Herbert v. Shanley Co.

LEARNED HAND, District Judge (after stating the facts as above). [1, 2] That the opera was a dramatico-musical composition [345] seems to .me to admit of no question; a performance need not, therefore, be ‘'for profit” to infringe, under the rule in Church Co. v. Hilliard, 221 Fed. 229, 136 C. C. A. 639, decided by the Circuit Court, of Appeals for the Second Circuit February 9, 1915. Furthermore, a performance in words and music alone infringed the dramatico-mu-sical copyright, for words and music alone may constitute a dramatic performance (Russell v. Smith, 12 Q. B. 217), and it did not matter that the. performance was only of a scene or part of a scene (Brady v. Daly, 83 Fed. 1007, 28 C. C. A. 253). So far the case is all with the plaintiffs. [3] However, the authors took out a copyright upon the song separately as a musical composition, and in so doing they necessarily gave into the public domain all musical rights, except as they were covered by the resulting copyright. Whatever be the minimum of musical rights, it includes the right to perform the music publicly without any unnecessary accessories. Singing the words to the music, accompanied by the orchestra, is therefore within the musical rights so dedicated. On the other hand, we now have it, on the authority of Church Co. v. Hilliard, supra, that a public performance of this kind is not within the statutory copyright which the plaintiffs received as consideration for their dedication. It seems necessarily to follow that the performance did,not infringe. This result no doubt involves the abandonment of some rights, secured by the dramatico-musical copyright, but that is because the plaintiffs wished a double protection. There can be no justice in preserving their dramatic rights at the expense of the public’s rights arising from taking out a musical copyright. Had they wished to retain a complete dramatic monopoly, they had it in their power to do so. As if is, that monopoly remains to their complete protection, except so far as its limitation is necessary to give full scope to the musical copyright. For instance, if the performance here had been anything beyond the least essentials to a musical reproduction of the copyrighted song, it would be protected; but it was not. The plaintiffs are really trying to eat their cake and have it; they would get the full benefit of a musical copyright, while they prevent the public from enjoying the corresponding rights. The motion is denied.