Green v. Luby

NOYES, Circuit Judge.

This is an application for a preliminary injunction to restrain the defendant from publicly singing an alleged copyrighted song entitled “I’m a Bringing up the Family,” which song, it is alleged, was written as a number or part of a copyrighted dramatic sketch entitled “The Queen of the Vaudeville.”

The defendant contends, in the first place, that the sketch “The Queen of the Vaudeville” is a musical composition, and not a dramatic composition, within the meaning of the copyright law of 1909 (Act March 4, 1909, c. 320, 35 Stat. 1075 [U. S. Comp. St. Supp. 1909, p. 1289]). There is much force in this contention. The work is essentially a series of recitations and songs to be recited or sung by the same person dressed in different costumes. The action and dialogue in addition thereto are hardly sufficient to make a dramatic composition. Still the work is something more than a mere musical composition. The singer dresses in costumes to represent the different characters. There is a very little dialogue or “patter" — the latter being, apparently, the professional term. There is also a very little action. The singer gets out of a cradle. There is scenery, and lights are thrown upon the singer. I think the sketch may fairly be classified as a “dramatico-musical composition” within the meaning of the copyright act.

But'the fact that the sketch was improperly classified as a dramatic composition in taking out the copyright would not affect its validity. The copyright law expressly provides (section 5) that an error in classification shall not invalidate or impair a copyright. Moreover, the particular song in question — a number of the sketch — was copyrighted by the complainant Feist as a musical composition before the copyright of the sketch, and I do not understand that any question is raised as to the validity of such copyright.

Regarding, then, the sketch as a dramatic composition, the complainants have the exclusive right to publicly present it. Subdivision “d” of section 1 of the copyright law gives the exclusive right “to perform or represent the copyrighted work publicly if a drama.” And, regarding the song as a musical composition, the complainants have the exclusive right to publicly perform it. Subdivision “e” of said section gives the exclusive right “to perform the copyrighted work publicly for profit, if it be a musical composition.” It is not disputed that the complainants Green have the right to produce the song under the copyright to the complainant Feist.

The next’ question is one of infringement. The defendant admits that she sings the copyrighted song with musical accompaniment, but she says that she does so merely to mimic the complainant Irene Franklin Green. She contends that she gives impersonations of various singers, including said complainant, and, as incidental to such impersonations, sings the songs they are. accustomed to sing. The mimicry is said to be the important thing; the particular song, the mere incident. But I am not satisfied that, in order to imitate a singer, it is necessary to sing the whole of a copyrighted song. “The mannerisms of the artist impersonated,” to use the language of the defendant’s brief, may be shown without words. And if some words are absolutely necessary, still a whole song is hardly required. And if a whole song is required, it is not too much to say that the imitator should select for impersonation a singer singing something else than a copyrighted song.

Bloom v. Nixon (C. C.) 125 Fed. 977, is distinguishable in that in that case the chorus only of the copyrighted song was sung. Green v. Minzensheimer (decided by this court March 19, 1909) 177 Fed. 286, is distinguishable in that in that case the defendant imitated the singer without musical accompaniment, and the testimony as to just what she did was not clear.

A preliminary injunction may issue as prayed for, upon the filing by the complainants of a bond, with sufficient surety, in the sum of $2,000,-conditioned that the complainants pay all damages sustained by the defendant, in case it be held that the complainants are not entitled to an injunction in the final decree.