other respects from being an infringement.12 Piracy exists where the appropriated music, although adapted to a different purpose from that of the original, may still be recognized by the ear.13 If the two pieces are so much alike that when played by a competent musician they appear to be the same, the infringement is established, notwithstanding variations.14 An opera may be infringed by an arrangement of it for the pianoforte,15 or by a new orchestration made from a pianoforte arrangement;16 and a pianoforte arrangement may be infringed by an orchestration of it. The unauthorized use of either the words alone or the music alone of a copyrighted musical composition is an infringement, although such words and music were not separately copyrighted.18 There are decisions to the contrary in respect of copyrights secured prior to the act of 1909.19 But the correctness of

183 Fed. 107, 105 CCA 399 [aff 175
Fed. 8751 (quoted and commented on
supra § 278 note 47 [c]).
12. Littleton v. Fischer, 137 Fed.
684; Millett v. Snowden, 17 F. Cas.
No. 9,600; D'Almaine v. Boosey, 4 L.
J. Exch. 21.

[a] Illustration.-"A song set to music, but to a quicker tune, or the transfer of music from one species of instrument to another, though requiring a particular adaptation, are equally piracies where the whole melody is worked out, or nearly so, as it is by the taking of so great a portion as seventeen bars in succession.

I cannot understand that it is not a piracy. Substantially a piracy is, where an air is taken for a particular purpose, and transferred with so little variation as to be easily recognized." D'Almaine v. Boosey, 4 L. J. Exch. 21, 22 (per Lord Abinger, C. B.).

13. Boosey v. Fairlie, 7 Ch. D. 301; D'Almaine v. Boosey, 4 L. J. Exch. 21, 1 Y. & C. Exch. 288.

17

copyrighted separately. It has been so held in this district in Witmark v. Standard Music Roll Co., 213 Fed. 532, although this apparently was not the rule in this circuit prior to the act of 1909. Witmark v. Standard Music Roll Co., 221 Fed. 376, 137 CCA 184. It therefore follows that the defendant had infringed the plaintiff's copyrights by the unauthorized printing and distribution of the words of the copyrighted musical compositions." Mills, Inc. v. Standard Music Roll Co., 223 Fed. 849, 851 [aff 241 Fed. 360].

19. Standard Music Roll Co. v. Mills, 241 Fed. 360 [aff 223 Fed. 849]; Witmark v. Standard Music Roll Co.. 221 Fed. 376, 137 CCA 184 [aff 213 Fed. 532].

[a] Reason for rule.-(1) "The musical composition 'In the Garden of My Heart' was copyrighted prior to the copyright act of March 4, 1909. Copyright was obtained only for the musical composition, consisting of music and words. No copyright was "The mere adaptation of the air, obtained for the words in contradiseither by changing it to a dance or tinction of the music, or for the by transferring it from one instru- music in contradistinction to the ment to another, does not, even to words. The words could have been common apprehensions, alter the separately copyrighted; the music original subject. Substan- could have been separately copytially, the piracy is, where the appro-righted; and the words and the music priated music, though adapted to a different purpose from that of the original, may still be recognized by the ear.' D'Almaine v. Boosey, 1 Y. & C. Exch. 289, 302.

[a] Adapting for use as dance music is an infringement of an opera. D'Almaine v. Boosey, 4 L. J. Exch.

21.

[b] Changing to syncopated or "ragtime" the music of a solemn song may constitute infringement. Boosey v. Empire Music Co., 224 Fed. 646.

14. 15.

Blume v. Spear, 30 Fed. 629. Wood v. Boosey, L. R. 3 Q. B. 223, 18 ERC 578.

16. The Mikado Case, 25 Fed. 183, 23 Blatchf. 347; Boosey v. Fairlie, 7 Ch. D. 301, 317.

Indirect copying see supra § 285; infra 327.

17. Chappell v. Columbia Graphophone Co., [1914] 2 Ch. 124.

[a] A copyright in a song with pianoforte accompaniment is infringed by an orchestration of it in a written score. Chappell v. Columbia Graphophone Co., [1914] 2 Ch. 124.

18. Standard Music Roll Co. V. Mills, 241 Fed. 360 [aff 223 Fed. 849]; Witmark v. Standard Music Roll Co., 213 Fed. 523 [aff 221 Fed. 376, 137 CCA 184].

