowitz he had formed the partnership Rainbo Record Company, also a defendant. Brown was the sole witness called by the defendants.

Brown testified that the Rainbo partnership was dissolved in the late 1940s and that he and Markowitz have not conducted business since that time. The Rainbo Company, the partnership, was engaged in a business different from that of Rainbo Manufacturing Corporation. There is no evidence linking Markowitz or the partnership to the alleged acts of infringement.

Rainbo Record Manufacturing Corporation (hereinafter "Rainbo") was engaged in the business of pressing records. Among its customers was Sidney Taback who did business under the name of Lyric Records. Lyric Records had previously been a partnership consisting of Mr. Brown, Mr. Taback and Selig J. Smith. The partnership was dissolved in February 1963 but Taback continued using the name Lyric.

Brown testified that Lyric and Rainbo were not related companies and that neither he nor Rainbo had any interest in the records pressed for Taback. He related that Lyric supplied Rainbo with the metal components, labels and jackets for the pressing of albums done by Rainbo for Lyric, and that upon completion of the order Taback would retrieve the stamping parts, occasionally even picking them up in person.

The plaintiff established that during the years 1962, 1963, 1964, 1965 and 1966 Rainbo and Lyric (or Playtime-Lyric) shared the same telephone numbers and were listed in the Lost Angeles telephone directory as having the same address. In 1963 Brown had moved his place of business from Laundale, California to North Las Palmas in Hollywood; and the telephone directory indicates that Lyric also moved that same year to the same address and telephone number. The plaintiff also introduced into evidence a letter addressed by the plaintiff's attorney to "Playtime Records Inc." dated May 17, 1966 (Ex. 14) making a claim of infringement of the compositions in suit and listing the offending albums as bearing the names "Carousel" and "Playtime." A return receipt was requested. A return receipt was signed "J. G. Brown" dated May 19, 1966. Though Brown refused to acknowledge that the signature on the return receipt was his, he did admit answering the letter from the plaintiff's

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attorney. His reply dated June 16, 1966 was written on the letterhead of Rainbo Records (the very addressee of the letter) and it was signed "Jack G. Brown."

The plaintiff contends that this reply to plaintiff's infringement claims constitutes an admission by Brown that Rainbo was related to Lyric, Carousel and Playtime Records and that, in fact, Rainbo had purchased the Carousel and Playtime line of songs from Lyric. The letter reads:

"This is to advise you that the Carousel and Playtime Record line has been inactive for two years.

We may reactivate the line through Ed Chaplin of PPX, with whom I am sure you are familiar.

We would like to see your contracts regarding the works you refer to inasmuch as we have a 'hold harmless' agreement when we purchased the entire catalogue."

The defendants deny that the letter constitutes an admission because many of the plaintiff's copyrighted songs bear titles of classic children's nursery rhymes and while the plaintiff obtained copyrights to her songs because of her adaptation, arrangement and lyrics, others had the right to the same titles with different musical compositions. In sum, it is contended that Brown could not determine which were the plaintiff's compositions without actually listening to them in any event, and since he had not listened to the plaintiff's recordings he could not have made an admission that the recordings in the Carousel and Playtime albums were the same.

I find the explanation a bit disingenuous. The explanation does not satisfactorily rebut the circumstantial evidence showing the common control of Lyric or Playtime-Lyric and Rainbo. Nor does it rebut the inference that Brown, i. e. Rainbo, could reactivate "the Carousel and Playtime Record line" whenever he felt like doing so. The further admission in the Rainbo letter that " we have a 'hold harmless' agreement when we purchased the entire catalogue" (emphasis...

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