Jerome H. Remick & Co. v. American Auto. Accessories Co., 341.

• Decision Date: 23 April 1924
• Docket Number: 341.
• Citation: 298 F. 628
• Court: U.S. District Court — Southern District of Ohio
• Parties: JEROME H. REMICK & CO. v. AMERICAN AUTOMOBILE ACCESSORIES CO.

298 F. 628

JEROME H. REMICK & CO. v. AMERICAN AUTOMOBILE ACCESSORIES CO.

No. 341.

United States District Court, S.D. Ohio, Western Division.

April 23, 1924

Allen &amp Allen, of Cincinnati, Ohio, for the motion.

John W Weinig and Peck, Shaffer & Williams, all of Cincinnati, Ohio opposed.

HICKENLOOPER District Judge.

This matter comes on upon motion to dismiss the bill of complaint. The defendant is a manufacturer of radio receiving sets and parts, and as a part of its business maintains and operates a radio broadcasting station for the transmission through space of intelligence and music. Such radio broadcasting station is undoubtedly maintained for the purpose of stimulating interest on the part of the public, for the purpose of advertising the receiving sets and instruments of defendant's manufacture, and for the purpose of affording the owners of crystal and other sets of lesser range and power the opportunity of converting radio frequency waves produced by high-tension alternating electric current into audio frequency of direct current, and thus producing a reproduction of the sounds broadcast, by means of ear phones or loud speakers, in the home. It must be kept in mind, also that broadcasting stations are maintained throughout the United States by those who have no direct connection with the manufacture or sale of radio equipment, solely for the advertising value of such broadcasting stations. A notable example of this is the station maintained by the United States Playing Card Company in Cincinnati; other examples are those stations maintained by newspapers at various points.

The complainant is the owner of the copyrighted song entitled 'Dreamy Melody.' On or about October 22, 1923, between the hours of 9 and 10 p.m., the defendant is alleged to have caused the rendition of this composition, 'Dreamy Melody,' by means of singing and an orchestra, to be broadcast from its station in the city of Cincinnati. This act is alleged to have been a public performance for profit of the copyrighted musical composition, and the present action is to enjoin similar broadcasting of complainant's composition and to recover damages and profits under the Copyright Act (Comp. St. Sec. 9517 et seq.).

As was said in the case of White-Smith Music Co. v. Apollo Co., 209 U.S. 1, 15, 28 Sup.Ct. 319, 322 (52 L.Ed. 655, 14 Ann.Cas. 628): 'In the last analysis this case turns upon the construction of a statute, for it is perfectly well settled that the protection given to copyrights in this country is wholly statutory.'

By Act March 4, 1909, c. 320, Sec. 1, 35 Stat. 1075 (U.S. Comp. Stat. Sec. 9517), any person entitled thereto, upon compliance with the provisions of the Copyright Act, is given the exclusive right 'to perform the copyrighted work publicly for profit if it be a musical composition and for the purpose of public performance for profit. ' By the same act, as amended August 24, 1912 (37 Stat. 489, U.S. Comp. Stat. 1918, Sec. 9546), an infringer is made liable to an injunction restraining such infringement, and to pay to the copyright proprietor such damages as the copyright proprietor may have suffered, due to infringement, as well as all the profits which the infringer shall have made from such infringement, or, we assume, in the absence of proof of profits or damages, arbitrary fixed damages, but not less than $250. This minimum is claimed in the instant case.

Plaintiff's rights being entirely dependent upon the statute, and the recovery sought being an arbitrary penal sum, not in any sense dependent upon proof of actual profits or damages to an equivalent amount, we are inclined to the opinion that the statute should be subjected to strict construction, notwithstanding the provision of the section covering infringement that such arbitrary minimum recovery 'shall not be regarded as a penalty. ' As to the earlier form of this section, wherein it was provided, as in the present form, that the infringer should pay $1 for every infringing copy of the works enumerated in section 5 of the act, it has been repeatedly held by the Supreme Court that litigants are bound by the language of the act, and that the infringing copies must be found in the actual possession of the defendant. See Bolles v. Outing Co., 175 U.S. 262, 268, 20 Sup.Ct. 94, 44 L.Ed. 156, approved Werckmeister v. American Tobacco Co., 207 U.S. 375, 382, 28 Sup.Ct. 124, 52 L.Ed. 254. This is but the equivalent of holding that, in order to justify recovery, the complainant must bring himself within the natural, and not a forced, construction of the act, and within the clear intent and purpose of the Copyright Act.

The same rule of construction is illustrated by the case of White-Smith Co. v. Apollo Co., supra, in which it was held that a perforated player piano roll was not a copy of a musical composition within the protection of the Copyright Act. While these statutes 'should be given a fair and reasonable construction,' with a view to protecting the author in such manner that he may have the benefit of the property right conferred for a limited term of years (American Tobacco Co. v. Werckmeister, 207 U.S. 284, 291, 28 Sup.Ct. 72, 52 L.Ed. 208, 12 Ann.Cas. 595), it is clear that this protection should not be extended beyond the express language of the statute, nor a property right created which was clearly not within the mind of Congress when the act was passed.

And in determining this intent of Congress, as expressed in the act it...