Pathe Exchange v. INTERNATIONAL ALLIANCE, ETC.

• Decision Date: 05 December 1932
• Citation: 3 F. Supp. 63
• Parties: PATH… EXCHANGE, Inc., v. INTERNATIONAL ALLIANCE OF THEATRICAL STAGE EMPLOYEES AND MOVING PICTURE MACHINE OPERATORS OF THE UNITED STATES AND CANADA, LOCAL NO. 306, et al.
• Court: U.S. District Court — Southern District of New York

3 F. Supp. 63

PATH… EXCHANGE, Inc., v. INTERNATIONAL ALLIANCE OF THEATRICAL STAGE EMPLOYEES AND MOVING PICTURE MACHINE OPERATORS OF THE UNITED STATES AND CANADA, LOCAL NO. 306, et al.

District Court, S. D. New York.

December 5, 1932.

Lewis A. R. Innerarity, for plaintiff.

Ornstein & Silverman, of New York City, and Deiches, Kaufman & Bernson, for defendants.

CAFFEY, District Judge.

These cases were argued November 4 and 11. On the former date I sustained the motions in part, with leave to the defendants to amend. This was on condition that the motions should be deemed addressed to the amended answers. They have been so treated by the parties. The intention was (as I understood) that the court presently dispose of all the questions discussed, without regard to the technical phraseology of the notices of motion. The briefs submitted by both sides are framed on that assumption.

The motions, in essence, are: (1) To strike out the defense; (2) to strike out certain answers to interrogatories; (3) to strike out the answers of Local 306 and Kaplan in the first case (E. 66/1); (4) to strike out the answers of all the defendants in the second case (E. 67/101); (5) for a decree against the Amusement Corporation on its answer in the first case; (6) for decrees against the other defendants in the first case; and (7) for decrees against all the defendants in the second case.

A single affirmative defense is set up in both cases. In substance this is that "none of the alleged copyrighted motion pictures" of the complainant are "founded upon existing dramas or dramatizations of literary productions in which copyrights subsist." If it be good, then the bills on their face are without equity. If, as matter of law, a copyright owner of such articles as are involved be not entitled to the protection of the copyright statute against unauthorized performances except when its copyrights relate exclusively to copyrighted "dramas or dramatizations of literary productions," then no cause of action is stated in either bill.

The precise issue, as above stated, presented by the defense has been previously raised by the defendants and has already been passed on by this court. The defendants moved to dismiss the bills, because of failure to state a cause of action, relying on Metro-Goldwyn-Mayer D. Corp. v. Bijou Theatre Co. (C. C. A.) 59 F.(2d) 70. The motions were fully argued and were denied. That ruling settles the law of the cases. It is binding on me, and, if the cases were sent to trial before another judge, would bind him. Commercial Union of America v. Anglo-South American Bank (C. C. A.) 10 F. (2d) 937.

That the previous determination was squarely on the merits, that the defendants rested on the identical proposition now advanced by them, and that the conclusion was adverse to that proposition, is manifest from the papers. Indeed, it is sufficiently shown by the memorandum alone of Judge Bondy under date of June 27, 1932, indorsed on the cover of the notice of motion in the first case and made applicable to the second case, as follows: "The amended bill of complaint complies with the requirement that facts be alleged showing performance of conditions precedent to a copyright. For the reasons fully discussed in Tiffany Productions, Inc., v. Dewing (D. C.) 50 F.(2d) 911, Cf. Metro-Goldwyn-Mayer Distributing Corp. v. Bijou Theatre Co., 59 F.(2d) 70, decided April 7, 1932, Cir. Ct. of Appeals for the First Dist., the motion is denied."

I have examined the amended answers to the interrogatories. They appear to be directly responsive. I see no ground, therefore, for striking them out. Whether there are other defects is not brought before me by the notices of motions.

In paragraph 2 of its answer, the Amusement Corporation admits that it gave exhibitions of motion picture photoplays as alleged in paragraph 2 of the bill. Paragraph 5 of the answer is somewhat equivocal. It is so narrowly phrased that it leaves room for controversy as to whether it really does deny, and hence whether, under Equity Rule 30 (28 USCA ß 723), it must be taken to admit, the issuance to and ownership by the complainant of the copyrights of the motion picture photoplays described in paragraph 6 of the bill. Cf. Grant v. Leach & Co., 280 U. S. 351, 357, 358, 50 S. Ct. 107, 74 L. Ed. 470; Victor G. Bloede Co. of Baltimore City v. Carter (C. C.) 148 F. 127, 129. For a reason appearing later, however, I do not find it necessary to decide, and I do not decide, the point. Paragraph 6 of the answer admits exhibition of some of the photoplays, as charged in paragraph 7 of the bill. If paragraph 5 of the answer were deemed an admission, it would seem, therefore, that the Amusement Corporation confesses infringement, unless there be something else in the answer which exempts from what would otherwise be an infringement shown by the pleadings themselves.

The sole bases for a claim to be excused that I discover are: (a) Alleged lack of knowledge of the rights of the complainant; (b) alleged absence of purpose to profit by the exhibitions; and (c) alleged procurement of the motion pictures from a person or persons who theretofore had been authorized by the complainant to sell or...