Pastime Amusement Co. v. M. Witmark & Sons ( 1924 )

2 F.2d 1020 (1924)

PASTIME AMUSEMENT CO., Appellant,
v.
M. WITMARK & SONS, Appellee.

No. 2301.

Circuit Court of Appeals, Fourth Circuit.

December 20, 1924.

G. L. B. Rivers, of Charleston, S. C. (Hagood, Rivers & Young, of Charleston, S. C., on the brief), for appellant.

Thomas G. Haight, of Jersey City, N. J. (J. N. Nathans, of Charleston, S. C., William E. Arnaud, of Atlanta, Ga., and Nathan Burkan and Louis D. Frohlich, both of New York City, on the brief), for appellee.

Before WOODS, WADDILL, and ROSE, Circuit Judges.

ROSE, Circuit Judge.

The appellant was defendant below, and the appellee was plaintiff, and they will be so styled here. The facts in the case are fully set forth in the opinion of the learned District Judge in 298 F. 470, and need not be repeated. The defendant contends that (1) the plaintiff was not the proper party to maintain the suit; (2) that it had abandoned its right to obtain a copyright; (3) that the infringement was committed by an independent contractor for whose actions the defendant was not responsible; (4) that the part of the copyrighted composition actually played in appellant's place of amusement did not amount to a performance of it; (5) that it was not performed for profit; (6) that the plaintiff could not sue because, with reference to the copyright in question, it had made itself a party to a conspiracy to violate the Clayton and Sherman Anti-Trust Acts; (7) that under the circumstances of the case, the plaintiff was not entitled to a decree for $250 in lieu of actual damages; and (8) that defendant could not be required to pay plaintiff's attorney a counsel fee. It may be said in passing that, if the court below was justified in awarding any counsel fee at all, it is not contended that an excessive allowance was made. Every one of these contentions was fully considered in the opinion below. We are satisfied with the disposition of them there made, and further discussion of any of them is unnecessary. Affirmed.