Maurel v. Smith

• Decision Date: 02 February 1915
• Citation: 220 F. 195
• Parties: MAUREL v. SMITH et al.
• Court: U.S. District Court — Southern District of New York

220 F. 195

MAUREL v. SMITH et al.

United States District Court, S.D. New York.

February 2, 1915

This is a bill in equity, brought by the author of the scenario of a comic opera produced in New York under the title of 'Sweethearts.' It alleges that the plaintiff and the defendant Harry B. Smith entered into an agreement by which the plaintiff was to give a scenario and Smith was to write upon it a libretto for the comic opera; that Smith should copyright the same with the plaintiff as co-owner; that as to the songs, or 'lyrics,' Smith should have two-thirds of the royalties of English versions and one-third of translations; that later Harry B. Smith procured another defendant, Robert B. Smith, to write the lyrics, to which change the plaintiff subsequently consented; that Robert B Smith in his undertaking had full knowledge of the plaintiff's rights and wrote the lyrics for the piece that later, without plaintiff's knowledge, Robert B Smith made an agreement with the other defendant, G Schirmer, Incorporated, to give it the right to publish the play and to copyright it, and took from the corporation an agreement to pay royalties to the two Smiths, which agreement they procured by falsely representing themselves to be the sole owners; that in pursuance thereof G. Schirmer, Incorporated, published the opera as a whole and certain vocal numbers separately, and took out statutory copyrights upon each; that the defendant Harry B. Smith also took out a statutory copyright in his own name upon the complete libretto. The relief prayed is that the plaintiff be adjudged the joint owner with the defendant Harry B. Smith in the opera and statutory copyrights in both it and the lyrics, and entitled to a share in the future royalties arising from the publication, that the corporation be adjudged trustee of such copyright in the comic opera, that Robert B. Smith be adjudged to have no right in the same, and that the plaintiff have an account of past profits. There is other matter in the bill, which for the purposes of this suit may be disregarded.

Upon the hearing the following facts developed: In September, 1912, the plaintiff made a contract with a firm of theatrical managers in New York, Werba & Luescher, by which she undertook before October 2d of that year to write a full and complete scenario for a proposed comic opera, and in which she accepted one Henry Blossom as collaborator to write the dialogue and 'lyrics.' She granted to the managers the exclusive right to produce the opera publicly in the United States and Canada for the ensuing season and the season of 1914-15, in return for which the managers agreed to pay her certain royalties on all the gross receipts, which are not here material. The managers likewise agreed to advertise the plaintiff as the author, and not to make any changes in the opera without her consent. The publishing rights the plaintiff expressly reserved, and the managers also agreed not to sublet the right to produce the opera. The plaintiff did not complete the scenario at the time agreed, and during November Blossom declined to take up the work, thus leaving the managers with the first act of a belated scenario on their hands and no one to complete the play. Being in a serious predicament because of their other engagements looking toward its production, early in December they asked the defendant Harry B. Smith, a well-known writer of librettos for such productions, to undertake the completion of the play within such time as would permit its presentation. In their interview with Smith the managers told him that the plaintiff was to write the scenario under agreement with them and that her assent was necessary. Smith spoke to her on the telephone, and she agreed that he should write the play in the place of Blossom, upon which the managers delivered to him the first act of the scenario, which alone at that time had been completed. On that day or the next Harry B. Smith had an interview with the plaintiff, the exact character of which is in dispute. It is agreed, however, that the plaintiff promised to complete the second act of the scenario and send it to him, and he agreed to undertake to write a play upon it, if he should be satisfied. The music was to be composed later. The plaintiff says that at that time Smith agreed that they should collaborate in producing the libretto upon the same terms as had theretofore existed between them, they having collaborated in several instances in the past, but Harry B. Smith says that no such agreement was made. He began at once to work upon the play, having in his possession the first act of the scenario, and within the week the plaintiff sent to him the second act, which he retained. Harry B. Smith soon discovered that he could not write the whole play, and he therefore engaged his brother, Robert B. Smith, to write the 'lyrics'; the latter having full knowledge that the plaintiff was the composer of the scenario. Together they completed the libretto.

