Shapiro, Bernstein & Co. v. Jerry Vogel Music Co.

• Decision Date: 18 April 1955
• Docket Number: Docket 23385.,No. 181,181
• Citation: 221 F.2d 569
• Parties: SHAPIRO, BERNSTEIN & CO., Inc., Plaintiff-Appellee, v. JERRY VOGEL MUSIC CO., Inc., Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

221 F.2d 569 (1955)

SHAPIRO, BERNSTEIN & CO., Inc., Plaintiff-Appellee, v. JERRY VOGEL MUSIC CO., Inc., Defendant-Appellant.

No. 181, Docket 23385.

United States Court of Appeals Second Circuit.

Submitted February 11, 1955.

Decided April 18, 1955.

Rehearing Denied June 8, 1955.

Lee V. Eastman, New York City, for plaintiff-appellee.

Edwin McMahon Singer, New York City (Leo E. Falkin, New York City, of counsel), for defendant-appellant.

Before CLARK, Chief Judge, HINCKS, Circuit Judge, and SMITH, District Judge.

Rehearing Denied June 8, 1955. See 223 F.2d 252.

SMITH, District Judge.

This is an appeal from an interlocutory judgment holding defendant an infringer of the renewal copyright in the instrumental music of "12th Street Rag", and holding defendant on its counterclaim not entitled to rights in the renewal copyright of a song by the same title. D.C.S.D.N.Y., 115 F.Supp. 754.

Euday L. Bowman had composed the piece as an instrumental piano solo in 1914. Bowman in 1916 by assignment transferred all his rights in the piece, including renewal rights, to J. W. Jenkins Music Company. In 1918 the Jenkins Company employed James S. Sumner to write a lyric for Bowman's music and Jenkins copyrighted the song in 1919. Plaintiff-appellee later acquired all renewal rights in the instrumental music and the renewal copyrights therein, and claims renewal rights in the song by assignment from the Jenkins Company.

In 1947 Sumner assigned to appellant Vogel Company all his rights in the song, including renewal rights. Appellant Vogel Company thereafter filed a claim with the Register of Copyrights to the renewal rights in the song, and published the song with Bowman's music and Sumner's lyric.

The trial court found that Sumner wrote the lyric as a special job assignment, outside the line of his regular duties for the Jenkins Company. This finding is not attacked on appeal.

It followed that Sumner had an author's rights in his product. His right to an original copyright passed to Jenkins under his original contract with Jenkins to write a lyric for Bowman's music. But his renewal rights he retained until his assignment to the appellant Vogel Company in 1947 as above stated. It is not disputed that appellant Vogel Company now possesses whatever Sumner's rights were in the renewal copyright of the song.

The trial court held that when the Jenkins Company, in the exercise of a right incidental to its ownership of the Bowman copyrights, engaged Sumner to write the lyric, the result was a "composite" of Bowman's music and Sumner's lyric, and not a "joint" work; that the copyright on the "new work" protected only the new matter, the lyric; and that appellant had no right to publish the song without permission of plaintiff-appellee, holder of the rights in the copyrights of the music. In the trial court's view, in order to characterize the song in question as a "joint" work, rather than "composite", under the test laid down by this court in Edward B. Marks Music Corp. v. Jerry Vogel Music Co., 2 Cir., 140 F.2d 266, and Shapiro, Bernstein & Co. v. Jerry Vogel Music Co., 2 Cir., 161 F.2d 406, certiorari denied 331 U.S. 820, 67 S.Ct. 1310, 91 L.Ed. 1837, the authors must not only have intended their contributions to be complementary in the sense that they were to be performed as a single work, but the first author must have had an intent at the time of his...