"It is not questioned by the defendant that, under section 3 of the Copyright Act of 1909 (35 Stat. 1075), the unauthorized use of either the words or music separately would constitute an infringement of the copyrighted 'musical composition,' although the words and music were not

could be copyrighted as a musical composition, which was done. It is true that the copyright of a composition of words or of musical notation extends to all parts of the musical notation or of the words. In this case, however, what was copyrighted was the music in conjunction with the words, constituting a musical composition. Under what I understand to be the underlying principle of the case of White-Smith Music Co. v. Apollo Co., 209 U. S. 1, 28 SCt 319, 52 L. ed. 655. 14 AnnCas 628, copyrighted musical notation in writing or print was not infringed and could not have been infringed by the mere mechanical reproduction of the music. Hence, the inclosing of the words of the musical composition with the perforated rolls could not infringe the copyrighted musical composition 'In the Garden of My Heart.'" Witmark V. Standard Music Roll Co., 213 Fed. 532, 533 [aff 221 Fed. 376, 137 CCA 184]. (2) "The practical interpretation which for a long time had been given to this statute by the Copyright Office for the registration of copyrights required the applicant to state whether the article for which he desired copyright is a book, musical composition, engraving, or other thing as defined. Articles named in the copyright statutes as subject to copyright were classified on the application blanks, and the rule has provided that, if only the words of a song were desired to be protected, the application should be made out for a 'book';

whereas, if protection was desired for both words and music, the application has to be made for a 'musical composition.' The Copyright Office in 1905, in further interpretation of the statute enumerating the classes of articles which became subjects of copyright protection, informed persons generally that, if the words only of a song are desired to be protected, the designation "book" should be used.' Under these rules a copyrighted 'musical composition' covered words and music; while, if the applicant intended to copyright only the words of a song, he must have designated his work under the classification of 'book,' which has been construed to be a literary composition.

From these views, it follows that what might have been copyrighted as a literary production under the classification of a book cannot be said to be a reproduction of a musical composition when distributed without staff notation." Witmark v. Standard Music Roll Co., 221 Fed. 376, 380, 137 CCA 184. (3) "We decided in Witmark v. Standard Music Roll Co., 221 Fed. 376, 137 CCA 184, that under the copyright legislation before 1909 a manufacturer of automatic music rolls might lawfully inclose with the roll a printed slip containing the words of a song copyrighted as a musical composition unless the words has been separately copyrighted as a 'book.' But section 3 of the act of 1909 changed the law in this respect, declaring: "That the copyright provided by this act shall protect all the copyrightable component parts of the work copyrighted. The copyright upon composite works shall give to the proprietor thereof all the rights in respect thereto which he would have if each part were individually copyrighted under this act.' Whenever, therefore, a song is now copyrighted as a musical composition, both the words and music are protected; and, as these do not constitute an indivisible whole, the owner may limit the use of his copyright either to the music or to the words, or he may allow both to be used." Standard Music Roll Co. v. Mills, 241 Fed. 360, 362 [aff 223 Fed. 849]. 20. See supra § 272.

21. Francis v. Feldman, [1914] 2 Ch. 728.

22. Act Jan. 6, 1897 (29 St. L. 481).

23. The Mikado, etc., Case, 25 Fed. 183, 23 Blatchf. 347; Stern v. Rosey, 17 App. (D. C.) 562 (reproduction on phonograph of instrumental performance).

24. Rev. St. $$ 4952, 4965; Act July 8, 1870 (16 St. at L. 198 c 230 $$ 86, 99); Act Febr. 3, 1831 (4 St. at L. 436 c 16 §§ 1, 7) (which was the first statute which specifically mentioned musical compositions).

45

49

[§§ 321-322]

only the chorus,18 or does so without musical accompaniment of any kind, does not infringe the performing rights in such song. But where the entire copyrighted song is sung with musical accompaniment there is an infringement, although the singer purports merely to mimic another. 50

[322] d. Mechanical Reproduction of Music(1) In General. Under former statutes which substantially gave protection only against the unauthorized multiplication and sale of copies, the manufacture or sale of perforated music rolls, phonograph discs, cylinders, or other like devices serving to reproduce mechanically to the ear a musical work, was not an infringement of copyright in the musical work so reproduced, because not a "copy" of it within the meaning of the copyformance for profit, and not a gratu- | right statutes.51 Neither do marks printed on the itous public entertainment. Sarpy v. Holland, [1908] 2 Ch. 198, 1 BRC 769. Fed. 340, 143 CCA 460 [aff 222 Fed. 47. Herbert v. Shanley Co., 229 344, and rev 242 U. S. 591, 37 SCt 232]; John Church Co. v. Hilliard [rev 242 U. S. 591, 37 SCt 232]; MaxHotel Co., 221 Fed. 229, 136 CCA 639 NYS 224. well v. Faust Co., 90 Misc. 702, 154

