Remick Music Corp. v. Interstate Hotel Co. of Nebraska

• Decision Date: 09 December 1944
• Docket Number: 332,No. 321,322,331,509.,325,334,327-329,443,321
• Citation: 58 F. Supp. 523
• Parties: REMICK MUSIC CORPORATION v. INTERSTATE HOTEL CO. OF NEBRASKA and ten other cases.
• Court: U.S. District Court — District of Nebraska

58 F. Supp. 523

REMICK MUSIC CORPORATION v. INTERSTATE HOTEL CO. OF NEBRASKA and ten other cases.

Nos. 321, 322, 325, 327-329, 331, 332, 334, 443, 509.

District Court, D. Nebraska, Omaha Division.

December 9, 1944.

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James J. Fitzgerald Jr., and Seymour L. Smith, both of Omaha, Neb., Joseph D. Karp, of New York City, and Ellick, Fitzgerald & Smith, of Omaha, Neb., for plaintiffs Remick Music Corporation and others.

Yale C. Holland, Eugene N. Blazer, and Kennedy, Holland, DeLacy & Svoboda, all of Omaha, Neb., for plaintiff Shapiro, Bernstein & Co. William J. Hotz, William F. Dalton, and Hotz & Hotz, all of Omaha, Neb., for defendants Interstate Hotel Co. of Nebraska.

William J. Hotz, Henry Monsky, William Grodinsky, and Monsky, Grodinsky, Marer & Cohen, all of Omaha, Neb., for defendant Regis Hotel Co.

John H. Comstock, of Lincoln, Neb., and William J. Hotz, of Omaha, Neb., for defendant Ada Kobalter.

DELEHANT, District Judge.

In the ruling now announced, disposition is made of the eleven cases noted in the caption, which, though entirely distinct, each from all of the others, have been submitted to the court in a single trial and oral argument, and largely upon single briefing operations. That course has been practicable because the legal issues involved are essentially identical in all the cases, and their facts are generally similar in their pattern.

In each single count case, and in each cause of action in the several multiple count cases, the sole proprietor of a copyrighted musical composition and of the copyright thereof, and the alleged sole owner of the right of public performance for profit of the composition, seeks injunctive relief and an award of damages with costs, including an attorneys fee, against the defendant upon the asserted ground of the defendant's infringement of the copyright through public performance for profit of the musical composition at a public place of business, entertainment or amusement operated by the defendant. Although the singular number has just been, and throughout this opinion will be, employed in referring to the plaintiff in each case, it may be noted, without repetition, that in case 334, two parties join in the quest for relief. For convenience the claimant in each case is referred to here as "plaintiff", although in each of the first nine cases the designation chosen by the pleading claimant is "complainant".

The defense presented to each claim is such that it has seemed orderly and logical for the court to divide the analysis of the cases, both in their facts and in their legal consideration, into two phases. Each claim is resisted, first, upon the ground that, wholly apart from any domestic law of Nebraska, the claim is not maintainable; and secondly, upon the ground that recovery may not be allowed because of certain Nebraska legislation. In the interest, therefore, of the facile approximation of related facts and legal principles, consideration will be given to the claims, first in their general aspect, unaffected by the impact of Nebraska's statutes; and, thereafter and specifically, in the light of the Nebraska legislation which the defendants severally put forth as a bar to recovery against them or any of them.

