Smith v. George E. Muehlebach Brewing Company

• Decision Date: 13 March 1956
• Docket Number: No. 9492.,9492.
• Citation: 140 F. Supp. 729
• Parties: Leonard SMITH, Plaintiff, v. GEORGE E. MUEHLEBACH BREWING COMPANY, Defendant.
• Court: U.S. District Court — Western District of Missouri

140 F. Supp. 729

Leonard SMITH, Plaintiff, v. GEORGE E. MUEHLEBACH BREWING COMPANY, Defendant.

No. 9492.

United States District Court W. D. Missouri, W. D.

March 13, 1956.

Paul Scott Kelly, Wade & Kelly, Kansas City, Mo., Roland Gidney, Kansas City, Mo., for plaintiff.

John R. Moberly, George Schwegler, Jr., Watson, Ess, Marshall & Enggas, Kansas City, Mo., for defendant.

RIDGE, District Judge.

Plaintiff makes claim against defendant for infringement of copyright for a musical composition entitled "Tic Toc". At pre-trial conference it was stipulated that the issue of law as to whether such musical composition is or was a proper subject of copyright in light of the public domain defense asserted by defendant, should first be submitted to the Court for determination upon the pleadings and depositions, as modified by the pre-trial order entered herein, before the parties were put to expense of trial. We now proceed to determine that legal issue. The facts in respect thereto are not in dispute.

June 24, 1953, plaintiff lodged with the Register of Copyrights, under Section 5(e), Title 17 U.S.C.A., a claimed unpublished musical composition, entitled "Tic Toc," which may be verbally described as follows: "Tic Toc, Tic Toc, Time for Muehlebach," scored to notes "C" and "G" in the musical key of "C", and claimed copyright to both the "words and music" of such composition. Defendant asserts that said composition, as to words, music and arrangement, is totally within the public domain and not subject to copyright as a musical composition under Section 5(e), supra. Specifically, it is defendant's position that the plaintiff, by merely lyrically combining "Tic Toc" and "Time for Muehlebach" with two notes in a common musical scale, to produce the sound and tempo of a clock ticking — all material in the public domain —, has not produced or created anything distinguishably his own, such as might take the resultant material out of the public domain and give it copyright protection. Plaintiff admits that the words "Tic Toc" are within the public domain and not subject to copyright. Plaintiff also admits that the expression "Time for Muehlebach" has been published before the date of his claimed copyright by the defendant without copyright and that such phrase has thereby been dedicated to the public domain. As to the musical score of his jingle, plaintiff states that he is not a musician, that he did not create or originate that part of the jingle in question, but had a friend of his, who was a musician, "write down the music" to produce the sound of a clock ticking. (Plf's Depo., p. 11.)

The claim of originality which plaintiff makes to sustain his asserted copyright chiefly rests in the proposition "that the words `Tic Toc, Tic Toc, Time for Muehlebach' have never been used together for any purpose prior to the date of his claimed copyright," and that he is entitled to have such combination separately protected under copyright. No claim is here made by plaintiff as to any common-law property right in the jingle in question. "Plaintiff has no evidence of specific claims for damage and will rely for the amount of recovery herein on statutory damages allowed by the copyright laws." (Pre-Trial Order.) Such statutory damages cannot be recovered in a common-law action depending on diversity of citizenship and requisite jurisdictional amount. Eisman v. Samuel Goldwyn, Inc., D.C., 23 F.Supp. 519. Having no evidence of specific damages resulting from any conduct of defendant here complained of, plaintiff could not in good faith state a common-law claim against defendant within the jurisdiction of this Court under the facts here involved. Therefore, unless plaintiff can sustain his claim of "copyright" he has no right to maintain the instant action.

In considering whether plaintiff's alleged musical composition is a proper subject of copyright under Section 5(e), supra, it must be kept in mind that a musical composition as an idea or intellectual conception is not subject to copyright, either as to its words or music. Cf. White-Smith Music Pub. Co. v. Apollo Co., 2 Cir., 139 F. 427, affirmed 209 U.S. 1, 28 S.Ct. 319, 52 L.Ed. 655. It is the words and music of a song, or jingle, considered as a unitary whole, which is the subject of copyright. As said in Shapiro, Bernstein & Co. v. Jerry Vogel Music Co., 2 Cir., 161 F.2d 406, 409, "The words and music of a song constitute a `musical composition' in which the two contributions merge into a single work to be performed as a unit for the pleasure of the hearers; they are not a `composite' work, like the articles in an encyclopedia, but are as little separable for purposes of copyright as are the individual musical notes which constitute the melody." Hence plaintiff's jingle, as a subject of copyright, should be considered as a single original work from the standpoint of its melody and lyrics, and not disjointedly, nor from the standpoint of the intellectual conception thereby expressed. If, however, a song or jingle as a whole is subject to copyright, then plagiarism of any substantial component part would, of course, constitute copyright infringement. Section 3, Title 17 U.S.C.A.; Fred...