On the 10th of December, 1912, the managers entered into a contract with the Smiths, reciting that they had the exclusive dramatic rights in the plaintiff's scenario, and that they wished the Smiths to make the libretto, in consideration of which the Smiths agreed to write the play by the 15th of January, and the managers agreed to produce it by the 15th of February. The names of the plaintiff and both Smiths were to appear on all programmes along with the composer, and the Smiths were to have the right of publication, along with certain royalties based upon the managers' gross receipts. The managers also agreed to hold the Smiths harmless against any suits arising over the scenario furnished by the plaintiff, to which the managers at that time claimed exclusive rights. On the 23d of December Robert B. Smith made a contract with G. Schirmer, Incorporated, by which he gave it the exclusive license to print the 'lyrics' and vocal score of the opera, or any part thereof, and the corporation agreed to publish and copyright it, and to pay certain royalties to Smith, in pursuance of which G. Schirmer, Incorporated, took out a copyright upon the whole opera, libretto and music, and upon several songs, lifted from the opera, the words of all of which were necessarily the work of only Robert B. Smith. On April 18th Harry B. Smith obtained a copyright in his own name for the complete libretto of the opera as a dramatic composition.

In writing the libretto, neither of the Smiths had any assistance from the plaintiff, other than the scenario. She had no interview with Robert B. Smith, nor any with Harry B. Smith after that of December 2d. She gave no help in composing the dialogue, nor did she attend any rehearsals till just before the production. They testify that they made small use of her scenario, especially that of the second act, and Robert B. Smith particularly asserts that in the composition of the lyrics he made no use whatever of the scenario, and that, indeed, in several instances he simply took old songs, which he had already written, and placed them in the libretto. In all cases Harry B. Smith so arranged the dialogue as to make a more or less easy transition into the song. The opera proved a success, and Robert B. Smith has received from G. Schirmer, Incorporated, royalties amounting to more than $5,500 under his contract of December 23, 1912. On October 3, 1913, the composer, the plaintiff, and the two Smiths entered into a contract with an Australian manager, by which they agreed to give him the dramatic rights in Australia, New Zealand, and South Africa for a certain percentage of the royalties, of which the composer was to get one-half, the plaintiff one-fourth, and the Smiths jointly the remaining one-fourth. At that time $1,500 was paid down and divided between the several authors.

Nathan Burkan, of New York City, for plaintiff.

Maxwell C. Katz, of New York City, for defendants.

LEARNED HAND, District Judge (after stating the facts as above).

I do not propose to decide whether in the interview of December 2 1912, Harry B. Smith and the plaintiff agreed that his work should be upon the terms of their previous contracts. There had been a number of these, all drafted in detail, and the bill is undoubtedly drawn upon the theory that that interview constituted a contract between the parties; but it is not necessary that the plaintiff should recover the express division of royalties there alleged, if enough facts are shown independently to give her the relief which she now asks. However, I do find that they agreed at that time that Harry B. Smith was to take the scenario and work upon it, if he approved it, that they agreed to a joint authorship in the piece, and that they accepted whatever the law implied as to the rights and obligations which arise from such an undertaking. I further find that Robert B. Smith had knowledge of the plaintiff's scenario and contributed his work upon the understanding that all three were contributing to a single joint operatic performance and assented to the work on those terms. The effect of the Smiths' misunderstanding of the plaintiff's rights, arising from Werba & Luescher, I shall consider later.

The case may therefore be considered upon the basis of what rights the law will imply from an agreement of the kind mentioned. I have been able to find strangely little law regarding the rights of joint authors of books or dramatic compositions. The only case in the books in which the matter seems to have been discussed is Levy v. Rutly, L.R. 6 C.P. 523. That was a case in which Levy had employed Wilks to write a play for him, which Wilks did, and the plaintiff, finding some of the incidents were objected to by members of the playing company, made various alterations and...