within the custom, because there is no averment that the sending out was accompanied with the request constituting a part of the custom. The mere giving of professional copies does not constitute a license. The averment of acquiescence in public performance clearly is intended to imply that the acquiescence was through the sending out of the professional copies, for there are no other facts averred upon which the conclusion of acquiescence is based. The averment that the plaintiff was greatly benefited, and not damaged, by any such performance, is clearly immaterial, and the seventeenth paragraph as a whole must be stricken out.

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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 maintaining an unreasonable and extortionate license fee for the performance of their musical members," have combined and assigned to the society the privilege to issue licenses for the performance of the music of the members, 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 composition 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 (sec. 1 [Comp. St. sec. 9517]) the copyright owner has the exclusive right to print, reprint, publish, copy, and vend the copyrighted work, and under section 41 (Comp. St. sec. 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 performance for profit of the musical numbers copyrighted by the various members, constitute a violation of the Sherman Act (Comp. St. secs. 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 de fense, it must be established that one 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 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, 66 L. Ed.-; 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.)

[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.

HODGSON v. VROOM

(Circuit Court of Appeals, Second Circuit. May 12,

1920)

266 Fed. Rep. 267

1. COPYRIGHTS-REVIEW OF TEMPORARY INJUNCTION

BY CIRCUIT

COURT OF APPEALS NOT LIMITED BY PRIOR DECISION OF LOWER
COURT.

The power of the circuit court of appeals to consider the merits, on appeal from order of district court denying temporary injunction in suit to enjoin production of a play as being an infringement of plaintiff's copyright, is not hampered by the fact that another district court, in a prior suit by plaintiff against another for the same purpose and on the same ground, had rendered decree for plaintiff. 2. EQUITY-DECREE HELD A CONSENT DECREE."

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A decree in a prior suit to enjoin production of a play on the ground of it being an infringement of a copyright held a "consent decree"; that is, one entered on consent of the parties as to what the decision should be, constituting a mere agreement of the parties under sanction of the

court.

3. EQUITY-NON APPEALABILITY INCIDENT AND INDICIA OF CONSENT

DECREE.

Nonappealability is not only an incident to a consent judgment, but one of the indicia of the nature of the decree entered.

4. COPYRIGHTS-NO DUTY IN INJUNCTION SUIT ΤΟ CONFORM ΤΟ CONSENT DECREE OF ANOTHER DISTRICT.

There is no duty on the court, in suit to enjoin production of a play as an infringement of plaintiff's copyright, to conform to the decree in a prior suit in another district involving the same copyright and play, but against a different defendant, where such decree was a consent decree.

Appeal from the District Court of the United States for the Southern District of New York.

Action by Ruby L. Hodgson against Edward Vroom. From an order denying application for injunction pendente lite, plaintiff appeals. Affirmed.

Plaintiff is the (remarried) widow of one Samuel E. Gross, and by virtue of his last will and testament is the owner of a certain copyrighted play entitled "The Merchant Prince of Cornville." Mr. Gross was a resident of Chicago, and while engaged in a business described as "operating in real estate" he wrote and completed by 1879 the play in question. In the year 1900 one Palmer

and the late Richard Mansfield were producing upon the stage in Chicago Edmond Rostand's play of " Cyrano de Bergerac," whereupon Gross sued Palmer, Mansfield, and others in the United States Circuit Court for the Northern District of Illinois, seeking to enjoin them from performing or publicly representing said "Cyrano de Bergerac," upon the ground that this play constituted an infringement of the copyright of "The Merchant Prince of Cornville."

Pursuant to the practice then obtaining in equity, testimony was taken before a master in chancery, who on May 19, 1902, reported that in his opinion it was "impossible to avoid the conclusion that the melodrama of Cyrano de Bergerac' performed by defendant Mansfield is a clear and unmistakable piracy of [Gross'] play, 'The Merchant Prince of Cornville.'" Wherefore he reported as matter of law that Mr. Gross was entitled to a decree enjoining and restraining defendants producing, exhibiting, or presenting de Bergerac' on any stage or in any theater or in any manner in the United States, and also to an accounting of profits, and also to such other and further relief as equity may require."

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* * *

* * *

from 'Cyrano

Two days later, and on May 21, 1902, this report was brought before the district judge for the northern district of Illinois, and a decree was entered which recites that "no objections [had been] filed to" the master's report; "whereupon," continues the decree

said defendants appearing in open court by counsel and consenting to the entry hereof, it is ordered that the report of E. B. Sherman, Esq., master in chancery, * [be] in all respects

*

*

* 66

*

approved and confirmed, and that the defendants hereby are perpetually enjoined and restrained from publicly representing or performing Cyrano de Bergerac," or any play substantially identical therewith, or any play including or containing the balcony scene of "Cyrano de Bergerac," or any scene substantially identical therewith; * * * and it is further ordered that complainant is entitled to an accounting of the profits realized by the said defendants through the presentation of "Cyrano de Bergerac," but said complainant electing to waive said accounting of profits and accept the sum of one dollar in lieu thereof, it is further ordered that complainant do have and recover from the said defendants the said sum of one dollar, together with the costs of this suit.

* * *

The plaintiff in this action, having learned that the defendant Vroom contemplated the production of Cyrano de Bergerac " in the city of New York, brought

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