Herbert v. Shanley Co.
| Decision Date | 11 January 1916 |
| Docket Number | 83. |
| Citation | 229 F. 340 |
| Parties | HERBERT et al. v. SHANLEY CO. |
| Court | U.S. Court of Appeals — Second Circuit |
Nathan Burkan, of New York City, for appellants.
Gilbert Lauterstein & Gilbert, of New York City (Francis Gilbert, of New York City, of counsel), for respondent.
Before LACOMBE, COXE, and ROGERS, Circuit Judges.
This was a suit brought to protect a copyright. It is alleged that on April 2, 1913, G. Schirmer, Incorporated, having been duly authorized by the authors to do so, copyrighted a dramatico-musical composition entitled 'Sweethearts,' and that the right to copyright the composition was granted subject to the condition that the performing right should belong to the other complainants, who were the authors of the composition. Thereafter a separate copyright was taken out by G. Schirmer, Incorporated, of the vocal number 'Sweethearts.' This second copyright is upon words and music, which are a component part of the previously copyrighted dramatico-musical composition similarly entitled. It is alleged to be the leading vocal number of the composition, and the success and popularity of that opera is said to be largely due to this particular vocal number.
Those of the complainants in whom is vested the performing right in this dramatico-musical composition entered into an agreement with certain theatrical managers and producers to perform it upon the public stage, and preparations were made for its extensive production; sceneries, costumes, accessories, and other paraphernalia being provided. Artists were secured to render it, and booking contracts were entered into for its public performance in a theater in New York City, and it has been so performed for a considerable period. It is claimed that the composition has been a great financial and artistic success and has attained great popularity with the public.
The defendant company maintains a restaurant and place of public entertainment in New York City, and is said in the complaint to have caused the separately copyrighted song to be sung by professional singers upon a stage in the dining hall on its premises, accompanied by an orchestra, and it is charged that it proposes to continue the unlawful and wrongful performance. And the complaint avers that the vocalists and orchestra are engaged by the defendant to perform and play upon the premises for compensation; that these performances are open to the public, and are not given for a charitable religious, or educational purpose, but for the purpose of defendant's business and as part of the service rendered to the patrons of its establishment who purchase and partake of refreshments; that this use of the song is without the permission of the complainants and against their will, and amounts to an infringement of the copyright; that the rendering of the song is a part of a theatrical entertainment given by the defendant upon its premises for the entertainment and amusement of its patrons, and for the purpose of attracting them; that the performers are under the pay of the defendant, and that the entertainment thus offered to the public costs the defendant $1,000 each week.
The answer admits that the defendant, through its servants and employes, caused to be sung in its restaurant the vocal selection known as 'Sweethearts.' It states that the song is published in sheet music form, and published and sold separately, and not as a part of any dramatico-musical composition. It admits that the persons singing the song receive compensation therefor from the defendant. It avers that no charge for admission is made to the patrons of its restaurant, or for the privilege of listening to any performance of music therein; that no additional charge is made for meals furnished in the restaurant at the time when such music is performed over the charge made when no music is performed; that the musical composition mentioned in the complaint is not performed by the defendant, or caused to be performed by it, publicly for profit; that the musical composition entitled 'Sweethearts' is published in sheet music form and copyrighted separately and apart from any dramatico-musical composition, and as so published was offered for sale and sold to defendant and the public generally; that by virtue of its purchase of the song so published and sold defendant was authorized to cause the same to be performed in its restaurant in the manner stated.
The answer was accompanied by an affidavit made by the...
To continue reading
Request your trial
-
Remick Music Corp. v. Interstate Hotel Co. of Nebraska
...that they claim convincing support for it from the opinions in Church Co. v. Hilliard Hotel Co., 2 Cir., 221 F. 229, and Herbert v. Shanley Co., 2 Cir., 229 F. 340, affirming, D. C., 222 F. 344, in each of which language occurs justifying the defendants' position. Of course, both of those c......
-
Robert Stigwood Group Ltd. v. O'Reilly
...(2 Cir. 1897), aff'd, 175 U.S. 148, 20 S.Ct. 62, 44 L.Ed. 109 (1899); Herbert v. Shanley Co., 222 F. 344, 345 (S.D.N.Y.1915), aff'd, 229 F. 340 (2 Cir. 1916), rev'd on other grounds, 242 U.S. 591, 37 S.Ct. 232, 61 L.Ed. 513 (1917), it would not be desirable to permit the individual copyrigh......
-
Basevi v. Edward O'Toole Co.
...Act, 17 U.S.C.A. § 19, as interpreted in the Fleischer Case. Cf. Hoague-Sprague Corp. v. Meyer, D.C., 31 F.2d 583, 586; Herbert v. Shanley, 2 Cir., 229 F. 340, 344; and see, also, Dejonge & Co. v. Breuker & Kessler, 235 U.S. 33, 36, 35 S.Ct. 6, 59 L.Ed. Furthermore, it seems to me, it is of......
-
Interstate Hotel Co. v. Remick Music Corp.
...to be found for their interpretation of the Copyright Act in John Church Co. v. Hilliard Hotel Co., 2 Cir., 221 F. 229, and Herbert v. Shanley Co., 2 Cir., 229 F. 340. In each case the question decided was whether the right of the copyright owner to publicly perform a musical composition fo......
-
Why the U.k. Adaptation Right Is Superior to the U.s. Derivative Work Right
...Id. at 776-77. 105. Id. at 777. 106. John Church Co. v. Hilliard Hotel Co., 221 F. 229, 231 (2d Cir. 1915). See also Herbert v. Shanley, 229 F. 340 (2d Cir. 1916) (finding no infringement when no admission was 107. M. Witmark and Sons, 291 F. at 773. 108. Id. at 779-80. 109. Jerome H. Remic......