Bator v. Boosey & Hawkes
| Decision Date | 13 July 1948 |
| Citation | 80 F. Supp. 294 |
| Parties | BATOR et al. v. BOOSEY & HAWKES, Limited (COLUMBIA RECORDS, Inc., Third-Party Plaintiff). |
| Court | U.S. District Court — Southern District of New York |
Wachtell, Manheim & Grouf and Arthur E. Garmaize, all of New York City, for plaintiffs.
Arthur L. Fishbein, of New York City (Maxwell Okun, of New York City, of counsel), for defendant Boosey & Hawkes, Limited.
This is a motion by the defendant Boosey & Hawkes, Ltd., to dismiss the action as to it (1) for improper venue, and (2) for lack of jurisdiction over its person on the ground that it neither transacts business in the State of New York nor is present here.
The action was originally commenced by the plaintiffs as executors of the will of Bela Bartok, deceased, against Columbia Records, Inc., as sole defendant, for a declaratory judgment with respect to the rights of the plaintiffs in an original musical composition entitled "The Third Piano Concerto" by Bela Bartok, and for other incidental relief. The complaint alleged that the concerto was never published by the deceased, nor by the plaintiffs, and that the defendant Columbia Records, Inc., without the consent of the plaintiffs, has made and sold, and is making and selling, mechanical transcriptions or records thereof.
Soon after the commencement of the action, the defendant Columbia Records, Inc., brought in Boosey-Hawkes, Inc., as a third-party defendant, on a third-party complaint, alleging that it (Columbia Records, Inc.) had made and sold mechanical transcriptions or records of the concerto pursuant to a license agreement with Boosey-Hawkes, Inc., under which it was indemnified against loss or damage from adverse claims by others in and to the subject matter of the agreement.
Thereafter, the plaintiffs filed an amended complaint adding Boosey & Hawkes, Ltd., as a defendant in the action, and asserting claims not only against the original defendant, Columbia Records, Inc., but also against the third-party defendant Boosey-Hawkes, Inc., and the added defendant Boosey & Hawkes, Ltd.
The amended complaint, in the claims against the defendant Columbia Records, Inc., repeats the allegations of the original complaint, and in the claim against the third-party defendant Boosey-Hawkes, Inc., alleges that the purported license to the defendant Columbia Records, Inc., to make and sell mechanical transcriptions or records of the concerto, was without the consent of the deceased or of the plaintiffs. In the claim against the defendant Boosey & Hawkes, Ltd., it alleges that, in 1939, Bela Bartok entered into an agreement with the defendant Boosey & Hawkes, Ltd., under which that corporation agreed to act during a stated period as agent and trustee of the copyrights of Bela Bartok's musical works submitted and assigned to it for such purpose; that this agreement is still in effect; that neither Bela Bartok nor the plaintiffs submitted the concerto to the corporation for the purpose of the agreement; that in 1947 Boosey & Hawkes, Ltd., published the concerto and obtained United States copyright registration therefor, and that the defendant Boosey & Hawkes, Ltd., assigned all of its right, title and interest in the concerto, and in the copyright, to the third-party defendant, Boosey-Hawkes, Inc.
The plaintiff Victor Bator is a citizen of the State of New York, the plaintiff Julius G. Baron a citizen of the State of Illinois. The defendant Boosey & Hawkes, Ltd., is an English corporation, with its principal office in London, England. The defendant Columbia Records, Inc., is a Delaware corporation, qualified to do business in the State of New York. The third-party defendant, Boosey-Hawkes, Inc., is a New York corporation, and a wholly-owned subsidiary of the defendant Boosey & Hawkes, Ltd. The service of process on the defendant Boosey & Hawkes, Ltd., was made in the Southern District of New York by delivering the process to Ralph Hawkes, a managing director of the English corporation and the vice-president and secretary of the New York subsidiary. The defendant Columbia Records, Inc., and the third-party defendant Boosey-Hawkes, Inc., have appeared generally in the action and answered the...
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