44. See infra § 323.

45. John Church Co. v. Hilliard Hotel Co., 221 Fed. 229, 136 CCA 639 [rev on other grounds 242 U. S. 591, 37 SCt 2321.

[a] Statute construed to permit admission fee.-"This proviso must contemplate the charge of an admission fee, because, if the performance is really 'not for profit,' it would be perfectly lawful, both under section (e) and under the prior provision of section 28 itself. We must attribute a more plausible intention to Congress. We think it was to permit certain high-class religious and educational compositions to be performed at public concerts where an admission fee is charged, provided the proceeds are applied to a charitable or educational purpose." John Church Co. v. Hilliard Hotel Co., 221 Fed. 229, 230, 136 CCA 639 [rev on other grounds 242 U. S. 591, 37 SCt 232].

46. John Church Co. v. Hilliard Hotel Co., 242 U. S. 591, 37 SCt 232 [rev 228 Fed. 1021 mem, 142 CCA 667 mem, 221 Fed. 229, 136 CCA 639]; Herbert v. Shanley Co., 242 U. S. 591, 37 SCt 232 [rev 229 Fed. 340, 143 CCA 460 (aff 222 Fed. 344)]; Sarpy v. Holland, [1908] 2 Ch. 198, 1 BRC 769; Sarpy v. Holland, 99 L. T. Rep. N. S. 317.

[a] Reason for rule.-"If the rights under the copyright are infringed only by a performance where money is taken at the door they are very imperfectly protected. Performances not different in kind from those of the defendants could be given that might compete with and even destroy the success of the monopoly that the law intends the plaintiffs to have. It is enough to say that there is no need to construe the statute so narrowly. The defendants' performances are not eleemosynary. are part of a total for which the They public pays, and the fact that the price of the whole is attributed to a particular item which those present are expected to order, is not important. It is true that the music is not the sole object, but neither is the food, which probably could be got cheaper elsewhere. repast in surroundings that to people The object is a having limited powers of conversation or disliking the rival noise give a luxurious pleasure not to be had from eating a silent meal. If music

did not pay it would be given up. If it pays it pays out of the public's pocket. Whether it pays or not the purpose of employing it is profit and that is enough." Herbert v. Shanley Co., 242 U. S. 591, 594, 37 SCt 232 [rev 229 Fed. 340, 143 CCA 460 (aff 222 Fed. 344)].

[b] Gratuitous public entertainment. A musical performance at a public restaurant given as a means of attracting patrons is a public per

a

the

whole of a copyrighted song. "The mannerisms of the artist impersonated.' to use the language of the defendant's brief, may be shown without words. And if some words are absolutely necessary, still song is hardly required. a whole whole song is required, it is not too And if a much to say that the imitator should select for impersonation a singer singing something else than a copy: righted song. Fed. 977, is distinguishable in that in Bloom v. Nixon. 125 that case the chorus only of the copyrighted song was sung. v. Minzensheimer (decided by this Green court March 19, 1909) 177 Fed. 286, is distinguishable in that in that what she did was not clear." case the defendant imitated singer without musical accompaniment, and the testimony as to just the v. Luby. 177 Fed. 287, 288. Green 51.

