Famous Music Corporation v. Seeco Records, Inc.

• Decision Date: 22 November 1961
• Docket Number: Civ. No. 137-52.
• Citation: 201 F. Supp. 560
• Parties: FAMOUS MUSIC CORPORATION, Shapiro, Bernstein & Co., Inc., Joy Music, Inc. and Mills Music, Inc., Plaintiffs, v. SEECO RECORDS, INC., Defendant.
• Court: U.S. District Court — Southern District of New York

201 F. Supp. 560

FAMOUS MUSIC CORPORATION, Shapiro, Bernstein & Co., Inc., Joy Music, Inc. and Mills Music, Inc., Plaintiffs, v. SEECO RECORDS, INC., Defendant.

Civ. No. 137-52.

United States District Court S. D. New York.

November 22, 1961.

Julian T. Abeles, New York City, for plaintiffs; John S. Clark, New York City, of counsel.

Aranow, Brodsky, Bohlinger, Einhorn & Dann, New York City, for defendant; David A. Drexler, Robert J. Ward, New York City, of counsel.

LEVET, District Judge.

This action is based on alleged violation of the Copyright Law, Title 17 U.S.C. § 1(e) and § 101(e).

The proposed findings of fact, conclusions of law and briefs of the parties having been received, the court, after considering the pleadings, evidence, exhibits, briefs and stipulation of the parties now makes and files herein its Findings of Fact and Conclusions of Law, separately stated:

Findings of Fact

1. The plaintiffs invoke the jurisdiction of this court upon the ground that the Copyright Law of the United States is directly involved herein.

2. Plaintiffs, Famous Music Corporation, Shapiro, Bernstein & Co., Inc., Joy Music, Inc. and Mills Music, Inc. are corporations incorporated under the laws of the State of New York; defendant Seeco Records, Inc. is also incorporated under the laws of the State of New York.

3. The musical composition of plaintiff Famous Music Corporation entitled "Love Letters," was duly copyrighted by said plaintiff as an original published work on May 29, 1945; a certificate of the registration thereof was issued by the United States Register of Copyrights to said plaintiff on June 1, 1945; and at all times since said plaintiff has been and still is the sole proprietor of all rights, title and interest in and to said copyright in said musical composition. (Ex. 2)

4. The musical composition of plaintiff Shapiro, Bernstein & Co., Inc. entitled "(There'll Be Blue Birds Over) The White Cliffs of Dover," was duly copyrighted by said plaintiff as an original unpublished work on October 22, 1941, and as a published work on November 28, 1941; certificates of the registration thereof were duly issued by the United States Register of Copyrights to said plaintiff on October 22 and November 28, 1941 respectively; and at all times since said plaintiff has been and still is the sole proprietor of all rights, title and interest in and to said copyrights in said musical composition. (Ex. 4).

5. The musical composition of plaintiff Joy Music, Inc. entitled "Love Is a Simple Thing," was duly copyrighted by said plaintiff as an original unpublished work on April 2, 1952, and as a published work on May 1, 1952; certificates of registration thereof were issued by the United States Register of Copyrights to said plaintiff on April 2 and May 2, 1952 respectively; and at all times since said plaintiff has been and still is the sole proprietor of all rights, title and interest in and to said copyrights in said musical composition. (Ex. 6).

6. The musical composition of plaintiff Mills Music, Inc. entitled "One Morning in May," was duly copyrighted by said plaintiff as an original published work on December 27, 1933; a certificate of the registration thereof was issued by the United States Register of Copyrights to said plaintiff on January 8, 1934; and at all times since said plaintiff has been and still is the sole proprietor of all rights, title and interest in and to said copyright in said musical composition. (Ex. 8).

7. None of said plaintiffs having theretofore used said respective musical compositions for the manufacture of parts of instruments serving to reproduce the same mechanically, but having licensed others to do so, said plaintiffs did, therefore, duly file notice thereof in the Copyright Office of the United States. (Exs. 2, 4, 6, 8).

8. Prior to March 10, 1958 and on or about April 10, 1957, one Harry Fox, agent of plaintiffs, notified defendant that, by reason of defendant having deliberately and persistently defaulted over an extended period of time in rendering accountings and making royalty payments for phonograph records manufactured by defendant serving to reproduce the copyrighted musical compositions of the music publisher principals of said Fox, including plaintiffs herein, no further licenses would be issued by plaintiffs to defendant and, accordingly, any such uses thereafter made by defendant of plaintiffs' copyrighted musical compositions would have to be made under the compulsory license provisions of the Copyright Act. (Ex. 10).

