Robert Stigwood Group Limited v. O'REILLY

• Decision Date: 25 July 1972
• Docket Number: Civ. No. B-501.
• Court: U.S. District Court — District of Connecticut
• Parties: The ROBERT STIGWOOD GROUP LIMITED et al. v. John T. O'REILLY et al.

346 F. Supp. 376

The ROBERT STIGWOOD GROUP LIMITED et al. v. John T. O'REILLY et al.

Civ. No. B-501.

United States District Court, D. Connecticut.

July 25, 1972.

COPYRIGHT MATERIAL OMITTED

Robert Osterberg, Abeles & Clark, New York City, John F. Clancy, Clancy, Kenney & Ford, Bridgeport, Conn., for plaintiffs.

Gregor Neff, Pasquale Razzano, New York City, William D. O'Reilly, Wilmington, Mass., for defendants.

RULING ON PLAINTIFFS' MOTION FOR A PRELIMINARY INJUNCTION

ZAMPANO, District Judge.

The plaintiffs' application for a preliminary injunction¹ raises interesting and novel questions with respect to the so-called "charitable and educational exemption", see Nimmer, Copyright, § 107.33 (1963), in the Copyright Act, 17 U.S.C. § 104, which provides in pertinent part that:

Nothing in this title shall be so construed as to prevent the performance of religious or secular works such as oratorios, cantatas, masses, or octavo choruses by public schools, church choirs, or vocal societies, rented, borrowed, or obtained from some public library, public school, church choir, school choir, or vocal society, provided the performance is given for charitable or educational purposes and not for profit.

Although the Second Circuit on three occasions² in the last year enunciated controlling principles concerning alleged "pirate" performances of the rock opera Jesus Christ Superstar, the unique defenses presented by the defendants required that this Court hold extensive hearings on the issue.³ Oral arguments by counsel having been heard and comprehensive briefs having been filed, the matter is now ripe for decision.

I. THE PLAINTIFFS

Timothy Rice and Andrew Lloyd Webber created and wrote the musical work entitled Jesus Christ Superstar, a rock opera depicting the last seven days in the life of Christ. The rights in the work (exclusive of "King Herod's Song"), were assigned to plaintiff Leeds Music Limited, which secured copyrights for the opera as a "dramatico-musical composition" under 17 U.S.C. § 5(d). After plaintiff Leeds Music Limited assigned the United States copyrights to plaintiff Leeds Music Corporation, the plaintiff Robert Stigwood Group Limited ("Stigwood"), acquired by assignment the professional stage rights to the opera.

The plaintiffs contend the defendants have infringed in the past and intend in the future to infringe the copyrights held by the plaintiffs.

II. THE DEFENDANTS

The defendants, John T. O'Reilly, Jack Coyne, and Robert Cassidy, are ordained priests in the Roman Catholic Church. They, together with Father Patrick Berkery, Father Donald Middendorf, Father Joseph Valentine, and Brother Richard Palmese, presently comprise the Contemporary Mission, a nonprofit charitable corporation organized under the laws of the State of Missouri.

The record is replete with evidence that the defendants and the other members of their group are sincere and dedicated men who, through their "musical ministry", have performed innumerable acts of charity, aided the poor and disadvantaged, and attempted to influence the lives of youngsters, Catholic and non-Catholic.

As seminarians in the Minor Seminary of the Montfort Fathers in St. Louis, Missouri, the defendants worked and taught in the ghetto areas of St. Louis. Touched by the deep suffering and misery they witnessed, and recognizing the importance of music as a vehicle to impress the young, the defendants conceived the idea of musical preaching by using modern music to convey the messages of the Gospels. A group known as the Montfort Singers was formed to implement their concept of music as an apostolate.

In January, 1968, the Provincial Superior of the Montfort Fathers became disenchanted with these activities. As a result Father Berkery and the defendants, and other seminarians with the consent of the Superior General in Rome, disassociated themselves from the Montfort Fathers and formed a new organization known as the Montfort Mission. The members of the Mission took residence in the slums of St. Louis to pursue their experimental ministry and training programs. Soon several of the Mission's members, under the name of the Mission Singers, became a nationally known folk-rock group. They composed and published songs with religious themes, recorded albums of religious music, gave many concerts, appeared on the Ed Sullivan Show, Kraft Music Hall, and Merv Griffin Show among others, wrote several religious books, and instituted new teaching methods in schools through an audio educational tool known as "DiscoTeach." In addition, as priests, they performed the usual functions (Mass, Confession, etc.) of their religious calling, and continued their charitable works in feeding, housing and aiding the poor. All the income from their musical works and performances was used to support themselves and their charitable deeds; none received a personal share as his own. In September, 1968, the Montfort Mission filed a "Certificate of Amendment of a General Not For Profit Corporation" and changed its name to the "Contemporary Mission", which also was awarded a tax exempt status from the Internal Revenue Service.

