Wihtol v. Crow

• Decision Date: 05 January 1963
• Docket Number: No. 16963.,16963.
• Citation: 309 F.2d 777
• Parties: Austris A. WIHTOL, doing business as Kalmin, Mohr & Apsit, and Austris A. Wihtol and Elly L. Wihtol, doing business as The Kama Co., Appellants, v. Nelson E. CROW, First Methodist Church of Clarinda, Iowa, and Clarinda, Iowa, School District, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

309 F.2d 777 (1962)

Austris A. WIHTOL, doing business as Kalmin, Mohr & Apsit, and Austris A. Wihtol and Elly L. Wihtol, doing business as The Kama Co., Appellants, v. Nelson E. CROW, First Methodist Church of Clarinda, Iowa, and Clarinda, Iowa, School District, Appellees.

No. 16963.

United States Court of Appeals Eighth Circuit.

November 27, 1962.

Rehearing Denied January 5, 1963.

Melville V. Nimmer, Los Angeles, Cal., for appellants.

Richard G. Langdon and David W. Belin, Des Moines, Iowa, for appellee Clarinda, Iowa, School District.

Richard G. Davidson, Clarinda, Iowa, William C. Hemphill, of Stipe, Davidson & Hemphill, Clarinda, Iowa, on the brief, for appellees Nelson E. Crow and First Methodist Church of Clarinda, Iowa.

Before SANBORN and BLACKMUN, Circuit Judges, and REGISTER, District Judge.

SANBORN, Circuit Judge.

The appellants were the plaintiffs in an action for injunctive relief and damages against the defendants (appellees) for the alleged infringement of copyrights covering a musical composition consisting of a song or hymn entitled "My God and I." From a judgment dismissing the complaint and awarding the defendants costs and attorneys' fees (199 F.Supp. 682), the plaintiffs have appealed.

The song in suit was composed by Austris A. Wihtol, who, under his trade name, obtained a copyright for the song ("English text and choral arrangement"). It was first published in the United States August 15, 1935, and duly registered in the United States Copyright Office on September 11, 1935. Wihtol later produced a version of the song "arranged for solo voice with new piano score, with new text added * *." This version was first published March 1, 1944, and registered in the Copyright Office on September 30, 1944, by Wihtol and his wife, doing business as The Kama Co.

According to the plaintiff Wihtol's evidence, the song has achieved a worldwide distribution, and has produced some $25,000 annually from royalties. It has been performed largely in churches and schools. Wihtol depends upon the income from the song for his support. Part of the income is derived from granting licenses for the making of special arrangements of the song.

The defendant Nelson E. Crow was the head of the Vocal Department of the Junior College and High School of the Clarinda, Iowa, School District, during the school year 1958-59. He has a Degree of Master of Music Education. He was employed by the School District and was paid a salary for his services in supervising its choral music activities. He selected what was to be sung by the choral groups of the School and supplied the members of such groups with printed copies of the music to be sung. Crow, during this same period, was also the Choir Director of the First Methodist Church of Clarinda, and its organist. He received compensation from it for his services. His duties as Director included the selecting of choral music for the choir and the furnishing of printed copies of the music to its members.

In November of 1958, Crow, without the permission of the plaintiffs, copied the song "My God and I," incorporating it in a new arrangement made by him. He had found the copyrighted version of the song as published and sold by the plaintiffs — of which the School had acquired some 25 copies — unsuitable for choir use. About 48 copies of his new arrangement, adapted for such use, were produced by him upon one of the School's duplicating machines. The new arrangement of the song was performed once by the High School choir of 84 voices at one of the regular monthly School chapel services, and was performed at church services on one Sunday by the much smaller choir of the First Methodist Church. Crow had furnished the choirs with copies of his new arrangement. The copies contained the words "arranged Nelson E. Crow," and made no reference to Wihtol.

In June of 1959, Crow wrote The Kama Co., advising of the new arrangement he had made of the song, and stating that he had "ad libbed a choral humming introduction of four measures" but otherwise had left the score in its original context and had omitted no part of the solo version. In his letter he suggested that The Kama Co. might be interested in his arrangement, and said: "* * * I will attempt to get the score ready for your perusal next fall — if you are interested." In response to his letter, The Kama Co. requested that copies of his arrangement of the song be forwarded for inspection. Receiving no reply to this request, Wihtol went to Clarinda, Iowa. Crow was not there. Wihtol discussed the matter of infringement with Mrs. Crow. Wihtol gathered the impression that there was to be no peaceful solution of the controversy, and returned to Los Angeles.

