Opinion of the Court.

9. [277] MONOPOLIES 12 (2)-RIGHT TO PERFORM MUSICAL COMPOSITION NOT "TRADE OR COMMERCE," UNDER THE SHERMAN ACT.-A copyright is an intangible thing, and the right to perform a musical composition under a copyright is not "trade or commerce," and a combination of composers, authors, and publishers, under which extortionate license fees are demanded for public performances for profit of musical numbers copyrighted by the various members, does not constitute a violation of the Sherman Anti-Trust Act (Comp. St. 88 8820-8823, 8827-8830).

In Equity. Suit by T. B. Harms and another against William Cohen. On motion to strike out parts of answer. Granted in part, and denied in part.

Thomas G. Haight, of Jersey City, N. J., and Albert W. Sanson, of Philadelphia, Pa., for plaintiffs.

George Phineas Aarons and Sauder & Ehrenreich, all of Philadelphia, Pa., for defendant.

THOMPSON, District Judge.

The plaintiff, a corporation engaged in the business of publishing and selling musical compositions, has brought this suit as owner of the copyright in a musical composition entitled "Tulip Time," from "Ziegfield Follies, 1919." The defendant is alleged to be the owner and manager and operator of the Model Theater, where moving pictures and photo plays are exhibited and musical compositions are played, and to which the general public is admitted upon the payment of an admission fee. It is charged that the defendant, in infringement of the copyright, has given public performances for profit of the musical composition in question, by causing it to be played and performed in his theater for the entertainment and amusement of his patrons. [279]

Paragraph 18 of the answer avers in substance that the plaintiff is a member of the American Association of Composers, Authors, and Publishers, which includes a majority, if not all, of the composers, authors, and publishers in the United States; that the members thereof, for the purpose of securing to themselves "an unreasonable and extortionate profit, and for the purpose of establishing and

Opinion of the Court.

maintaining an unreasonable and extortionate license fee for the performance of their musical numbers," have combined and assigned to the society the privilege to issue licenses for the performance of the music of the mem- [280] bers, and to charge such sums as the society might fix; that the society appointed an agent to issue licenses for the performance of the musical compositions in Philadelphia; that the agent demanded extortionate fees for such licenses, which the defendant refused to pay.

It is averred that the plaintiff is therefore engaged with others in a combination or conspiracy in restraint of interstate trade or commerce, in violation of section 1 of the Sherman Act; that the present bill is one of eight simultaneously brought by members of the alleged combination; and that the present suit is not a bona fide action to protect the plaintiff's rights, but is part of a combination or conspiracy to create a monopoly in the musical composing and publishing business, in restraint of trade, and to demand unreasonable and extortionate profit from moving picture theater owners and lessees.

[7] Under the Copyright Act (section 1 [Comp. St. § 9517]) the copyright owner has the exclusive right to print, reprint, publish, copy, and vend the copyrighted work, and under section 41 (Comp. St. § 9562) the copyright is distinct from the property in the material object copyrighted, and the sale or conveyance by gift or otherwise of the material object does not, of itself, constitute a transfer of the copyright, nor does the assignment of the copyright constitute a transfer of the title to the material object.

[8] Does a combination of composers, authors, and publishers, under which extortionate license fees are demanded for public performances for profit of the musical numbers copyrighted by the various members, constitute a violation of the Sherman Act (Comp. St. §§ 8820-8823, 8827-8830)? The agreement under which the alleged unlawful combination was formed is not before the court, and the question must be decided upon the averments in the answer. In order to constitute a defense, it must be established that one

Opinion of the Court.

charged with infringement may be relieved from liability if the plaintiff is engaged in an alleged unlawful combination. Congress has declared in the Sherman Act that all such contracts and combinations in the form of trust or otherwise are illegal, but, on the other hand, has granted to musical composers a monopoly in their works, and has provided methods for enforcing their rights in the courts. If an infringer, when those remedies are invoked, may set up as a defense that the copyright is the object of an unlawful combination, and is being used to carry into effect the purposes of an unlawful combination, may he thus escape the results of his own wrongful act? If he can set up an unlawful combination as a defense against his infringement of the copyright, then any one who wrongfully trespasses upon or takes the property of another may set up as a defense that the property was being held and used by a member of an unlawful combination in carrying out the purposes of that combination. It would follow, if one took possession of cattle or beef belonging to a corporation or individual, a member of a combination for fixing the price of cattle or beef in restraint of trade, he would be relieved from liability to pay for the property so taken, or from returning it to its owner, upon producing proof that the owner was engaged in such unlawful combination. In the same manner one might with impunity take possession of oil, gasoline, sugar, or other [281] commodities belonging to members of an alleged trust or combination in restraint of trade. But there is no provision in the Sherman Act divesting members of combinations in restraint of trade of their property. The remedies under that act are clearly defined and are exclusive. Geddes v. Anaconda Mining Co., 254 U. S. 590, 41 Sup. Ct. 209, 65 L. Ed. 425; Motion Picture Patents Co. v. Ullman (C. C.) 186 Fed. 174; Fraser v. Duffey et al. (D. C.) 196 Fed. 900; Weyman-Bruton Co. v. Old Indian Snuff Mills (D. C.) 197 Fed. 1015; Corrugated Paper Patents Co. v. Paper W. M. Co. of N. Y. (D. C.) 237 Fed. 380; Edison Electric Light Co. v. Sawyerman Electric Co., 53 Fed. 592, 3 C. C. A. 605; U. S. Fire et al. Co. v. Halsted (D. C.) 195 Fed. 295.

