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Music Trade Review

Issue: 1923 Vol. 76 N. 7 - Page 7

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FEBRUARY 17, 1923
THE
MUSIC
TRADE
REVIEW
Courts Sustain Advertising Copyright
Gulbransen-Dickinson Suit Against H. P. Maus Piano Co. Decided in Favor of Plaintiff—Decision States
"Mere Purchase by a Dealer of a Manufacturer's Product Does Not Entitle the Dealer to Make Use
of the Manufacturer's Copyrighted Advertising Material"—Decision Highly Important
CHICAGO, 111., February 10.—In the copyright
infringement, trade-mark infringement and unfair
competition suits filed by the Gulbransen-
Dickinson Co. against the H. P. Maus Piano
Co., of Lima, O., court decisions have been
rendered in favor of the Gulbransen-Dickinson
Co. upholding the trade-mark rights and the
copyrights involved and awarding damages.
The decisions were handed down last week
by Judge D. C. Westenhaver, of the District
Court of the United States, Northern District
of Ohio, Western Division.
The copyright decision upholds the rights of
the Gulbransen-Dickinson Co. in copyrighted
material for advertising Gulbransen player-
pianos. For the misuse of such material by
the H. P. Maus Piano Co. the court awarded
the plaintiff $2,750 damages, together with
counsel fees and costs. The court also awarded
an injunction.
In the trade-mark and unfair competition suit
(lie court found that the Maus Co. had infringed
plaintiff's right in the mark and had also been
guilty of unfair competition in its use thereof
and in other respects, and the court granted
an injunction and costs.
The contentions of the Gulbransen-Dickinson
Co. are upheld not only in the cases cited above,
but it will be recalled that on January 4, 1923,
in an additional suit against the H. P. Maus
Piano Co., charging infringement of the Gul-
bransen-Dickinson Co.'s patent on the "Baby-
at-the-Pedals" advertising device, a decree was
entered finding the patent good and valid in
law and that the defendant infringed the same,
and ordering an injunction and awarding costs.
As a matter of protection to all recognized
Gulbransen dealers the decisions of the court
are of considerable importance as well as grati-
fication. At the time of going to press it is
not known whether the H. P. Maus Piano Co.
will appeal.
Following are the findings of the court:
This suit charges infringement of certain copyrights
claimed by plaintiff and seeks to recover liquidated
damages and counsel fees as provided by the copyright
law. The bill sets up copyright in four prints or pictorial
illustrations, one entitled "Which Is the Musician?
Hoth if the Player Is a Gulbransen," another entitled
'"The Exquisite Pedal Touch of the Gulbransen Made
Possible This Childhood Incident," another entitled "The
Gulbransen Reads the Music and Strikes the .Notes
While You Put in the Expression—Fast, Slow, Loud,
Soft," and the other, "The Easy-to-play Gulbransen In-
spires Young and Old." The title thereto in plaintiff
and due registration thereof and notice to defendant are.
averred, and, while put in issue by answer, are duly
proved and on this hearing not seriously questioned by
defendant. On the trial evidence was introduced tending
to show an infringement of another copyright in a print
or pictorial illustration entitled "What Are They Sing-
ing?" but this will be disregarded because not put in
issue. The bill further alleges that each of these prints
or pictorial illustrations was published by the defendant
without its authority or consent on or about a certain
date specified in each instance, and on other dates
before and after the specified date in various newspapers
published in and about Lima, O. The evidence shows
that the one first mentioned was published twice, once
on July 12, 1921, in the Lima Shoppers' Guide, and on
September 4, 1921, in the Lima News and Democrat;
that the second was published once, April 10, 1921, in
the Lima Republican Gazette; that the third was pub-
lished four times, once on July 27, 1921, in the Lima
Republican Gazette, and three times, May 1, 1921, June
30, 1921, and July 28, 1921, in the Lima Mews and
Democrat, and that the fourth was published five times,
once on April 16, 1921, in the Lima News and Times
Democrat, and three times in the Lima Republican
Gazette on April 19, 21 and 26, 1921. Each of these
publications was printed in large editions, running from
eight to twenty thousand.
At the conclusion of the trial and oral argument I
entertained a doubt as to plaintiff's right to recover,
only as to one proposition, as to which briefs were re-
quested and have been submitted. The plaintiff manu-
factures and sells what are called piano players. It sells
these piano players through duly constituted and rec-
ognized dealers.