9. That under date of March 10, 1958, defendant notified each of plaintiffs of its intention to use its musical composition, the respective subject matters of this action, upon the part of instruments serving to reproduce the same mechanically, pursuant to the compulsory license provisions of the Copyright Act, Title 17 U.S.C. (Ex. 1;¹ see also admissions in paragraphs Second and Sixth of defendant's answer).

10. On March 12, 1958, each plaintiff acknowledged receipt of said notice from defendant above referred to and required defendant, pursuant to Title 17 U.S.C. § 1(e), to furnish a report under oath on the 20th day of each month of the number of parts of instruments manufactured during the previous month serving to reproduce mechanically said respective plaintiff's musical work and to make payments of the royalties becoming due on the parts manufactured during each month upon the 20th day of the next succeeding month. (Ex. 1).

11. Defendant thereafter, and under and pursuant to the said compulsory license provisions of said Copyright Act, made use of each of said plaintiff's said copyrighted musical composition in the manufacture of parts of instruments serving to reproduce said respective composition mechanically. (Exs. 3,² 5, 7, 9).

12. After the said notices by defendant, referred to in paragraph 9 hereof, and after receipt by defendant of the notices from each plaintiff, referred to in paragraph 10 hereof, defendant rendered periodical reports to each plaintiff, in each instance reciting that it was a statement of royalties due upon phonograph records manufactured by defendant, serving to mechanically reproduce the said musical composition of said respective plaintiff, covering the specified period of manufacture; and upon each of said reports there was endorsed a certificate under oath to the effect that the same was a correct statement of the royalties due said plaintiff for the period stated, as required to be made by defendant in compliance with the compulsory license provisions of the Copyright Act. (Exs. 3, 5, 7, 9).

13. In spite of said recital and endorsement upon each of the reports referred to in paragraph 12 hereof, defendant's computations in said reports were in fact based upon the number of phonograph records it allegedly sold instead of those manufactured by it; and the checks tendered by defendant to plaintiff's agent in payment of the royalties purportedly owing by defendant to each plaintiff were likewise based upon the number of phonograph records sold by defendant instead of those manufactured by it. (Exs. 3, 5, 7, 9; see also defendant's answer, paragraphs Fourth, Eighth, Tenth, Eleventh).

14. Between on or about May 24, 1957 and on or about March 18, 1958, plaintiffs' agent Fox returned to defendant each of its reports, together with checks totalling the approximate sum of $12,603.04 received by Fox, as agent on behalf of his music publisher principals, including plaintiffs, and with said checks and reports, said Fox notified defendant to the effect that the reports and checks were returned because they were not in compliance with the provisions of the Copyright Act by reason of the fact that in each report the computations were based on records sold instead of on those manufactured, and, further, demanded in each of said communications, on behalf of said agent's music publisher principals, including plaintiffs, the respective copyright proprietors of said musical compositions above referred to, that in compliance with the provisions of Section 1(e) of the Copyright Act, defendant make payment of the full sum of royalties due at the rate of 2¢ on each such part manufactured at the date of said demand. (Ex. 10).

15. On or about May 13, 1958, plaintiffs' agent sent the following communication to the defendant:

"This will acknowledge receipt of your communication of May 8th, with enclosed check in the amount of $3,419.26 and statements. Said check and statements fail to comply with the requirements of the Copyright Act in the same respects as previous statements which were returned to you. In addition, the present statements fail to comply with the requirement of the Act and our demands that you report and pay royalties upon the 20th of the next succeeding month on parts manufactured during any month. I note also that you have arbitrarily deducted from your remittance the amount of $530.54 as previously paid, although the amount has not been paid by you.

"For approximately a year I have been returning your similar statements and checks because of their failure to comply with the compulsory license provisions of the Copyright Act. During this entire period you have obviously been more than satisfied to retain such statements and checks and you have done so without rendering proper statements and making payment of the full amount of your obligation.

"All efforts on my part over this period of time to induce you to conform to such provisions of said Act having been of no avail, I cannot continue to return your statements and checks and thereby permit the amount of your obligation substantially to increase, with no assurance that a judgment when obtained will be collectible. Accordingly, during the pendency of the actions now being brought against you, I will henceforth retain your statements and deposit your checks without prejudice, however, to the respective claims of my principals for the balance of your obligation

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