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Syllabus.

[9] But a copyright is an intangible thing, and it is separate and distinct from the material object copyrighted, and the right under a copyright to perform musical compositions is not trade or commerce, any more than producing plays is trade or commerce, People v. Klaw, 55 Misc. Rep. 72, 106 N. Y. Supp. 341; or producing grand opera, Metropolitan Opera Co. v. Hammerstein, 162 App. Div. 691, 147 N. Y. Supp. 532; or the giving of exhibitions of baseball games, National League et al. v. Federal Baseball Club et al., 269 Fed. 681, 50 App. D. C. 165.

The answer does not set up that the defendant is affected in any other way by the alleged unlawful combination, except by his being prevented from producing the plaintiff's copyrighted music. The material object, the sheets of music, are not involved. If, therefore, the material object is not involved, so far as the defendant is concerned, the answer does not show that interstate commerce is directly affected by the combination, and it is therefore no defense. Hopkins v. United States, 171 U. S. 578, 19 Sup. Ct. 40, 43 L. Ed. 290; Anderson v. United States, 171 U. S. 604, 19 Sup. Ct. 50, 43 L. Ed. 300; Blumenstock Brothers et al. v. Curtis Publishing Co., 252 U. S. 436, 40 Sup. Ct. 385, 64 L. Ed. 649; Charles A. Ramsay Co. v. Associated Bill Posters (C. C. A. 2d Cir.) 271 Fed. 140. Paragraph 18 of the answer must therefore be stricken out.

It is ordered that the motion to strike out be granted, in so far as is consistent with this opinion, and otherwise be denied.

BINDERUP v. PATHE EXCHANGE, INC., ET AL.

(Circuit Court of Appeals, Eight Circuit. March 28, 1922.)

[280 Fed. Rep., 301.]

COMMERCE 40(3)-COURTS 289-LEASING OF FILMS BY BRANCH MANAGERS WITHIN STATE, TO WHOM PRODUCERS HAD SHIPPED FILMS FROM WITHOUT STATE, HELD NOT "INTERSTATE COMMERCE."-Where motion picture producers shipped films to their branch offices, which thereafter leased the films to theaters within the state and furnished films from the storehouse within the state, theater pro

Opinion of the Court.

prietor's action against producers for conspiracy to ruin his business by refusal to furnish him with films in violation of the Sherman Anti Trust Act (Comp. [302] St. §§ 8820-8823, 8827-8830) held not within the jurisdiction of the United States District Court; the transactions not involving "interstate commerce." a

SANBORN, Circuit Judge, dissenting.

In Error to the District Court of the United States for the District of Nebraska; Joseph W. Woodrough, Judge.

Action by Charles G. Binderup against the Pathe Exchange, Inc., and others. Judgment for defendants, and plaintiff brings error. Affirmed.

Dana B. Van Dusen, of Omaha, Neb. (C. P. Anderbery, of Minden, Neb., and Norris Brown and Irving F. Baxter, both of Omaha, Neb., on the brief), for plaintiff in error.

William Marston Seabury, of New York City (John J. Sullivan, Arthur F. Mullen, and Eugene N. Blazer, all of Omaha, Neb., on the brief), for defendants in error.

Before SANBORN and CARLAND, Circuit Judge, and TRIEBER, District Judge.

TRIEBER, District Judge.

The parties will be referred to herein as they appeared in the court below; the plaintiff in error as plaintiff, and the defendants in error as defendants.

The action is to recover threefold damages in the amount of $240,051, under the Sherman Anti-Trust Act (Comp. St. §§ 8820-8823, 8827-8830); the jurisdiction of the court being invoked solely upon the gorund that the injury complained of is for a violation of that act of Congress, there being no diversity of citizenship. Neither the jurisdiction of the court nor the sufficiency of the complaint was questioned by the defendants by demurrer or any other motion, but defendants filed their answers and went to trial on the issues made by the pleadings. The trial was to a jury.

After counsel for the plaintiff had made his opening statement to the jury, the defendants moved for a directed

a

" Syllabus copyrighted, 1922, by West Publishing Co.