Klasmer v. Baltimore Football, Inc.

• Decision Date: 15 December 1961
• Docket Number: Civ. No. 12491.
• Citation: 200 F. Supp. 255
• Parties: Sadie KLASMER, individually and as administratrix of the estate of Benjamin Klasmer, deceased, and Jo Lombardi v. BALTIMORE FOOTBALL, INC., a body corporate, The National Brewing Company, a body corporate, et al.
• Court: U.S. District Court — District of Maryland

200 F. Supp. 255

Sadie KLASMER, individually and as administratrix of the estate of Benjamin Klasmer, deceased, and Jo Lombardi

v.

BALTIMORE FOOTBALL, INC., a body corporate, The National Brewing Company, a body corporate, et al.

Civ. No. 12491.

United States District Court D. Maryland.

December 15, 1961.

Alexander R. Martick and J. Wesley Everett, Baltimore, Md., for plaintiffs.

William D. Macmillan and David F. Albright, Baltimore, Md., for Baltimore Football, Inc.

Morton J. Hollander, Baltimore, Md., for The Nat. Brewing Co.

THOMSEN, Chief Judge.

In this action for alleged infringement of copyright the remaining defendants are Baltimore Football, Inc., and the National Brewing Company. The parties have agreed that the court shall first decide the issue of liability, and if that decision is in favor of plaintiffs, evidence as to damages may then be offered. The principal questions underlying the issue of liability deal with ownership of title to the copyright; dedication, abandonment or forfeiture; assignment; limitations, laches and estoppel.

Facts¹

The plaintiffs are Sadie Klasmer, individually and as administratrix of the estate of Benjamin Klasmer, deceased, and Jo Lombardi. Lombardi is a musician, and in 1947 was musical director at the Hippodrome Theatre in Baltimore. He went to New York in 1951 and for some years past has been employed in that City. In 1947 Klasmer was the first violin and house contractor at the Hippodrome. He died in Baltimore in 1949 intestate, leaving a widow and three children, including the witness Morton Klasmer, who is an orchestra leader and business man.

Three successive Maryland corporations have fielded professional football teams known as the Baltimore Colts.² Each of the corporate organizations has been popularly referred to as the Baltimore Colts and may be said to have done business under that name.

The first Colts corporation took over a franchise in the All-America Conference early in 1947. The name "Colts" was selected after a public contest. A volunteer marching band was organized, and several people sent in words and music for an "official" Colts song. These offerings were not suitable and Jack Espey, the general manager, consulted his friend Lombardi in June 1947, showed him the songs, and asked Lombardi to "write a number" for the Colts as a favor. Lombardi agreed, consulted Klasmer, who had composed a song or two, and they developed the words and music over a period of several weeks. Tom Dukehart, the publicity manager of the Colts, himself a poetaster, suggested some of the words, and Espey had the inspiration to include a strain from Maryland My Maryland near the end. Klasmer deposited an early version of the song with the copyright office on July 12, 1947, claiming the copyright himself, although stating that he and Lombardi were the authors of the words and music. Certificate of Registration No. E unpub. 84355 was issued to him. The final unpublished version was deposited on July 23, 1947, and Certificate No. E unpub. 86005 was issued to Klasmer and Lombardi.

Although it had been understood by everyone that the song was written primarily for use by the Colts' band, it was understood that it might be played by other bands at Colt games in Baltimore and elsewhere, and no limitation was placed on the use the Colts might make of it, for publicity purposes or otherwise. No question of payment arose until it was suggested that some thousands of copies of the song be printed and sold at the Stadium, at the Colts' office, at music stores, and elsewhere, and that records thereof might be made. It was then agreed between Klasmer, Lombardi and the Colts that the proceeds from the sale of sheet music and records would be split 50-50 between the two men and the Colts corporation. Espey thereupon had the song printed under the title The Baltimore Colts Official Theme Song, stating that the words and music were by Jo Lombardi and Benjamin Klasmer. Each copy of the sheet music bore the following notice: "Copyright 1947 by The Baltimore Colts, Jo Lombardi and Benjamin Klasmer" and the statements "Made in USA" and "All Rights Reserved". Klasmer and Lombardi authorized the publication and sale to the public of the sheet music, without any requirement as to copyright notice. It does not appear that they had specifically authorized the inclusion of The Baltimore Colts in the copyright notice, but they knew about the wording of the notice before any of the sheet music was offered for sale, and I find from conflicting evidence that they made no objection.³ Although Klasmer and Lombardi knew that the sheet music was being sold to the public and although they had copies thereof, no one deposited in the Copyright Office two copies of the "best edition" of the work, as required by 17 U.S.C.A. § 13, and no copies of any kind were deposited until December 1959.

