Standard Music Roll Co. v. F.A. Mills, Inc.

• Citation: 241 F. 360
• Decision Date: 24 April 1917
• Docket Number: 2216.
• Parties: STANDARD MUSIC ROLL CO. v. F. A. MILLS, Inc.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

241 F. 360

STANDARD MUSIC ROLL CO. v. F. A. MILLS, Inc.

No. 2216.

United States Court of Appeals, Third Circuit.

April 24, 1917

Louis M. Sanders, of Orange, N.J., for appellant.

Nathan Burkan, of New York City, for appellee.

Before BUFFINGTON, McPHERSON, and WOOLLEY, Circuit Judges.

McPHERSON Circuit Judge.

This is an appeal from the decree of the District Court adjudging the Standard Music Roll Company to be an infringer of the plaintiff's copyright in the words of the musical composition entitled 'Waiting for the Robert E. Lee,' and awarding damages and costs. 223 F. 849.

There are no facts in dispute. In May, 1912, the words and music of the song were copyrighted together as a musical composition under the act of 1909, and in June the Mills Company (the present owner) licensed the Standard Company 'to use the copyrighted musical composition in the manufacture of its sound records in any form whatsoever,' apparently granting a similar license to at least one other person-- the Vocalstyle Company-- but filing no notice of user under section 1e of the statute. The Standard Company manufactured and sold perforated music rolls adapted to reproduce the music covered by the copyright, and also for a time printed the words of the song on separate slips of paper, and inclosed these slips in the boxes containing the rolls making no charge for the words. The royalty agreed upon, and actually paid, was two cents for every perforated roll adapted to reproduce the music. Two questions are presented for decision: (1) What was the scope of the license? and (2) what effect, if any, should be given to the failure to file a notice of user?

1. The Scope of the License. The material parts of that instrument are as follows-- the Mills Company being described as the 'Publisher,' and the Standard Company as the 'Company':

'Consent D-- Rolls for Automatic Instruments.

'Agreement made, etc.

'Whereas, the Publisher is the owner of the copyright of the musical composition, entitled 'Waiting for the Robert E. Lee,' secured by it subsequent to July 1, 1909; and

'Whereas, the Company desires the right, privilege, and authority to use the . . . of the said copyrighted musical composition in the manufacture of its music rolls, and the Publisher is agreeable to grant such right, privilege, and authority, subject to the terms and conditions hereinafter set forth:

'Now therefore witnesseth:

'(a) The Publisher hereby gives to the Company the right, privilege, and authority to use the said copyrighted musical composition in the manufacture of its sound records in any form whatsoever, and hereby consents to extending the original copyright of said musical composition to the instruments serving to reproduce mechanically the said musical work.

'(b) The Company hereby agrees to pay to the Publisher two cents for every record and copy of record manufactured by it serving to reproduce mechanically the said musical work.

'(c) The Company hereby agrees to render to the Publisher quarterly statements, the 1st of January, the 1st of April, the 1st of July, and the 1st of October, of all records and copies of records serving to reproduce mechanically the said musical work, manufactured by it during the preceding quarter.

'(d) It is expressly understood that the said musical composition shall not be used in connection with a musical medley for band or orchestra, or other medley arrangements, without the written consent of the Publisher first had and obtained.'

In our opinion, little need be added to the ordinary and natural meaning of this agreement. We decided in Witmark v. Roll Co. C. C.A. 3d) 221 F. 376, 137 C.C.A. 184, that under the copyright legislation before 1909 a manufacturer of automatic music rolls might lawfully inclose with the roll a printed slip containing the words of a song copyrighted as a musical composition, unless the words had been separately copyrighted as a 'book.' But section 3 of the act of 1909 changed the law in this respect, declaring:

'That the copyright provided by this act shall protect all the copyrightable component parts of the work copyrighted. * * * The copyright upon composite works * * * shall give to the proprietor thereof all the rights in respect thereto which he would have if each part were individually copyrighted under this act.'

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