Freudenthal v. Hebrew Pub. Co.
| Decision Date | 02 April 1942 |
| Citation | 44 F. Supp. 754 |
| Parties | FREUDENTHAL v. HEBREW PUB. CO. et al. |
| Court | U.S. District Court — Southern District of New York |
Leonard Zissu, of New York City, for plaintiff.
Philip Wittenberg, of New York City, for defendants.
This action is brought to restrain an infringement of a copyright of a musical composition and for damages. The complaint is framed in two causes of action. Both allege that between January 1, 1934, and May 16, 1939, Sh. Shalom and Moshe Rappaport, citizens of Palestine, created, composed and wrote, respectively, the text and music of a musical composition entitled Hora Haemek Hu Chalom, that on May 16, 1939, plaintiff received from the Register of Copyrights a certificate of registration for the composition. The first cause of action alleges an infringement of the copyright by the publication and sale of a book entitled "Manginoth Shirenynu", which contained virtually a complete copy of the text and music. The second cause of action alleges such infringement by the defendants in the publication and sale of a book entitled "Shirenynu", which contained virtually a complete copy of the text of said musical composition.
Plaintiff, in order to recover, has the burden of proving (1) that he is the proprietor of a valid copyright, which includes proof (a) that the work was original, (b) that he had taken the necessary steps to comply with the statute as to registering, (c) that the work had not been published before securing the copyright, and (d) that he has title to the copyright; and (2) that the defendants have infringed. Amdur Copyright Law and Practice, pp. 1053, 1054; Davies v. Bowes, D.C., 209 F. 53-55, affirmed 2 Cir., 219 F. 178.
There was offered and received in evidence the certificate of registration, which shows, upon its face, that it was issued to the plaintiff Transcontinental Music Co. of New York, N. Y., for a musical composition entitled, Hora, poem by Sh. Shalom and music by Moshe Rappaport of Palestine, voice and piano, Hebrew and English texts; that there was publication on May 16, 1939, and the copies required by the statute were received May 19, 1939. The copyright is entered in "Class E, pub. No. 77,305". The certificate is prima facie evidence that plaintiff is the proprietor and has title to the copyright, Fred Fisher, Inc., v. Dillingham, D. C., 298 F. 145-148. Gerlach-Barklow Co. v. Morris & Bendien, 2 Cir., 23 F.2d 159-161. M. Whitmark & Sons v. Calloway, D.C., 22 F.2d 412; that plaintiff had taken the necessary steps to comply with the Copyright Law, 17 U.S.C.A. § 1 et seq., as to registering and has a valid copyright, Berlin v. Evans, D.C., 300 F. 677-679; and that the persons named therein were the authors, Vitaphone Corp. v. Hutchinson Amusement Co., D.C., 28 F.Supp. 526-529; Gerlach-Barklow Co. v. Morris & Bendien, supra, Reed v. Carusi, 20 Fed. Cas. page 431, No. 11,642. The certificate carries with it a presumption of regularity, Pizzano v. Knowles & Co., D.C., 37 F.Supp. 118, Callaghan v. Myers, 128 U.S. 617-655, 9 S.Ct. 177, 32 L.Ed. 547. The complaint alleges that the musical composition was original and had not previously been published. Plaintiff has given proof through himself and the witnesses Cohen, Rothenberg, Yasser and Binder, that the composition was an original one and had never before been published. In view of the pleading and proof, the burden was upon the defendants to show otherwise and they have not met that burden.
The second essential is whether or not the defendants have infringed. It was admitted upon the trial that the plaintiff's song was the same as that published by the defendants. A comparison of both shows that the lyrics and the text are identical. There can be no question but that there was a copying, and, therefore, an infringement. It is difficult to suppose that "such parallelism could be the result of coincidence only". Fred Fisher, Inc., v. Dillingham, supra 298 F. 147. Even if the defendants did not...
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