Buck v. Russo

• Decision Date: 08 November 1938
• Docket Number: No. 4489.,4489.
• Parties: BUCK et al. v. RUSSO.
• Court: U.S. District Court — District of Massachusetts

25 F. Supp. 317

BUCK et al. v. RUSSO.

No. 4489.

District Court, D. Massachusetts.

November 8, 1938.

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

Harry C. Mamber, of Lynn, Mass., for defendant.

FORD, District Judge.

This is a suit brought by one Gene Buck as President of the American Society of Composers, Authors, and Publishers, hereinafter called the "society", Irving Berlin, Inc., and Select Music Publications, Inc., against the defendant for an injunction and damages for infringement of the copyright of musical compositions. The facts are as follows:

The American Society of Composers, Authors, and Publishers is an unincorporated association organized under the laws of the State of New York with its principal place of business in New York City. Its membership, constantly changing, consists of more than seven hundred authors and composers of musical works, and the society was organized to protect performing rights in musical works, copyrighted by the members of the society, against infringement because of the public performance thereof for profit.

Gene Buck is president of the society and because of the number of its members and the impracticability in joining them and the common interest involved, he brought this suit for and on behalf of said society. The other plaintiffs are corporations organized under the laws of the State of New York and are engaged in the business of printing, publishing, and selling copyrighted musical works. The defendant is a resident of the City of Revere, in the Commonwealth of Massachusetts, and was the owner of what is commonly called a "dine and dance" establishment known as "The Frolic" located at Revere Beach, in Revere. It was possible to purchase food and drink in this establishment and the patrons danced to the music of an orchestra known as the "Don Humbert Orchestra", consisting of five pieces. The music was furnished and used by the orchestra for the purpose of inducing the public to patronize the establishment and pay for the entertainment in the purchase of food and drink. The defendant conducted his place of business for profit; and it was public; and the music was performed for profit. Herbert v. Shanley Co., 242 U.S. 591, 37 S.Ct. 232, 61 L.Ed. 511; Harms v. Cohen, D.C., 279 F. 276, 278.

Prior to the 13th day of January, 1937, one Irving Berlin devised and wrote the words and music of an original musical composition entitled "You're Laughing at Me", and prior to that date the composer assigned this composition to the plaintiff, the Irving Berlin, Inc., a publishing organization hereinafter called the "publisher," including all rights therein and the right to secure copyright; that on the 13th day of January, 1937, the publisher duly copyrighted this composition by publishing it and offering it to the general public with the following notice of copyright on the first page of the music, to wit: "Copyright MCMXXXVII, By Irving Berlin, Inc."

The publisher deposited in the mail and addressed to the Register of Copyrights, Washington, D. C., on January 15, 1937, two complete copies of the best edition of such publication, accompanied by a claim of copyright with the fee required for its registration, and it was duly registered by the Register of Copyrights, and a certificate of copyright registration was issued for it, and since that date this composition has been published by the publisher and upon each copy there has been inscribed on the first page the copyright notice required as above stated.

Further, I find that prior to the 16th day of October, 1936, one John Burke devised and wrote the music and lyrics of an original musical composition entitled "Pennies from Heaven" and prior to that date the composer assigned this composition to the plaintiff, the Select Music Publications, Inc., a publishing organization hereinafter called the "publisher", including all rights therein and the right to secure copyright; that on the 16th day of October, 1936, the publisher duly copyrighted this composition by publishing it and offering it to the general public with the following notice of copyright on the first page of the music, to wit: "Copyright MCMXXXVI, By Select Music Publications, Inc."

The publisher deposited in the mail and addressed to the Register of Copyrights, Washington, D. C., on October 21, 1936, two complete copies of the best edition of such publication, accompanied by a claim of copyright with the fee required for its registration, and it was duly registered by the Register of Copyrights, and a certificate of copyright registration was issued for it, and since that date this composition has been published by the publisher, and upon each copy there was inscribed on the first page the copyright notice required as above stated.

The Irving Berlin, Inc., and Select Music Publications, Inc., who are members of the society, assigned to the society, for valuable consideration, the exclusive non-dramatic public performing rights in the two songs above mentioned for a term beginning January 1, 1936 and ending January 1, 1941.

The publishers are the proprietors of the copyrights in and to the musical compositions mentioned above except as to the rights assigned to this society and the society is the owner of the exclusive non-dramatic performing rights of these musical compositions up to and including the date above mentioned, January 1, 1941.

On June 10, 1937, a list of the members of the society was sent by registered mail to the defendant and in it were included the names of the two corporate plaintiffs. The defendant was informed that it should avoid the performance of any musical compositions copyrighted by any member of the society unless a license to do so was obtained from it.

There was a sharp conflict of testimony as to whether or not the compositions in question were played at the establishment of the defendant, and the plaintiffs in support of their contention that they were, presented as a witness one Stewart H. Meyers, a field representative for the society who had been employed by them for twelve years, whose duty it was to investigate matters of this nature in and about the city of Boston. He testified that he visited the defendant's place of business July 6, 1937, purchased food and drink and that there were many other people in the place at the time eating and drinking and several persons were dancing at the time. This witness stated the orchestra played two choruses of each of the above named compositions and that he was familiar with the melodies and lyrics of both of them; that he had heard them sung and played a great many times by orchestras and over the radio, and at the time of his visit they were known as popular numbers. He testified he made notes of the pertinent facts in the restaurant at the time of his visit from which he refreshed his recollection at the time of the trial, and that immediately after his visit he had made a report of the matter to the society by which he was employed. He testified that he had considerable experience as a musician in times past and had been a professional player of the violin for some time.

The defendant in his denial that neither of the compositions was played at his establishment introduced the testimony of the leader of the orchestra, a member of the orchestra, a waiter, and the defendant himself, and all of them denied that the compositions had ever been played in the defendant's establishment. The leader testified he was given no instructions as to what to play and he never at any time played either of the compositions in question. He admitted he was familiar with the melodies of both and had played...