These dealers are given a restricted
territory and are known therein as dealers iu Gulbransen
piano players. The prints or pictorial illustrations were
produced by plaintiff to be used in advertising and
selling its piano players.
The defendant for several years prior to February 1,
1921, was one of plaintiff's dealers, located at Lima, O.,
and had a restricted territory. His relationship as such
dealer was terminated on or about February 1, 1921, and
another tinn at Lima, O., coincidentally therewith be-
came plaintiff's dealer in that territory. The reasons for
the termination of defendant's relationship are not ma-
terial because it is undisputed that such termination
was duly made, defendant duly notified thereof and
assented thereto.
Prior to such termination plaintiff
had furnished defendant with electrotype cuts of the
four copyrighted pictorial illustrations now involved.
These were furnished defendant to be used in adver-
tising and selling plaintiff's piano players and were so
used.
Defendant knew and was informed that they
were copyrighted.
Some, if not all, contained stamped
thereon a notice that they were the property of plaintiff,
lent to defendant and were to be returned on demand.
In plaintiffs final notice of termination this informa-
tion was explicitly conveyed to defendant and demand
was made upon him for the return of all of plaintiff's
copyrighted cuts and illustrations and including also
copies of his registered trade-inark which had been
furnished to defendant for the same purpose. Defendant
did not do so, although acknowledging receipt of the
notice of termination and of this demand in the words
"All right." In June following a similar demand was
made by plaintiff upon defendant, to which he did not
reply.
Defendant's contention is that these copyrighted illus-
trations in the form of advertising and electrotype cuts
having been furnished defendant to be used in adver-
tising and selling piano players which plaintiff had
bought and paid for during the existence of the busi-
ness relation above described, it had an implied license
to make use thereof after the termination of that rela-
tion to advertise and sell piano players which it had
previously acquired and which it then had on hand. The
proposition of law which I desired further to study was
involved in this contention.
This defense is in the
nature of confession and avoidance, and the burden is
on the defendant to prove it. See Hendricks vs. Thomas
Publishing Co. (2 C. C. A.), 242 Fed. 37; General Elec-
tric Co. vs. Continental Lamp Works, 280 Fed. 846. After
the termination of defendant's license, if one he had,
to make use of copyrighted material, any further use
is in law an infringement. Walker Tiin Co. vs. Schmidt
Co., 230 Fed. 636. The mere purchase by a dealer of a
manufacturer's product does not entitle the dealer to
make use of the manufacturer's copyrighted advertising
material, even though limited by the retailer to use in
selling the' manufactured product. Golden Rule, Inc., vs.
B. V. D. Co. (8 C. C. A.), 242 Fed. 929.
In this case I do not deem it necessary to express
an opinion upon the exact question presented by de-
fendant. Its contention would be sustainable and would
have to be decided only if defendant had used the copy-
righted material in advertising exclusively and selling
Gulbransen piano players which defendant had on hand
at the termination of its agency.
This is not what
defendant did. On the contrary, it made vise of the
copyrighted advertising matter in advertising generally
pianos and piano players, not limiting such advertising
or indicating therein in any way that it related to
plaintiff's product. Furthermore, defendant's conduct re-
pels any inference that it was acting in good faith within
the terms of the implied license which defendant now
asserts. TTow many piano players of plaintiff's make de-
fendant had on hand is not shown. A witness on behalf
of plaintiff who visited defendant's store in December.
1930, says that he saw none on hnnd.
Defendant had
bought few. if any. after the middle of the year 1920.
Defendant obtained from sources not entirely known, but
in part surreptitiously through the Ye Music Shoppy, of
Findlay, a number of piano players of plaintiff's make
to supply his trade. Defendant was jruilty of various
forms of unfair competition in procuring these piano
plavers in this surreptitious manner and in marketing
;md disposing of plaintiff's make of piano players
through and at its store in Lima. Tf an implied license
of a limited nature such as defendant asserts could in
i.-.w be established, he cannot be protected thereby, be-
cause his conduct was not in accordance therewith, but.
on the contrary. »?s ecneral. npen and extensive, and
was ill connection with his general business of adver-
tising ami selling other makes of pianos and piano
tilave'-s after his agency with plaintiff h.id been finally
ended.
Tt resul's that defendant must be found to have wronp-
fu'lv. without authority and against plaintiff's consent
and upon notice, violated and infringed plaintiff's four
copyrights above described. Plaintiff is entitled to re-
cover the damages.
Plaintiff
asks not actual, but
liquidated damages in accordance with Sec. 25 ot the
Copyright Act of March 4, 1909 (U. S. Conip. St. Sec.
