Green v. Luby
| Decision Date | 21 December 1909 |
| Parties | GREEN et al. v. LUBY. |
| Court | U.S. District Court — Southern District of New York |
Nathan Burkan, for complainants.
Max D Josephson, for defendant.
This is an application for a preliminary injunction to restrain the defendant from publicly singing an alleged copyrighted song entitled 'I'm a Bringing up the Family,' which song, it is alleged, was written as a number or part of a copyrighted dramatic sketch entitled 'The Queen of the Vaudeville.'
The defendant contends, in the first place, that the sketch 'The Queen of the Vaudeville' is a musical composition, and not a dramatic composition, within the meaning of the copyright law of 1909 (Act March 4, 1909, c 320, 35 Stat. 1075 (U.S. Comp. St. Supp. 1909, p. 1289)). There is much force in this contention. The work is essentially a series of recitations and songs to be recited or sung by the same person dressed in different costumes. The action and dialogue in addition thereto are hardly sufficient to make a dramatic composition. Still the work is something more than a mere musical composition.
The singer dresses in costumes to represent the different characters. There is a very little dialogue or 'patter'-- the latter being, apparently, the professional term. There is also a very little action. The singer gets out of a cradle. There is scenery, and lights are thrown upon the singer. I think the sketch may fairly be classified as a 'dramatico-musical composition' within the meaning of the copyright act.
But the fact that the sketch was improperly classified as a dramatic composition in taking out the copyright would not affect its validity. The copyright law expressly provides (section 5) that an error in classification shall not invalidate or impair a copyright. Moreover, the particular song in question-- a number of the sketch-- was copyrighted by the complainant Feist as a musical composition before the copyright of the sketch, and I do not understand that any question is raised as to the validity of such copyright.
Regarding then, the sketch as a dramatic composition, the complainants have the exclusive right to publicly present it. Subdivision 'd' of section 1 of the copyright law gives the exclusive right 'to perform or represent the copyrighted work publicly if a drama. ' And, regarding the song as a musical composition, the complainants have the exclusive right to publicly perform it. Subdivision '...
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Loew's Incorporated v. Columbia Broadcasting System
...cases which are found immediately next to each other in the reports — Green v. Minzensheimer, C.C.N.Y.1909, 177 F. 286, and Green v. Luby, C.C.N.Y.1909, 177 F. 287. In the first of these cases a parodized imitation of an actress' manner of style of singing a song, but in which no copyrighte......
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M. Witmark & Sons v. Pastime Amusement Co.
... ... 'The Ship on Fire' from ordinary songs ... [298 F. 474] ... The ... American case cited by the plaintiff is Green v. Luby ... (C.C.) 177 F. 287. In that case a preliminary injunction ... was issued restraining the defendant from publicly singing a ... ...
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Berlin v. EC Publications, Inc.
...as Bloom & Hamlin v. Nixon, 125 F. 977 (C.C.E.D.Pa.1903); Green v. Minzensheimer, 177 F. 286 (C.C.S.D.N.Y. 1909); and Green v. Luby, 177 F. 287 (C. C.S.D.N.Y.1909), did not deal with the parody of a copyrighted work, but with imitations of a particular artist's style of performing, in which......
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Corcoran v. Montgomery Ward & Co.
...was safer to retain without change the old phraseology which has so often been construed by the courts." 2 Appellant relies on Green v. Luby, C. C., 177 F. 287 and Russell v. Smith, 1848, 12 Q.B. 217. The first is readily distinguishable. The Russell case is said to have been somewhat discr......