Edward B. Marks Music Corp. v. Continental Record Co., 120 F. Supp. 275

Edward B. Marks Music Corp. v. Continental Record Co.

120 F. Supp. 275 | S.D.N.Y. | 1954

SUGARMAN, District Judge.

Plaintiff’s motion for summary judgment under Fed.Rules Civ.Proc. 56, 28 U.S.C.A. (No. 27 — February 23, 1954) and defendants’ motion for judgment on the pleadings under Fed.Rules Civ.Proc. rule 12(c) (No. 40 — February 23, 1954) are denied.

Defendants’ motion for summary judgment under Fed.Rules Civ.Proc. 56 (No. 39 — February 23, 1954) is granted and the complaint is dismissed on the merits.

“In The Good Old Summer Time” having been first copyrighted and published on May 24, 1902, the mechanical reproduction thereof was in the public domain from that time on.1

The right of anyone to mechanically reproduce it was not impaired by the subsequent 1909 revision of the copyright law,2 which specifically excluded compositions published and copyrighted prior to July 1,1909.3

The renewal of the copyright of the lyrics on May 23, 1929 and of the music on January 4, 1930 cannot, in the absence of any expression of Congressional intent so to do,4 be held to have created an author’s control of mechanical reproduction, previously nonexistent.

The summary judgments recently granted in four cases in this district do not support plaintiff’s instant motion because the copyright of each of the four compositions there involved was initially granted subsequent to July 1, 1909.5

Settle orders.

. White-Smith Music Publishing Co. v. Apollo Co., 209 U.S. 1, 28 S.Ct. 319, 52 L.Ed. 655.

. 35 Stat. 1075 § 1(e), 17 U.S.C.A. § 1(e).

. M. Witmark & Sons v. Standard Music Boll Co., 3 Cir., 221 F. 376.

. Debates, 60th Cong, and H.R.Bep. 2222 on H.B. 28192.

. Shapiro, Bernstein & Co., Inc. v. Bemington Records, Inc., Civ. 80-268-copy-righted March, 1952; Oxford Music Corporation v. Bemington Records, Inc., Civ. 80-269-copyrighted January, 1952; St. Nicholas Music, Inc. v. Bemington Records, Inc., Civ. 80-270-copyrighted May, 1949; Meridian Music Corp. v. Bemington Records, Inc., Civ. 80-271-copyrighted August, 1951.