88 F. 74 | U.S. Circuit Court for the District of Northern California | 1898
This is a suit for infringement of the copyright to a song entitled “Dora Dean,” alleged to have been composed by Bert A. Williams, who sold all his right, title, and interest in and to the same to the complainants. It is claimed that the song “Ma Angeline,” alleged to have been composed by Charles Sidney O’Brien, and by him sold to the defendant company, was pirated from the song “Dora Dean.” On the other hand, the defendant, in
The case presented by the defendant company in support of its defense that O’Brien did not pirate from Williams’ song, “Dora Dean,” but that, on the contrary, Williams pirated from O’Brien’s song, “Ma Angeline,” is briefly as follows: O’Brien testified that he was a singer and comedian; that he first conceived the idea of the melody of “Ma Angeline” in 1887, while in Liverpool; that he sang the melody, with some of the words, at various places and times in San Francisco prior to the time of the song’s publication, and previous to the composition of the song “Dora Dean” by Williams; that the song, as originally written by him, contained the name “Ma Angeline”; that in singing said song he would change the name from “Ma Angeline” to “Dora Dean,” “Josephine,” or “Seraphine,” as his fancy dictated; that during the entire time of the Midwinter Fair held in San Francisco the first half of 1894, he was employed and sang at various concessions at the Fair called “The Palace of Black Art,” “Cooney Island Lunch Counter,” and “The 49 Mining Camp”; that, during the greater part of the time he was so employed he was assisted" in singing by one Frederick H. Worth and one Isaac Long; that the song “Ma Angeline” was sung by them frequently during the said Fair; that he knows Bert A. Williams, and that Williams often came to his (O’Brien’s) place of business, and heard him sing the song “Ma Angeline”; that he sold the song to the Zeno Mauvais Music Company, the defendant, on January 30, 1896, for five dollars. It further appears from the evidence introduced on behalf of the defendant that the melody of the song “Ma Angeline” was taken down by one Donigan, otherwise known as Lee Johnson, a musician and solo
It is obvious, from this brief statement of the case as presented pro and con, that the issue of piracy must be determined upon the veracity and credibility of the witnesses. It would serve no useful purpose to analyze the testimony, and make comparisons, which would necessarily involve much detail; but upon the whole of the case I am compelled to accept the testimony and evidence adduced by the complainants as the more reliable and trustworthy. I am satisfied that Williams first conceived the melody, which is common to both of the songs “Dora Dean” and “Ma Angeline,” and that O’Brien pirated the same, merely changing the title and words. The evidence shows very clearly, to my mind, that Williams, by reason of his musical proficiency and education, was far more competent and more likely to produce a song than O’Brien. Williams appears to be regarded as a very clever vaudeville artist, whereas the evidence does not warrant the belief that O’Brien is anything more than a street or saloon negro minstrel. It appeared affirmatively from O’Brien’s own admissions that he played the banjo and sang negro songs in saloons and such like resorts, passing around the hat for his livelihood. Furthermore, it is extremely singular that a song whose melody proved to be as popular as “Ma Angeline” has shown itself to be, should have been sung by O’Brien from 1887, when he testifies he first conceived the melody, to 1896, when it was first publicly produced and sold in San Francisco, without it having been noticed more generally than is testified to by the score or so of witnesses who appeared’ in behalf of the defendant. It is strange that, if it be true that O’Brien and two others sang the song at the Midwinter Fair, which lasted for several mouths, and at other resorts in San Francisco, it did not attain any appreciable degree of popularity until its production, simultane-, ously with the song “Dora Dean,” in the early part of 1896, at San Francisco. Xor does the evidence on behalf of the defendant satisfactorily explain why it was, if the melody of the song “Ma Angeline” was so catchy and well received by those who heard it, that O’Brien
Another question arises, however, and that is as to whether the complainants are entitled to a copyright in view of the fact that the word “hottest” in the verse, “She’s the hottest thing you ever seen,” is used by Williams in his song “Dora Dean.” In other words, the question arises whether the use of the word “hottest” in the connection referred to renders the song morally objectionable, musical compositions of an immoral character not being protected by copyright. Lawrence v. Smith, Jac. 471; Walcot v. Walker, 7 Ves. 1; Martinetti v. Maguire, 1 Abb. (U. S.) 356, Fed. Cas. No. 9,173; Shook v. Daly, 49 How. Prac. 366, 368; Drone, Copyr. 181; 7 Am. & Eng. Enc. Law (2d. Ed.) 538. The original restraining order was discharged, and a motion for a preliminary injunction denied by my predecessor, now Mr. Justice McKenna, on the ground that the word “hottest,” as used in song “Dora Dean,” was an indecent and obscene expression. Since that ruling additional testimony has been presented on .both sides. That introduced on behalf of the complainants is to the effect that the word “hottest,” as used in the song “Dora Dean,” and as understood by colored people, has no obscene or vulgar meaning, but simply means “great,” “grand,” “brilliant,” or, as one of the witnesses stated, it means, with colored people, the same as the expression, “She’s out of sight,” does with some white people. . On the other hand, the witnesses for the defendant testify that the word “hottest,” as used in the song “Dora Dean,”
The defendant claims that it is entitled to be reimbursed for such damages as it suffered by reason of the restraining order which prevented it, for a time, from selling the song “Ma Angeline.” This order was discharged, as previously stated, on the ground tha t the song “Dora Dean” was not entitled to the protection of a copyright because of the objectionable word referred to. The defendant therefore contends that it had a right to sell its song “Ma Angeline.” But, whatever claim for damages by reason of the restraining order the defendant may have had, it is certainly defeated by the fact, established by a fair preponderance of evidence, that O’Brien pirated the melody of the song “Dora Dean” in pretending to compose the song “Ma Angeline.”
An order will be entered dismissing both the bill and cross bill, and that each party pay its own costs.