Chile, Colombia, Costa Rica, Cuba, Ecuador, Guatemala, Haiti, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, Salvador, Uruguay, and Venezuela. EIGHTH. That Article 3rd of the said convention provides: "The acknowledgment of a copyright obtained in one State, in conformity with its laws, shall produce its effects of full right, in all the other States, without the necessity of complying with any other formality * * * "" NINTH. That the defendants with full knowledge of the rights of plaintiff's assignor in said musical composition in or about 1935 and thereafter unlawfully published and caused to be published and placed on the market for sale in various stores and elsewhere in the City of New York, United States of America and foreign countries, a musical composition "Carmelita" and mechanical reproductions thereof; that said musical composition is taken and copied from "Fellita," the aforementioned composition of plaintiff's assignor. TENTH. That the said publication and sale by the defendants was and is without the consent and authority of the plaintiff or his assignor; that by reason of the foregoing wrongful acts of the defendants, the Plaintiff's assignor has suffered great damage. That the defendant PEDRO FLORES claims to be the composer of the said composition "Carmelita" and has received and is receiving royalties and benefits for its use; that the said PEDRO FLORES has performed and is performing said composition over the radio and on phonograph records; that the defendant, COLUMBIA PHONOGRAPH COMPANY, INC., has manufactured and sold and is at present manufacturing and selling phonographic reproductions of the said composition in the City and State of New York, the United States of America, foreign countries and particularly through North America and South America, including those countries which are signatory to the convention above-mentioned. ELEVENTH. That the publication and sale of the said composition and mechanical reproductions thereof is in contravention of the rights of the plaintiff and his assignor and has caused and will cause irreparable damages for which he has no adequate remedy at law. TWELFTH. That prior to the commencement of this action PORFIRIO GOLIBART duly assigned to the plaintiff all his rights in the premises. THIRTEENTH. That the plaintiff's damages cannot be computed without an accounting. WHEREFORE, plaintiff demands judgment that the defendants, their agents, employees and all persons under their control be forever restrained and enjoined from manufacturing, publishing, selling or in any manner distributing the said musical composition entitled "Carmelita" or any other composition which is a colorable imitation of any substantial part of the composition of plaintiff's assignor; that the defendants account to the plaintiff for any and all damages sustained by the plaintiff by reason of the acts aforesaid and that the defendants pay said damages to the plaintiff; that the defendants pay to the plaintiff the costs and disbursements of this action; and that the plaintiff have such other and further relief as may be proper. 2 LEON A. BRODY, Office and Post Office Address, 1501 Broadway, Borough of Manhattan, STATE OF NEW YORK, County of New York, ss: JUAN LUIS PORTUONDO, being duly sworn, deposes and says that he is the plaintiff in the within action; that he has read the foregoing Amended Bill of Complaint and knows the contents thereof; that the same is true to his own knowledge, except as to the matters therein stated to be alleged on information and belief, and that as to those matters he believes it to be true. (Sgnd.) JUAN LUIS PORTuondo. Sworn to before me this 3rd day of March, 1937. [SEAL] (Sgnd.) INNOCENTE COLMENARES, Commission expires March 30, 1937. DOMINICAN REPUBLIC STATE SECRETARIAT OF PUBLIC EDUCATION AND FINE ARTS This certifies that there is enrolled in the registry of Artistic and Literary property under date of August 6th, 1928, number 62, folios 6 and 7, a musical work entitled "Fellita," the author of which is Mr. Porfirio Golibart. At the request of an interested party that presents are issued in Santo Domingo, D. D., the 26th day of November 1935. [SEAL] (Sgnd.) MANUEL REYES, Temporary Chief Clerk of the State Secretariat of Public Education and Approved: (Sgnd.) R. EMILIO JIMINEZ, State Secretary of Public Education and Fine Arts. UNITED STATES DISTRICT COURT, SOUTHERN DISTRICT OF NEW YORK Juan Luis Portuondo, plaintiff, vs. Columbia Phonograph_Company, Inc., and Pedro Flores, defendants. May 13, 1937 COXE, D. J.: The Buenos Aires copyright convention of 1910 (U. S. Stats., Vol. 38, p. 1785) provides in Article 6th that "authors or their assigns * * * shall enjoy in the signatory countries the rights that the respective laws accord." The plaintiff, therefore, must look to our copyright laws for the enforcement of his rights in this country. Under Sections 1 (e) and 8 (b) of the Copyright Law (U. S. C. A. Title 17, Sec. 1, 8) protection against mechanical reproduction is denied unless substantially similar protection is accorded to United States citizens, and it is expressly provided that the existence of these reciprocal conditions shall be determined by the President "by proclamation made from time to time.' In construing these sections, the Attorney General has ruled that there must be a separate proclamation of the existence of reciprocal conditions as to mechanical reproduction (29 op. Atty. Gen'l. p. 64). In the absence of such a proclamation, the plaintiff cannot avail himself of our copyright laws, and the complaint is fatally defective in not alleging affirmatively