Shilkret v. Musicraft Records, Inc.

• Decision Date: 10 December 1941
• Citation: 43 F. Supp. 184
• Parties: SHILKRET v. MUSICRAFT RECORDS, Inc.
• Court: U.S. District Court — Southern District of New York

43 F. Supp. 184

SHILKRET v. MUSICRAFT RECORDS, Inc.

District Court, S. D. New York.

December 10, 1941.

Philip Isaacs, of New York City, for plaintiff.

Sabin, Pomerance, Snitow & Puner, of New York City, for defendant.

LEIBELL, District Judge.

Defendant has moved under Rule 12(b), Federal Rules of Civil Procedure, 28 U. S.C.A. following section 723c, for an order dismissing the complaint upon the ground that it fails to state a claim upon which relief can be granted.

The action is one for alleged copyright infringement. The complaint alleges that prior to April 18, 1941, the plaintiff composed a new arrangement of "Southern Roses Waltz" by Johann Strauss. It is further alleged that the composition having never been printed or published in this or any foreign country was "deposited in the mail, addressed to the Register of Copyrights, with a claim of copyright and One Dollar in payment of the registration fee. Thereafter certificate No. 256753 under Entry Class E unp. was issued by the Register of Copyrights to the plaintiff, certifying that one complete manuscript copy of said musical composition had been received by the copyright office on the 18th day of April, 1941, and that registration of the claim to copyright was duly made in the name of Jack Shilkret, the plaintiff." A copy of the certificate of copyright registration as issued by the Register of Copyrights to Jack Shilkret under seal of the Library of Congress is set forth in the complaint.

The complaint also alleges that by virtue of the foregoing all proprietary rights to said composition are vested in the plaintiff, including the right to mechanically reproduce the same. The complaint also states: "Eighth: That the defendant, with full knowledge of the fact that plaintiff was the author and composer of the aforesaid new arrangement of the musical composition entitled Southern Roses Waltz by Johann Strauss, and with full knowledge of the copyright, and with full knowledge of the rights of the plaintiff and without knowledge or consent of the plaintiff, did copy the music of the arrangement of the aforesaid musical composition in the composition entitled Southern Roses Waltz by Johann Strauss, in that the defendant did mechanically reproduce the said musical composition entitled Southern Roses Waltz by Johann Strauss in the form of sound records and did further manufacture, sell and otherwise deal in numerous copies of the said sound recordings in the form of phonograph records and that the said defendant did sell and otherwise deal in numerous copies of said sound recordings in the form of phonograph records."

It is alleged that the conduct of the defendant results in an infringement of plaintiff's copyright and that the defendant is thereby benefiting from plaintiff's "labor and artistic efforts". Plaintiff alleges that unless defendant is restrained such conduct "will utterly destroy the value of plaintiff's copyright".

Section 11 of the Copyright Act, 17 U.S.C.A. § 11, provides as follows: "§ 11. Works not reproduced for sale. Copyright may also be had of the works of an author, of which copies are not reproduced for sale, by the deposit, with claim of copyright, of one complete copy of such work if it be a lecture or similar production or a dramatic, musical, or dramatico-musical composition; of a title and description, with one print taken from each scene or act, if the work be a motion-picture photoplay; of a photographic print if the work be a photograph; of a title and description, with not less than two prints taken from different sections of a complete motion picture, if the work be a motion picture other than a photoplay; or of a photograph or other identifying reproduction thereof, if it be a work of art or a plastic work or drawing. But the privilege of registration of copyright secured hereunder shall not exempt the copyright proprietor from the deposit of copies, under sections 12 and 13 of this title, where the work is later reproduced in copies for sale. (Mar. 4, 1909, c. 320, § 11, 35 Stat. 1078; Aug. 24, 1912, c. 356, 37 Stat. 488.)"

Defendant contends Section 1(e) in extending copyright protection to mechanical reproductions expressly limits its application to published compositions and no protection whatever is extended to holders of copyrights of unpublished musical works against alleged infringement by mechanical reproduction.

The Act states:

"Section 1. Exclusive rights as to copyrighted works. That any person entitled thereto, upon complying with the provisions of this Act title, shall have the exclusive right:

"(a) To print, reprint, publish, copy, and vend the copyrighted work; * * *

"(e) To perform the copyrighted work publicly for profit if it be a musical composition and for the purpose of public performance for profit; and for the purposes set forth in subsection (a) hereof, to make any arrangement or setting of it or of the melody of it in any system of notation or any form of record in which the thought of an author may be recorded and from which it may be read or reproduced: Provided, That the provisions of this Act title, so far as they secure copyright controlling the parts of instruments serving to reproduce mechanically the musical work, shall include only compositions published and copyrighted after July 1, 1909 * * *".

Defendant asserts that as plaintiff's work was not "published" and the complaint so alleges, plaintiff cannot invoke the benefits of Section 1, subd. (e), supra. The plaintiff contends that a sufficient publication was had by the depositing of a copy of his arrangement with the copyright office, when the copyright was registered under Section 11.

It is conceded by both plaintiff and defendant that Section 1, subd. (e), supra, was designed to overcome the lack of protection theretofore afforded an author against the mechanical reproduction of a copyrighted musical work, in view of the ruling of the United States Supreme Court in White-Smith Music Pub. Co. v. Apollo, 209 U.S. 1, 28 S.Ct. 319, 52 L.Ed. 655, 14 Ann.Cas. 628, decided February 1908. For that reason, defendant insists that a strict interpretation must be placed upon Section 1, subd. (e). On the other hand, plaintiff argues that the provisions of the Copyright Act should be reasonably construed in order to effectuate the congressional intent of granting a limited monopoly to the creator of a copyrightable work. Washingtonian Pub. Co. v. Pearson, 306 U.S. 30, 59 S.Ct. 397, 83 L. Ed. 470. But the question remains: What was the congressional intent as expressed in Section 1(e)?

The deposit of a copy of plaintiff's musical work with claim of copyright is sufficient for the validity of the copyright under Section 11 of the Act.

In Patterson v. Century Productions, Inc., 2 Cir., 93 F.2d 489, 491, Judge...