Danks v. Gordon

• Decision Date: 02 March 1921
• Docket Number: 110.
• Citation: 272 F. 821
• Parties: DANKS v. GORDON et al.
• Court: U.S. Court of Appeals — Second Circuit

272 F. 821

DANKS v. GORDON et al.

No. 110.

United States Court of Appeals, Second Circuit.

March 2, 1921

This cause comes here on appeal from the United States District Court for the Eastern District of New York. This is a suit in equity for an injunction and an accounting.

It does not appear when this suit was commenced and the original bill of complaint does not appear in the record. An amended bill of complaint was apparently filed on July 6, 1916.

It appears that the complainant is the administrator with the will annexed of Hart P. Danks, who died on November 10, 1903 that on December 10, 1903, letters of administration were issued to Albertha N. Danks Builder as sole executrix; that after her death and on July 1, 1910, letters of administration with the will annexed were granted to the complainant.

The complaint alleges the infringement of certain exclusive rights in 29 songs and musical compositions, the title to which is alleged to be in the estate of the complainant's testator.

The bill alleges that at the time of his death Danks was the owner, composer, and proprietor of certain copyrighted songs set to music. It states that several years prior to his death Danks had entered into an arrangement with Hamilton S. Gordon who was engaged in the business of publishing and selling music and songs. It was agreed that Gordon should print publish, and sell the copyrighted songs the music of which was written by Danks paying to the latter royalties therefor. After the death of Danks his executrix and daughter Albertha N. Danks Builder continued the arrangement with Gordon and received royalties from him. After her death and the appointment of complainant as administrator with the will annexed, he continued the agreement with Gordon for the publication of the songs and musical compositions until Gordon's death on June 1, 1914. Then complainant continued the agreement with the Estate of Gordon until June 1, 1918, since which time the defendants have made no further payments on account of royalties claimed to be due to the estate of Hart P Danks.

The suit was originally begun against Elizabeth Adair Gordon, individually and as administratrix of the estate of her husband, Hamilton S. Gordon, deceased, and her four sons, together with Harriet P. Danks, the widow of Hart P. Danks, and their two children.

Every one in the Danks and Gordon families was before the court. The action was delayed for more than a year by the failure of defendants to file answers to the interrogatories, and then further by the death of the defendant Elizabeth Adair Gordon. Then by stipulation and order the action was continued against Hamilton A. Gordon as administrator with the will annexed of the estate of his father, and as administrator of the estate of his mother.

The bill alleges that on April 10, 1916, the plaintiff as administrator with the will annexed of the estate of Hart P. Danks caused a written notice to be served upon the defendants Gordon revoking the license or permission given to them to print, publish, or sell the songs or musical publications belonging to the Danks estate, and informing them that any subsequent publication or sale would be deemed an infringement. And it states that the defendants Gordon have failed, neglected, and refused to comply with any of the aforesaid demands. An injunction and an accounting are prayed. It also made demand for the delivery to the complainant as such administrator of all property, then in possession or under their control, belonging to the estate of Hart P. Danks, deceased, including all the plates of the songs, and others, set to music, and mentioned in the notice. It also demanded a full and complete statement and account of the number of copies of said musical compositions and each of them, printed, published, and sold by them, together with the names and addresses of the printers thereof; and demand was made upon them for an examination of their books containing entries relating to the printing, publication, and sale of said musical compositions.

Frank B. Golton, of New York City (Irving M. Obrieght, of New York City, of counsel), for appellant.

Effingham L. Holywell, of Brooklyn, N.Y., for complainant appellee.

Alfred M. Schaffer and Begg, Begg & Begg, all of New York City, for defendants appellees.

Before ROGERS, HOUGH, and MANTON, Circuit Judges.

ROGERS Circuit Judge (after stating the facts as above).