that a proclamation to that effect was made. This disposition makes it unnecessary to decide the other questions raised by the motion. The motion of the defendant, Columbia Phonograph Company, Inc., to dismiss the amended complaint is granted. (Sgd.) ALFRED C. CoxE, U. S. D. J. OFFICIAL OPINIONS OF THE ATTORNEYS GENERAL OF THE UNITED STATES ADVISING THE PRESIDENT AND HEADS OF DEPARTMENTS IN RELATION TO THEIR OFFICIAL DUTIES COPYRIGHT LAW RIGHTS OF ALIEN AUTHORS AND COMPOSERS The provision at the end of section 8 of the copyright act of March 1, 1909 (35 Stat. 1077), which requires the President to determine by proclamation the existence of the reciprocal conditions upon which alien authors and composers may acquire the general privileges under said act, applies equally to the reciprocal condition specified in the proviso to section 1 (e) of that act, upon which an alien may acquire the right of controlling the parts of instruments serving to reproduce mechanically a musical work. Where a German citizen has complied with all the general provisions of the copyright act at any time subsequent to July 1, 1909, the date upon which the act became effective, there was vested in him the rights and privileges set forth in said act, except the right specified in section 1 (e), as Germany had at that time complied with one or more of the conditions enumerated in section 8, subsection (b). A German citizen who has strictly complied with the provisions of the A German citizen could not acquire the right specified in the proviso to DEPARTMENT OF JUSTICE, May 6, 1911. SIR: I have the honor to acknowledge receipt of your communication of March 3, 1911, in which you propound a number of questions relating to the rights that may be acquired by alien authors and composers under the copyright law of March 4, 1909 (35 Stat. 1075). While some of these questions are entirely abstract, yet I think that answers to them all will appear from the conclusions reached with reference to the rights of citizens of Germany whose copyright laws and the proclamations of the President relating thereto are as follows: The laws of the German Government have complied with one of the reciprocal conditions mentioned in section 8, subsection (b) of the copyright act ever since that act went into effect on July 1, 1909, and that country was among those included in the proclamation of the President, made April 9, 1910, which declared that the citizens of the countries mentioned therein were entitled to the privileges of the copyright law as of July 1, 1909. However, the reciprocal condition as to music, provided in section 1 (e), was not complied with by Germany until September 9, 1910, and the proclamation of the President declaring that this condition had been met was issued December 8, 1910. This proclamation recited that satisfactory official assurance had been given that Ġermany "now permits to citizens of the United States similar rights to those accorded in section 1 (e) of the act of March 4, 1909," but did not mention the date upon which such similar rights were granted. The questions presented by this state of facts are: 1. Is it the duty of the President to determine by proclamation the existence of the reciprocal condition specified in the proviso of section 1 (e). 2. What rights, if any, could a German citizen, who was a nonresident of the United States acquire under the general provisions of the copyright law between July 1, 1909, the date upon which the copyright act of March 4, 1909, became effective, and April 9, 1910, the date of the proclamation of the President declaring that the citizens of Germany were entitled to the general privileges of that act. 3. What rights, if any, could such German citizen acquire under the special provision in section 1 (e) between September 9, 1910, the date upon which the reciprocal condition provided for therein was complied with by Germany, and December 8, 1910, the date of the proclamation issued by the President declaring such fact; and 4. Could a citizen of Germany acquire the right specified in the proviso to section 1 (e) prior to September 9, 1910. The general provisions of the act relating to the privileges of alien authors and composers to secure copyrights of their works in the United States are contained in section 8 of the act, which reads as follows: "That the author or proprietor of any work made the subject of copyright by this act, or his executors, administrators, or assigns, shall have copyright for such work under the conditions and for the terms specified in this act: Provided, however, That the copyright secured by this act shall extend to the work of an author or proprietor who is a citizen or subject of a foreign state or nation only: "(a) When an alien author or proprietor shall be domiciled within the United States at the time of the first publication of his work; or "(b) When the foreign state or nation of which such author is a citizen or subject, grants, either by treaty, convention, agreement, or law, to citizens of the United States the benefit of copyright on substantially the same basis as to its own citizens, or copyright protection substantially equal to the protection secured Senator THOMAS of Utah. Yes? Well, but it has passed bills. Senator THOMAS of Utah. And it has passed some of the biggest bills in this session that it ever passed in its history. Mr. KILROE. But not on copyright. Senator THOMAS of Utah. I think a judgment, of course, on what Congress is going to do is just talking about blue sky, as you know. Mr. KILROE. I mean to say this, Mr. Chairman. If there is a leader, or otherwise, who