Meanwhile Lombardi, probably with the aid of Klasmer, had prepared band arrangements for twelve instruments, each written on a separate sheet, and had given them to Espey for reproduction and distribution, without any limitation on their use. These sheets contained no notice of copyright whatever, and were distributed by the Colts not only to the Colts volunteer band, but also to high school and other bands in Baltimore and other cities where the Colts played. None were sold.

The words of the song were printed in the programs sold at the games in 1947 and subsequent years, without any notice of copyright.

The song was played, usually from memory without any sheet music or score, by bands and orchestras at civic functions, club functions, Bar Mitzvahs, dances, at night clubs and elsewhere. Klasmer and Lombardi knew of some, but not all, of these uses and made no objection thereto. The song was played and sung at the Hippodrome Theatre, and Morton Klasmer's orchestra used the song, playing it from memory without any sheet music, and without any license or objection.

Several hundred copies of the sheet music were sold by the first Colts corporation during 1947. No accounting was ever made, because that organization succumbed after the first season. The corporation was hopelessly insolvent, and Klasmer and Lombardi made no effort to collect their share of the proceeds of the sale of the sheet music.

The second Colts corporation took over the franchise in 1948. Robert C. (Jake) Embry was the president. Klasmer and Lombardi naturally wished to realize something from their efforts, and arranged with Bert Claster, the manager of the Hippodrome Theatre, to negotiate with Embry on their behalf. After several conferences an agreement was reached, reduced to writing and signed by Klasmer and Lombardi, under which they sold and assigned to the second Colts corporation all their rights in the song for 500 shares of stock in the corporation.⁴ The agreement did not specifically refer to the copyright, and no copy of the agreement was filed with the copyright office. The 500 shares of the stock were issued and delivered in exchange for the assignment.⁵

Thereafter the officers and employees of the second Colts corporation treated the song and the copyright as belonging to the Colts, to do with as they pleased. They continued to sell and give away copies of the sheet music, without any accounting or payment to Lombardi or Klasmer, and neither Lombardi nor Klasmer nor any representative of Klasmer's estate demanded such an accounting. The Colts' band continued to play the song, and the words were printed in the programs, without notice of copyright. When the photostatic copies of the transcriptions for band instruments ran out, new copies were printed in quantity, bearing the notice "Copyright 1947, The Baltimore Colts". These copies were distributed to bands in Baltimore and elsewhere.

During the one year interval (1952) between the operations of the second and third corporations, when there was no Colt team on the field, the volunteer band continued in existence and played the song at carnivals, fairs and elsewhere.

When the third Colts corporation was organized in 1953, it found the music among the physical property which it took over along with the name, the good will, the volunteer marching band, and the rest.⁶ Its officers, agents and employees continued to use and distribute the song and the music as the second Colts corporation had done. About 1956 it distributed photostatic copies of the sheet music, which bore the notice "Copyright 1947 by the Baltimore Colts, Benjamin Klasmer and Jo Lombardi", to all the orchestras listed in the yellow pages of the Baltimore telephone directory. Shortly thereafter it had new sheet music printed bearing the notice "Copyright 1947, The Baltimore Colts", omitting the names of Klasmer and Lombardi from the copyright notice but showing them as the authors.

For many years National Brewing Company has sponsored the broadcasts and telecasts of the Colts games. The Colts routinely furnished to the Brewing Company, its advertising agents or the radio and television stations, information with respect to the music to be played by the volunteer and professional bands before, during and after the games. These sheets were carelessly prepared, but the Colts' song was always included, usually showing Klasmer and Lombardi as the authors of the song and the Baltimore Colts as publishers.

Over the years the song has been used on many radio and television programs sponsored by various industrial, commercial and civic organizations, usually featuring members of the Colts organization, promoting or discussing the games. The use of the song increased with the success of the team and the attendance at the games. The song was used in connection with a musical cigarette lighter, the provenance of which was not proved, and on a record of the songs of all the Clubs in the National Football League, issued by RCA Victor, which has not yet resulted in any payment to the Colts.

After Klasmer's death in 1949...