Cohan v. Richmond, 105.

• Decision Date: 07 December 1936
• Docket Number: No. 105.,105.
• Citation: 86 F.2d 680
• Parties: COHAN v. RICHMOND et al.
• Court: U.S. Court of Appeals — Second Circuit

86 F.2d 680 (1936)

COHAN v. RICHMOND et al.

No. 105.

Circuit Court of Appeals, Second Circuit.

December 7, 1936.

O'Brien, Driscoll & Raftery and Edward J. Clarke, all of New York City (Arthur F. Driscoll and Milton M. Rosenbloom, both of New York City, of counsel), for appellant.

Irvin A. Edelman, of New York City (Clarence S. Barasch, of New York City, of counsel), for appellee.

Before MANTON, L. HAND, and SWAN, Circuit Judges.

L. HAND, Circuit Judge.

This is an appeal by the plaintiff from an order in a suit in equity, awarding an allowance under section 40 of the Copyright Act (17 U.S.C.A. § 40) to the defendants' attorney. The questions at issue are the propriety (1) of any allowance at all; (2) of the amount awarded; and (3) of a reference to assist in fixing it. The plaintiff is a composer of songs; on June 2, 1930, he filed a bill in two counts against the four defendants, the firm of Richmond and Mayer, the Robbins Company and Mills. The first count alleged that before October 20, 1904, Cohan had composed ten songs — parts of a musical play — which he had licensed Mills to print and publish at a royalty, and had authorized him to copyright on Cohan's behalf. Mills did copyright them on October 20, 1904, but failed to pay the royalties reserved, and by so doing was alleged to have forfeited any rights in the copyrights which thereupon reverted to Cohan. Richmond and Mayer, in disregard of Cohan's rights, had printed and distributed the songs and assumed to give licenses to others; so had the Robbins company. The second count alleged the same facts as to other compositions, except that it did not say that these had ever been copyrighted. The bill concluded, (Article Eighteen), by invoking the jurisdiction of the court because "the subject matter * * * has to do with copyrighted musical matter"; it prayed an injunction and an accounting. Richmond and Mayer filed an answer and counterclaim on February 19, 1931, and on March 23rd Cohan replied to the counterclaim. Thereafter a number of interlocutory proceedings took place; Cohan filed interrogatories, to which Richmond and Mayer excepted, but which they answered in November, 1931; in November 1932 Cohan gave notice of the taking of depositions, which on November 14, 1932, Richmond and Mayer moved to vacate, with what result does not appear. On November 21st they secured an order to show cause, returnable on the 29th, to dismiss the bill for insufficiency on its face, with a stay of all proceedings meanwhile. The return day was apparently adjourned from time to time; at any rate the motion did not come on to be heard until February 3, 1933, before Judge Bondy. On July 11th of that year he filed an opinion that the bill should be dismissed, upon which on August thirty-first Judge Woolsey passed a decree dismissing the second count unconditionally, and the first count with leave to plead over within thirty days. Cohan did not plead over, and on July 5, 1935, nearly two years later, upon Richmond and Mayer's ex parte application Judge Goddard dismissed the bill finally and declared that their attorney should be awarded an allowance to be fixed later. The attorney applied for his allowance shortly thereafter, asking $3,500, and the matter came on before Judge Patterson, who in August denied the application without prejudice, upon Cohan's insistence that he still meant to amend. As he continued to do nothing, the attorney renewed his application on November 4, 1935, at which time after argument it was referred to a master, who after several hearings filed his report on December 23, awarding $3,000. When this report came before the judge upon exceptions he cut the award to $2,000, but charged Cohan with the expenses of the reference, $297.50. From that order, passed March 30, 1936, Cohan appealed, including for review Judge Goddard's decree dismissing the bill and the order of reference. He argues that the suit was not under the Copyright Act; that if it was, only the judge who dismissed the bill could grant an allowance; that the amount was too large; and that it was improper to refer the issue.

The appeal properly included not only the order finally fixing the award, but the two earlier interlocutory decisions. These were not appealable as such; but when the controversy was finally ended by the order of March 31, 1936, they could be brought up along with it. Western Union Telegraph Co. v. United States & Mexican Trust Co., 221 F. 545 (C.C.A.8); King v. Hiawatha Silk Mills, 296 F. 907 (C.C.A.2). The principal question — the amount of the allowance — lay indeed in the discretion of the court, but it was appealable nevertheless. Marks v. Feist, Inc., 8 F.(2d) 460 (C.C.A.2); Cunningham v. Douglas, 72 F. (2d) 536, 537, 539 (C.C.A.1).

The first question is whether the bill laid a suit in equity under sections 34 and 36 of the Copyright Act (17 U.S.C.A. §§ 34, 36). Did the...