G. Ricordi & Co., Inc. v. Columbia Graphophone Co.
| Decision Date | 31 March 1919 |
| Citation | 256 F. 699 |
| Parties | G. RICORDI & CO., Inc., v. COLUMBIA GRAPHOPHONE CO. |
| Court | U.S. District Court — Southern District of New York |
Nathan Burkan, of New York City, for plaintiff.
W Laird Goldsborough, of New York City, for defendant.
The suit is brought under subdivision 'e' of section 25 of the Copyright Act (Act March 4, 1909, c. 320, 35 Stat 1081 (Comp. St. Sec. 9546)), which provides:
'Whenever the owner of a musical copyright has used or permitted the use of the copyrighted work upon the parts of musical instruments serving to reproduce mechanically the musical work, then in case of infringement of such copyright by the unauthorized manufacture, use, or sale of interchangeable parts, such as discs, * * * for use in mechanical music-producing machines adapted to reproduce the copyrighted music, * * * in a civil action, an injunction may be granted upon such terms as the court may impose.'
Plaintiff seeks an injunction against defendant, the manufacturer of sound records, restraining it from manufacturing and selling sound records for use upon phonographs adapted to reproduce the musical composition duly copyrighted by plaintiff and entitled 'Dear Old Pal of Mine.'
According to plaintiff, Lieut. Gitz Rice, in the month of February 1918, discussed with one Harold Robe the possibilities of a refrain of a song which he had conceived for the purpose of having the same written in the form of a ballad. He played this bit of melody to Robe, who suggested that it would be appropriate for a ballad. Robe wrote the words which now constitute the lyric of 'Dear Old Pal of Mine,' and prepared a lead sheet of music containing the form of the rhythm for the verse of the song. Robe submitted these words under the title 'Dear Old Pal of Mine,' with the lead sheet, to Rice. The latter adopted the form of rhythm to Robe's verse; the refrain of the words fitting the melody of the refrain conceived by Rice.
After several days, this song, so originated, was played upon the piano, and the music thereof was taken down in musical notation upon a sheet of paper by one Polla and arranged by him for the piano. This song was thus composed in the month of February, 1918, and the rights to it were duly assigned to the plaintiff. This song was first published in this or in any foreign country by the plaintiff in the usual course of business on March 8, 1918, and was thereafter duly copyrighted in the name of the plaintiff as proprietor thereof.
Robe is an American citizen, and was such on the 8th day of March, 1918, the date of the first publication of the song. Polla, the arranger of the music, was an American citizen on March 8, 1918. Lieutenant Gitz Rice was born in Canada, and at the outbreak of the war, in August, 1914, enlisted as a private in the First Canadian contingent of the British army. He remained in the service for three years, and secured his commission as first lieutenant in the British army in September, 1916. He was invalided in action and incapacitated for further military duty. He returned from overseas in October, 1917, and was entitled to his discharge from further military service. He came to New York City, and while here was assigned by the British Canadian recruiting mission to render services in the city of New York and elsewhere in the United States to aid in the recruiting of British, Canadians, and Americans. In December, 1918, he was placed upon the reserve list, with the privilege of returning to civil occupation; but he is still a British officer. It is alleged that he has returned to civil occupation, and has remained and taken up his residence in the city of New York, and that he so resided on March 8, 1918, at the time of the first publication of the song, and has continued to reside in New York from that date to the present time.
On September 5, 1918, plaintiff filed a notice of user of such composition for the manufacture of parts of instruments serving to reproduce mechanically such composition, as provided by subdivision 'e,' Sec. 1, of the Copyright Act (Comp. St. Sec. 9517), which reads:
' * * * That it shall be the duty of the copyright owner, if he uses the musical composition himself for the manufacture of parts of instruments serving to reproduce mechanically the musical work, or licenses others to do so, to file notice thereof, accompanied by a recording fee, in the copyright office, and any failure to file such notice shall be a complete defense to any suit, action, or proceeding for any infringement of such copyright.'
On January 31, 1919, defendant wrote plaintiff a letter stating, inter alia:
' * * * We do not concede that the Copyright Act of March 4,1909, as amended, gives to you the right to control the parts of instruments serving to reproduce mechanically 'Dear Old Pal of Mine,' and we beg to give notice that we shall proceed to...
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G. Ricordi & Co., Inc. v. Columbia Graphophone Co.
...Circuit.January 2, 1920 W. Laird Goldsborough, of New York City, for appellant. Nathan Burkan, of New York City, for appellee. See, also, 256 F. 699; 258 F. In this court plaintiff appellee moves to dismiss the appeal. Plaintiff obtained copyright of the words and music of a certain song, w......
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