Norden v. Oliver Ditson Co.
| Decision Date | 09 January 1936 |
| Docket Number | No. 4014.,4014. |
| Parties | NORDEN v. OLIVER DITSON CO., Inc. |
| Court | U.S. District Court — District of Massachusetts |
Elbridge R. Anderson and Stanley S. Ganz, both of Boston, Mass., for plaintiff.
Fish, Richardson & Neave and Harrison F. Lyman, both of Boston, Mass., and Henry N. Paul, of Philadelphia, Pa., for defendant.
This suit arises under the Federal Copyright Laws (U.S.C. title 17 17 U.S.C.A. § 1 et seq.). The bill of complaint seeks to enjoin the defendant, its agents, servants, and attorneys from printing, publishing, exposing for sale, and/or selling its composition entitled "O Light Divine" by Alexander Arkhangelsky, or any composition essentially copied from the complainant's composition of Arkhangelsky's "O Gladsome Light," so long as the copyright in the latter composition is entitled to protection. The bill also prays for an accounting and for damages.
There is very little dispute as to the facts. The plaintiff has had an extended musical education, has conducted numerous choruses and orchestras, and is a church organist and choir master. He has taught musical theory, edited choral works and composed for choruses, orchestras, and instruments in various combinations. In 1912, he became interested in Russian choral music and from that time until after the outbreak of the World War, when it became impossible to obtain it, imported considerable music from Russia. Russian music was at all times material to this case within the public domain and might be used freely by any one. Among the Russian compositions so imported was one by Alexander Arkhangelsky, the composition involved in this suit. This Russian hymn, known as the Hyman of Sophronius, the words of which were written by a Greek centuries ago, is well known in various liturgies and many translations into English have been made. The plaintiff made an adaptation of this Russian hymn for choral use without accompaniment. In so doing he took the original Russian words, found their meaning in Russian dictionaries, compared them with previous translations, and occasionally inserted words which he did not find in any English translation. In adapting the resulting text to the music of Arkhangelsky, he left the harmony or the pitches of the notes as in the original. To the extent that the number of syllables in the translation differed from the number of syllables in the Russian words used by Arkhangelsky, rhythmical changes in the music were required. These were made for the purpose of adapting Arkhangelsky's music to the translated text.
On or about June 4, 1914, the plaintiff filed an "Application for Copyright-Republished Musical Composition with New Copyright Matter." The application stated that the title of the musical composition was "O Gladsome Light, Arkhangelsky" and that the exact new matter on which the copyright was claimed was "Adaptation of English Text to the Russian music of Arkhangelsky." Accompanying this application were copies of the musical composition which bore the following heading:
O GLADSOME LIGHT
A. Arkhangelsky for The English Text
Aeolian Choir Adapted to the Music
by N. Lindsay
Norden M. A. Mus
Bac
The same heading appears on some of the published copies, and on others the heading reads:
O GLADSOME LIGHT
A. Arkhangelsky The English Adaptation
by
N. Lindsay Norden
M. A. Mus. Bac.
A certificate of copyright registration, Class E, XXc, No. 339806, was issued by the United States Copyright Office for "title, O Gladsome Light, for Aeolian Choir, Music by Arkhangelsky, Copyright claimed on Adaptation of English Text to Russian Music by N. Lindsay Norden, of United States."
In the beginning, copies of the plaintiff's adaptation were published by E. G. Soltman Company, of New York, and later by J. Fischer & Brother, of New York. All copies bore a notice of copyright as of 1914. At the time when J. Fischer & Brother began to publish this music, the plaintiff assigned to it the copyright, which was reassigned to him prior to the bringing of the present suit, "together with any and all rights of recovery for past infringements of the aforesaid copyrights either at law or in equity."
The defendant published the composition "O Light Divine," which the complainant alleges is a violation of his copyright. Mr. Fisher, vice president, editor, and publishing manager of the defendant corporation, prepared the copy for this composition from an edition of the plaintiff's adaptation published by J. Fischer & Brother. He never had seen the original Russian composition, but copied the J. Fischer & Brother edition of the music, changing the rhythm to meet the differences in the number of syllables of the text used by him, and also changing certain notes or harmonies, in order to make the music more euphonious or more "singable." The words he took partly from an old hymn book and partly they were original with him. The only similarity between the words of the Norden edition and the Oliver Ditson edition is the word "light" in the title and near the beginning of the text and the word "divine" at the end of the fifth line, as appears in the following copy of each:
"O Gladsome Light. "O gladsome Light of the holy glory of the Father, immortal, heav'nly, immortal, holy, blessed Jesus Christ. Now that we are come to the sun's hour of rest, and the lights of evening 'round us shine, We hymn the Father, Son, and Holy Spirit, ever Divine. O worthy, worthy art Thou at all times, at all times to be sung with undefiled tongue, O Son of God. Therefore all the world doth glorify Thee." "O Light Divine.
In the early part of 1933, the plaintiff learned of the defendant's publication "O Light Divine" by Arkhangelsky. On or about February 16, 1933, due notice of the alleged infringement of the plaintiff's copyright was given to the defendant.
The plaintiff urges that he was the author and composer of a new song, both words and music, though based upon an old song, and that he has a valid copyright in the whole which the...
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