M. Witmark & Sons v. Pastime Amusement Co.

• Decision Date: 13 May 1924
• Docket Number: 252.
• Citation: 298 F. 470
• Court: U.S. Court of Appeals — Fourth Circuit
• Parties: M. WITMARK & SONS v. PASTIME AMUSEMENT CO.

298 F. 470

M. WITMARK & SONS v. PASTIME AMUSEMENT CO.

No. 252.

United States District Court, E.D. South Carolina.

May 13, 1924

J. N Nathans, of Charleston, S.C., and William E. Arnaud, of Atlanta, Ga., for plaintiff.

M Rutledge Rivers, of Charleston, S.C., and George P. Aarons and I. Emanuel Sauder, both of Philadelphia, Pa. (Hagood Rivers & Young, of Charleston, S.C., on the brief), for defendant.

ERNEST F. COCHRAN, District Judge.

The plaintiff, a New York corporation, sues the defendant, a South Carolina corporation, for infringement of a copyright of a musical composition entitled 'Kiss Me Again.' This song was composed by Henry Blossom, and the music by Victor Herbert, and their rights were duly assigned to plaintiff. It was written on the theme of 'If I Were on the Stage,' from the comic opera 'Mlle. Modiste,' and was published by the plaintiff 'as sung by Miss Fritzi Scheff. ' (This song is not to be confused with a humorous song called 'Kiss Me Again, I Like It,' which many years ago achieved some degree of popularity, for while there is apparently some similarity in the title and subject-matter, the two compositions are entirely different.) On April 16, 1915, the plaintiff copyrighted this composition by publishing it with the following notice on the first page of the publication, to wit, 'Copyrighted MCMXV by M Witmark & Sons,' and by depositing on the 17th of April, 1915, in the office of the Register of Copyrights two complete copies, accompanied by claim of copyright, and a certificate of copyright register was thereupon issued by the Register of Copyrights.

Prior to the time of the alleged infringement the plaintiff executed to the American Society of Composers, Authors, and Publishers (called 'the Performing Rights Society') what is termed an assignment of performing rights, whereby it sold and transferred to 'the Performing Rights Society,' from the date of the instrument until January 1, 1926, the exclusive right of public performance for profit of the musical composition referred to, and the instrument itself provides that 'the words 'public performance' shall be construed to mean nondramatic renditions with musical instruments.' For convenience of reference for the other terms of this instrument, a copy of the same is attached to this opinion and marked 'Exhibit A.' ^[1] The plaintiff is a member of the American Society of Composers, Authors, and Publishers, and on February 18, 1922, entered into an agreement with the various members of the said society whereby said society was appointed the agent of the various members. This agreement is as follows:

'To All Whom These Presents may Concern-- Greeting:

'The undersigned music publishers are members of the American Society of Composers, Authors, and Publishers.

'The said Society is our duly appointed agent for the licensing of all institutions wherein copyrighted music is publicly performed for profit, as to the musical compositions of which we are copyright proprietors.

'Please, therefore, take notice that no agent, employee, or representative of any of the undersigned is vested with authority or power to grant, under any circumstances, to any firm or individual, any right to publicly perform for profit, the musical compositions of which we are or may be the copyright proprietors.

'Please take further notice that the possession of a printed copy or orchestration of any of such compositions does not imply or convey any right to public performance thereof for profit, irrespective of whether such printed copy is received as a gift, obtained by purchase, or otherwise.'

The defendant conducts a moving picture theater at the Princess Theater in the city of Charleston. Admission fees are charged, but no specific charge is made for the music. The defendant employed an organist to render music during the moving picture performances. Her instructions were to play music that would be appropriate to the scenes as they were thrown upon the screen, and she endeavored to interpret the pictures with the music. She was furnished from time to time the 'scores' of musical compositions, but the music to be played was left largely in the first instance to her discretion, and she did not confine the music played to the 'scores' furnished her. There is no satisfactory evidence that the 'score' of 'Kiss Me Again' was ever furnished her. On the contrary, she had never seen the publication, but had heard the music and played it 'by ear.' While she had large discretion in what music she would play, nevertheless she was subject to the orders of the manager, and played any pieces he might direct, and discontinued playing any pieces he might order discontinued. According to her testimony, unless appropriate music was played, one would 'get fired.'