9546). By the terms of this statute plaintiff is entitled
to recover not more than $200 nor less than $50 for each
newspaper reproduction of plaintiff's pictorial illustration,
but not less than a minimum damage of $250 nor a
maximum of $5,000. The construction of this section
and the proper way to admeasure damages has been
many times considered.
In Westermann Co. vs. Dis-
patch Printing Co., 249 U. S. 100, the U. S. Supreme
Court held that each newspaper publication was an in-
dependent infringement.
In so holding it reversed the
decision of the Circuit Court of Appeals of this circuit
in the same case, 233 Fed. 609, which held that a repeti-
tion of the same publication in seven successive issues
of the same newspaper was to be regarded only as one
infringement. In both cases it was held that a pictorial
illustration such as is here involved was a copyrighted
photograph within the meaning of said Sec. 25 and that
the provision of a minimum and maximum damage was
applicable. To the same effect are the following: S. E.
Hendricks Co. vs. Thomas Publishing Co. (2 C. C. A),
242 Fed. 37; Sauer vs. Detroit Times, 242 Fed. 687; Wat-
terson vs. Tollefson, 253 Fed. 859; Strauss vs. Penn Print-
ing Co., 220 Fed. 977; Mills vs. Standard Music Koll
Co., 223 Fed. 849; Gross vs. Van Dyk Gravure Co., 230
Fed. 412; Haas vs. Leo Feist, 234 Fed. 105; Stodart vs.
Mutual Film Corp., affirmed, 249 Fed. 513.
Applying these principles defendant must be held to
have committed in all eleven infringements of plaintiff's
respective copyrights.
The minimum damage therefore
is $2,750. The maximum damage would be $55,000. In
this case I perceive no good reason to allow more than
the minimum damage. It does not appear that plaintiff
suffered substantial financial damage. Defendant's con-
duct was irritating to plaintiff's feelings, but not ex-
ceedingly injurious to its pocketbook.
Plaintiff also asks an allowance for counsel fees under
Sec. 40, Copyright Act, March 4, 1909. An award of rea-
sonable counsel fees to the prevailing party as a part
of the costs under this section is discretionary with the
Court.
Defendant did not oppose the granting of the
preliminary injunction, but did file answers and put upon
the plaintiff the burden of preparing and proving its
case. At the final hearing defendant did not withdraw
his answer, but stood thereon and put plaintiff to the
labor and expense of trying the case. This trial con-
sumed, however, only one day. Whenever a defendant
persists in its wrongful attitude the usual course is to
allow counsel fees, and therefore the sum of $250 to be
taxed as a part of the costs is allowed as reasonable
attorney's fees under all the circumstances of this
case.
For
authority
supporting
the
allowance of
attorney's fees and indicating the circumstances under
which same are allowed, see the following: Strauss vs.
Penn Printing Co.. 220 Fed. 977; Mills vs. Standard Music
Roll Co., 223 Fed. 849; Westermann vs. Dispatch Pub-
lishing Co., 233 Fed. 609; Watterson vs. Tollefson, 253
Fed. 859; Gross vs. Van Dyk Gravure Co., 230 Fed. 412;
Haas vs. Leo Feist, 234 Fed. 105; Stodart vs. Mutual
Film Co.. 249 Fed. 507, affirmed, 249 Fed. 513; Hendricks
vs. Thomas Publishing Co., 242 Fed. 37.
A decree awarding an injunction, damages and costs
in conformity herewith will be entered.
(Signed) D. C. WESTENHAVER, Judge.
February 3. 1923.
NEW BRADBURY AGENCIES
F. G. Smith Arrives Home From Successful
Southern Trip—New Factory Showroom
Being Completed—Both Haines & Co. Fac-
tories Busy Meeting Dealers' Demands
F. G. Smith, director of sales of the Bradbury
and Webster division of W. P. Haines & Co.,
Inc., Walton avenue and 138th street, New
York, arrived home last week from a very suc-
cessful Southern trip, during which he opened
up several new agencies for the Bradbury pianos
and player-pianos.
Work is now progressing at the factory in
New York on a most attractive wareroom ad-
joining the executive offices in which a com-
plete lino of Bradbury, W. P. Haines and Web-
ster pianos and player-pianos will be displayed
at all times.
T. L. Floyd Jones, president of the company,
stated to a representative of The Review this
week that he was very well pleased with the
volume of business which was being done by
them at the present time

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