says this bill will pass, it will pass, but unless that is done, we won't get a copyright law passed within a year. There are too many powerful interests. I will admit, if someone comes forward and says, "This is one of the 'must' bills," we will get it through, but I do not think a copyright law is important enough for the President of the United States to do that just now. But that is part of the argument. Now, when I am making these statements, Mr. Chairman, I do not want this_committee_to_ think that I am opposed to a Bern Convention. The industries I represent are not opposed to the Bern Convention. We are opposed to the present convention, and we are opposed to entering it now. We think the convention should be revised. Senator THOMAS of Utah. My only concern is to build up a record here that people can understand when they read it, Mr. Kilroe. When we make statements of this kind, you may be judged by the spirit of the statement, and that may do you a great injustice when it is down in black and white. I think that my place here is to see that each witness presents himself to his own best advantage, for the sake of giving information, and not for the sake of arousing prejudice. Mr. KILROE. No. Senator THOMAS of Utah. It is not for the sake of making criticisms of the President or criticisms of the Congress, or criticisms of this, that, or the other thing. Mr. KILROE. I beg your pardon. Mr. Chairman, I did not intend to criticize, I am only saying that if we adhere to the Bern Con vention Senator THOMAS of Utah. I am only saying that when it comes out in black and white that this Congress will do nothing, when you say that it will do nothing unless there is a "must" bill, or something of that kind, those things come out day after tomorrow as great criticisms of Congress, and it is not fair to you. Mr. KILROE. No. Senator THOMAS of Utah. It is not fair to me to allow them to go in. Mr. KILROE. I am not criticizing Congress. It has its hands full, it has big jobs, and it is doing its work well, but I am talking now about difficulties in following Mr. McClure's plan. I think you said that joining the Bern Convention would not help the situation in Japan. Am I correct in that? Mr. MCCLURE. You are incorrect, sir. I said it would help the situation in Japan, to the best of my belief. Mr. KILROE. Well, if you did, I did not understand you. Mr. MCCLURE. Yes, sir. Mr. KILROE. So, will you tell me why? Mr. McCLURE. The simple reason that it does give us a law to stand on in protesting in Japan against the violation of American copyright. We have no law worthy of the name at the present time, because the only treaty that now exists, as was pointed out by Mr. Ladas this morning, makes an exception of translations. Of course, translations are what we have to fear in the matter of Japanese piracy. Mr. KILROE. And Japan made a reservation of translations in the Bern Convention? Mr. MCCLURE. Under the reservations, sir, the right of translation would remain in the American author for 10 years, as Mr. Ladas pointed out. Mr. KILROE. But as a matter of fact you must know from your correspondence that they do not do that. Mr. McCLURE. Mr. Kilroe, the Department of State cannot know as a matter of fact, based upon a hypothesis. The hypothesis that you are using is, of course, that Japan would violate a law, should that law go into force. The Department of State does not reason that way. The Department of State believes that it should have the law, and when the law is in force as between the United States and Japan, then we have a different status from what we have now, and when we have that different status then we will see what will be the results. We believe that a treaty will be kept.__Our experience in the past has been that treaties are usually kept. The treaties are worth while, whether with Japan or with other countries, and we believe that would be the case in connection with this particular matter. Mr. KILROE. You have no information concerning works of English musicians? Mr. McCLURE. I have no particular information about violations of copyrights, other than the copyrights of the United States. Mr. KILROE. No information of that kind could creep into the State Department? Mr. McCLURE. Well, there have been accusations that other countries would not follow the Bern Convention in its entire integrity. For instance, there was the charge some years ago that should we go into it there would be no protection in one of the continental European countries, because of the fact that the continental European country would not obey the convention. We asked the British Government at that time whether the British had had any difficulty with violations in that particular country. The answer came back immediately and promptly that there had been no complaints of violation of British copyright in that country. I have no reason to think that the situation in Japan is different. I have not investigated in Japan. Perhaps I shall, sometime. Mr. KILROE. I will make the statement now, that it is; that our information came through our representative in Japan, that there is piracy of works of English publishers, music publishers. Mr. MCCLURE. I may say in that respect that our information has come very clearly that in Shanghai there is violation of the copyright of English authors as well as of our own, but China has not yet become a party to this convention. When the United States becomes a party to a convention, that is an impetus to other countries likewise to become parties, because then they get a wider, field of protection than they ever did before. 311545-41- -6 |