Interstate Hotel Co. v. Remick Music Corp.

• Citation: 157 F.2d 744
• Decision Date: 20 January 1947
• Docket Number: No. 13162-13165.,13162-13165.
• Parties: INTERSTATE HOTEL CO. OF NEBRASKA v. REMICK MUSIC CORPORATION. PARK v. M. WITMARK & SONS. FOX v. CHAPPELL & CO., Inc. INTERSTATE HOTEL CO. OF NEBRASKA v. KERN et al.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

157 F.2d 744 (1946)

INTERSTATE HOTEL CO. OF NEBRASKA v. REMICK MUSIC CORPORATION. PARK v. M. WITMARK & SONS. FOX v. CHAPPELL & CO., Inc. INTERSTATE HOTEL CO. OF NEBRASKA v. KERN et al.

Nos. 13162-13165.

Circuit Court of Appeals, Eighth Circuit.

October 23, 1946.

Writ of Certiorari Denied January 20, 1947.

William J. Hotz, of Omaha, Neb. (Hotz & Hotz, of Omaha, Neb., on the brief), for appellants.

James J. Fitzgerald, Jr., and Yale C. Holland, both of Omaha, Neb. (Seymour L. Smith, Fitzgerald & Smith, and Kennedy, Holland, DeLacy & Svoboda, all of Omaha, Neb., on the brief), for appellees.

Before GARDNER, WOODROUGH, and RIDDICK, Circuit Judges.

RIDDICK, Circuit Judge.

These appeals are from judgments of the United States District Court for the District of Nebraska granting injunctions and awarding damages in actions under the Copyright Act, 17 U.S.C.A. § 1 et seq., for infringement of the copyrights of musical compositions. The facts, concerning which there is no dispute in any of the cases, are identical in all cases so far as material to the decision of the questions presented in the appeals. The assignments of error are the same in all cases.

In each case the evidence established the title of the appellee to the musical composition involved and to its copyright, and the appellant's public performance of the composition for profit without license or consent of the appellee, the copyright owner. Admitting the facts just stated, appellants, nevertheless, contend that by publication and sale to the public of the copyrighted musical compositions in the form of sheet music the appellees as copyright owners conferred upon the purchasers the right to publicly perform for profit the composition sold.

Section 1 of the Copyright Act, 17 U.S. C.A. § 1, reads as follows:

"Exclusive rights as to copyrighted works. Any person entitled thereto, upon complying with the provisions of this title, shall have the exclusive right:

"(a) To print, reprint, publish, copy, and vend the copyrighted work;

* * * * * * *

"(e) To perform the copyrighted work publicly for profit if it be a musical composition and for the purpose of public performance for profit; and for the purposes set forth in subsection (a) hereof, to make any arrangement or setting of it or of the melody of it in any system of notation or any form of record in which the thought of an author may be recorded and from which it may be read or reproduced * * *."

The argument of appellants is that by the language quoted the Congress conferred on the copyright proprietor of a musical composition the choice between two rights, and that under the facts in the present cases, since the copyright owners have availed themselves of the right granted in section 1 (a) of the Act to publish and sell copies of their musical compositions, they have thereby waived the right granted them by section 1(e) of the Act to publicly perform the compositions for profit. But, obviously, appellants' construction of the Copyright Act requires reading into it something that is not there. The right to publish and sell copies of the copyrighted musical work and the right publicly to perform the work for profit are separate and distinct rights separately granted by the Copyright Act. The separate rights thus exclusively granted to the copyright owners are distinct in character and differ widely in value. There is nothing in the Act which makes the exercise of one right dependent upon the abandonment of the other. The copyright owner may exercise either right or both as its interest may dictate. Buck v. Jewell-LaSalle Realty Co., 283 U.S. 191, 51 S.Ct. 410, 75 L.Ed. 971, 76 A.L.R. 1266; Jewell-LaSalle Realty Co. v. Buck, 283 U.S. 202, 204, 51 S.Ct. 407, 75 L.Ed. 978; Buck v. Swanson, D.C., 33 F. Supp. 377, 387, and cases cited; Fox Film Corporation v. Doyal, 286 U.S. 123, 127, 52 S.Ct. 546, 76 L.Ed. 1010.

