272 F. 821 | 2d Cir. | 1921
(after stating the facts as above). The District Judge has found and decreed that Hart P. Danks was the composer and at the time of his death was the owner of the songs and musical compositions mentioned in the margin,
The record fails to disclose that when the case was heard by the District Judge any objection to the jurisdiction was raised by counsel at any stage of the proceedings. And in the opinion handed down no allusion is made to the question of jurisdiction. At the argument in this court, however, reference was made to the subject. But if it had not been it would have been our duty to have noticed it.
If the court had jurisdiction of this suit, it must be either because there exists “diversity of citizenship” between the parties, or because it presents a question arising under the Copyright Acts of Congress. We shall inquire first whether the requisite diversity of citizenship exists. The amended bill of complaint alleges:
“That your orator is a citizen of the United States, and an inhabitant of the borough of Brooklyn, city and state of New York; that the defendants Elizabeth Adair Gordon, Hamilton A. Gordon, Clarence T. Gordon, and Herbert H. Gordon are all citizens of the United States and inhabitants of East Orange in the state of New Jersey; that the defendants Harriet P. Danks and Gertrude D. Danks are citizens of the United States and inhabitants of the borough of Manhattan, city and state of New York.”
We come then to inquire whether jurisdiction can be sustained upon the theory that a right is involved which is derived from the Copyright Acts of Congress. ■ It is undoubted that the federal courts have jurisdiction of'suits at law or in equity arising under the copyright laws. 36 U. S. St. at L. c. 231, p. 1092, § 24, par. 7; Barnes’ Federal Code 1919, p. 183, § 783 (Comp. St. § 991 [7]). The jurisdiction in such cases is irrespective of citizenship. Photo-Drama Motion Picture Co., Inc., v. Social Uplift Film Corporation, 220 Fed. 448, 137 C. C. A. 42. And such jurisdiction when it exists is exclusive, 36 U. S. St. at L. c. 251, p. 1161, § 256, par. 5; Barnes’ Fed. Code 1919, p. 247, § 1021 (section 1233).
1. “Silver Threads Among the Gold”: The words were by Eben M. Rexford and the music by H. P. Danks. The first copyright was granted on February 17, 1873, and was secured by C. W. Harris as proprietor. He assigned this to Gordon. It was renewed in 1901 by H. P. Danks and was extended in 1915 in names of Harriet P. Danks, Albert V. Danks, Gertrude E- Danks and Lillian P. Builder.
2. “Don’t Be Angry with Me Darling”: The words were by W. E. Gardner and the music by H. P. Danks. The original record of deposit for copyright was by E. E. Wheeler on September 30, 1870, the right whereof E. E. Wheeler claimed as proprietor. It was assigned by Wheeler to C. W. Harris and by the latter to Gordon. It was extended from March 21, 1912, in the names of Harriet R. Danks, Gertrude E. Danks, Albert V. Danks, and Eillian P. Builder (the widow and daughters of H. P. Danks).
3. “Memory Picture on the Wall”: Song and chorus composed by H. P. Danks. Certificate of deposit on July 2, 1886, by S. T. Gordon & Son. Right claimed by the latter as proprietors. Application of renewal of copyright for 28 years, dated June 27, 1914. Registered in names of Harriet R. Danks, Gertrude E. Danks, Albert V. Danks, and Eillian P. Builder.
4. “Easter Anthem in D”: Music by H. P. Danks. Deposit for copyright on February 11, 1885, by S. T. Gordon & Son, they claiming as proprietors. Application for renewal registered in names of Harriet R. Danks, Gertrude E. Danks, Albert Y. Danks, and Eillian P. Builder.
We shall not pass upon the validity of the attempted renewal of these copyrights. We do not regard them as properly before us for that purpose. But we refer to them simply to point out that this complainant suing as the adminislrator of H. P. Danks has as such no possible interest in any one of the above only subsisting copyrights in the name of Danks. As administrator oí H. P. Danks he could not renew a single copyright, and as administrator he has no interest in any copyright of H. P. Danks which has been renewed since the latter’s death. Under the original Copyright Act of 1790 (i Stat. 124), the right of renew’al was given to an author, his executors, administrators, or assigns. But the Act of 1831 (4 Stat. 436) and all subsequent acts have confined the right of renewal to the author if living “or the widow, widower or children of the author, if the author be not living, or if such author, widow, widower or children be not living, then by the author’s executors, or in the absence of a will, his next of kin.” Barnes’ Federal Code 1919, § 9045, p. 2148 (Comp. St. § 9545). It will he noticed that while an executor is mentioned an administrator is not and therefore has been regarded as excluded. White-Smith Music Publishing Co. v. Goff (C. C.) 180 Fed. 256, 258. The right of renewal does not follow the author’s estate but the renewal right is derived directly from the statute.
