*2 SWAN, Chief Judge. plaintiff from a
This is complaint judgment dismissing his on the merits court without trial to the complaint sought of jury. The rescission phonographic contract master of sale of jazz portions recordings concert of presented by plaintiff, damages for contract, of accounting breach of the profits, .injunction, permanent at- $3,000. torney’s amount fees in of jurisdiction diversity rests on Federal citizenship. judge rendered an district opinion, F.Supp. reported in 98 findings fact made and conclu- detailed opin- conformity sions of in with his law findings fact are Only ion. two of the appellant. will be They attacked discussed hereinafter. promoter Granz a well-known
Norman producer jazz under concerts Philharmonic.” designation At The “Jazz caused to recorded such concert he One entirety master sixteen-inch in its on a on six disc from which re-recorded of the master discs twelve-inch of two constituting the rendition concert compositions entitled “How musical Be These “Lady Good.” the Moon” and composition, discs, each three for master per minute, and at 78 revolved revolutions manufacturing commercial were usable the same size phonograph records of speed as playable the master at the same master discs to Granz sold discs. the. dated pursuant contract defendant required The contract August 15, 1945.1 phonograph records in the sale purchased masters from manufactured should use the credit-line Granz” ex- Norman “Presented planatory prepared. *3 twelve-inch and a smaller content than deletion of there no found also that was Find speed. revolving In record at the rpm music the records. ten-inch 78 deleted was ings all that 26 state that the entire and defendant re-recorded 1950.the reaction the was audience smaller record purchased on contents of the masters whistles, and consisting cheers from this of rpm ten-inch master and 33% screams;2 of no deletion that there was same size and manufactured records of the to plaintiff’s music, contribution and the speed retail sale. for production was not original musical the by questions presented the The and, any way; changed or affected plaintiff vio- any was right whether of the defendant, the the at “Accordingly, when by defendant: manufactur- lated the plaintiff’s insistence, album corrected the records; ing ten-inch selling 33% rpm78 to ten-inch covers of the selling by manufacturing and ten- or (2) agreement, not, as conform the was to records; selling (3) by rec- inch or claimed, plaintiff the the work attributing to part singly'instead of as album his else.” court based of some one containing “How the Moon” and both music finding there was no deletion of that “Lady Be Good.” (ex listening his own to the records Mfg. authority Co. the RCA On room) played in the court hibits Whiteman, Cir., F.2d certiorari Hammond, testimony Mr. and on the 393, 85 L.Ed 311 U.S. 61 S.Ct. denied expert plaintiff. called the musical the finding that and a expert’s perusal testimony A dis license, than the district rather of sale one patently at the closes statements odds with question the in the first answered understand, finding.3 judge’s Nor can we F.Supp. agree negative, We listening records, the after ourselves to add conclusion and see no need with this finding nothing judge’s audience opinion. to his was omitted from the reaction ten-inch Fully eight minutes of music gave negative answer to records. He also omitted, appear F.Supp. including We to us to have been question, 98 third trumpet saxophone, guitar, piano and adopt reasoning and on this solos. conclusion opinion judge’s finding In our the trial point also. claimed, up suc- does not take nor could it be where the It side is off, immediately cessfully, left other then tlie reaction of the audi- side you get product plaintiff's solo, the drum I of the into was tlie while ence average any property talent, or bad think for listener it would that lie skill or detect, reproduction of be rather difficult for the to it to tlie ear to it. performance the structure would testimony reads in 3. Hammond’s * * * appear be altered. follows: you listening “Q. know Do very cut end has a bad It “A. records, Hammond, Mr. those wheth- first) I mean is a break there pide. any or not there was er deletion definite, bars, one, and two I think. definitely To ? A. ear solo sounded musical of the 12-inch whole effect may like a there. I deletion least seem at to me to be would wrong, looking but I was not for it and disturbed. struck me. awas break? A. There There “Q. you thoronghly “Q. Then who are fa- half of and about the chorus a break jazz jazz field, miliar with and the of the chorus so out to the end having just was left listened to cannot de- know; I have don’t the —well. whether or not there cide deletion ? enough. Oh, say said A. I would there was. I state continue, No, definitely appear wish would there did “Q. to be a explain Hammond, Well, it. A. Mr. deletion. saxophone appeared Well, “Q. chorus cut more or less There be. middle, definitely and then start of know in the there specific no