Robert Stigwood Group Limited v. Sperber, 522

• Decision Date: 17 March 1972
• Docket Number: Docket 71-2057.,No. 522,522
• Citation: 457 F.2d 50
• Parties: The ROBERT STIGWOOD GROUP LIMITED et al., Plaintiffs-Cross-Appellants, v. Betty SPERBER, individually and doing business as the Original American Touring Company and Betty Sperber Management, Inc., Defendants-Appellants.
• Court: U.S. Court of Appeals — Second Circuit

457 F.2d 50 (1972)

The ROBERT STIGWOOD GROUP LIMITED et al., Plaintiffs-Cross-Appellants, v. Betty SPERBER, individually and doing business as the Original American Touring Company and Betty Sperber Management, Inc., Defendants-Appellants.

No. 522, Docket 71-2057.

United States Court of Appeals, Second Circuit.

Argued March 3, 1972.

Decided March 17, 1972.

Robert C. Osterberg, New York City (Abeles and Clark, and John L. Eastman, New York City, of counsel), for plaintiffs-cross-appellants.

Robert L. Fitzpatrick, Los Angeles, Cal. (David S. Fitzpatrick, New York City, of counsel), for defendants-appellants.

Before MURRAH,^* KAUFMAN and OAKES, Circuit Judges.

IRVING R. KAUFMAN, Circuit Judge:

The rock opera Jesus Christ Superstar and several of its individual musical compositions have enjoyed large commercial success as well as substantial critical acclaim. More than two million records and tape cartridges of the full opera have been sold, the authorized touring production grossed over one million dollars in its first four weeks, and tickets to the Broadway version have been among the more difficult to acquire. We can understand, therefore, the desire of promoters and producers throughout the country to capitalize on the success of Jesus Christ Superstar, and it is not surprising that one consequence of its explosive yet impermanent popularity is litigation.¹ The role of the courts must be to prevent exploitation of the opera in a manner that infringes the rights of the creators of the work and their assignees.

I.

Timothy Rice wrote the libretto for Jesus Christ Superstar and Andrew Lloyd Webber composed the score of the opera's overture and 22 songs which depict the last seven days in the life of Christ. Rice and Webber assigned the rights in the work (except "King Herod's Song") to Leeds Music Limited which duly obtained United States copyrights for the opera as a "dramatico-musical composition" pursuant to 17 U.S.C. § 5(d) and for several of the individual songs as "musical compositions" pursuant to 17 U.S.C. § 5(e). Leeds Music Limited assigned the United States copyrights to Leeds Music Corporation. The Robert Stigwood Group Limited ("Stigwood") acquired the rights for stage productions and dramatic presentations of the opera, and its rights are those allegedly infringed. Defendant Betty Sperber is a booking agent doing business as "The Original American Touring Company" ("OATC") and concerts presented by it are represented as being performed by The Original American Touring Company. The business details of the concerts are handled by Betty Sperber Management of which Sperber is President. Each OATC so-called concert consists of 20 of the 23 songs from Jesus Christ Superstar, sung sequentially with one exception, and three additional religious works. Sperber avers that other programs not involving Jesus Christ Superstar are planned by OATC.

Stigwood brought this suit, inter alia, to enjoin: one, OATC's performance of Jesus Christ Superstar or portions thereof; two, any references to Jesus Christ Superstar in advertisements for OATC performances; and three, use of the name The Original American Touring Company. The district court's preliminary injunction, 332 F.Supp. 1206, issued pursuant to 17 U.S.C. § 112, barred only the references to Jesus Christ Superstar in OATC advertisements, and both parties appealed.

OATC's claim that its productions do not infringe Stigwood's rights is based upon the usual and customary agreement between the American Society of Composers, Authors and Publishers ("ASCAP") and Leeds Music Corporation, an ASCAP member. Although a complete description of the purpose of ASCAP and its methodology are unnecessary to our decision, some understanding of its function is vital to an examination of the agreements it makes with its members. The Copyright Act of 1909 granted several rights to the holders of copyrights in works including the exclusive right "to perform the copyrighted work publicly for profit if it be a musical composition." 17 U.S.C. § 1(e). Composers and publishers soon realized it was impractical for each copyright holder to attempt to enforce this right since he could not possibly police all public performances for profit of every musical composition throughout the United States. ASCAP was formed to meet this need. By obtaining licenses from its members, this organization, staffed for the purpose, could enforce the performing rights of its members. It was believed, however, that each copyright owner could appropriately police and license performances of musical comedies or operas because of the relative infrequency of such productions and the lengthy preparation and publicity which must precede these productions. See, Nimmer, "Copyright 1955," 43 Cal.L. Rev. 791, 798 (1955).