In the summer of 1971, Bob Yde, a professional promoter, aware of the "fantastic Jesus climate", contracted with the Mission Singers to join his road show "Jesus Revolution", which later played to audiences across the country under "Hard Job Being God." Yde then decided to incorporate Jesus Christ Superstar into the performances. Several of the Mission Singers were employed in important technical positions in the show: Father O'Reilly was the musical director of the cast, Father Middendorf was the road manager, and Brother Palmese was both the sound and lights director.

On September 27, 1971, the Contemporary Mission, through Father O'Reilly, entered into a contract with Bob Yde Associates, Inc. "to perform in our concert presentation of Hard Job Being God and Jesus Christ Superstar" for a fee of $4,000 during each week when there was a public performance. During this time the group performed under the designation "International Rock Opera Company" (hereinafter "Company").

In October, 1971, Yde and the defendants dissolved their relationship, and Father O'Reilly with the other members of the Contemporary Mission "decided to take over" the Company and proceeded to perform Jesus Christ Superstar in over 50 performances to date in several states. Although some of the defendants have membership in artistic unions, none is licensed under an agreement with the American Society of Composers, Authors and Publishers to publicly perform any song from Jesus Christ Superstar. It is the Company as a group, and not solely the defendants as a group, that is the allegedly infringing body.

III. THE ISSUES

There is no question that the plaintiff Leeds Music Corporation holds the United States copyrights for the opera Jesus Christ Superstar as a "dramatico-musical composition", and that the plaintiff Stigwood possesses the rights for the stage productions and dramatic presentations. As a prima facie matter, therefore, the plaintiffs' copyrights should be protected, and the defendants should be enjoined from any further infringements of these copyrights. See Robert Stigwood Group Limited v. Sperber, supra, n. 2.

The defendants contend, however, that: 1) they and their Company are exempt from the provisions of the Copyright Act under § 104; 2) injunctive relief violates their rights under the First Amendment; and 3) the use which is made of the opera is "fair use."

IV. SECTION 104

Section 104 has been characterized by scholars as "meaningless", Nimmer, supra, § 107.33, "curious", Shafter, Musical Copyright, pp. 287-288 (1939), and having "inapt phraseology", Weil, American Copyright Law, p. 497 (1917). It provides in effect an exemption to the copyright laws when certain religious and secular works are performed by public schools, church choirs, or vocal societies, if the performances are given for charitable or educational purposes and not for profit.

Section 104 first appeared in the Copyright Act of 1909 and was carried forward into the present law without change. The entire legislative discussion on its passage is set forth in H.R. Rep. No. 2222, 60th Cong., § 328:

The existing law provides that any person publicly performing a dramatic or musical composition without the consent of the proprietor of the copyright shall be liable for damages of not less than $100 for the first and $50 for every subsequent performance, and this prohibition covers cases of public performances where the performance is not for profit. We have provided in this section that where the public performance is given by public schools, etc., for educational or charitable purposes and not for profit, it may be done without subjecting those who give the performance to any suit for damages, and we further provide that the music used for the performance may be rented, borrowed, or obtained from public libraries, or other public schools, etc.

The only judicial interpretation of the exemption clause is in John Church Co. v. Hilliard Hotel Co., 221 F. 229, 230 (2 Cir. 1915), rev'd on other grounds, 242 U.S. 591, 37 S.Ct. 232, 61 L.Ed. 511, (1917), wherein the court stated by way of dictum:

We think it was to permit certain high-class religious and educational compositions to be performed at public concerts where an admission fee is charged, provided the proceeds are applied to a charitable or educational purpose.

The first issue that must be resolved is whether § 104 is applicable at all. The plaintiffs, relying on an outstanding authority on copyright law, argue that the provision appears "to be a meaningless exemption since even without it a performance of a musical work not for profit will not constitute an infringement, and this regardless of whether or not the performance is for charitable or educational purposes." Nimmer, supra, § 107.33. The underlying support for the conclusion is found in...