Maurel v. Smith

• Decision Date: 12 January 1921
• Docket Number: 101.
• Citation: 271 F. 211
• Parties: MAUREL v. SMITH et al.
• Court: U.S. Court of Appeals — Second Circuit

271 F. 211

MAUREL v. SMITH et al.

No. 101.

United States Court of Appeals, Second Circuit.

January 12, 1921

Otto Sommerich, of New York City, for appellants.

Nathan Burkan, of New York City, for appellee.

Before WARD, HOUGH, and MANTON, Circuit Judges.

MANTON Circuit Judge.

The appellee was the author of a scenario which has been the subject of several titles, to wit, 'The White Swan,' 'Princess Tulip,' and finally 'Sweethearts.' In September 1912, the appellee made a contract with the firm of Werba &amp Luescher, theatrical managers, whereby she agreed to complete this scenario, then entitled 'The White Swan,' and to deliver it to the managers on or before October 2, 1912. She accepted, as her collaborator to complete the work and to write the lyrics for the opera, one Harry Blossom, and she granted a performing license to the managers. That contract provided that the managers would advertise the name of the appellee on the programs, printing, and advertising matter as follows: 'The White Swan' (or substituted name of the opera); opera, books and lyrics by Fred de Gresac (appellee subsequently married Mr. Maurel) and Harry Blossom; music by Victor Herbert. The contract further stipulated that the appellee did not grant any publishing rights in the opera to the managers, and the managers agreed that no changes interpolations, additions, or eliminations of any kind should be made in the opera without the appellee's consent in writing.

The scenario was in French, and the appellee read a translation thereof for one of the managers, and submitted a translation of the first act to them. The managers thereupon made a contract with Mr. Blossom for the completion of the libretto and lyrics. Later Mr. Blossom decided that he could not collaborate on this work, and the managers asked the appellee for her consent to have substituted Harry B. Smith. Appellee gave her consent, upon condition, however, that it would not affect her rights under the contract between herself and the firm of managers, and the reservation of the publishing rights was particularly mentioned. Such consent to the substitution of Harry B. Smith was noted in writing at the foot of the contract. The managers thereafter arranged a meeting between the appellee and the appellant Harry B Smith, and it was then agreed that the two would collaborate, and that such work would be done upon the same terms as agreed upon with Mr. Blossom. The appellee delivered the second act of the manuscript of the scenario to Mr. Smith, in which she indicated her pleasant satisfaction to work with the appellant, and stated she was willing to help in the dialogue, if he was short of time. The appellant Harry B. Smith accepted the second act, but did not communicate with the appellee, either directly or indirectly, but did communicate with the managers, and said he would undertake the work upon condition that his brother, Robert B. Smith, would be permitted to associate with him. The managers telephoned the appellee and obtained her consent, but she stated that such consent was given providing her interest in the contract was not interfered with and remained the same, to which the managers replied:

'Absolutely, there is to be no change concerning yours.'

On December 10, 1912, a contract was made between Werba & Luescher and the appellant Harry B. Smith for the development of the scenario and the writing of the lyrics. Under this contract, the firm of Werba & Luescher were obligated to advertise the names of Harry B. Smith and Fred de Gresac (appellee), as the sole and exclusive authors of the book and music of the play, and Robert B. Smith as the sole and exclusive author of the lyrics of the same, on all the billing and advertising matters used in advertising the performance of the play. On the 23d of December, 1912, Robert B. Smith entered into a contract with G. Schirmer, Incorporated, for the publication of the lyrics and vocal score of the said opera. The recital of this agreement referred to--

"Sweethearts,' the book whereof is by Fred de Gresac and Harry B. Smith, and the music by Victor Herbert. The stellar role of which is to be enacted by Miss Christie McDonald, to be produced under the management of Werba & Luescher of New York.'

The appellant Harry B. Smith did write the book of the opera, and Robert B. Smith wrote the lyrics. The lyrics that were written with their titles were blended into the book, and were led up to by cues that were written by both appellants. In the development of the opera, the book was amended so as to fit the lyrics into the book with some color of continuance. After the contract between the appellants and the managers was made, the appellants did not, directly or indirectly, communicate with the appellee, nor was she asked to furnish any material for the work.

On March 14, 1913, she did, however, receive a check for $500 as advance royalty under her contract. This check was sent by the managers. With the letter which accompanied the check, she was invited to attend the rehearsals and it was stated that 'the dialogue was then getting pretty well set and they would like her opinion. ' On April 17, 1913, the appellant Harry B. Smith applied for a copyright to the opera. In his application for such copyright, he named as authors of the work, Harry B. Smith, Fred de Gresac, and Robert B. Smith. With the application, he sent the completed manuscript of the play, in which were incorporated all lyrics that were composed by himself and by the other appellant. The copyright was issued to Harry B. Smith and contained the following:

'The title of the dramatic composition registered is 'Sweethearts.' Book by Harry B. Smith and Fred de Gresac. Lyrics by Robert B. Smith. Music by Victor Herbert. A comic opera in two acts, book and lyrics.'

Thereafter the vocal numbers and the vocal score of the opera were published under the contract between Robert B. Smith and G. Schirmer, Incorporated. The title page of the vocal score contained the following inscription:

"Sweethearts.' A comic opera in two acts. Book by Harry B. Smith and Fred de Gresac. Lyrics by Robert B. Smith. Music by Victor Herbert.'

The first performance took place in March, 1913, and the play was unusually successful. In October, 1913, an offer was made to place the opera for public performance in New Zealand Australia, and South Africa. Appellee's consent was asked, and she refused, unless she received 25 per cent. of the proceeds of the performances. This demand was acquiesced in by the appellants. They, however, state the reason for their acquiescence was that they did not have a copyright in Australia. Under an agreement of October 3, 1913, entered into between Victor Herbert, Fred de Gresac, the appellants, and the J. C. Williamson, Limited, exclusive performing rights of the opera in Australia, New Zealand, and South Africa were granted, payment to be made 50 per cent. to Victor Herbert, 25 per cent. to Fred de Gresac, and 25 per cent. to the appellants. That contract, in its recitals, referred to the appellee as one of the authors of the opera. The evidence shows that the appellant Harry B. Smith had previously collaborated with appellee on six comic operas, and the contracts made in respect to these collaborations were upon the basis of equal co-owners, and that Smith was to copyright the joint work, but hold such copyright in trust for the appellee to the extent of her rights. When the appellee demanded her share...