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IN THE WORLD OF MUSIC PUBLISHING
Conducted By V. D. Walsh
Court Holds Broadcaster Guilty in
Transmitting Unauthorized Performance
Remick Wins Case Against General Electric Co. on Infringement of Copyright, Although Broad-
casting Station Transmitted Performance Only and Did Not Play Number
SONGS THAT SELL
—
Just n Little Longer (Irving Berlin)
Because I Love You (Irving Berlin)
How Many Times (Irving Berlin)
Here, the only distinction is that the defendant did not
participate in the rendition of the musical production
•J United States District Court for the South- except by affording to others the opportunity to hear it.
ern District of New York, in the case of Jerome
Whether this distinction be vital or not depends on the
statute. The controlling language is:
H. Remick & Co., a music publisher, versus
"Any person entitled thereto, upon compliance with
General Electric Co., owner of broadcasting
station WGY, at Schenectady, last week ren- the provisions of this Act, shall have the exclusive
right:
dered a decision that a broadcaster in transmit-
* • * To perform the copyrighted work publicly
ting by radio an unauthorized performance of a
for profit if it be a musical composition and for the
purpose of public performance for profit."
copyrighted musical composition committed an
Certainly those who listen do not perform, and there-
infringement of the copyright. Damages of
fore do not infringe.
$250, the minimum fixed by law, counsel's fee
Can it be said with any greater reason that one who
of $1,000 and an injunction restraining further enables others to hear participates in the unauthorized
performance so as to be a contributory infringer? Surely
infringement were awarded the plaintiff.
The New Kenmore Hotel, at Albany, without not, if as is argued by analogy, he merely leaves the
window open so that the strains of the music may be
license from the copyright owner, permitted heard by those in the street below. Such is not the
the orchestra in its ballroom to render the case of the broadcaster, equipped with instruments ani-
composition, "Somebody's Wrong," copyrighted mated by electricity constantly furnished, who throughout
by Jerome H. Remick & Co. Broadcasting sta- the performance of the orchestra picks up each note,
translates it into electrical energy, and transmits it to
tion WGY, of Schenectady, operated by General
persons within a radius of several hundred miles so that
Electric Co., installed a remote-controlled they may hear the original sound. It is not enough to
say that the broadcaster merely opens the window, and
microphone in the ballroom, and also without
the orchestra does the rest. On the contrary, the acts oi
license from the copyright owner broadcast the
the broadcaster are found in the reactions of his instru
infringing rendition by the ballroom orchestra. ments, constantly animated and controlled by himself, and
.Suit was filed by the copyright owner, alleg-
those acts are quite as continuous and infinitely morf
ing infringement by the broadcaster of the complex than the playing of the selection by the members
exclusive right granted by copyright law to the of the orchestra. That in the process of transmission
there is no audible rendition of the musical production
owner ot a work to perform it "publicly for
until it is heard by the owners of radio receiving sets
profit."
merely emphasizes the fact that the broadcaster is actively
The courts have held that broadcasting is engaged in transmitting to the radio audience the original
"public performance" within the meaning of the unauthorized production. In so doing it seems clear that
he participates in the infringement.
Certainly if he
law, and in some cases it is "for profit." It
broadcasts without authority from the owner of the copy-
follows that the broadcasting of a copyrighted
right a private rehearsal of a copyrighted production,
musical composition without consent or license thus converting the private rendition into a public per
formance for profit, he contributes to the resultant in-
of the owner is unlawful, and this latest de-
fringement. If in the case at Bar the public had been
cision accords with those previously rendered
excluded from the public ballroom at the hotel while
by the courts upon this point. The decision
the orchestra continued to play and the broadcaster to
broadcast, he would have contributed to the infringement
follows:
E. 29, 102 while the public was absent, but the presence or absence
of an audience in the hotel cannot change the character
UNITED STATES DISTRICT COURT
of his acts of contributory infringement.
