McCarthy & Fischer, Inc. v. White
| Decision Date | 02 July 1919 |
| Docket Number | 480. |
| Parties | McCARTHY & FISCHER, Inc., v. WHITE et al. |
| Court | U.S. District Court — Southern District of New York |
Nathan Burkan, of New York City, for complainant.
O'Brien Malevinsky & Driscoll, of New York City, for defendants.
This is a motion for an injunction pendente lite because of the alleged infringement of a copyrighted musical composition belonging to the complainant. The affidavits seem to show that the defendants had caused the composition to be sung by defendant Holtz at vaudeville performances, at the request of the complainant, for several weeks prior to copyright. He had received a copy of the song to enable him to render it, as part of the entertainment he was giving while in the employment of the defendant White. Proof, by affidavit, is also offered by the defendants that during the same period other persons sang it at public performances, with the consent of the complainant and the authors. Holtz also swears that after the date of copyright the complainant, in substance, requested him to agree to use the song in his vaudeville performances for the entire season, and he promised to do this. He admits, however, that the alleged promise, which complainant denies ever making, was made on an occasion when he was asked by complainant to give up singing the song because his performance interfered with another. Prior to the time of the alleged promise, Holtz certainly had no more than a revocable license.
The defendants insist that the presentation of the song by Holtz in vaudeville prior to the date of copyright was a complete dedication to the public. It is, however, well settled that the public performance of a dramatic or musical composition is not an abandonment of the composition to the public. Ferris v. Frohman, 223 U.S.at page 435, 32 Sup.Ct 263, 56 L.Ed. 492; Crowe v. Aiken, 2 Biss. 208, Fed Cas. No. 3,441; Palmer v. De Witt, 47 N.Y.at page 543, 7 Am.Rep. 480; Thomas v. Lennon (C.C.) 14 Fed.at page 851; Carte v. Ford (C.C.) 15 Fed.at page 442. Only a publication of the manuscript will amount to an abandonment of the rights of the author and a transfer of them to the public domain. It was not such a publication to give the song to a limited number of artists to sing prior to the date of copyright. There is no evidence or probability that any of the copies were sold, or that they were given out for any purpose but a limited use by a few...
To continue reading
Request your trial
-
Continental Casualty Company v. Beardsley
...56 L.Ed. 492 (public performance of a play not a general publication since audience has no right to reproduce); McCarthy & Fischer, Inc., v. White, D.C.S.D.N.Y.1919, 259 F. 364 (same). But cf. White v. Kimmel, note 44, supra (pamphlets distributed to all those interested in author's philoso......
-
Estate of Martin Luther King, Jr. v. CBS Inc.
...copyright statute itself plainly shows that 'oral delivery' of an address is not a dedication to the public."); McCarthy & Fischer v. White, 259 F. 364, 364 (S.D.N.Y.1919) (rejecting infringer's argument that "the presentation of the song ... in vaudeville prior to the date of copyright was......
-
Bartok v. Boosey & Hawkes, Inc.
...31 F.2d 236, 238 (2d Cir. 1929); Rosette v. Rainbo Record Manufacturing Corp., 354 F.Supp. 1183 (S.D.N.Y.1973); McCarthy and Fischer, Inc. v. White, 259 F. 364 (S.D.N.Y.1919); 1 Nimmer, The Law of Copyright, § 53.1, at 208 (1975); Goldstein, Copyrighting the New Music 10 (Ascap Copyright La......
-
Burke v. National Broadcasting Co., Inc.
...until 1936, noting that there was "no general offer or dedication to the public." Id. at 136. Similarly, in McCarthy & Fischer, Inc. v. White, 259 F. 364 (S.D.N.Y.1919) (A. Hand, J.), a composer had given a copy of his song to a singer for performance, but had not dedicated it to the public......
-
A License Is Not a 'Contract Not To Sue': Disentangling Property and Contract in the Law of Copyright Licenses
...968 F. Supp. 944, 947 (S.D.N.Y. 1997); Johnson v. Jones, 885 F. Supp. 1008, 1012 n.6 (E.D. Mich. 1995); McCarthy & Fischer, Inc. v. White, 259 F. 364, 365 (S.D.N.Y. 1919); see also 3 NIMMER & NIMMER, supra note 3, § 10.02[B][5] n.35.1 (citing these cases). 200 . See supra note 76 and accomp......