Wilkie v. Santly Bros., 121.
| Decision Date | 13 December 1943 |
| Docket Number | No. 121.,121. |
| Citation | 139 F.2d 264 |
| Parties | WILKIE v. SANTLY BROS., Inc., et al. |
| Court | U.S. Court of Appeals — Second Circuit |
Phillips, Nizer, Benjamin & Krim, of New York City (Louis Nizer, of New York City, and George B. Harris, of San Francisco, Cal., of counsel), for plaintiff-appellee.
Julian T. Abeles, of New York City (Julian T. Abeles and Leopold Bleich, both of New York City, of counsel), for appellant Santly Brothers, Inc.
Before AUGUSTUS N. HAND, CHASE, and CLARK, Circuit Judges.
The plaintiff successfully prosecuted his suit against the appellants for the infringement of his common-law copyright on the music of an unpublished song called "Confessing" by the publication of the music for a song entitled "Starlight, Help Me Find The One I Love." Wilkie v. Santly Bros., 2 Cir., 91 F.2d 978. Appellant Petkere wrote the infringing music and Santly Bros., Inc., published it though without knowledge, or reason to believe, that it was infringing any copyright. A master appointed by the District Court heard the parties on the accounting which followed, and in due course filed his report stating the account which was accepted and confirmed by the court except in respect to one item not now in controversy. The plaintiff offered no evidence of damages. The master reported the profits found to have been made by the publisher on the infringing song and the royalties received by the author. They were awarded to the plaintiff in the decree. Both defendants appealed, but the author has not pressed her appeal.
The publisher has argued that the decree below was erroneous in that it derived no profit whatever from the infringement (1) because its business as a whole showed a loss during the infringing period, and (2) because, if allowed a proper credit for overhead, it lost money on that part of its business which did infringe the plaintiff's copyright whereas it was found by the master to have made a profit on that part because only a portion of its overhead which should have been allocated to that publication was deducted from the gross receipts by the special master. The principal issue is whether in the accounting proper credit was allowed to the publisher for overhead.
This appellant was established in business before the infringing music was published, and during the time of the infringement its business included the publication and sale of many other songs, some successful and others not. It did operate at an over-all loss, but that gave it no immunity from accounting for any profits made by the infringement merely because they were less than enough to make its entire business profitable. Tilghman v. Proctor, 125 U.S. 136, 8 S.Ct. 894, 31 L.Ed. 664; Fox Typewriter Co. v. Underwood Typewriter Co., 6 Cir., 287 F. 447. If it was proved that it lost less because of the infringement, to that extent the infringement gave it a profit for which it must account. Mowry v. Whitney, 14 Wall. 620, 20 L.Ed. 860; Brown Bag-Filling Machine Co. v. Drohen, 2 Cir., 171 F. 438.
The general rule which controls in such a situation was stated in Sheldon v. Metro-Goldwyn Pictures Corp., 2 Cir., 106 F.2d 45, 54, and is that, "`Overhead' which does not assist in the production of the infringement should not be credited to the infringer; that which does, should be; it is a question of fact in all cases." It is clear that this publisher necessarily made use of its organization and facilities for the publication and promotion of the sale of such compositions as this and the overhead expenses required to maintain that organization did assist in the production of the infringement. There is now no...
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