Irving Berlin v. Daigle

• Decision Date: 04 May 1928
• Docket Number: No. 138.,138.
• Citation: 26 F.2d 149
• Parties: IRVING BERLIN, Inc., v. DAIGLE.
• Court: U.S. District Court — Eastern District of Louisiana

26 F.2d 149 (1928)

IRVING BERLIN, Inc., v. DAIGLE.

No. 138.

District Court, E. D. Louisiana, Baton Rouge Division.

May 4, 1928.

J. Studebaker Lucas, of New Orleans, La., for plaintiff.

Fred G. Benton, of Baton Rouge, La., for defendant.

BURNS, District Judge.

The plaintiff alleges infringement on its copyright by the defendant, who owned and operated a dance pavilion as a place of entertainment for profit, charging admission fees, in the town of Plaquemine, La.

The specific charge of the bill is that on February 7, 1926, the band employed by defendant played the popular musical compositions. "You Forgot to Remember," "Yes, Sir, That's My Baby," and "What Do I Care, What Do I Care, My Sweetie Turned Me Down," without the knowledge and consent of plaintiff, thereby infringing plaintiff's copyright, for which it is entitled to not less than $250 in the premises of each of the three infringements, as minimum statutory damages under R. S. § 4965, and Copyright Act, section 25(b), 17 USCA § 25(b).

The defendant denies liability for the performance, which he admits took place, alleging that the orchestra was a unit, for whose performance he was not responsible, since his contract was made with the leader of the band, who engaged his own musicians; that therefore the orchestra leader was an independent contractor, one over whose selections of music he had no control; that he did not know, and had no right to assume, that the orchestra was without license by the owner of the copyright; that there was no relation of master to servant as between himself and the orchestra leader, and therefore he is not liable under the doctrine respondeat superior. This defense is not tenable. The jurisprudence, both English and American, is to the contrary, viz. the mere fact that he operated and controlled the place of public entertainment, charging admission and so operating for a profit, establishes his liability for permitting and authorizing the unlicensed use of plaintiff's musical compositions in and on the premises. Harms v. Cohen (D. C.) 279 F. 276; Trow v. Boyd (C. C.) 97 F. 586; Marsh v. Conquest, 17 C. B. (N. S.) 418, 10 L. T. 717; 144 Eng. Reprint, 169; Performing Rights Society v. Thompson (1918) 34 Law Times, 351; Monohan v. Taylor (1886) 2 Law Times Rep. 685 (L. B. Div.).

The second and alternative defense is that, in the event he is held liable for the infringement because he permitted and therefore authorized the performance of the copy-righted musical compositions, then the plaintiff is entitled to no more than $10...