M. Witmark & Sons v. Tremont Social and Athletic Club

• Decision Date: 16 November 1960
• Docket Number: Civ. A. No. 59-335-C,59-897-C.
• Citation: 188 F. Supp. 787
• Parties: M. WITMARK & SONS and Chappell & Co., Inc. v. TREMONT SOCIAL AND ATHLETIC CLUB. CHAPPELL & CO., Inc. and Joy Music, Inc. v. TREMONT SOCIAL AND ATHLETIC CLUB.
• Court: U.S. District Court — District of Massachusetts

188 F. Supp. 787

M. WITMARK & SONS and Chappell & Co., Inc. v. TREMONT SOCIAL AND ATHLETIC CLUB.

CHAPPELL & CO., Inc. and Joy Music, Inc. v. TREMONT SOCIAL AND ATHLETIC CLUB.

Civ. A. Nos. 59-335-C, 59-897-C.

United States District Court D. Massachusetts.

November 16, 1960.

Walter Powers, Jr., Bertram H. Loewenberg, Boston, Mass., for plaintiff.

George L. Nowell, New Bedford, Mass., for defendant.

CAFFREY, District Judge.

These two cases, which were tried together, are suits for infringement of copyright, in which the plaintiffs complain of the unauthorized public performance for profit of certain copyrighted musical compositions.¹ Counsel stipulated in open court that the plaintiffs owned valid copyrights to the compositions in question; that these compositions were in fact played at defendant's club on the dates set out in the complaints; that the defendant had no license or permission from plaintiffs to play said compositions; and I so find. Counsel likewise stipulated that the only issue before this Court is whether or not these compositions were played "publicly for profit."

Defendant is a social and athletic club, organized under Massachusetts General Laws, Chapter 180, as a non-profit corporation. It is located at 225 Sawyer Street, New Bedford, in a one-story, shed-type building, with two front entrances and a service entrance at the rear. The street floor contains a rectangular-shaped bar with thirty bar-stools and a number of booths and tables which give it a capacity for serving between ninety and one hundred people. Defendant holds an all-year, all-alcoholic, beverage license, and the club is open seven days a week. No food is sold at the club although an occasional banquet is held on the premises. The club employs two bartenders and a janitor. All beverages are sold for cash paid at the time the drinks are served, and revenue from the sale of alcoholic beverages is the club's principal source of income, although there was testimony that monthly dues have been charged to members.²

The club has no stockholders nor has it any provision for distribution of any profits. It appears that if surplus funds are available from time to time, they are used to finance banquets for various athletic teams sponsored by the club, such as little league teams, bowling teams, and softball teams. The club purchases athletic equipment for these teams.

Membership in the club has no numerical limitation and is open to both sexes, although the majority of the female members are in fact the wives of male members. The club does not have written membership application forms, nor does it have a membership committee. Oral applications for membership are taken by the manager at the bar, where he also works as bartender-in-chief. He testified at the trial that he determines eligibility for membership on whether or not an applicant is a citizen, twenty-one years of age, and a person of "good standing." Sole judge of "good standing" is the manager himself. When pressed as to the norms, if any, by which "good standing" of an applicant is determined, the witness mentioned citizenship and age twenty-one, although it would seem an irresistible inference from his testimony that the third norm used was the ability of the applicant to "stand good" at the time he appeared at the bar to have his membership application passed upon by this witness in his triple capacity as manager, bartender-in-chief, and one-man membership committee. The present membership of the defendant club is estimated to be between two and three hundred persons.

For some time in the past, and at all times material to the instant cases, a three-piece orchestra played music for dancing at the club on Friday and Saturday evenings. Alcoholic beverages were dispensed while the dance music was being played.

Plaintiffs' first witness, an orchestra leader, testified that on March 6, 1959, he entered the defendant club accompanied by three other persons, none of whom were members or guests of a member of the club; that this party of four proceeded to a booth, whereupon a waiter served them alcoholic beverages and received payment therefor and a tip. This witness testified that his party remained at defendant's club for a period in excess of one hour, during which time no inquiry was made as to whether or not any member of his party was a member of the club or otherwise eligible to be present;...