The District Judge has found and decreed that Hart P. Danks was the composer and at the time of his death was the owner of the songs and musical compositions mentioned in the margin, ^[1] and that he was also the owner and composer of certain other songs and musical compositions separately classified by the District Judge and which are also to be found in the margin. ^[2] He has also found that during the lifetime of Danks the said songs and musical compositions were duly copyrighted by him or on his behalf; that his estate has been and still is the sole owner and proprietor thereof except of such of the said songs or musical compositions, the copyrights of which have been renewed or extended since his death; that ever since the date of such renewals or extensions the title thereto has been and still is vested in the defendant Harriet P. Danks (his widow) originally named as Margaret P. Danks in the title of the action, and the defendants Gertrude L. Danks, and Albert V. Danks, his only surviving children. He has also found that the Gordon defendants have infringed and violated the exclusive rights of the complainant and of the Danks defendants. He has ordered an accounting and a perpetual injunction

The record fails to disclose that when the case was heard by the District Judge any objection to the jurisdiction was raised by counsel at any stage of the proceedings. And in the opinion handed down no allusion is made to the question of jurisdiction. At the argument in this court, however, reference was made to the subject. But if it had not been it would have been our duty to have noticed it.

The jurisdiction and powers of federal courts are derived from the Constitution and the acts of Congress. They possess only such powers as have been conferred upon them. In an action in such courts it is presumed that the court is without jurisdiction until the contrary affirmatively appears. Robertson v. Cease, 97 U.S. 646, 24 L.Ed. 1057. The jurisdiction should be affirmatively shown by the record, and if it is not so shown a judgment given under such circumstances will be reversed. Mattingly v. Northwestern Virginia R. Co., 158 U.S. 53, 15 Sup.Ct. 725, 39 L.Ed. 894; Brock v. Northwestern Fuel Co., 130 U.S. 341, 9 Sup.Ct. 552, 32 L.Ed. 905; Continental Life Ins. Co. v. Rhoads, 119 U.S. 237, 7 Sup.Ct. 193, 30 L.Ed. 380. Although the lack of jurisdiction is ignored at the argument by each side, the court will of its own motion notice it and act accordingly.

If the court had jurisdiction of this suit, it must be either because there exists 'diversity of citizenship' between the parties, or because it presents a question arising under the Copyright Acts of Congress. We shall inquire first whether the requisite diversity of citizenship exists. The amended bill of complaint alleges:

'That your orator is a citizen of the United States, and an inhabitant of the borough of Brooklyn, city and state of New York; that the defendants Elizabeth Adair Gordon, Hamilton A. Gordon, Clarence T. Gordon, and Herbert H. Gordon are all citizens of the United States and inhabitants of East Orange in the state of New Jersey; that the defendants Harriet P. Danks and Gertrude L. Danks are citizens of the United States and inhabitants of the borough of Manhattan, city and state of New York.' From this it appears that the complainant is a citizen of the state of New York, and that two of the defendants are citizens of the same state, while the other four defendants reside in the state of New Jersey.

A controversy is not between citizens of different states so as to give jurisdiction to the federal courts unless all the persons on one side of it are citizens of different states from all the persons on the other side. Gage v. Carraher, 154 U.S. 656, 14 Sup.Ct. 1190, 25 L.Ed. 989; Wilson v. Oswego Township, 151 U.S. 56, 14 Sup.Ct. 259, 30 L.Ed. 70. Where one or more of the complainants and one or more of the respondents are citizens of the same state, this is fatal to the jurisdiction of the court if the jurisdiction rests simply on the ground of diversity of citizenship. Byers v. McAuley, 149 U.S. 608, 13 Sup.Ct. 906, 37 L.Ed. 867. If the jurisdiction of the court is to be sustained, it must be on some other ground than that of diversity of citizenship.

We come then to inquire whether jurisdiction can be sustained upon the theory that a right is involved which is derived from the Copyright Acts of Congress. It is undoubted that the federal courts have jurisdiction of suits at law or in equity arising under the copyright laws. 36 U.S.St.at L.c. 231, p. 1092, Sec. 24, par. 7; Barnes' Federal Code 1919, p. 183, Sec. 783 (Comp. St. Sec. 991 (7)). The jurisdiction in such cases is irrespective of citizenship. Photo-Drama Motion Picture Co., Inc., v. Social Uplift Film Corporation, 220 F. 448, 137 C.C.A. 42. And such jurisdiction when it exists is exclusive, 36 U.S.St.at L.c. 251, p. 1161, Sec. 256, par. 5; Barnes' Fed. Code 1919, p. 247, Sec. 1021 (section 1233).

In an action for infringement of copyright the plaintiff's bill must show title in the plaintiff to the relief sought. The complainant must show his title not merely by an allegation that he is the proprietor but by setting forth facts which show how he became proprietor and why he has the right to bring the action. Crown Feature Film Co. v....