Notice of Copyright

Inasmuch as such "parts of instruments" are not in themselves copyrightable, the provision in section 9 requiring the notice of copyright to be "affixed to each copy" of a published work does not apply to these mechanical devices in order to protect the musical composition. Buck v. Heretis, and Buck v. Lester, 24 F.2d 876, 877 (1928). The same ruling would of course apply to recorded dramas, lectures or other literary works.

Part 2 Subsidiary Rights Embraced in Copyright

In addition to the rights specifically enumerated in section 1 of the Copyright Act, there are certain other rights incident to copyright, such as the right to renew for another term; the right to assign the entire copyright or to license the use of any of the subsidiary rights; the right to prevent the importation of piratical copies or in violation of the manufacturing clause; and of course the right to bring suit for infringement.

Moral Rights

The courts have recognized to some extent the so-called "moral right" of the author to prevent the mutilization of his work after he has assigned or licensed the use of it for dramatization or other purposes; this by applying well-recognized principles of equity which have been developed in the field of unfair use. The author may stipulate the extent of the changes, additions, etc., that may be made, and the question then, in case of dispute, becomes one for the courts to determine in the light of the contract. Dreiser v. Paramount Publix Corp., N.Y. Sup. Ct., Westchester Co., Aug. 1, 1931, memorandum opinion.

In Curwood v. Affiliated Distributors, Inc., 283 F. 219 (1922), Judge Knox remarked: "And now as to what is acquired when one procures the right to elaborate upon an original story . . . I take it that, while scenery, action, and characters may be added to an original story, and even supplant subordinate portions thereof, there is an obligation upon the elaborator to retain and give appropriate expression to the theme, thought, and main action of that which was originally written. The unqualified grant of this right is, I should say, fraught with danger to a writer of standing, particularly when he inserts no provision for his approval of such elaboration as may be made... Nevertheless, elaboration of a story means something other than that

the same should be discarded, and its title and authorship applied to a wholly dissimilar tale."

This of course applies to all works of an author, and the extent of permissible modification, aside from contractual stipulations, will depend upon the nature of the original work and the use to which it is put. But the question comes up most frequently in connection with the adaptation of stories or dramas for screen or broadcasting purposes, where obviously the adapter must be allowed a fairly free hand with respect to details because of the different methods of presentation and wider public to be served, and it may often be a difficult matter to determine whether or not he has gone beyond the limits of fair use. Hence the only safe way for the author is to provide in the contract that the scenario or script in its final form shall be submitted to him for approval.

Interpretative Rendition

The Copyright Act does not recognize any right of a performing artist in his interpretative rendition of a musical composition, any more than the interpretation of an actor in the performance of a play, although we know that the success of the performance is often due largely to this personal element. The question comes up in connection with phonographic recordings of such renditions, and is entirely disconnected with the right of performing the original composition in public for profit, which of course has to be secured from the copyright proprietor. The Copyright Office does not regard such records as acceptable for registration, in view of the decision of the Supreme Court in White-Smith Music Pub. Co. v. Appollo Co., 209 U.S. 1 (1908).

Nevertheless, the courts in certain states have held that when the rendition is of a high order of artistry, the director of the orchestra has created something in the nature of property at common law in no way overlapping or duplicating the rights of the composer of the music, and should be protected against unauthorized performance by means of the records. Some importance was given to the fact that the records bore notice "Not licensed for radio broadcasting". While the defendant had secured a license to broadcast the musical composition from the proprietor thereof, the court held that it had no right to broadcast this particular rendition. Waring v. WDAS Broadcasting Station, Inc., 35 USPQ 272 (Pa. Sup. Ct. 1937); Waring v.

Dunlea, 41 USPQ 201 (1939). Following this decision in North Carolina, the legislature took action to abolish any common-law right in such records.

