Crumit v. Marcus Loew Booking Agency , 293 N.Y.S. 63 ( 1936 )

Valente, J.

Plaintiff seeks to restrain defendants from using in a radio broadcast a phonograph record of plaintiff’s performance. The record was made pursuant to contract with Decca Records, Inc. The contract or a copy is not annexed to the papers, but plaintiff claims that under it all Decca Records obtained was plaintiff’s services as a performer so that commercial- sound records could be manufactured in a form suitable for use upon home talking machines. The records bear upon the face a legend “ Not to be used for Radio Broadcasting.” There is no proof that the contract with Decca contained any such restriction as alleged by plaintiff nor that defendants knew the terms of the alleged licensing agreement with Decca, if any such existed, or even any of the other terms. The statement stamped on the record is not sufficiently explicit or connected with any license restriction to warrant the granting of a temporary injunction, whatever evidentiary bearing it may have upon the full presentation of the facts. The denial of a temporary injunction makes it unnecessary to pass upon the fundamental and novel question of law involved as to the general rights of a purchaser of a phonographic record of a performer to use this record for broadcasting purposes without special permission. It also leaves open. the question as to the rights in that respect of Decca Records, Inc., or the seller of records generally. The motion for injunction is denied. Order signed.