Under date of July 28, 1959, The Kama Co. wrote Crow as follows:

"Dear Mr. Crowe:

"We regret that you did not comply with our request of sending immediately a copy of your score for inspection. Not hearing from you, it was necessary to make investigation, thereby involving expense which could have been avoided and which also impairs the friendly and co-operative atmosphere that should exist between publishers and music users. The plain fact is that you are guilty of Copyright infringement and subject to assessments and penalties that the law imposes on infringers.

"For the preservation of good will for the sake of any future dealings that may come about, we will ask you to comply with the easiest terms possible.

"The copyright law permits us to ask a Statutory Fee, of not more than 5,000 dollars and not less than 250 dollars. For the present, we will be satisfied with the minimum of 250 dollars and will allow you 90 days from this date, for compliance.

"For the present, we will not institute a criminal complaint for Willful Infringement (maximum penalty — one year in jail and 1,000 dollar fine) because we wish to let you off as easily as possible.

"For the sake of a peaceful and pleasant settlement, please have all of the copies you made delivered to our office in California immediately. The copies are so made that other people can be involved too and very seriously.

"If this matter is amicably settled, in all likelihood, we may have an interesting offer for you for the future.

"Very truly yours "THE KAMA CO. "P. O. Box 301 "Glendale, Calif "/s/ L. ENGELHART."

On September 1, 1959, Crow forwarded to The Kama Co. 44 copies of the arrangement he had made of the copyrighted song, which were all the copies he had. The instant action was brought on January 15, 1960.

The defendants, in their separate answers to the complaint of the plaintiffs, denied any infringement of the copyrights in suit. The School District denied that Crow, in doing what he had done with the copyrighted song, was its agent and was acting within the scope of his authority as alleged in the complaint. It asserted that, if he was such an agent, the District was not liable for damages, since he was acting in a governmental capacity. The Church, in its answer, denied that the acts of Crow, complained of, were done as its agent.

The District Court, in disposing of this troublesome case growing out of the unfortunate but unintentional and seemingly harmless mistake of Nelson E. Crow, determined: (1) that there had been no infringement, but only a "fair use" by him of the copyrighted song; (2) that if there was infringement, it was of the 1935 copyright only, and not of both copyrights; (3) that the Clarinda, Iowa, School District could not, in any event, be held liable for infringement of the plaintiffs' copyrights; (4) that, because of the offensive intimation contained in the letter of July 28, 1959, from The Kama Co. to Crow that he was, or might be, subject to criminal prosecution, the defendants should each be awarded an attorney's fee of $500 against the plaintiffs. This Court is now called upon to review these rulings.

Section 1 of the Copyright Act, 17 U. S.C. § 1 et seq., gives to a copyright proprietor 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: * * *."

Obviously the plaintiffs had the exclusive right to copy their copyrighted song, and obviously Nelson E. Crow had no right whatever to copy it. The fact that his copying was done without intent to infringe would be of no help to him,¹ as the trial court recognized, if the copying constituted an infringement.

The trial court, however, was of the opinion that innocent intent had a bearing on the question of fair use, and ruled that Crow did nothing more than make a fair, noninfringing use of the copyrighted song in suit.

Whatever may be the breadth of the doctrine of "fair use," it is not conceivable to us that the copying of all, or substantially all, of a copyrighted song can be held to be a "fair use" merely because the infringer had no intent to infringe. In Bradbury v. Columbia Broadcasting System, Inc., 9 Cir., 287 F.2d 478, the court, in considering the doctrine of "fair use" of a copyrighted production, said (page 485):

"To constitute an invasion of copyright it is not necessary that the whole of a work should be copied, nor even a large portion of it in form or substance, but that, if so much is taken that the value of the original is sensibly diminished, or the labors of the original author are substantially, to an injurious extent, appropriated by another, that is sufficient to constitute an infringement. The test of infringement is whether the work is recognizable by an ordinary observer as having been taken from the copyrighted source. Slight differences and variations

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