Marks v. Leo Feist, Inc.
| Citation | 290 F. 959 |
| Decision Date | 02 April 1923 |
| Docket Number | 178. |
| Parties | MARKS v. LEO FEIST, Inc. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
Edward B. Marks, of New York City (O. Ellery Edwards and Julian Raphael, both of New York City, of counsel), for appellant.
Gilbert & Gilbert, of New York City (A. S. Gilbert, Francis Gilbert and Jerome E. Malino, all of New York City, of counsel), for appellee.
Before ROGERS, HOUGH, and MANTON, Circuit Judges.
This bill is in equity, and appellant seeks a preliminary injunction to restrain an alleged infringement of a musical copyright and also seeks damages. On December 28, 1905, the musical composition 'Wedding Dance Waltz' was copyrighted, and appellant is now the owner of the copyright. Appellee puts out a song entitled 'Swanee River Moon,' which was copyrighted April 4, 1921. While the sale of this composition was commenced in April, 1921, it reached successful proportions in September, 1921, when it met with great popular favor. In March, 1922, after 7 months of continued success, the appellant instituted this suit declaring that the appellee's composition infringed upon the appellant's copyrighted 'Wedding Dance Waltz.' The appellant's composition comprises 450 bars of music, and he points out that 6 bars of this are infringed by the appellee's composition. They are found in the chorus. The composer of the 'Swanee River Moon' swears he never knew of the composition entitled 'Wedding Dance Waltz,' and never heard it played until October, 1922. Appellee has submitted another composition, written and published long prior to 'Wedding Dance Waltz,' and that, too, has an entire identity in at least 4 bars which are found in appellant's and appellee's composition.
Because we find there is no similarity which constitutes an actionable infringement, we need not consider the principal argument advanced by the appellant that the court below was in error in the pronouncement that in order for the appellant to succeed, he must establish that the appellee had actually copied or pirated the composition, not merely while ignorant but after knowledge of the previous composition. Musical signs available for combinations are about 13 in number. They are tones produced by striking in succession the white and black keys as they are found on the keyboard of the piano. It is called the chromatic scale. In a popular song, the composer must write a composition arranging...
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Arnstein v. Porter
...of old themes, even though the identity extend through a sequence of twelve notes." See also the discussion in Marks v. Leo Feist, Inc., 2 Cir., 290 F. 959, and Darrell v. Joe Morris Music Co., 2 Cir., 113 F.2d 80, where the use of six similar bars and of an eight-note sequence frequently r......
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Greenbie v. Noble
...infringement. The appropriation of a substantial portion of another's copyrighted work will result in an infringement. Marks v. Leo Feist, Inc., 2 Cir., 1923, 290 F. 959. Plaintiff has the burden of proving that the novel, "Woman With A Sword," contains a substantial quantity of copyrightab......
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Bradbury v. Columbia Broadcasting System
...45 F.2d 119, 123. Without proof that there is similarity in a substantial sense there can be no finding of infringement. Marks v. Leo Feist, Inc., 2 Cir., 290 F. 959." Arnstein v. Broadcast Music, Inc., 2 Cir., 1943, 137 F.2d 410, 412. And see, Universal Pictures Co., Inc., v. Harold Lloyd ......
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Fred Fisher, Inc., v. Dillingham
...relied upon by the defendant, other than those already cited, for the most part turn upon infringement, as, for example, Marks v. Feist (C.C.A.) 290 F. 959; Chautauqua School v. National School, 238 F. 151 C.C.A. 227; Stevenson v. Harris (D.C.) 238 F. 432; Bachman v. Belasco, 224 F. 817, 14......