White-Smith Music Pub. Co. v. Apollo Co., 209 U. S. 1, 28 SCt 319. 52 L. ed. 655, 14 AnnCas 628 [aff 147 Fed. 226. 77 CCA 368 (aff 139 Fed. 427)]; Whitmark v. Standard Music Roll Co., 221 Fed. 376, 137 CCA 184 faff 213 Fed. 5321; Kennedy v. McChappel Tammany, 33 Fed. 584 [app dism 145 U. S. 643, 12 SCt 983. 36 L. ed. 853]; Stern v. Rosey. 17 App. (D. C.) 562; V. Columbia Graphophone Co., [1914] 2 Ch. 124; 125]; Newark Whight. [1900] 1 Ch. 122, 2 BRČ 85; Boosey v. Monkton v. Gramophone Co., 106 L T. Rep. N. S. 84 [dism app 55 Sol. J. V. National graph Co., Ltd., 23 T. L. R. 439. Phonoplied and properly operated in con"These perforated rolls are parts of a machine which, when duly apnection with the mechanism to which they are adapted, produce musical tones copies within the meaning of the in harmonious But we cannot think that they are combination. copyright act." White-Smith Music Pub. Co. v. Apollo Co., 209 U. S. 1, 18, 28 SCt 319, 52 L. ed. 655, 14 Ann Cas 628. [a] Reason for rule.-(1) are therefore of the opinion that a "We perforated paper roll, such manufactured by defendant, is not a as is copy of complainant's staff notation, for the following reasons: a copy in fact. It is not be read or actually used in reading It is not designed to music as the original staff notation is; and the claim that it may be read, which is practically disproved by the great preponderance of even if true. would establish merely evidence, a theory or possibility of use, as distinguished from an actual argument that, because the roll is a therefore a copy, would apply to the The notation or record of the music, it is disc of the phonograph or the barrel of the organ, which, it must be admitted, are not copies of the sheet music. The perforations in the rolls are not a varied form of symbols substituted for the symbols used by the author. They are mere adiuncts of a valve mechanism in a machine

use.

, same title, page and note number

53

perforated sheet, as on the original music, indicating the mode in which the mechanical instrument is to be regulated by the player so as to produce the appropriate expression, constitute such an infringement.52 A fortiori the acoustic performance of a copyrighted work by such mechanical devices was not an infringement of the right to copy, although of course it might infringe the right of public performance.54 This has now been changed, and the copyright statutes of both the United States55 and England 56 secure to the copyright proprietor control of devices serving to reproduce mechanically the musical work, so that now the unauthorized manufacture or sale of perforated music rolls, phonographic discs, or other like devices is an infringement of the copyright on the musical work which they serve to reproduce, except in cases covered by the compulsory license provisions of the statutes.58 Under the United States statute the provisions securing control of mechanical reproducing devices apply only to compositions published and

In fact, the machine or musical playing device is the thing which appropriates the author's property and publishes it by producing the musical sounds, thus conveying the author's conception to the public." White-Smith Music Pub. Co. V. Apollo Co., 147 Fed. 226, 227, 77 CCA 368 [aff 139 Fed. 427, and aff 209 U. S. 1, 28 SCt 319, 52 L. ed. 655, 14 AnnCas 628]. (2) "But is this the kind of copying which is prohibited by the Copyright Act; or rather is the perforated sheet made as above mentioned a copy of the sheet of music from which it is made? Is it a copy at all? Is it a copy within the Copyright Act? A sheet of music is treated in the Copyright Act as if it were a book or sheet of letterpress. Any mode of copying such a thing, whether by printing, writing, photography, or by some other method not yet invented would no doubt be copying. So, perhaps, might a perforated sheet of paper to be sung or played from in the same way as sheets of music are sung or played from. But to play an instrument from a sheet of music which appeals to the eye is one thing; to play an instrument with a perforated sheet which itself forms part of the mechanism which produces the music is quite another thing. I have consulted Johnson's, Richardson's, and Murray's dictionaries to ascertain the meaning attributed to the word 'copy'; and I do not myself think that the perforated sheet can be said to be a copy of the sheet of music unless the word 'copy' is used in_a very loose and inaccurate sense. Be this as it may, I cannot think or bring myself to decide that the perforated sheet is a copy of a sheet of music within the meaning of the Copyright Act." Boosey v. Whight, [1900] 1 Ch. 122, 123, 126, 2 BRC 85 (per Lindley, M. R.). (3) "But it is said that they could be issued so as to answer the same purpose as copies of the plaintiffs' printed music, and that therefore they ought to be regarded as 'copies' within the Act.

Το

my mind it does not of necessity follow that, because a thing might be so used as to answer the same purpose as a copy of a book, it must be regarded as a 'copy' within the Act." Boosey v. Whight, supra (per Lindley, M. R.). (4) "It is not pretended that the marks upon the wax cylinders can be made out by the eye, or that they can be utilized in any other way than as parts of_the mechanism of the phonograph. Conveying no meaning, then, to the eye of even an expert musician and wholly incapable of use save in and as part of a machine specially adapted to make them give up the records which they contain, these prepared wax cylinders can neither

substitute the copyrighted sheets of music nor serve any purpose which is within their scope. In these respects there would seem to be no substantial difference between them and the metal cyinder of the old and familiar music box; and this, though in use at and before the passage of the copyright act, has never been regarded as infringing upon the copyrights of authors and publishers." Stern v. Rosey, 17 App. (D. C.) 562, 565.

