Thomas v. Lennon

• Decision Date: 19 January 1883
• Citation: 14 F. 849
• Parties: THOMAS v. LENNON.
• Court: U.S. District Court — District of Massachusetts

14 F. 849

THOMAS v. LENNON.

United States Circuit Court, D. Massachusetts.

January 19, 1883

Browne Holmes & Browne, for complainant.

T. W Clarke and J. H. Burke, for defendant.

Before LOWELL and NELSON, JJ.

LOWELL C.J.

This is a motion to enjoin the defendant from causing to be performed Gounod's oratorio, or cantata, called 'The Redemption,' with full orchestral accompaniment. The plaintiff is a citizen of New York, and the defendant is a citizen of Massachusetts. The hearing was on the bill, the answer, (to be taken as an affidavit,) a stipulation of the parties, and oral evidence of experts. Charles Gounod, of Paris, composed the oratorio in question, with an orchestral accompaniment for 40 or more pieces, and caused it to be performed for the first time, under his own direction, at Birmingham, in England, in August last, on occasion of a musical festival. The defendant avers his belief that the full score has been published in England, but he adduces no proof of this, and the stipulation finds that this belief rests only upon the understanding that the law of England requires a deposit of a copy of the score in the British Museum within three months after the first performance. The law appears to make this requirement unless the score is in manuscript; but we have no evidence whether the score was or was not in manuscript at the time when it should have been deposited if not in manuscript, nor whether it was so deposited, and, if so, whether it is open to public inspection. There is evidence that at some time, not specified, except that it was before the answer was filed, a few copies have been printed, marked 'as manuscript only,' for the use of the performers. We do not need to decide whether these copies were manuscript in the sense of the statute. There has been time, since the defendant first undertook to act as if the oratorio was open to him, to ascertain the true circumstances of the case in respect to this supposed publication. The composer did permit the words and vocal parts of his oratorio, set to an accompaniment for the piano, to be published in England, and the book can be bought in Boston, and has been produced in evidence. It is believed and admitted to contain all the melodies and harmonies of the original oratorio. It has in the margin references to the particular instruments which are to be employed in playing the different parts of the piece, or many of them. The plaintiff owns for this country whatever exclusive rights Gounod retained or could retain after the publication of the book. The defendant applied to the plaintiff, to buy the exclusive right of performing the oratorio in Boston, but was told that negotiations were pending with the Handel and Haydn Society, of this city, for that right. These negotiations resulted in a purchase by that society. The defendant appears to have gathered, from something which was said to him by the plaintiff, that the negotiations with the Handel and Haydn Society were likely to fall through, and to have begun his preparations as if this were already sure. When he heard that the bargain was made, he undertook to proceed, and to advance his performance so as to bring out Gounod's 'Redemption' before the time fixed by the society for their first performance, and accordingly advertised his own for next Sunday, January 21st. Thereupon this bill was filed, and the defendant modified his advertisement, by advice of counsel, so that, in the part material to this case, it read thus:

BOSTON THEATER.

SUNDAY EVENING, JANUARY 21, 1883,

First Performance in Boston of

GOUNOD'S REDEMPTION.

With New Orchestration arranged from

indications in the published

Piano-forte Score.

It is admitted, for the purposes of this motion, that the defendant has not copied Gounod's score, but has procured the band parts to be made by some unnamed composer or arranger of music.

Two questions have been ably argued before us: First, whether the publication of the book, with the score for the piano and the marginal notes, gives to every one the right to reproduce or copy the orchestral score if he can; second, whether a new orchestration, not copied from the original memory, report, or otherwise but made from the book, it is infringement of the plaintiff's rights. These were the points argued, for it was admitted that a performance on the stage is not such a publication as will destroy the exclusive common-law right of the author and his assigns to a dramatic or lyrical composition of this sort, though the composer is an alien, not entitled to the benefits of our law of statutory copyright. Keene v. Wheatley, 4 Phil. 157; Boucicault v. Fox, 5 Blatchf. 87; Crowe v. Aiken, 2 Biss. 208;

Palmer v. De Witt, 47 N.Y. 532; Tompkins v. Halleck, 133 Mass. 32.

1. It is clear that the book is common property in the United States. What it dedicate to the public? It was to instruct us upon this point that experts were examined; and their opinions were unanimous that the score for the piano contains all the substance of the oratorio, but that the limitations of the instrument are such that it is impossible to express in...