Kriger v. MacFadden Publications, Inc.

• Decision Date: 27 November 1941
• Citation: 43 F. Supp. 170
• Parties: KRIGER v. MacFADDEN PUBLICATIONS, Inc., et al.
• Court: U.S. District Court — Southern District of New York

43 F. Supp. 170

KRIGER v. MacFADDEN PUBLICATIONS, Inc., et al.

District Court, S. D. New York.

November 27, 1941.

Mordecai Konowitz, of Jamaica, N. Y., for plaintiff.

Hays, St. John, Abramson & Schulman, of New York City (John Schulman and Milton Sargoy, both of New York City, of counsel), for defendant.

CONGER, District Judge.

Motion by defendant MacFadden Publications, Inc., to dismiss the amended complaint because it fails to state a claim against the defendant upon which relief can be granted.

The pertinent facts, as pleaded, are as follows: In the year 1935 plaintiff together with defendant Hillman and defendant Crosby wrote and composed an original song entitled "It's a Small World." On or about May 15, 1935, the three said writers and composers assigned their interests in said song to Famous Music Corporation. The first paragraph of this instrument is important in that it shows the character of the contract. It reads as follows: "Witnesseth: 1. The Writer(s) hereby sells, assigns, transfers and delivers to the publisher, its successors and assigns, a certain heretofore unpublished original musical composition, written and/or composed by the above named Writer(s) now entitled `It's a Small World' including the title, words, and music thereof, and the right to secure copyright therein throughout the entire world, and to have and to hold the said copyright and all rights whatsoever nature thereunder existing." The instrument further provides for the payment of certain royalties to the assignors and contained the following clause (7), which is pertinent to the issue herein: "The Publisher agrees to publish in saleable form the said musical composition within one year from the date hereof. Should he fail so to do the Writer(s) shall have the right in writing to demand the return of said composition, whereupon the Publisher must within one (1) month after receipt of such notice either publish the said composition, in which event this agreement remains in full force and effect, or upon failure so to publish, all rights of any and every nature, and the right to secure copyright and/or any copyright secured by the Publisher before publication, in and to the said composition, shall revert to and become the property of the Writer(s) and shall be reassigned to him." On or about May 18, 1935, Famous Music Corporation applied for and received in its own name a certificate of copyright registration.

Apparently nothing further was done with the song and nothing further happened until on or about April, 1940. The complaint then alleges that on said date defendant MacFadden Publications, Inc., infringed said copyright by publishing and distributing for sale many thousand copies of the chorus of said song in its magazine "Radio and Television Mirror."

Famous Music Corporation never published the song and thereafter and on the 24th day of June, 1940, upon request of the plaintiff, assigned all its right, title and interest in said song to plaintiff. This was done pursuant to the above-quoted clause (7) of the original assignment of May, 1935. The plaintiff now sues for the alleged infringement of April, 1940. He names as defendants his co-authors because he alleges their interests are adverse to his and because they have refused to join as parties plaintiff.

Defendant MacFadden takes the position that since the alleged infringement took place while the legal title to the song was in Famous Music Corporation the plaintiff cannot bring suit herein, and that the subsequent release and quit-claim to the plaintiff from Famous Music Corporation does not place him in any better position.

Plaintiff bases his right to recover upon the theory that there was reserved to him in the agreement between the writers and Famous Music Corporation, and as between the co-authors themselves, a beneficial interest in the musical composition, the copyright to be obtained, and the proceeds of any infringement recovery, and that he has an equitable interest therein; and that the Famous Music Corporation, while having the legal title to the musical composition, held the same in trust for the plaintiff and his co-authors.

In paragraph 5 of the complaint plaintiff alleges that Famous Music Corporation secured the copyright and all rights thereunder "for the benefit of the plaintiff and the defendants Bob Crosby and Roscoe Hillman, as provided in said agreement" (Agreement of May 15, 1935).

Plaintiff relies on the instrument of May 15, 1935. He pleads no other subsequent agreement, verbal or written. His contention must be spelled out from an interpretation of that document and also from the...