F. A. Mills, Inc. v. Standard Music Roll Co.
| Decision Date | 01 July 1915 |
| Citation | 223 F. 849 |
| Parties | F. A. MILLS, Inc., v. STANDARD MUSIC ROLL CO. |
| Court | U.S. District Court — District of New Jersey |
Nathan Burkan, of New York City, for plaintiff.
Louis M. Sanders, of Orange, N.J., for defendant.
F. A Mills, Incorporated, the plaintiff, has instituted two suits against the Standard Music Roll Company, a corporation, the defendant, for alleged infringements of the plaintiff's copyrights in two musical compositions, entitled respectively, 'Waiting for the Robert E. Lee' and 'Take Me to That Swanee Shore. ' They were copyrighted on May 3, 1912, and August 30, 1912 respectively. The suits were tried together, as the facts and questions presented in each are the same.
The plaintiff is engaged in the publication of musical compositions, and the defendant in the manufacture of perforated music rolls serving to reproduce mechanically the musical features of such compositions. Prior to the committing of the alleged infringing acts, the plaintiff had licensed the defendant to use the copyrighted musical compositions in the manufacture of its perforated rolls. The defendant inclosed and distributed in the boxes containing the rolls separate sheets or slips of paper, on which it had caused to be printed the words or lyrics of the compositions. This, it is claimed, infringed the plaintiff's copyrights.
It is contended primarily on behalf of the defendant that the license agreement permitted the defendant to do this, and consequently is in writing, and both are in identically the same form. After reciting that the plaintiff is the owner of the copyright, and that the defendant desires to secure the privilege to use 'the said copyrighted musical composition, in the manufacture of its music rolls,' they each grant the privilege in the following language:
'The publisher (the plaintiff) hereby gives to the company (the defendant) the right, privilege, and authority to use the said copyrighted musical composition, . . ., in the manufacture of its sound records in any form whatsoever and hereby consents to extending the original copyright of said musical composition to the instruments serving to reproduce mechanically the said musical work.'
While it seems that the words 'musical composition,' as used in the copyright statute, mean both words and music (M. Witmark & Sons v. Standard Music Roll Co., 221 F. 376 , still I think that they must be given a more limited meaning in the license agreements in question. The privilege granted was to use the musical composition 'in the manufacture of its (defendant's) sound records. ' The printing of the words on a separate sheet of paper and the distribution of the latter had nothing whatsoever to do with the manufacture of the perforated rolls. They were quite distinct acts. Also by the terms of the license agreements the original copyright is extended 'to the instruments serving to reproduce mechanically the said musical work. ' Neither the rolls nor the instruments in which they were to be used reproduced the words of the compositions, nor were they capable of doing so.
I can readily perceive that, if the defendant were manufacturing discs or records for use in phonographs or similar instruments, which produce both the words and the music, the license agreements would permit the use of both the words and the music, because both would then enter into the manufacture of the records. Admittedly, it was not until some months after the license agreements were executed that the scheme of inclosing the printed words in the same packages with the perforated rolls was conceived by the defendant. It could not, therefore, have been contemplated by the parties, at the time the agreements were executed, that the privilege was to extend to the use of the words in the way in which the defendant has used them. If the defendant has the right to print and distribute the words alone in the way complained of, it would have the same right to print the words and music together on a separate sheet, and distribute it with the perforated rolls. It could thus defeat the plaintiff's exclusive right to publish and sell the musical composition. Manifestly the plaintiff did not, by the license agreements, divest itself of that right. I therefore am constrained to find that the license agreements did not permit the defendant to print and distribute the words of the musical composition in the way in which it did.
It is not questioned by the defendant that, under section 3 of the Copyright Act of 1909 (35 Stat. 1075), the unauthorized use of either the words or music separately would constitute an infringement of the copyrighted 'musical composition,' although the words and music were...
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