Appellants are mistaken in the belief that support is 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 for profit was infringed by its performance in a public restaurant to which no admission was charged and where the performers were paid for their services by the proprietor of the restaurant. In each case the court concluded that the performance of the musical composition in the circumstances stated was not a public performance for profit within the meaning of the Copyright Act. In each case the decision of the court was reversed by the Supreme Court on the question decided. Herbert v. Shanley Company, John Church Company v. Hilliard Hotel Company, 242 U.S. 591, 37 S.Ct. 232, 61 L.Ed. 511. There is nothing in the opinion of the Second Circuit in the Church Company case to show that the question here under consideration was considered in that case. The language of the opinion (221 F. at page 230) that "When the copyright proprietor of a musical composition sells printed copies of it to the public, the performing right goes with them" is followed by the statement that section 1(e) of the Copyright Act gives the copyright owner the additional exclusive right to perform the copyrighted work publicly for profit and by the assertion that the case before the court turns upon the meaning of the words "for profit." It is clear that the court recognized that in the case of musical compositions the copyright owner receives distinct and separate rights under sections .1(a) and 1(e) of the Act, and that the performing right referred to in the language quoted from the opinion as going with the sale of a printed copy of the composition is the right of private or non-profit performance as distinguished from the right of public performance for profit. Otherwise, there would have been no reason for the court to be concerned with the meaning of the words "for profit" as the sole question in the case.

In the Herbert case it appears from the opinion (229 F. at page 342) that the defendant contended that by virtue of its purchase of a song published and sold by the plaintiff the defendant was authorized to perform it in a restaurant in the manner stated. The court said, however, that the Copyright Act gave the copyright owner of a musical composition "two distinct and separable rights," the first being the sole right to print and sell copies of the words and the music, and the second being the sole right to publicly perform the composition for profit. The court followed its decision in the Church Company case, holding that the performance of a musical composition is not infringed where the music is performed in the dining room of a hotel which is open to guests without charge for admission, thus deciding a question which it could not have reached if it had adopted in the case before it or in the Church Company case the interpretation of the Copyright Act for which appellants contend. In neither of the cases under discussion could the court have been concerned with the meaning of the words "for profit" as used in section 1(e) of the Act if it had held, as appellants claim, that the right granted by section 1(e) of the Act had been lost by the exercise of the right granted by section 1(a) of the Act. Implicit in each of these opinions is the denial of appellants' interpretation of the Act.

In reaching the conclusion stated, we have not overlooked the further argument of appellants, which tacitly admits that the decided cases are against them on the question under discussion, to the effect that all of the decisions dealing with the rights granted by the Copyright Act in respect to musical compositions stem from a case (M. Witmark & Sons v. Pastime Amusement Co., D.C., 298 F. 470), in which, in the view of appellants, a false text of the Copyright Act was presented to and accepted by the court, with the result that the court reached an erroneous conclusion concerning the rights granted by the Act. We have examined the cases upon which appellants rely for the development of this argument. We think it sufficient to say that we find nothing in them tending to support appellants' contention.

The other ground for reversal seriously advanced by the appellants is that the appellees may not prevail in the present actions to protect their copyrights, because of their failure to comply with the provisions of sections 1 and 2 of an act of the Legislature of Nebraska which became effective in May 1937. The statute in question is Chapter 138 of the Laws of 1937 of Nebraska, the first and second sections of which are sections 59-1201 and 59-1202, C.S.Nebraska 1941 Supplement. Appellees admit that they have never complied with any of the provisions of the Nebraska Act.

Section 1 of the Nebraska Act outlaws activities within the State of price-fixing combinations composed of copyright owners. The second section of the Act reaffirms the ban on price-fixing combinations by requiring copyright owners to act independently of each other in transactions in the State of Nebraska in the exclusive rights granted them by the Copyright Act; and it requires copyright owners acting independently of each other in transactions in Nebraska concerning the copyrights owned by them to observe certain requirements of the Act which, for reasons presently to be stated, we find it unnecessary to discuss. The terms upon which the Act permits copyright owners to engage in transactions in Nebraska in respect to their copyright privileges are stated in detail in the opinion of the District Court in the present case, 58 F.Supp. 523, 537-544, and also in Buck v. Swanson, D.C., 33 F.Supp. 377, 387, 388. It is sufficient to say here that, in the view of appellants, the part of section 2 of the Act upon which appellants mainly rely takes from the copyright owner who fails to meet the requirements of the Act the...