Buck v. Crescent Gardens Operating Co.

• Decision Date: 01 August 1939
• Docket Number: No. 4666.,4666.
• Citation: 28 F. Supp. 576
• Parties: BUCK et al. v. CRESCENT GARDENS OPERATING CO. et al.
• Court: U.S. District Court — District of Massachusetts

28 F. Supp. 576

BUCK et al. v. CRESCENT GARDENS OPERATING CO. et al.

No. 4666.

District Court, D. Massachusetts.

August 1, 1939.

Guterman & Guterman and Samuel Berkett, all of Boston, Mass., for plaintiffs.

Daniel W. Donahue and Avery Dooley, Post & Carroll, all of Boston, Mass., for defendant John J. Hurley.

McLELLAN, District Judge.

This suit involves infringement of the copyrights on two popular songs. The plaintiffs are Gene Buck, as President of the American Society of Composers, Authors, and Publishers, Joe Davis, Inc., and Leo Feist, Inc. The Society is an unincorporated association, made up of composers, authors and their publishers, whose purpose is to protect the rights of its members in public performances of works secured by copyrights held by them. The plaintiff Buck sues in a representative capacity. The other plaintiffs are New York corporations, joined as owners, respectively, of the copyrights on the songs in question. For the propriety of suits of this character, see Buck et al. v. Royal Palms, Inc., D.C., 23 F.Supp. 29; Buck et al. v. Russo, D.C., 25 F. Supp. 317; Buck et al. v. Elm Lodge, Inc., 2 Cir., 83 F.2d 201. The Crescent Gardens Operating Company, a Massachusetts corporation, and John J. Hurley, a citizen of Massachusetts, were originally joined as defendants, but the bill was later dismissed as to the corporate defendant.

The plaintiffs' contention is that material and substantial parts of two copyrighted songs were played by an orchestra at a public dance hall in Revere, Massachusetts, known as the "Moorish Castle", without license from the Society, to whom exclusive rights to public performance had been assigned by the owners of the respective copyrights. The principal question raised by the defense is whether the defendant Hurley was responsible for infringements of this character at the "Moorish Castle", if any such occurred.

At the conclusion of the trial, which occurred some months ago, the parties expressed the view that the case might be terminated by compromise and only recently was the Court advised that negotiations for settlement had not borne fruit.

On March 16, 1936, a song entitled "Christopher Columbus," words by Andy Razaf, music by Leon Berry, was published by Joe Davis, Inc. At the bottom of the sheet appeared the words "Copyright 1936 by Joe Davis, Inc." Subsequently, two copies of the composition were duly sent to the Copyright Office, as required by statute, and a certificate of copyright issued.

On September 2, 1927, the plaintiff Leo Feist, Inc., published a song entitled "My Blue Heaven", words by George Whiting, music by Walter Donaldson. All copies of the song as published bore the notice "Copyright 1927 by Leo Feist, Inc." Subsequently, copies of the song duly sent to the Copyright Office, and a certificate of copyright issued for this song.

On November 21, 1935, the plaintiff Joe Davis, Inc., entered into an agreement for five years, to begin January 1, 1936, by which it assigned to the American Society of Composers, Authors and Publishers the exclusive right of public performance, with exceptions not here material, in works of which it was then the copyright owner, or of which it might become the owner during the term of the agreement. On December 30, 1935, the plaintiff Leo Feist, Inc. entered into a similar agreement with the Society for the same term.

In August, 1937, the local representative of the Society sent three letters to the defendant Hurley warning him that copyrights of members would be infringed unless a license from the Society was taken for the "Moorish Castle." The defendant was also furnished with a list of the members of the Society. No reply to these letters was received.

On the evening of May 21, 1938, Russell W. Rome, the New England District Manager of the Society, accompanied by his wife and by two employees of the Society, visited the "Moorish Castle". On that occasion an orchestra was playing and people who had paid an admission fee were dancing in the hall. During the evening the orchestra played publicly two choruses of "Christopher Columbus" and three choruses of "My Blue Heaven". I find that this constituted material and substantial portions of the copyrighted pieces.

While Rome was still in the ballroom he had a conversation with the defendant Hurley, during the course of which Hurley refused to take out a license from the Society. Upon being asked, "You are the operator of the place? I am talking...