Jerome H. Remick & Co. v. American Automobile Accessories Co.

• Decision Date: 09 April 1925
• Docket Number: No. 4190.,4190.
• Citation: 5 F.2d 411
• Parties: JEROME H. REMICK & CO. v. AMERICAN AUTOMOBILE ACCESSORIES CO.
• Court: U.S. Court of Appeals — Sixth Circuit

5 F.2d 411 (1925)

JEROME H. REMICK & CO. v. AMERICAN AUTOMOBILE ACCESSORIES CO.

No. 4190.

Circuit Court of Appeals, Sixth Circuit.

April 9, 1925.

Thomas G. Haight, of Jersey City, N. J., and John W. Peck, of Cincinnati, Ohio (Peck, Shaffer & Peck and John W. Weinig, all of Cincinnati, Ohio, and Nathan Burkan, of New York City, on the brief), for appellant.

Marston Allen and Alfred M. Allen, both of Cincinnati, Ohio (Allen & Allen and Powell Crosley, Sr., all of Cincinnati, Ohio, on the brief), for appellee.

Before DENISON, MACK, and DONAHUE, Circuit Judges.

MACK, Circuit Judge.

The plaintiff brought bill in equity to enjoin defendant from reproducing by radio broadcasting a musical composition entitled "Dreamy Melody," the copyright of which is owned by plaintiff. The bill alleged that defendant manufactured and sold radio products and supplies for pecuniary profit; that it maintained a radio broadcasting station in Cincinnati as a medium of advertising and publicity, and as a means of bringing its radio products and supplies to the attention of the public, and of stimulating the sale thereof, and that the maintenance of the station was effective for these purposes; that the license from the United States Department of Commerce, Bureau of Navigation Radio Service, to operate as a commercial station, was issued upon application to operate for commercial purposes; that defendant announced its programs to the public by newspaper advertisements and bulletins, and that it started and ended its programs with the announcement, "Station WLW, Crosley Manufacturing Company, Cincinnati, Ohio." The bill further alleged that the defendant charged on its books the radio broadcasting service to its advertising and publicity account. It prayed for injunction and damages. Motion to dismiss the bill was sustained.

The question presented is whether, under the circumstances stated, the broadcasting of a copyrighted musical composition is an infringement of the statutory copyright. By Act March 4, 1909, c. 320, § 1, 35 Stat. 1075 (Comp. St. § 9517), "any person entitled thereto, upon complying with the provisions of this act, shall have the exclusive right * * * to perform the copyrighted work publicly for profit if it be a musical composition and for the purpose of public performance for profit."

While the fact that the radio was not developed at the time the Copyright Act (Comp. St. §§ 9517-9524, 9530-9584) was enacted may raise some question as to whether it properly comes within the purview of the statute, it is not by that fact alone excluded from the statute. In other words, the statute may be applied to new situations not anticipated by Congress, if, fairly construed, such situations come within its intent and meaning. Thus it has been held both in this country and England that a photograph was a copy or infringement of a copyrighted engraving under statutes passed before the photographic process had been developed. Gambart v. Hald, 14 C. B. N. S. 303; Rossiter v. Hall, 5 Blatchf. 362, Fed. Cas. No. 12,082. While statutes should not be stretched to apply to new situations not fairly within their scope, they should not be so narrowly construed as to permit their evasion because of changing habits due to new inventions...