In each single count complaint, and in each cause of action in each multiple count complaint, the following allegations are made and are admitted in the applicable answer: (a) The foundation of the claim upon the copyright laws of the United States; (b) the incorporation, and existence at all times relevant, under the laws of New York, of the plaintiff (with due allowance for the individuality of one of the two plaintiffs in case No. 334), and its participation in the business of printing, publishing and vending copyrighted musical compositions; (c) in the case of each defendant except the individual defendants, its incorporation under the laws of Nebraska and its engagement in the regular transaction of business in Nebraska; (d) that, on the date of the alleged infringement, which, in each case except those numbered 443 and 509, was within a period of six days in the middle of March, 1942, in case No. 443, was on March 31, 1943, and in the several counts of case No. 509 included April 10, 1943, and April 14, 1943, the defendant was engaged in, and operated and controlled a designated business, the nature of which will be mentioned briefly hereafter, in the city of Omaha, Nebraska, in all instances except case No. 509, and in that case near the city of Lincoln, Nebraska; (e) that (except in cases numbered 443 and 509 in which adequate proof is made upon the point and admission is also made upon the trial) the words and music of the allegedly infringed musical composition were written and composed respectively by designated persons or by a single person, prior to a designated date; (f) that after the writing and composition of the musical piece involved, it was wholly and without reservation assigned by its author and composer, in some cases directly, in others through mesne transfers, to the plaintiff which on such acquisition became, and at all material dates remained, the sole owner of the composition; (g) that, on a date identified in the complaint, and in each instance before the alleged infringement, the then specified owner of the musical composition and successor in that title to its author and composer duly copyrighted the composition by publishing it and offering it for sale to the general public bearing a quoted notice of copyright on the front page of its published sheets; and promptly thereupon deposited in the office of the Register of Copyrights two complete copies of the best edition of the composition then published, accompanied by a claim of copyright, and paid the legal fee for registration, and the composition was duly registered by the Register of Copyrights who issued to the then owner a certificate of copyright registration of which a copy is annexed to and incorporated into the complaint as an exhibit; (h) that upon each copy of the composition published and offered for sale by authority of the copyright proprietor, there was inscribed on the first page of the published sheets the copyright notice required by law setting forth the word "copyright" accompanied by the name of the copyright proprietor and the year in which the copyright was secured; that a copy of the composition involved is annexed to and incorporated into the complaint as an exhibit, and (i) that upon the first page of each copy of each composition involved is the following clearly printed legend: "All Rights Reserved Including Public Performance for Profit."

In noting the admitted facts—as well as in later observations upon negatived allegations —the court considers it unnecessary, for the purpose of a general memorandum, to set out the precise sequence of dates in the process of publication and copyright, or of the assignments culminating in the final transfers to the plaintiffs; or to identify by name all of the compositions, their authors and composers and the channels through which the alleged and admitted assignments were made. All of such matters will be covered in exact detail in the findings of fact whose preparation is hereinafter directed. And for convenience a brief summary of the names of the several compositions involved, the authors of their lyrics and composers of their music, their dates of copyright, and the time, place, and method of infringing production by the respective defendants is set out in a footnote.¹

Certain important allegations of the several complaints are denied. And they will now be considered, and the factual findings of the court upon them will be announced, and, in certain instances, the legal considerations involved in such findings will be set down briefly.

In connection with every alleged cause of action, the defendant therein expressly denies that the musical composition involved was "new and original music", and thus puts in issue the factor of its novelty and originality. Upon the trial, each plaintiff introduced in evidence the certificate or certificates of copyright registration in respect of the composition or compositions upon which its complaint was founded. In some instances no further evidence was introduced by the plaintiff upon the question of novelty and originality; in others evidence was tendered and received touching the circumstances of the composition either of the lyrics or of the music or of both lyrics and music. It would needlessly prolong this memorandum to analyze that evidence in detail, at this point. Nor, in the view of the law which the court adopts, is it necessary. However, in a footnote² a summary analysis has been made of the cases in which at least some oral proof was offered by the plaintiffs leading to an inference of novelty and originality, either in the lyrics or in the music, or in both, of the compositions with which the cases are respectively concerned. Upon the issue tendered, no evidence at all was offered by the defendants except in case No. 331 (vide infra).

The court must decide, therefore, in each instance, whether the plaintiff has sustained the burden of establishing the originality of the composition or compositions on which its complaint rests. It is considered that the question is to be answered affirmatively in every case. At this point the court observes the contention of the defendants that because they have specifically denied the element of originality their answers impose a special burden of proof of that issue upon the several plaintiffs. Since originality is not admitted in any case, but is denied in all of them, it may simply be recognized that each plaintiff is under the burden of establishing it. But, that granted, each plaintiff is entitled to the benefit of any presumptions which the law affords in the making of a prima facie case. And such presumptions are effective quite as readily...