The composition entitled “Silver Threads Among the Gold” is the most important of the songs or musical compositions involved. In
It is sufficient to say that no infringement is claimed prior to a notice given on or about April 10, 1916, by the administrator and which he claims terminated the agreement as to the right of the Gor-dons to publish and sell the musical compositions the copyright of which Danks had renewed. Prior to the giving of that notice, title in the administrator under the renewal of 1901 had expired and there was no-title in him to be infringed, and therefore no title to support the court’s jurisdiction in this case. Before leaving this phase of the case, however, we call attention to the language of the copyright certificate introduced in evidence by the complainant’and marked as “Exhibit 3 PPP.” It reads as follows:
“Copyright certificate under Act of 1909 of registry of application for extension for further period of 14 years (so that entire term shall equal 56 years). In names of Harriet R. Danks, Gertrude L. Danks, Albert V. Danks, and Lillian P. Builder; copyright claimed' by widow and children of deceased author; title ‘Silver Threads Among the Gold.’ Song and chorus. Words by Eben E. Rexford, music by H. P. Danks. Date of renewal registration February 15, 1901. Name of first renewal claimant Hart P. Danks.”
But it may be said in passing that if the administrator did have a title to be infringed at the time the amended bill was filed, there is no proof in the record of a single instance of tire printing, publishing, or selling of any of the copyrighted songs and musical compositions after the alleged infringement and revocation notice was given and no-claim is made of any infringement prior to such notice.
The incontestable fact is that the complainant who sues as the administrator of H. P. Danks is shown by the record not to be the owner of a single copyright for the infringement of which he complains. The court below has erroneously found that Hart P. Danks at the time of his death was the owner of the musical compositions mentioned in the bill. There is nothing in the record to support that finding but the-record shows exactly the contrary.
“That the rule is well settled that, if the suit be brought to enforce or set aside a contract though such contract be connected with a patent, it is not a suit under the patent laws,” and jurisdiction can only be maintained upon the ground of diversity of citizenship.
The same principle applies to royalties under a copyright as to royalties under a patent. It is impossible to distinguish in principle between them. Carl Laemmle Music Co. v. Stern, 219 Fed. 534, 135 C. C. A. 284.
It has been held that a suit although charging infringement and praying an injunction and account, which is in reality merely a suit to enforce a contract between an author and a publisher, is not a case arising under the copyright laws so as to be within the jurisdiction of the federal courts. Silver v. Holt, supra.
While the bill in the present suit alleges title in the complainant and infringement, we have seen that he possesses no title and that there has been no infringement therefore of what does not exist in him. The suit in reality is one merely to compel the defendants to pay over royalties claimed to be due under a contract.
The decree is reversed with directions to dismiss the bill.
“Silver Threads Among the Gold”; “Glad Tidings”; “We Will be Glad and Rejoice”; “I Will Give Thanks”; “Don’t Be Angry with Me Darling”; “Roses fjnder the Snow” ; “Clinging to Christ” ; “Gloria Patri”; “Deus Mise-ratur”; “Gloria Patri in D”; “When Silver Threads Are Gold Again.”
“Easter Anthem in D”; “Memory Pictures on the Wall”; “Gift Your Glad Voices” ; “ ’Tis Sweet to Think of Heaven” ; “Bonum Est Ab”; “Angels Boll the Bock Away” ; “Gloria in Excelsis”; “Sweet Aileen”; “Í Will Arise”; “At the Uamhs”; “Jubilate Deo”; “Day of Besurrection”; “Let the Angels In”; “Gome and See the Place”; “Moonbeams on the Snow”; “Cantata Domina”; “Benedie Anima Mea”; “Te Deum Laudamus.”