John Church Co. v. Hilliard Hotel Co.

• Decision Date: 09 February 1915
• Docket Number: 153.
• Citation: 221 F. 229
• Parties: JOHN CHURCH CO. v. HILLIARD HOTEL CO. et al.
• Court: U.S. Court of Appeals — Second Circuit

221 F. 229

JOHN CHURCH CO. v. HILLIARD HOTEL CO. et al.

No. 153.

United States Court of Appeals, Second Circuit.

February 9, 1915

Campbell & Boland, of New York City, for appellants.

House Grossman & Vorhaus, of New York City (William Grossman and Charles Goldzier, both of New York City, of counsel), for appellee.

Nathan Burkan, of New York City, for petitioner.

Before COXE, WARD, and ROGERS, Circuit Judges.

WARD Circuit Judge.

This is an appeal from an order of the District Court granting a preliminary injunction restraining the defendants viz., the lessee of the Hotel Vanderbilt and the leader of the orchestra, from performing in the dining room of the hotel a copyrighted musical composition owned by the complainant, called 'From Maine to Oregon.'

When the copyright proprietor of a musical composition sells printed copies of it to the public, the performing right goes with them. For the greater protection of the copyright proprietor, Congress by section 1 (e) of the act of 1909 gives him also 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. * * * The reproduction or rendition of a musical composition by or upon coin-operated machines shall not be deemed a public performance for profit unless a fee is charged for admission to the place where such a reproduction or rendition occurs.'

The whole case turns upon the meaning of the words 'for profit.' Coin-operated machines are, of course, operated directly for profit; but they were excluded if no admission fee were charged, probably because the damages allowed by section 25, subd. 4, would be prohibitory of the business.

In case of infringement section 25 provides:

'Sec 25. That if any person shall infringe the copyright in any work protected under the copyright laws of the United States such person shall be liable:

'(a) To an injunction restraining such infringement.

'(b) To pay to the copyright proprietor such damages as the copyright proprietor may have suffered due to the infringement, as well as all the profits which the infringer shall have made from such infringement: * * *

'Fourth. In the case of a dramatic or dramatico-musical or a choral or orchestral composition, one hundred dollars for the first and fifty dollars for every subsequent infringing performance; in the case of other musical compositions, ten dollars for every infringing performance.'

Section 28 makes willful infringement for profit criminal, as follows:

'Sec 28. (Penalty for Infringement.) That any person who willfully and for profit shall infringe any copyright secured by this act, or who shall knowingly and willfully aid or abet such infringement, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by imprisonment for not exceeding one year or by a fine of not less than one hundred dollars nor more than one thousand dollars, or both, in the discretion of the court: Provided, however, that nothing in this act shall be so construed as to prevent the performance of religious or secular works, such as oratorios, cantatas, masses, or octavo choruses by public schools, church choirs, or vocal societies, rented, borrowed, or obtained from some public library, public school, church choir, school choir, or vocal society, provided the performance is given for charitable or educational purposes...