The same ruling was followed by the District Court in RCA Mfg. Co., Inc. v. Whiteman, 43 USPQ 114 (1939), but this was reversed by the Second Circuit Court of Appeals, 46 USPQ 324 (1940), which held that any common law right which an artist. may have in his rendition of music ends with the sale of records embodying it; that the records themselves "cannot be clogged with a servitude" once they are released to the public; that any relief which practical consideration demands must be sought in extending statutory copyright to such renditions, not in recognizing perpetual monopolies however limited their scope. (Certiorari denied by Supreme Court, 47 USPQ 531.) All attempts at relief in Congress have so far failed.

Chapter XIII

Remedies for Infringement

Having secured valuable rights by pursuing strictly the statutory route, the next concern is, how to protect them in case of infringement, and this brings us to section 25 of the Copyright

Act:

"That if any person shall infringe the copyright in any work . . . such person shall be liable:

(a) To an injunction restraining such infringement;" The term "infringement" is not expressly defined in the Act, but we have seen what are the various rights comprised in copyright and may therefore define it for ourselves as an unlawful invasion of any one or more of these exclusive rights. In this respect, at least, "the copyright" is to be regarded as "divisible". Injunctions

Injunctions to restrain copyright infringement are not automatic but are to be granted only "according to the course and principles of courts of equity, on such terms as said court or judge may deem reasonable" (section 36). While formerly a preliminary injunction was only issued in clear cases, the modern tendency is more liberal, especially where the consequences of withholding it are likely to be more serious to the plaintiff than they would be, if granted, to the defendant; as for example in the case of dramas, where delay in waiting for a final decree might be fatal to the plaintiff's protection. Chappell v. Fields, 210 F. 864 (CCA 2, 1914).

Whenever equity has jurisdiction to grant an injunction by final decree, it has jurisdiction to grant a preliminary injunction, the basis for which is the maintenance of the status quo. But the plaintiff is not obliged to make out such a case in the first instance as would entitle him to a decree on final hearing. Where he establishes a prima facie case as to existence of copyright and its infringement, a temporary injunction will as a general rule be issued. American Code Co. v. Bensinger, 282 F.

829 (CCA 2, 1922); Houghton Mifflin Co. v. Stackpole Sons, Inc., 42 USPQ 96 (1939). Proof of actual damages is not necessary if infringement appears and damages may probably follow. Holt & Co. v. Liggett & Myers, 37 USPQ 449 (1938).

Such relief is not generally available unless actual infringement is continuing or is threatened for the future. But the courts are not in agreement as to the proper procedure in cases where the prayer for injunction is denied because the infringement has come to an end before suit is commenced and there is no likelihood of its being resumed. In some circuits the rule is to transfer the case to the law side of the court for the purpose of awarding damages and profits. See for example, Hutchinson v. Vitaphone Co., 36 USPQ 1 (CCA 1, 1937); Pathe Exchange v. Dalke, 49 F.2d 161 (CCA 4, 1931).

On the other hand, as remarked in the more recent case of Sheldon v. Moredall Realty Co., 37 USPQ 286 (CCA 2, 1938), "these decisions followed the rule in suits for patent and trade mark infringement, but, with all due respect, we are unable to do that to the same extent." The court pointed out that both the patent law and the trade mark law expressly make the right to an accounting and assessment of damages conditioned upon the granting of an injunction, whereas the Copyright Act of 1909 differs from both these statutes in that section 25 provides for remedies (a) by way of injunction, and (b) by way of award of damages and accounting for profits, without making relief under (a) a condition precedent to granting relief under (b); and, furthermore, that section 27 expressly provides that "the proceedings for an injunction, damages and profits. may be united in one action"; and that inasmuch as, in the instant case, equitable jurisdiction was invoked in good faith by suitable allegations in the bill, "we are not now prepared to say that the jurisdiction falls with the failure of proof on the merits of the exclusively equitable rights."

"Any Party Aggrieved"

Section 36 provides that the court or judge thereof "shall have power, upon bill in equity filed by any party aggrieved, to grant injunctions to prevent and restrain the violation of any right secured by said (copyright) laws", and that any injunction so granted may be served on the defendant "anywhere in the United States".