Ted Browne Music Co. v. Fowler

• Decision Date: 04 June 1923
• Docket Number: 291.
• Citation: 290 F. 751
• Parties: TED BROWNE MUSIC CO. v. FOWLER et al.
• Court: U.S. Court of Appeals — Second Circuit

290 F. 751

TED BROWNE MUSIC CO. v. FOWLER et al.

No. 291.

United States Court of Appeals, Second Circuit.

June 4, 1923

Abner Greenberg, of New York City, for appellants.

L. & A U. Zinke, of New York City (Alexander U. Zinke and Ira J Schuster, both of New York City, of counsel), for appellee.

Before ROGERS, MANTON, and MAYER, Circuit Judges.

MANTON Circuit Judge.

The appellee claims title to the copyright in question by reason of an assignment dated April 23, 1921, wherein the appellant Fowler sold to the Francis Clifford Music Company, Inc. music publishers, in Chicago, Ill., the words and music of a song 'He May Be Your Man, but He Comes to See Me Sometimes. ' This contract provided that, in the event of the publication of the song, Fowler was to receive royalties as therein stated. The testimony shows that Fowler agreed to work his way to New York to help popularize the song, and to do this through letters of introduction furnished by the Clifford Company; it being particularly desired to have the song recorded by the mechanical producing companies before copies of sheet music be printed. He was to sell the music and records of songs already published by the Clifford Company to defray his expenses to New York. He apparently played the song in various cities between New York and Chicago, and arrived in New York in January, 1922. Through the letters of introduction furnished him, he was able to get the Arto Record Company of New Jersey to record his musical composition. Later, in February, 1922, one Tomaso, a music writer, made a loan to the Francis Clifford Music Company and received its stock as security. He was obliged to foreclose on this stock and bought it in, thus obtaining control of that company. He, as president of the Clifford Company, assigned the contract to this appellee. Without the knowledge of the appellee's assignor, the appellant Fowler secured a copyright registration of the song on February 20, 1923. Thereafter Fowler sold his copyright to the appellant Bradford, doing business as named in the bill of complaint, and he proceeded to publish the song, securing a copyright for the same as a published composition in his own name on May 1, 1922. Thereafter the appellee instituted this suit.

The bill of complaint sets forth these facts, and in addition alleges that Fowler, in violation of the appellee's rights, asserted ownership and dominion over the musical composition and copyrighted the same in his own name, receiving a certificate therefor; that the appellee was the sole musical proprietor and owner of the composition or song, and in July, 1922, published the song, placing the same on sale to the general public, marking it, 'Copyrighted MCMXII, by Ted Browne Music Co., Chicago, Ill.,' thus affixing to each copy its copyright notice. It alleged, further, that the appellants and each of them, acting in concert and in violation of its rights, entered into contracts with various companies for the mechanical recording of the song on musical records and instruments, and that they sold in the form of sheet music this song to the general public, printing thereon a notice of copyright ownership in them. The relief prayed for was an injunction and an accounting.

It is thus plain that the action is one for infringement of copyright, title to which was alleged to have been in the appellee. The answer as found in the record, names Abner Greenberg as a defendant. The appellant Fowler did not file a formal answer in time, but appeared by counsel and was present at the trial. Notice of this was taken at the trial, and appellee's counsel asked for a decree pro confesso against Fowler. Thereupon appellant Greenberg appeared and asked to be made a party defendant, and asked leave to file an answer. Some discussion followed, and counsel for Fowler asked that his answer be then taken, which was a general denial, and then the following occurred:

'Mr. Weiss: Will you take his answer as a general denial?

'The Court: I suppose he will put in an answer for him.

'Mr. Zinke: I would like Mr. Weiss to act under the retainer on Fowler's attorney.

'Mr. Weiss: What I will do is prepare an answer and let him sign his own name and appear in person, but I cannot appear as attorney of record for him.

'Mr. Zinke: If it is going to be a matter of form, that will simply tend to delay, then I certainly will consent that the answer be taken for the purposes of the record.

'The Court: All right; there is a general denial of each allegation.

'Mr. Greenberg: Will you take my answer that way, Mr. Zinke?

'Mr. Zinke: Your answer is a general denial, too, certainly.'

Thereupon some discussion followed as to the jurisdiction of the court, and the trial judge resolved that in favor of the appellee's contention, stating that he followed the principle of the case of Wooster v. Crane, 147 F. 518, 77 C.C.A. 211.

Objections relating to parties must generally be made promptly, or they will be deemed waived. Here it appears that the appellant Greenberg not only did not object, but consented to be a party, and this was a waiver of the claim of being improperly made a party defendant. Dalton v. Moore, 141 F. 311, 72 C.C.A. 459. This rule is now commonly accepted that failure to file an answer, bill or reply, or any pleading which is necessary to frame an issue, or otherwise failing to join issue properly, or at all, upon any and all of the allegations appearing in the pleadings is deemed waived by voluntary proceeding to trial as though issue was properly joined. Bank of Havelock v. Western Union Tel. Co., 141 F. 522, 72 C.C.A. 580, 4 L.R.A.(N.S.) 481, 5 Ann.Cas. 515; No. Chicago St. Ry. Co. v. Burnham, 102 F. 669, 42 C.C.A. 584; Muldoon v. Blackwell, 84 N.Y. 646.

We think the court had jurisdiction of the subject-matter and also of the parties, and the filing of a formal answer was waived by the appellants Greenberg and Fowler. Where a copyright is not obtained in the plaintiff's name, the plaintiff must connect himself with it by proper...