Edward B. Marks Music Corp. v. Jerry Vogel Music Co.

• Decision Date: 19 October 1942
• Citation: 47 F. Supp. 490
• Parties: EDWARD B. MARKS MUSIC CORPORATION v. JERRY VOGEL MUSIC CO., Inc. (two cases).
• Court: U.S. District Court — Southern District of New York

47 F. Supp. 490

EDWARD B. MARKS MUSIC CORPORATION v. JERRY VOGEL MUSIC CO., Inc. (two cases).

District Court, S. D. New York.

October 19, 1942.

Arthur E. Garmaize, of New York City, for plaintiff.

O'Brien, Driscoll & Raftery, of New York City, for defendant.

LOVETT, District Judge.

The parties to these two cases are rival music publishing houses, each claiming the right to print, publish and vend two certain musical compositions, songs. Evidence has been heard and the cases are ready for final decree as to injunctive relief. Being quite similar, they may be decided together.

The musical compositions involved consist of words or lyrics, written by one person, and music composed by another. Copyrights were obtained for both of the two compositions many years ago and were renewed under the Act of March 4, 1909, 17 U.S.C.A. § 24. The plaintiff in one case claims under an assignment and license from the author of the words and in the other case from the composer of the music. Conversely, the defendant claims under a license in one case from the composer of the music and in the other from the author of the words. The renewal copyrights describe the works as a "musical composition".

On motions for summary judgments under Rule 56, Rules of Civil Procedure, 28 U.S.C.A. following section 723c, Judge Leibell passed on most of the questions that have been argued at length before me (see Marks Music Corp. v. Jerry Vogel Music Co., D.C., 42 F.Supp. 859), and even if his conclusions do not bind me as "the law of the case" I find myself entirely in agreement with them.

The argument of the plaintiff is that since the authors of the lyrics and the composers of the music did not act together contemporaneously to produce the musical compositions, they cannot be said to have collaborated in the production, therefore they were not coauthors or co-owners; and if one chose to renew the copyright, which is really a new grant under the statute, and the other did not (as the facts here show happened), that part of the musical composition produced by the one failing to renew has fallen into the public domain, and the renewal copyright relates only to the part of the composition produced by the one renewing. In other words, he says the musical composition is not a unit, and on renewal is divisible into two parts — words and music.

I cannot bring myself to this conclusion. Two men producing a musical composition jointly are nonetheless coauthors and owners though they labor at different times, without conference or consultation, and though they may remain strangers to each other. If one produces lyrics or music intending that they shall be combined with the production of another who shall compose the music or write the lyrics (as the case may be) to make the composition complete, the work of both is necessary, the work of one is complementary to the work of the other, the work of one must be fitted, adjusted, even morticed, to the work of the other to make the composition a finished product and marketable. One should not be allowed to take advantage of the other when the copyright is renewed. The renewal should be, and is, for the benefit of both. There can be but one subsisting copyright of a single version of a single work. Silverman v. Sunrise Pictures Corp., 2 Cir., 273 F. 909(3), 914, 19 A.L.R. 289; Maurel v. Smith, D.C., 271 F. 211; Marks Music Corp. v. Jerry Vogel Music Co., supra. I think the line of coauthorship is to be drawn not by when the colaborers worked but according to the original design. Joel Chandler Harris did not originally write his Uncle Remus tales with any intention of having them illustrated when they were collected and put in book form (Harris v. Coca-Cola Co., 5 Cir., 73 F.2d 370); nor did Shakespeare write his Mid-Summer's Night Dream, nor David the 23d Psalm, intending they should be set to music and produced as musical compositions under copyrights. But here all the parties, authors of lyrics and authors of music, intended that the finished product should be a musical composition consisting of the words set to music — that was the thing they intended to be marketed, and, naturally, they wanted the monopoly a copyright gives for a limited time. It would be grossly inequitable, it seems to me, to let one of the two authors renew the copyright, attempt to limit it to the thing he wrote, and thereby exclude his co-owner from any participation in the profits arising from the new grant, on the theory that the product of the one renewing is the only thing the renewal copyright protects and the work of the other has become the property of the United States and therefore of the public. The practical result would be, so far as the musical composition as a unit is concerned, to give the one co-owner renewing a monopoly for the new term upon the products of both. The better view seems to me to be that the one renewing holds for the benefit of both, either as co-owners or as trustee. Marks Music Corp. v. Jerry Vogel Music Co., supra, 42 F.Supp. at page 864.

The...