SOUTHERN DISTRICT OF NEW YORK
It results that there must be a decree for the plaintiff
for the usual injunction, minimum damages of $250 as
JEROME H. REMICK & CO.,
fixed by statute and an attorney's fee of $1,000.
Plaintiff,
(Sgd) THOMAS D. THACHER,
Against
December 7, 1926.
U. S. D. J.
GENERAL ELECTRIC CO.,
Defendant.
JUDGE THOMAS D. THACHER, in the
Suit in equity for infringement of copyright of a
musical composition entitled "Somebody's Wrong." On
final hearing.
NATHAN BURKAN, Solicitor for Plaintiff.
CHARLES NEAVE and MERRELL E. CLARK,
Solicitors for Defendant.
THACHER, D. J.: The question for decision is
whether one who, by means of the microphone, "picks
up" another's unauthorized performance of a copyrighted
musical composition and transmits it by radio from a
broadcasting station maintained and operated to stimulate
the sale of radio products is liable for infringement of
copyright.
In Remick v. American Automobile Accessories Co., 5
Fed. (2d.) 411, the Circuit Court of Appeals for the
Sixth Circuit held that broadcasting a copyrighted musical
composition rendered by an artist employed by the broad-
caster was an infringement of a copyright where the
purpose was, as in the case at Bar, to stimulate the sale
of radio products. I find no grounds for differing with
the well-reasoned opinion of Judge Mack in that case.
"Pauline Winslow Hour"
Pauline Winslow, the composer, who has
several numbers in the catalog of Harold Flam-
tner, Inc., was honored on Wednesday night of
this week by broadcasting station WMSG with
a "Pauline Winslow Hour" in which her com-
positions were featured exclusively. The artists
appearing were William Sweeney, baritone;
Georgette Nyrielle, lyric soprano; Gertrude
Miller, mezzo-soprano; Chester Hall, tenor, and
the Orpheus Quartet.
The quartet featured
Miss Winslow's latest anthem, "The Shepherd's
Psalm," and among the other songs that were
rendered was "The Chalice of Your Lips."
Miss Winslow's compositions are very widely
known.
When the Red, Red Robin Comes Bob, Bob,
Bobbin' Along
—
—
I'm on My Way Home (Irving Berlin)
That's a Good Girl (Irving Berlin)
My Baby Knows How
(I'm Tellin' the Birds—Tellln'
How I Love You
Bees)
Oh! How She Could Play a Tkulele
When I'm in Your Arms
Rags
Some Day
So Will I
Elsie ShuItz-en-Helm
Susie's Feller
I Never Knew What the Moonlight Could Do
At Peace With the World
—
I'd Climb the Highest Mountain (If I Knew
I'd Find You)
I'd Love to Meet That Old Sweetheart of
Mine
Remember
Always
Let's Make Up
—
But I Do, You Know I Do
Who Wouldn't?
In the Middle of the Night
Blue Bonnet, You Make Me Feel Blue
—
Roses Remind Me of You
Tonight's My Night With Baby
Put Your Arms Where They Belong
Poor Papa
Gimme a Little Kiss—Will Ya? Huh?
If You Miss Me as I Miss You
And Then I Forget
Old-Fashioned Sal
Pretty Cinderella
BOOKS THAT SELL
New Universal Dance Folio No.
Special Edition for 1927
X
12
Peterson's Ukulele Method
—
World's Favorite Songs
Tiddle De Ukes
Strum It With Crumlt
Irving Berlin's Song Gems
From the Musical Comedy Sensation
"THE COCOANUTS"
Tlng-allng the Bell'll Ring
Why Do You Want to Know Why?
Florida By the Sea
The Monkey Doodle Doo
Lucky Boy
W« Should Cars
IRVING BERLIN, Inc.
1607 Broadway* New York
Consult the Universal
The Review.
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Hinds, Hayden & Eldredge, Inc., Publishers, New York City
39
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