re

[b] In England it was expressly provided by the Musical Copyright Act, 1906 (6 Edw. VII c 36), that "pirated copies" and "plates" ferred to therein do not include perforated music rolls used for playing mechanical instruments or records used for the reproduction of sound waves, or the matrices or other appliances by which such rolls or records are made. See also Mabe v. Connor, [1909] 1 K. B. 515 (holding a perforated music roll not a "pirated musical work" within the Musical (Summary Proceedings) Copyright Act, 1902 [2 Edw. VII c 15]).

defendants' mechanical instrument to produce musical sounds." Boosey v. Whight, [1900] 1 Ch. 122, 125, 127, 2 BRC 85 (per Lindley, M. R.).

53. White-Smith Music Pub. Co. v. Apollo Co., 209 U. S 1, 28 SCt 319, 52 L. ed. 655, 14 AnnCas 628; Stern v. Rosey, 17 App. (D. C.) 562.

[a] A copy of a musical composition is "a written or printed record of it in intelligible notation." WhiteSmith Music Pub. Co. v. Apollo Co., 209 U. S. 1. 17, 28 SCt 319, 52 L. ed. 655, 14 AnnCas 628 (holding that the mechanical reproduction of a tune is not a copy of it, and saying: "When the combination of musical sounds is reproduced to the ear it is the original tune as conceived by the author which is heard. These musical tones are not a copy which appeals to the eye. In no sense can musical sounds which reach us through the sense of hearing be said to be copies as that term is generally understood, and as we believe it was intended to be understood in the statutes under consideration").

54. Performance generally see supra § 321.

55. Act March 4, 1909 (35 St. at L. 1075 c 320 § 1) (quoted in text supra § 319).

56. Copyright Act, 1911 (1 & 2 Geo. V c 46 §§ 1, 35 (1).

52. Boosey v. Whight, [1900] 1 Ch. 122, 2 BRC 85.

[a] Reason for rule.-"The directions in the plaintiffs' sheets of music are no doubt protected by their copyright so long as they are used in connection with their musical scores. But apart from those scores the plaintiffs have no copyright in such directions. The directions are not in themselves a 'sheet of music,' nor are they a 'sheet of letterpress separately published.' Even if they were, they would be mere words, not sentences forming a literary composition in which copyright could be acquired. Upon this point the case is governed by Hollinrake v. Truswell, [1894] 3 Ch. 420, and the injunction granted by Stirling J. to restrain the use of these directions must be discharged. I think

that no substantial part of the plaintiffs' book, that is, of their printed musical sheets, has been copied by the defendants. So far as words have been taken from the plaintiffs' book and put on the defendants' sheets, they have no use or connected meaning by themselves, and are only of use on the defendants' sheets, in any practical point of view, as directions for working the

57. Monckton V. Pathe Freres

Chappel v. Columbia Graphophone Co., [1914] 2 Ch. 124.

58. See infra § 323.

59. Act March 4, 1909 (35 St. at L. 1075 c 320 § 1 (e)); Whitmark v. Standard Music Roll Co., 221 Fed. 376, 137 CCA 184.

60. Copyright Act, 1911 (1 & 2 Geo. V c 46 § 19 (7) and (8)); Monckton v. Pathe Freres Pathephone, Ltd., [1914] 1 K. B. 395; Chappel v. Columbia Graphophone Co., [1914] 2 Ch.

124.

[a] Devices lawfully made or imported before July 1, 1912 (when the act took effect), may not be lawfully sold after that date. Monckton v. Pathe Freres Pathephone, Ltd., [1914] 1 K. B. 395.

61. Chappell & Co., Ltd. v. Columbia Graphophone Co., [1914] 2 Ch. 745; Chappel v. Columbia Graphophone Co., [1914] 2 Ch. 124.

[a] Royalties under the compulsory license provisions are payable to the author or his representatives, not to the assignee. Chappell V. Columbia Graphophone Co., [1914] 2 Ch. 745.

62. Act March 4, 1909 (35 St. at L. 1075 c 320 § 1 (e)). 63. See supra § 158. [a] Presidential proclamations have been issued under § 1 (e), securing "copyright controlling the parts of instruments serving to reproduce mechanically the musical