Herbert v. Shanley Co.
| Decision Date | 01 May 1915 |
| Citation | 222 F. 344 |
| Parties | HERBERT et al. v. SHANLEY CO. |
| Court | U.S. District Court — Southern District of New York |
The plaintiffs are together the authors of a comic opera 'Sweethearts,' of which Herbert composed the music and the other three individual plaintiffs wrote the words. This has been performed in New York and elsewhere, and the words and music together have been printed by the corporate plaintiff, G. Schirmer, Incorporated, which took out a copyright upon the whole opera and upon various pieces as musical compositions. The plaintiff Harry B. Smith also took out a copyright upon the libretto of the opera, in so doing complying with all formalities necessary to procuring a copyright as a dramatic composition.
The defendant owns and keeps in the city of New York a restaurant with a large dining room on the ground floor, in the center of which it has erected a stage without proscenium, wings, or back-drop. Upon this stage during the evenings, and while the guests are eating, actors and singers appear, who sing songs to the accompaniment of an orchestra, and who at times accompany the songs with dancing. This is called a 'cabaret.' The defendant charges no admission to the dining room, and gets its profit from the food and drink sold to the guests while they listen to the performance.
In the opera, 'Sweethearts,' appears a solo with chorus entitled 'Sweethearts,' with orchestral accompaniment; the words and music being separately published by G. Schirmer, Incorporated, and copyrighted as a musical composition. The defendant employed a singer who had purchased a copy of this song from G. Schirmer, Incorporated to sing it to the accompaniment of a small orchestra. The performance was without chorus, not in costume, and without any further effort to reproduce the opera than is involved in singing the words and music.
The plaintiffs move for an injunction on the theory that the performance infringed the copyright of the dramatico-musical composition.
Nathan Burkan, of New York City, for plaintiffs.
Francis Gilbert, of New York City, for defendant.
LEARNED HAND, District Judge (after stating the facts as above).
That the opera was a dramatico-musical composition seems to me to admit of no question; a performance need not therefore, be 'for profit' to infringe, under the rule in Church Co. v. Hilliard, 221 F. 229, 136 C.C.A. 639, decided by the Circuit Court of Appeals for the Second Circuit February...
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Remick Music Corp. v. Interstate Hotel Co. of Nebraska
... ... Neither formal intent by the proprietor to infringe, nor his knowledge of the program actually rendered, is required. Herbert v. Shanley Co., 242 U.S. 591, 37 S.Ct. 232, 61 L.Ed. 511; Buck v. Jewell-LaSalle Realty Co., 283 U.S. 191, 51 S.Ct. 410, 75 L.Ed. 971, 76 A.L.R ... ...
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...entire work, Brady v. Daly, 83 F. 1007, 1010 (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 b......
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Robert Stigwood Group Limited v. Sperber, 522
...constitute a dramatic performance, and it did not matter that the performance was only of a scene or part of a scene." Herbert v. Shanley, 222 F. 344, 345 (S.D.N.Y.1915) (citations omitted), affirmed, 229 F. 340 (2d Cir. 1916), reversed on other grounds, 242 U.S. 591, 37 S.Ct. 232, 61 L.Ed.......