April Productions v. Strand Enterprises, 87

• Decision Date: 28 March 1955
• Docket Number: Docket 23208.,No. 87,87
• Citation: 221 F.2d 292
• Parties: APRIL PRODUCTIONS, Inc., Plaintiff-Appellant, v. STRAND ENTERPRISES, Inc., Nat Harris, Louis E. Walters and Ben Yost, Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

221 F.2d 292 (1955)

APRIL PRODUCTIONS, Inc., Plaintiff-Appellant, v. STRAND ENTERPRISES, Inc., Nat Harris, Louis E. Walters and Ben Yost, Defendants-Appellees.

No. 87, Docket 23208.

United States Court of Appeals, Second Circuit.

Argued January 5, 1955.

Decided March 28, 1955.

Klein & Lund, New York City, for plaintiff-appellant, Lionel S. Popkin and Adolph Lund, New York City, of counsel.

A. Allen Saunders, New York City, for defendant-appellee, Yost.

Rivkin & Rosen, New York City, for appellees, Strand Enterprises, Inc., Nat Harris, Louis Rivkin, New York City, and Irwin Reicher, New York City, of counsel.

Before L. HAND and MEDINA, Circuit Judges, and DIMOCK, District Judge.

DIMOCK, District Judge.

April Productions, Inc., appellant, is the copyright owner of the musical production, "The Student Prince." Appellee Strand Enterprises, Inc., was licensee under an American Society of Composers, Authors and Publishers "small rights" license and owned a nightclub called "The Harem". Appellee Harris was an executive officer of Strand and manager of "The Harem". Appellee Yost was the leader of a choral group called "Ben Yost and His Royal Guardsmen". The songs of "The Student Prince" are in the ASCAP repertoire. Appellant concedes that, whatever the breadth of ASCAP's grant to Strand, appellant is bound by it. Appellees concede that any unlicensed performance by them of musical compositions from "The Student Prince" constitutes an infringement of appellant's copyright. Judge Goddard, sitting without a jury, found that there had not been any infringement of appellant's copyright. This appeal turns upon the license.

During the period relevant to this action "The Harem" presented twice nightly a show entitled "The One Thousand and Second Night". The program for this entertainment listed ten "scenes". The ninth of these was listed as "Ben Yost and His Royal Guardsmen". In this "scene" the choral group of which appellee Yost was the leader sang the words of certain songs, including a medley of songs from "The Student Prince". Appellant contends that appellees exceeded the scope of the license^* in that (1) they presented songs from "The Student Prince" in a "dramatic" presentation, (2) they presented the songs in a medley despite the description of the licensed material as "separate compositions" and (3) they used the songs in violation of that part of paragraph 3(a) of the license which follows the semicolon therein and qualifies the use of fragments of instrumental selections.

We start with the fundamental proposition agreed to on all hands that the license permitted the performance of the songs with orchestral accompaniment and with the original lyrics rendered vocally. It may seem strange that such a fundamental question should require agreement of the parties but the form of the license is such that almost nothing is sure. In construing it, it seems to us that it will be useful to try to get some idea of a consistent theory of the relationship created before attempting to apply the particular words to which the parties point to support their opposing contentions.

To begin with, we can safely assume that the parties contemplated that the licensed compositions would be performed in a nightclub. The form begins with the symbols, evidently placed there for the purposes of office routine, "N.Y.C-3G18-N. Club". It is fair to assume that this is a nightclub form. The back of the form contains blanks for information to be filled in. Opposite the words "seating capacity" the number 450 is inserted. There are spaces for check marks to indicate how the music is to be performed and the spaces opposite the words "orchestra" and "organ" are checked. There is another space for a yes or no check opposite the word "vocalist". While that is not checked there is, as above noted, agreement that the license covers vocal rendition of the songs. Other check marks indicate that there will be dancing and a floor show.

The license granted is described in paragraph 1 as a license to publicly perform "non-dramatic renditions of the separate musical compositions copyrighted by members of the Society." That grant can best be construed in the light of the other provisions of the license which in paragraph 3 describe what is not included in the license. The first nonincluded class is described as "oratorios, choral, operatic or dramatico-musical works (including plays with music, revues and ballets) in their entirety". That is a clear indication of the intention of the parties that permission to play and sing all the songs included in some work of another character does not give the right to perform the over-all work. Such a performance would, indeed, be the type form of a dramatic, as opposed to a "non-dramatic", rendition of the compositions licensed.

The next class of compositions which are declared to be outside of the terms of the grant are "songs or other excerpts from operas or musical plays accompanied either by words, pantomime, dance, or visual representation of the work from which the music is taken". Again it is agreed on all hands that this class has an accepted interpretation. The purpose of the words is to classify as outside of the license the use, with the licensed compositions, of other material from the over-all works from which the compositions are taken. It is conceded, however, that this prohibition does not apply to the lyrics of the songs whose performance is licensed. Again the purpose is clear to class as "dramatic" any of the author's material except the words and music of the song.

The final class of compositions expressly excluded from the grant is thus described: "but fragments of 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." While cast in the form of permission, the real force of these words is their prohibition. The works that are referred to are the overall works that have just been discussed of which the licensed compositions form a part. It is significant that, while this class deals only with "instrumental" selections, the words impliedly prohibit the rendition of those instrumental selections with words, with dialogue, with costume accompanying dramatic action, or with scenic accessory. These limitations are not confined to any particular "words, dialogue, costume accompanying dramatic action or scenic accessory" but prohibit the addition to the instrumental rendition of these instrumental selections any words, dialogue, etc. The class of instrumental selections which may be instrumentally rendered is finally further qualified by the requirement that they must be "unaccompanied by any stage action or visual representation (by motion picture or otherwise) of the work of which such music forms a part."

It is important to note that, while instrumental selections may not be accompanied by any words, dialogue, etc., other excerpts have accompaniment forbidden only where it consists of words, pantomime, etc. "of the work from which the music is taken". Thus, so far as the express exclusory language of the grant is concerned, a song excerpted from a work such as "The Student Prince" may be rendered with "words, dialogue, costume accompanying dramatic...