substantial dele- was a breach there was musical of the contract. No damages tions is erroneous. were shown to have resulted.5 damages prove As such are difficult to therefore We are faced with reputation the harm to the as an question whether the and sale manufacture expert jazz presentation concerts ten- the abbreviated irreparable, injunctive appropria relief is any right of inch records violated plaintiff te.6 Hence think we was en plaintiff. Disregarding moment titled against to an having contract, think the terms of abbreviated ten-inch records attributed could purchaser master discs of tile him right. unless he waived his al As produce lawfully them to the abbrevi use ready noted the district court found lawfully sell and could ated record *4 the album cover of the record shortened not a provided he did as describe was plaintiff’s insistence,” corrected “at the presented plain by music the recording of consequently the defendant not was it, he would com If he so-describe tiff. did “attributing plaintiff the work of competition.4 tort of unfair mit the some one else.” only can evidence we required to use the support theory discover to waiver Granz,” legend “Presented Norman testimony by following bit of de is, to him the musical that to attribute fendant who called was as a witness records offered for sale. content of the plaintiff: duty by implica carries contractual This necessity express “As soon as I have received tion, of an let- -without the ter duty attorney, prohibition, prob- sell records from his [Granz’s] ably required couple legend false of weeks a about a later or make which therefore, later, opinion, month attorney In our I called representation. said, Norman ten-inch abbreviated What Granz’s sale of perform- say is the not? A. would there broadcast of Whiteman or was was was, ance, yes. ais tort which that conduct White- enjoin. say A. man That would indeed You would there could was? “Q. competition’.” he ‘unfair Yes. you say was deleted? What would “Q. VII, 5.,. Law Conclusions of VI many, How I did not bars. A. A few question appellant does not read * * * count. follows: What, precisely, is it Court: “The plaintiff “VI. The has not sustained describing you now? damage his due claim of to defendant’s records, as The 10-ineh “Tile Witness: failure to use the credit line ‘Presented records, opposed the 12-inch would by Norman and defendant’s use of Granz’ say was around three minutes taken there explanatory notes other than maybe half, maybe, out, three album the ton-inch 78 covers. minutes. four almost plaintiff “VII. The has not sustained your opinion in. make Would “Q. damage to use his claim of due ‘How -different rendition of a substantial by Norman credit line ‘Presented Granz’ Moon,’ eliminating min four explanatory use of his notes on piece? 12 minute A. of that utes It. the corrected ten-inch 78 album cov- 12-inch, from different ob would be ers.” * ‘r-: * viously. Altemus, C.C.E.D.Pa., See v. Drummond don’t what know “Q. 338; Colgate F.2d Co., James T. White you? No, eliminated, do A. I don’t re- C.C.S.D.N.Y., 885; & 180 F. me, recall, It seems to as I member. Distributors, Curwood v. Affiliated D.C.S. instrumentalist, one either one or Waring D.N.Y., Dunlea, 283 F. eliminated, were but instrumentalists two D.C.E.D.N.C., F.Supp. 338; Clemens Troob, enough, Mr. remember well I don’t Publishing Co., 67 Misc. Press exactly what was eliminated.” tell Winik, Fairbanks N.Y.S. App.Div. Mfg. Whiteman, 487; Metropoli Co. v. RCA Opera Association, page Wagner- Inc. where we said: tan say insofar as Nichols Recorder “Nor need we radio Misc. directly declare, indirectly, App.Div. N.Y.S.2d affirmed 279 announcers of Whiteman 107 N.Y.S.2d the broadcast
58Ü
his,
prevention
publication,
to see
wanted
complaint, and he said he
garbled
prod
uncopyrighted
version
his
not like
attorney,
he said he did
Byron ob
not novel doctrine:
uct. This is
arrangement,
and that
English
tained
from an
discussed,
the cover.”
question
change
publication of a book
restraining
far
from
testimony means is
What
only,
poems
purporting to contain his
attorney requested
if Granz’s
clear. Even
authors
included some not of his
immediately
the cover
corrected
hip.7
too,
courts,
have enforced
American
case to come
waiting for the
and without
right.8
such
en
Those courts have also
trial,
that this
we are not satisfied
joined
the use
another of the character
operate
of Granz’s
necessarily
as a waiver
repute
istics of an
in such man
author of
injunction,
the ab-
if sale of
erroneously
ner
buyers
as to deceive
into
legend “Pre-
under the
breviated records
believing
they
a work of
buying
were
constituted
by Norman Granz”
sented
moreover,
courts,
that author.9 Those
unfair
tort of
breach
contract or the
injunctive
granted
relief in these cir
competition,
it did.
as we have found
cumstances : An artist
sells
of his
one
all claims or
Whether he intended to waive
substantially
works to the defendant who
regard-
result would follow
*5
changes
represents
it and then
altered
depends upon what
less
his intention
public
product.
