Harms v. Cohen

• Decision Date: 21 March 1922
• Docket Number: 2271.
• Citation: 279 F. 276
• Parties: HARMS et al. v. COHEN.
• Court: U.S. District Court — Eastern District of Pennsylvania

279 F. 276

HARMS et al. v. COHEN.

No. 2271.

United States District Court, E.D. Pennsylvania.

March 21, 1922

Thomas G. Haight, of Jersey City, N.J., and Albert W. Sanson, of Philadelphia, Pa., for plaintiffs.

George Phineas Aarons and Sauder & Ehrenreich, all of Philadelphia Pa., for defendant.

THOMPSON District Judge.

The plaintiff, a corporation engaged in the business of publishing and selling musical compositions, has brought this suit as owner of the copyright in a musical composition entitled 'Tulip Time,' from 'Ziegfield Follies 1919.' The defendant is alleged to be the owner and manager and operator of the Model Theater, where moving pictures and photo plays are exhibited and musical compositions are played, and to which the general public is admitted upon the payment of an admission fee. It is charged that the defendant, in infringement of the copyright, has given public performances for profit of the musical composition in question, by causing it to be played and performed in his theater for the entertainment and amusement of his patrons.

The answer, after denying ownership and control of the theater on the part of the defendant, and denying knowledge of many of the averments of the bill, avers, inter alia, in paragraph 12 of the answer:

'Defendant avers that no musical composition is performed or has been performed in said theater for profit.'

And in paragraph 16:

'That there is employed an organist, who has contracted to play while the motion picture and photoplays are being exhibited, such short excerpts of musical selections as may appear to her fitting and appropriate to the action of that portion of the motion picture at that precise instant being shown upon the screen. The said organist is an independent contractor, over whose actions while playing the defendant has no control. The defendant further avers that entire musical compositions are not played, but that merely short excerpts, continuously changing with the theme of the motion picture, are given. Defendant avers that no charge is made for the privilege of listening to the playing of music, which music is purely incidental, and not a part of the motion picture exhibited by the defendant in the conduct of his motion picture business; that the songs played in said theater were not performed by the defendant, or caused to be performed by him, publicly for profit.'

While the defendant denies that he owns or operated the Model Theater, the answer admits that at the theater daily exhibitions of motion pictures and photo plays are given, to which the general public is admitted, on payment of an admission fee. I fail to see any distinction in law in favor of the performance of copyright musical compositions in moving picture theaters to which a charge for admission is made, as opposed to their performance in public restaurants, as an additional attraction to the customers of such restaurants, which latter were held to be performances for profit within the meaning of the Copyright Act in the case of Herbert v. Shanley Co., 242 U.S. 591, 37 Sup.Ct. 232, 61 L.Ed. 511. It may be assumed that music selected because it is 'fitting and appropriate to the action of that portion of the motion picture at that precise instant being shown upon the screen,' and 'continuously changing with the theme of the motion picture,' is played for the additional attraction to the audience and for its enjoyment and amusement. As Mr. Justice Holmes says in the case above cited:

'If music did not pay, it would be given up. If it pays, it pays out of the public's pocket. Whether it pays or not, the purpose of employing it is profit, and that is enough.'

As to the averments that the organist is an independent contractor, over whose actions, while playing, the defendant has no control, and that she plays only such short excerpts as may to her appear fitting and appropriate, they do not constitute a defense against the charge in the bill. He who employs a musician to perform in an exhibition for profit, under a contract by which the musician has authority to play whatever compositions are in accordance with her judgment appropriate and fitting, must be held responsible for all that is done by the musician. By giving her that authority the employer acquiesces in and ratifies whatever she does. If under his contract he has parted with the right to exercise this control over her actions, without making inquiry as to what she intends to play, he yet must be deemed to have taken part, and to have given her general authority to perform copyright compositions. Monahan v. Taylor, 2 Times Law Reports, 685 (Queen's Bench Division); Irving Berlin, Inc., v. Edelweiss Cafe & Investment Company, in the District Court for the District of Colorado (unreported). See, also, Performing Rights Society, Ltd., v. Thompson, 34 Times Law Reports, 351; Trow v. Boyd (C.C.) 97 F. 586.

That the playing consisted of short excerpts is no defense. Folsom v. Marsh, 2 Story, 100, Fed. Cas. No. 4,901; Dalv v. Palmer, Fed. Cas. No. 3,552; Hein v. Harris (C.C.) 175 F. 875, affirmed 183 F. 107, 105 C.C.A. 399; Boosey v. Empire Music Co. (D.C.) 224 F. 646. It follows that the clause, 'Defendant avers that no musical composition is performed or has been performed in said theater for profit,' in paragraph 12 and the last clause in paragraph 13, 'Defendant avers that the selecting, playing, and rendering of any music in connection with any motion picture or photo play is under the exclusive control, operation, and direction of the organist, as appears more fully in paragraph 16 of this answer,' and the whole of paragraph 16, must be stricken out.

Paragraph 14 of the answer denies each and every allegation of paragraph 14 of the bill. Paragraph 2 of the answer puts in issue the averment of paragraph 2 of the bill that the defendant was and still is the owner and operator of the Model Theater and avers that, on the contrary, another owned and operated it.

Paragraph 14 of the bill, alleging that the acts of the defendant are causing injury and damage to the plaintiff, because it is thereby deprived of the exclusive rights to its copyright composition, is a conclusion from facts elsewhere averred. Paragraph 14 of the answer must therefore be construed as a denial of the specific thing charged; that is, that injury is caused by the acts of the defendant. If the plaintiff shows that the acts complained of in the bill are the acts of the defendant, it is not foreclosed by the denial of its right to recover such damages as the statute allows. The motion to strike out is denied as to paragraph 14.

Paragraph 17 of the answer is as follows:

'Defendant is informed, believes, and therefore charges, that it has become a universal custom of musical composers and publishers to issue, and to send out to musicians in every part of the United States, what are known as 'professional copies' of their musical compositions, with a request that these musicians publicly perform said compositions and thereby 'plug' or popularize and advertise said compositions to the ultimate benefit of the authors and publishers. Defendant is informed, believes, and therefore charges, that professional copies of this selection, to wit 'Tulip Time,' as well as others published by the plaintiff, were furnished by it, or through its agents, to the organist employed by the owner; that the issuance of such professional copies constituted a...