About the 16th of January, 1922, a moving picture entitled 'Ladies Must Live' was shown at the defendant's theater. During the course of the performance the organist played the chorus from 'Kiss Me Again.' The organist testified substantially that, as the picture was thrown upon the screen, the chorus of 'Kiss Me Again' flashed through her mind, and she thought it would be appropriate and played it. She gave no reasons for her opinion. A witness for the plaintiff, who heard the chorus played during the performance, testified that it seemed appropriate. Neither did he give any reasons for his opinion. There is no evidence before the court as to the plot and nature of the picture entitled 'Ladies Must Live.' The evidence is uncertain whether the chorus was played only one time, or twice during the same performance, or twice on the same day during different performances. But certainly there is no satisfactory evidence that it was played on any other day. The manager testified that, upon being informed that the chorus had been played, he gave orders for it to be discontinued, for the reason that he did not like it, as he considered the theme old and worn-out and that the public were tired of it. The organist testified, also, that she received this order and did not play the chorus again. There is nothing tending to discredit their testimony. The evidence tending to show that the chorus was played during more than one performance is too vague and unsatisfactory, and I therefore find that it was played only during one performance.

The music of the song (including the chorus) consists of 79 bars; the chorus alone of 42 bars. The words (including the chorus) consist of two stanzas of eight lines each, the second stanza forming the chorus; but, as sung, the last line of the chorus is repeated, so that the chorus, when sung, contains nine lines. A witness for the plaintiff testified that the playing of the chorus took about 5 minutes; the organist testified that it took about 45 seconds. The counsel arranged for the music to be played for me, and at this performance the whole piece took 57 seconds, the chorus only 27 seconds.

The first question presented is whether the plaintiff can maintain its suit for infringement, in view of the assignment to 'the Performing Rights Society.' The plaintiff claims that the song is a dramatic composition and that the copyright proprietor has reserved the dramatic rights, and the assignment is therefore not an assignment of the whole copyright, and consequently must be deemed a mere license, and the right to sue for infringement remains in the plaintiff as proprietor. The plaintiff cites several English cases and one American case in support of the claim that the song in this case is a dramatic composition. It will not be necessary to review them all. The leading English case appears to be Russell v. Smith, 12 Q.B., 217. In that case it was held that a song called 'The Ship on Fire,' which related the burning of a ship at sea and the escape of those on board, describing their feelings in vehement language, and sometimes expressing them in the supposed words of the suffering parties, was dramatic, even though it was sung by one person only, sitting at a piano, giving effect to the verses by delivery, but not assisted by scenery or appropriate dress. But in that case the Chief Justice said:

'The song in question is stated in the bill to be founded on the loss of the Kent by fire in the Bay of Biscay. It represents a storm at sea, the burning of the ship, and the escape by boat to another ship, and so a safe return to land. It moves terror and pity and sympathy, by presenting danger and despair and joy, and maternal and conjugal affection. A witness of great experience in publishing music deposes that this was considered a dramatic song, and published with the title of a dramatic and descriptive song, and there was no evidence that any one considered it not dramatic. Thus the nature of the production places it rather in the representative than the narrative class of poetry, according to Lord Bacon's division of dramatic from epic (Advancement of Learning, book 11, Poesy), and the evidence states it to be known as dramatic among those who are conversant with such things.'

In the present case there is no evidence that the song 'Kiss Me Again' was ever considered by any one as a dramatic song, nor are there any dramatic features in it such as distinguish 'The Ship on Fire' from ordinary songs.

The American case cited by the plaintiff is Green v. Luby (C.C.) 177 F. 287. In that case a preliminary injunction was issued restraining the defendant from publicly singing a copyrighted song entitled 'I'm a-Bringing up the Family,' which was written as a part of a copyrighted sketch entitled 'The Queen of the Vaudeville.' The contention was made that the sketch was a musical composition and not a dramatic composition, but the court held that it was a 'dramatico-musical composition.' But in that...