Aronson v. Baker

• Decision Date: 07 February 1888
• Citation: 43 N.J.E. 365,12 A. 177
• Parties: ARONSON v. BAKER.
• Court: New Jersey Court of Chancery

12 A. 177

43 N.J.E. 365

ARONSON

v. BAKER.

Court of Chancery of New Jersey.

February 7, 1888.

(Syllabus by the Court.)

On application by Rudolph Aronson for an injunction against George A. Baker. Heard on bill and affidavits, and answer and affidavits, and depositions taken under order of court.

Samuel Kalisch and Theodore Runyon, for complainant. A. Q. Keasbey and A. J. Dittenhoffer, for defendant.

VAN FLEET, v. C. The complainant seeks, by this suit, to prevent the defendant from depriving him of his rights in certain literary property. The complainant claims to hold the exclusive right to exhibit or produce, for gain, in the United States, an operetta called "Erminie," and he charges the defendant with having produced before a public audience, in Trenton, in October last, an operetta entitled "Robert Macaire, or the Two Thieves," which is substantially identical with that of "Erminie." The defendant has publicly announced by advertisements that he will produce his operetta at other places in this state. Against the injury which will result from such further productions, the complainant asks to be protected by injunction.

The facts before the court establish clearly, I think, that the complainant has such property rights in "Erminie" as to entitle him to the protection of the law. The proofs show that a dramatic writer by the name of Paulton, residing in England, composed the libretto of "Erminie," designed its scenery, and originated its casts of character, their individualities, and the dress and deportment of its dramatis personal. Paulton, in December, 1886, for a valuable consideration, transferred, by written contract, to the complainant, the exclusive right of producing "Erminie" in the United States for a period of time which has not yet expired. There is no dispute that the complainant made a large expenditure of money in putting his operetta on the stage, nor that he has produced it, for the amusement of the public, in such manner as to render it extremely popular, and make it a financial success. The proofs also show that the complainant's libretto is unpublished, existing in a single manuscript, never having been donated to the public in any way. These facts for the present, and in the United States, place the complainant in the position of the owner of "Erminie," and entitle him to all the remedies which the owner of property may resort to for its protection. The right to literary property is just as sacred, and just as much entitled to the protection of the law, as the right to any other kind of personal property. Its acquisition and succession are governed by the same legal rules which control the acquisition and succession of other property of the same general class, and, if the rights of its owner are violated, he is entitled to the same remedies to which the owner of other personal property may resort for redress.

The established rule defining the rights of the owner of such property may be stated as follows: Every new and innocent product of mental labor, which has been embodied in writing, or some other material form, while it remains unpublished, is the exclusive property of its author, entitled to the same protection which the law throws around the possession and enjoyment of other kinds of property. "Whether the product of such labor consists in literary, dramatic, or musical compositions, or designs for works of ornament or utility, planned by the mind of an artist, they are equally inviolable while they remain unpublished, and their owner may exercise the same supreme dominion over them that the owner of any other species of property may exercise over it. Palmer v. Be Witt, 47 N. Y. 532. There has been some diversity of opinion as to what would constitute such a dedication of a dramatic or musical composition to public use as would take away the exclusive right of its owner. At one time it was held that while the representation of a play before an indiscriminate audience did not give the auditors a right to make a copy for reproduction, by taking notes, stenographically or otherwise, yet, if a copy could be obtained by mere force of memory, the reproduction of the play by means of a copy thus procured would not constitute an actionable invasion of the owner's rights. This doctrine was first declared, I believe, by Judge CADWALADER, sitting as judge of the circuit court of the United States, in Keene v. Wheatley, 9 Amer. Law Reg. 33, and was subsequently followed by the supreme court of Massachusetts in Keene v. Kimball, 16 Gray, 545, but it has recently been repudiated by the last-mentioned court in Tompkins v. Halleck, 133 Mass. 32. In the case last cited, it was decided that the production of a play gives an auditor no right to take a copy, by any means whatever, for reproduction. The court say: "The ticket of admission is a license to witness the play, but it cannot be treated as a license to a spectator to reproduce the play if he can by memory recollect it." The modern doctrine would seem to be much more consonant with good sense and ordinary notions of justice than that which was first adopted.