In any event, ASCAP is authorized by its members to license only nondramatic performing rights of compositions in its repertory. Consequently, pursuant to the standard ASCAP agreement utilized here, ASCAP was authorized by Leeds to give:

1. (b) The non-exclusive right of public performance of the separate numbers, songs, fragments or arrangements, melodies or selections forming part or parts of musical plays and dramatico-musical compositions, the Owner reserving and excepting from this grant the right of performance of musical plays and dramatico-musical compositions in their entirety, or any part of such plays or dramatico-musical compositions on the legitimate stage.

Thus, while ASCAP licensees² can perform the individual songs from Jesus Christ Superstar, whether copyrighted individually or merely as part of the opera as a whole, paragraph 3 of the standard license indicates that it does not extend to presentations of:

(a) Oratorios, choral, operatic, or dramatico-musical works . . . in their entirety or songs or other excerpts from operas or musical plays accompanied either by word, pantomime, dance or visual representation of the work from which the music is taken; but fragments or instrumental selections from such works may be instrumentally rendered without words, dialogue, costume, accompanying dramatic action or scenic accessory and unaccompanied by any stage action or visual representation (by motion picture or otherwise) of the work of which such music forms a part.

Both parties and the court agree, therefore, that selections from Jesus Christ Superstar can be properly presented by ASCAP licensees if they are presented in "nondramatic" performances. See generally, M. Nimmer, Copyright § 125.6 (1971). Accordingly, we must decide if OATC's performances fall into the "dramatic" or "nondramatic" category.

The Copyright Act distinguishes between "musical" and "dramatico-musical" works.³ The former are infringed only by public performances for profit whereas the latter are infringed by any public performance. Compare 17 U.S.C. § 1(d) with 17 U.S.C. § 1(e). In our effort to find some guidance in distinguishing between musical and dramatico-musical productions, we were soon to learn of the dearth of cases on the subject. We received some aid, however, from Judge Learned Hand's statement that a performance in "words and music alone may constitute a dramatic performance, and it did not matter that the performance was only of a scene or part of a scene." Herbert v. Shanley, 222 F. 344, 345 (S.D.N.Y.1915) (citations omitted), affirmed, 229 F. 340 (2d Cir. 1916), reversed on other grounds, 242 U.S. 591, 37 S.Ct. 232, 61 L.Ed. 513 (1917). The Supreme Court's reversal of Herbert, however, nipped this line of cases in the bud by construing the "for profit" language so liberally that it obviated the need for further litigation over what was "dramatic" or "nondramatic." 242 U.S. at 594-595, 37 S.Ct. 232.

The only case cited to us which discusses the scope of the ASCAP license is April Productions, Inc. v. Strand Enterprises, Inc., 221 F.2d 292 (2d Cir. 1955). In April the copyright owner of The Student Prince sued the proprietor of a cabaret, "The Harem," for infringement based upon performances there of a medley of songs from The Student Prince. The medley was a small part of one of ten scenes of the nightclub's show, and was not connected by a story line or otherwise. The Court stated:

Even if The Harem put on a dramatic performance, the entire show of ten scenes, the selections . . . were not part of it. The worst that could be said would be that they were sung in an intermission between the acts of a dramatic performance. Such a rendition is "nondramatic" within the meaning of the license.

221 F.2d at 296. In the opinion, Judge Dimock (District Judge, sitting by designation), laboring without guidance or precedent, of course, was unable to cite us to a single authority.

In any event, Strand's use of several songs from The Student Prince pales by comparison with Sperber's use of almost the entire score from Jesus Christ Superstar. The twenty musical compositions from Superstar were almost the entire OATC performance rather than less than one-tenth as in "The Harem" club's show. Moreover, April has been severely criticized as inadequately protective of and virtually extinguishing dramatic performing rights with respect to musical compositions. As Professor Nimmer puts it:

Under the rule of this case one could by simply obtaining an ASCAP license perform in a new musical play all of the music from "South Pacific" providing the "book" for the new production is not borrowed from "South Pacific." The ASCAP membership could hardly have intended to permit the performance of their musical compositions in Broadway musicals or similar productions in return for mere payment of the ASCAP fee.

M. Nimmer, Copyright § 125.6 (1971).

Where the defendant has not even supplied a new "book" in its performances, a determination that dramatic rights have been infringed would seem simple. But, OATC asserts that plaintiff's "book" is not used either and insists that there is no story line whatever to defen...