279 F. 276 | E.D. Pa. | 1922
The plaintiff, a corporation engaged in the business of publishing and selling musical compositions, has brought this suit as owner of the copyright in a musical composition entitled “Tulip Time,” from “Ziegfield Follies, 1919.” The defendant is alleged to be the owner and manager and operator of the Model Theater, where moving pictures and photo plays are exhibited and musical compositions are played, and to which the general public is admitted upon the payment of an admission fee. It is charged that the defendant, in infringement of the copyright, has given public performances for profit of the musical composition in question, by causing it to be played and performed in his theater for the entertainment and amusement of his patrons.
The answer, after denying ownership and control of the theater on the part of the defendant, and denying knowledge of many of the averments of the bill, avers, inter alia, in paragraph 12 of the answer:
“Defendant avers that no musical composition is performed or has been performed in said theater for profit.”
And in paragraph 16:
“That there is employed an organist, who has contracted to píay while the motion picture-and photoplays are being exhibited, such short excerpts of musical selections as may appear to her fitting and appropriate to the action of that portion of the motion picture at that precise instant being shown upon the screen. The said organist is an independent contractor, over whoso actions while playing the defendant has no control. The defendant further avers that entire musical compositions are not played, but that merely short excerpts, continuously changing with the theme of the motion picture, are given. Defendant avers that no charge is made for the privilege of listening to the playing of music, which music is purely incidental, and not a part of tho motion picture exhibited by the defendant in the conduct of his motion picture business; that the songs played in said theater were not performed by the defendant, or caused to be performed by him, publicly for profit.”
“If music did not pay, it would .be given up. If it pays, it pays out of the public’s pocket. Whether it pays or not, the purpose of employing it is profit, and that is enough.”
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Paragraph 14 of the answer denies each and every allegation of paragraph 14 of the bill. Paragraph 2 of the answer puts in issue the
Paragraph 17 of the answer is as follows:
“Defendant is informed, believes, and therefore charges, that it has become a universal custom of musical composers and publishers to issue, and to send out to musicians in every part of the United States, what are known as ‘professional copies’ of their musical compositions, with a request that these musicians publicly perform said compositions and thereby ‘plug’ or popularise and advertise said compositions to the ultimate benefit of the authors and publishers. Defendant is informed, believes, and therefore charges, that professional copies of this selection, to wit, ‘Tulip Time,’ as well as others published by the plaintiff, were furnished by it, or through its agents, to the organist employed by the owner; that the issuance of such professional copies constituted a license to the recipient thereof to publicly perform such musical composition; that the plaintiff acquiesced in such public performance of the musical selection wherever and in what manner it was so played, and that the plaintiff was greatly benefited, and not damaged, by any such performance.”
Paragraph 18 of the answer avers in substance that the plaintiff is a member of the American Association of Composers, Authors, and Publishers, which includes á majority, if not all, of the composers, authors, and publishers in the United States; that the members thereof, for the purpose of securing to themselves “an unreasonable and extortionate profit, and for the purpose of establishing and maintaining an unreasonable and extortionate license fee for the performance of their musical numbers,” have combined and assigned to the society the privilege to issue licenses for the performance of the music of the mem
It is averred that the plaintiff is therefore engaged with others in a combination or conspiracy in restraint of interstate trade or commerce, in violation of section 1 of the Sherman Act; that the present bill is one of eight simultaneously brought by members of' the alleged combination ; and that the present suit is not a bona fide action to protect the plaintiffs rights, but is part of a combination or conspiracy to create a monopoly in the musical composing and publishing business, in. restraint of trade, and to demand unreasonable and extortionate profit from moving picture theater owners and lessees.
The answer does not set up that the defendant is affected in any other way by the alleged unlawful combination, except by his being prevented: from producing the plaintiff’s copyrighted music. The material object, the sheets of music, are not involved. If, therefore, the material object is not involved, so far as the defendant is concerned, the answer does not show that interstate commerce is directly affected by the combination, and it is therefore no defense. Hopkins v. United States, 171 U. S. 578, 19 Sup. Ct. 40, 43 L. Ed. 290; Anderson v. United States, 171 U. S. 604, 19 Sup. Ct. 50, 43 L. Ed. 300; Blumenstock Brothers et al. v. Curtis Publishing Co., 252 U. S. 436, 40 Sup. Ct. 385, 64 L. Ed. 649; Charles A. Ramsay Co. v. Associated Bill Posters (C. C. A. 2d Cir.) 271 Fed. 140. Paragraph 18 of the answer must therefore be stricken out.
It is ordered that the motion to strike out be granted, in so far as is consistent with this opinion, and otherwise be denied.