There seems, also, to be some contrariety of opinion whether or not a publication by an owner of his composition in a particular form, for a limited purpose, or for use in a particular way, will not operate as a complete abandonment, and make his property public property. There are cases which hold that a donation of such property to the public for one purpose, authorizes the public to use it for all purposes. A recent English case, (Boosey v. Fairlie, 7 Ch. Div. 301,) holds otherwise. In this case, it appeared that Offenbach, a distinguished musical composer, composed the orchestral score of a comic opera entitled "Vert—Vert," and afterwards sold his composition to Boosey, a London publisher. The opera was played in Paris before Offenbach made his sale to Boosey, and it also appeared, that, before the sale to Boosey, two arrangements of the music for use on the piano, one with voices and one without, had been made and published and sold in Paris with Offenbach's consent. Shortly after his purchase, Boosey procured the subject of his purchase to be copyrighted, but did not procure a copyright for either of the piano arrangements. The defendant procured a new orchestration of the music to be made from one of the piano arrangements, and then brought out the opera at the St. James Theater in London. Boosey thereupon brought an action to restrain the defendant from producing the opera. The case, in the first instance, was heard by Vice-Chancellor BACON, who refused an injunction, and dismissed the bill. On appeal, the judgment below was reversed. The court of appeal, consisting of Lord justices THESIGER, JAMES, and BAGGALLAY, in pronouncing the judgment of reversal said: "We are of opinion that a dramatic representation, in which a substantial and material part of the music of Offenbach's opera has been performed, constitutes an infringement of the sole right of performing that music, even though the operatic score may have been obtained by independent labor, bestowed upon the unprotected piano arrangement. There is scarcely any popular opera the score of which is not, within a short time after its first appearance, arranged for the piano; and if by reconversion of the piano arrangement into an operatic score,—a task which could be executed by any skilled musician,—and performance of that score, the penalties of infringement could be escaped, the protection given to operatic compositions would be almost nugatory." The court also said that the previous cases of Reade v. Lacy, 1 Johns & H. 524, and Reade v. Conquest, 11 C. B. (N. S.) 479, had decided the very point in question in conformity to the views which controlled their decision. The judgment of the court of appeal was affirmed by the house of lords. Fairlie v. Boosey, L. B. 4 App. 711. In Palmer v. Be Witt, supra, the court of appeals of New York said: "When a literary work is exhibited for a particular purpose, or to a limited number of persons, it will not be construed as a general gift, or an authority for any purpose of profit or publication by others. An author retains his right in his manuscript until he relinquishes it by contract, or some unequivocal act indicating an intent to dedicate it to the public."

This question is an open one in this state; it never before having been presented for judicial consideration in this state. The court is at liberty, therefore, to adopt such rule respecting it as in its judgment is best calculated to give just protection to a species of property which, it is obvious, must increase in value as the people advance in intellectual culture. The rule which I think should be adopted may be stated as follows: That the owner of a dramatic or musical composition may, like the owner of any other kind of property, do with his own as he pleases; he may retain it for his own use and benefit, or he may give it to the public out and out, or he may make a limited or partial dedication of it; and when his act of dedication is of such a character as to show unmistakably that he does not intend to abandon all right, but simply to give the public the right to have a limited use of his property, or to use it in a particular way, and to reserve to himself whatever is not plainly given, the public acquire the right to use his property to the extent of his dedication, but nothing more, and any use of it in excess of the extent dedicated is in violation of his reserved rights. To illustrate: If the composer of an orchestral score of an opera arranges his score for use on the piano, either in whole or in part, and then causes his arrangement to be published and sold, he thereby donates his music to the public for use on the piano, but that is the whole extent of his gift. He does not thereby authorize another composer to make a new orchestration of his music, and perform it in public...