G. Ricordi & Co., Inc. v. Columbia Graphophone Co.
| Decision Date | 02 January 1920 |
| Docket Number | 78. |
| Citation | 263 F. 354 |
| Parties | G. RICORDI & CO., Inc., v. COLUMBIA GRAPHOPHONE CO. |
| Court | U.S. Court of Appeals — Second Circuit |
W Laird Goldsborough, of New York City, for appellant.
Nathan Burkan, of New York City, for appellee.
See also, 256 F. 699; 258 F. 72.
In this court plaintiff appellee moves to dismiss the appeal. Plaintiff obtained copyright of the words and music of a certain song, which attained considerable popularity and was and is apt for phonographic reproduction. Defendant is engaged in the business (inter alia) of making and selling musical records. For reasons not now material defendant's manager thought, that plaintiff's copyright was legally defective, and he thereupon served written notice on plaintiff that his company did 'not concede that the Copyright Act * * * gives to you the right to control' mechanical reproductions of said song, and therefore he gave 'notice that we shall proceed to manufacture' records thereof 'without payment of royalty.'
The Copyright Act of 1909 (35 Stat. 1075), as amended by that of August 24, 1912 (37 Stat. 488), gives to copyright owners, such as plaintiff, the right of 'controlling the parts of instruments serving to reproduce mechanically the musical work' (section 1e (Comp. St. Sec. 9517)), with the proviso, however, that 'whenever the owner of a musical copyright has * * * permitted * * * the use of the copyrighted work upon the parts of instruments serving to reproduce mechanically the musical work, any other person may make similar use of the copyrighted work upon payment' of a royalty of two cents on each record. The statute contains the further proviso that the copyright owner, if he either uses his musical composition for the manufacture of records, or licenses others to do so, shall file notice thereof * * * in the Copyright Office' (section 1e).
In respect of the song here in question, plaintiff filed such a notice of use several months before the above-described communication from defendant, which was served January 31, 1919. The statute further declares (section 25e (section 9546)) that, when a copyright owner has filed the notice of use as did the plaintiff herein, he shall recover the statutory royalties provided by the same act in section 1e and above referred to, and adds 'whenever any person, in the absence of a license agreement, intends' to make records of a copyrighted musical composition, 'relying upon the compulsory license provision of this act, he shall serve notice of such intention, by registered mail, upon the copyright proprietor * * * sending to the Copyright Office a duplicate' thereof. If such compulsory licensee does not do this, the court 'may in its discretion' give further damages, not exceeding 'three times the amount provided by' the aforesaid section 1e.
Defendant made a record capable of reproducing the song as sung by the human voice and put it on the market. Plaintiff promptly brought this action. Defendant set up invalidity of copyright, and was defeated at the trial below. Final decree was entered June 23, 1919, and defendant then took this appeal.
On July 3, 1919, the same manager of defendant who in the preceding January had told plaintiff that its copyright was void gave written notice to the plaintiff that, 'under the notice of use * * * filed by you with the Register of Copyrights, we hereby serve notice that we shall make and sell violin records' of the copyrighted song here in question. The violin record above referred to had been made without the knowledge of defendant's counsel in this suit, and the notice given by the manager on July 3d was likewise entirely unknown to counsel until after appeal had been taken.
Before WARD, ROGERS, and HOUGH, Circuit Judges.
HOUGH Circuit Judge (after stating the facts as above).
While nothing in the statute prevents the owners of copyrighted musical works from granting licenses by private treaty, as in other cases, it is plainly said that protection from mechanical reproduction of music is only granted on condition of what the act itself calls 'compulsory' license that is to say,...
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