matter to the
as that artist’s
re-
negotiations
was said and done in the
not,
copyrighted
Whether the
is
work
or
We think
garding correction
the cover.
the established
even if the
rule
case must
remanded for additional
expressly
contract with the artist
authorizes
point
as to
finding
evidence on this
and a
(e.
a
g.,
reasonable modifications
where
what,
anything,
if
Granz did consent.
stage play
adaptation
novel or
is sold for
complaint
Dismissal of the
is affirmed
movie),
as a
wrong
it is an
to
actionable
respect
with
to sales of the ten-inch 33%
hold out
artist as author of a version
respect
selling
with
rec-
records and
to
substantially departs
origin
from the
singly.
respect
With
to the sale of
0
authorities,
al.1 Under the
the defend
ten-inch 78
records and the claim of
here,
ant’s conduct
colleagues say,
attorney’s fees
is remanded for
the cause
may also be considered a
kind
“unfair
conformity
proceedings
further
in
with
competition”
“passing
off.”11 The ir
opinion.
One-half
costs
harm,
reparable
justifying
injunction,
an
appellant.
awarded the
apparent
becomes
when one thinks what
FRANK,
(concurring).
Circuit Judge,
speeches
would be
result if
collected
published
agree,
course, that,
by of Stalin were
under the
1.
name of
way
Taft,
poems
Robert
tort, plaintiff
Senator
or the
(absent
of contract or
of Ella
Wheeler
to
Wilcox as those of T.
contrary)
consent
is entitled to
S. Eliot.
Byron
App.
Johnston,
28,
Eng.
10.
7.
Packard v. Fox Film
2 Mer.
207
35
311,
164;
Rep.
Ridge
English
851.
Div.
202
see
Cur
Il-
also
also
Distributors,
Magazine,
Inc.,
wood v. Affiliated
lustrated
D.C.
29 T.L.R. 582.
S.D.N.Y.,
219, 222;
F.
283
Drummond v.
Belford,
Co.,
8. See Clemens v.
Clark &
Altemus,
338;
C.C.E.D.Pa.,
60 F.
cf.
D.C.N.D.Ill.,
728, 730-731;
14 F.
D’Alto
Sweet,
Eng.Rep. 947;
Archbold v.
Royle
172
Herald,
App.
v. New
monte
York
154
Dillingham,
383, 384,
53 Misc.
453,
200,
Div.
139 N.Y.S.
modified 208 N.
783;
Gibbings,
104 N.Y.S.
Lee v.
67 L.T.
695,
1101;
Y.
102 N.E.
Ben Oliel v. Press
263;
Cox,
Eng.Rep. 1211,
Cox v.
R.
1214;
68
Publishing Co.,
251 N.Y.
167 N.E.
Competition
Annot. Unfair
—Art—
432.
Literature,
5ÍM. uniformity, or generaliza- an abstraction its at-
tion to become totalitarian in tends uniqueness.” titude towards doctrine of “moral rejecting the
Without
right,” light fore- I think
going, we should not rest decision on here, necessary where,
doctrine it is
to do so. et al. v. DWELL INGHAM et al.
ROLFES
No. Appeals Court
United States Eighth Circuit.
July Sept.
Rehearing Denied
Charles R. Judge, Louis, St. (W. Mo. Dubail Donald and Dubail & Judge, St. Louis, Mo., on the brief), for appellants. Gross, N. Chicago, 111.(Milton I. Jacob Goldstein, Louis, Mo., St. on the brief), for appellees. GARDNER,
Before Chief Judge, and WOODROUGH and RIDDICK, Circuit Judges.
WOODROUGH, Judge. Circuit appeal is This taken to reverse a decree Guy requiring A. Thompson, nominalism and to avoid excessive is need excessive “realism.” 19. There Frank, Trial Courts notes Granz had re-re- time 194-8 defendant Some City, Hourwich, New York & Bergerman purchased the musical content corded City, Calderon, York New (Joseph rpm78 from on ten-inch masters masters appellant. for counsel), phonograph rec- he manufactured City, Troob, New York Michael Warren speed. size and Such appellee. in an he sold album and Concededly, at first separately. the album Judge, SWAN, and AU- Chief Before to the not conform FRANK, did cover HAND and Circuit N. GUSTUS that, although designation it bore the Judges. “Jazz assigned by him Actually defendant. with MoeAsch the contract made ques second Determination contain At The Philharmonic” it did not Obviously fact. upon findings turns notes, the tion explanatory credit-line or the revolu at 78 revolving a ten-inch cor- later found that the cover was time playing shorter He a minute has a upon tions plaintiff’s demand. rected