78 F. Supp. 686 (S.D.N.Y. 1948)
See Related Case: Kahn v. Feist (1948)
Complaining Work |
Defending Work |
|
Lionel Belasco and Massie Patterson |
Jeri Sullivan and Paul Baron “Rum and Coca-Cola” |
Comment by Charles Cronin
The District Court found that the music of defendant’s song, made popular through a recording by the Andrews Sisters, was so similar to that of plaintiff’s Calypso number as to constitute internal evidence of copying, even if access to plaintiff’s work had not been established — although it was in this case. The Second Circuit affirmed this decision (173 F.2d 288, 1949).
The plaintiff’s lawyer, Louis Nizer, published a boastful account of his role in the trial in My Life in Court (Garden City, N.Y., Doubleday [1961]). Nizer, a Columbia Law graduate, was a prominent trial lawyer in New York who wrote fiction in his spare time. His papers, including materials for his My Life in Court are at the Columbia Law Library. So are the papers of Simon Rifkind, the District Court judge who heard this case. Rifkind and Nizer overlapped at Columbia Law School; Rifkind graduated in 1925, Nizer in 1924. Perhaps they knew each other.
The audio clip of “Rum and Coca-Cola” is from the Decca recording by the Andrew Sisters with Vic Schoen and his orchestra. Kevin Burke, a photographer and Calypsophile in Cambridge, Massachusetts has created a website devoted to this song, and incorporated into it a video clip of Jeri Sullivan performing the song in a “soundie” from the 1940s — a charming forerunner to the crass “music videos” that emerged about forty years later (http://www.rumandcocacolareader.com).
Opinion by Judge Rifkind
Maurice Baron, holder of a copyright on a collection of twelve songs entitled “Calypso Songs of the West Indies,” of which the song “L’Annee Passee” is one, brings this infringement action against Leo Feist, Inc., Paul Baron, Jeri Sullavan and Morey Amsterdam, alleging that the music of the song “Rum and Coca-Cola,” copyrighted and published by Leo Feist, Inc., and allegedly written by Sullavan and Paul Baron, infringes upon “L’Annee Passee.”
Every material issue of fact was hotly disputed during the trial of the action and the musical experts for each side demonstrated, in their zealous partisanship, the doubtful function of the expert as an aid to the court in this class of litigation. Nevertheless, the inherent probabilities of the circumstances and the differing qualities of the testimony made the resolution of most of the issues of fact comparatively easy. The music itself lent itself quite readily to lay analysis and evaluation.
In Port of Spain, Trinidad, in 1906, Lionel Belasco, even then known as one of the foremost composers of the West Indies, composed the music and Creole lyrics of a song he entitled “L’Annee Passee.” In the years at the beginning of this century it was Belasco’s custom to have certain of his young friends come to his home in Port of Spain for musical gatherings. Belasco was the only member of the group with substantial musical training and he taught his friends the music he had composed, which they would play on such instruments as the guitar and the quatro. Belasco was a pianist. Two of this original group, Minerve and Clark, testified that in 1906 Belasco taught them “L’Annee Passee,” a song he said he had just composed; neither had heard the song before that time. Clark corroborated Belasco’s identification of other members of this early group, one of whom, named Monrose, died before the institution of this action. Another witness, Dr. Merrick, was also taught the song by Belasco in 1906, and was told by Belasco that he had just composed it. All three were acquainted with the incident that had occurred locally in 1904 or 1905, and which had inspired the lyrics. Another witness, Massie Patterson, remembers hearing Belasco play the tune at her home in Trinidad some time later. All these witnesses impressed the court as credible.
Belasco never made a written copy of “L’Annee Passee” and made no attempt to publish or copyright it until years later. The only performances the song had, to Belasco’s knowledge, were among his friends and at private gatherings.
The only evidence contradictory of the song’s stated origin is contained in the deposition of Philip Garcia, taken on the 28th and 29th of March, 1947, in Trinidad. The pertinent interrogatories are:
“13. Are you familiar with the melody of the musical work entitled “L’Annee Passee”, a photostatic copy of which is annexed hereto . . .? A. Yes.
“14. . . . state for what length of time you have known such melody, and when, where and in what manner and through what sources you have become familiar with such melody. A. I have known this melody since about 1893 when I was a little boy living on Henry Street. It was a popular song of that period.”
Garcia’s reputation was impeached by some of plaintiff’s witnesses. In light of the testimony of Minerve, Clark, Belasco and Merrick, especially with relation to the dating of the local incident, I perceive no reason for discrediting them and giving credence to Garcia’s deposition. No other witness heard of the song prior to 1906.
In 1941, Massie Patterson, a professional singer, communicated with Lionel Belasco in New York to acquire Calypso songs1 to add to her repertory. She knew Belasco as a well-known composer of that kind of music. Belasco complied with Miss Patterson’s request and played many of his songs for her. Thereafter, in the Summer of 1942, both went to plaintiff, Maurice Baron, a music publisher, who was interested in publishing that type of music. Mr. Baron made free transcriptions, over a period of time, of some of the songs Patterson and Belasco played and sang for him. A contract was signed in October of 1943, and, after publication on December 31, 1943, a copyright was secured in January of 1944 for the collection referred to — “Calypso Songs of the West Indies” — with Creole and English lyrics. The copyright application listed Maurice Baron as the arranger-transcriber, Patterson and Belasco as collectors of the Creole lyrics. The published copy bears on its cover the inscription “Calypso Songs of the West Indies by Massie Patterson and Lionel Belasco. Free Transcription by Maurice Baron.” To Belasco’s knowledge this was the first publication and copyright of plaintiff’s song.
Between December, 1942 and January, 1943 Rupert Westmore Grant, a professional Calypso singer, composed the words of a Calypso song entitled “Rum and Coca Cola.” This lyric was copyrighted in Trinidad, in February of 1943. Grant began to sing the song publicly in March of 1943, to a tune, he says, he learned in November, 1942 from Cyril Monrose, a cousin of Belasco, and one of the men identified by other witnesses as a member of Belasco’s early group of friends. Grant said Monrose played and sang a song for him called “L’Annee Pasee”, and Grant now identified both the melody and the lyrics as plaintiff’s song. Grant testified that he changed a few notes in the final phrase of the melody before adapting it to his lyrics.
“Rum and Coca Cola”, at least in part, was a ribald comment upon the social interrelationship existing between the American soldiers stationed in Trinidad and the natives. It became an overnight success and was sung a great deal by both natives and soldiers. A number of soldiers who had been stationed in Trinidad during this period testified to the tune’s extreme popularity and identified the words and music as virtually identical with defendants’ published composition. Grant attributed his failure to copyright the music to his belief that it belonged to Belasco. On cross-examination Grant admitted having heard a recording of a song entitled “Man Smart Woman Smarter” before composing “Rum and Coca Cola.” Some witnesses testified to a similarity between the music of that song and “Rum and Coca Cola.”
No other testimony than Grant’s was given as to the origin of the melody he used for his song, “Rum and Coca Cola”, except that defendants, by the introduction of many other songs, have attempted to show that the melody was a common one. None of these songs was as similar to “Rum and Coca Cola” as plaintiff’s song, and Grant’s testimony as to the source of the melody went unimpeached. For reasons hereafter to be stated, the existence of these other songs can have a bearing only on Grant’s credibility. I find that it has not been successfully impeached. It has been established to my satisfaction that the melody of “L’Annee Passee” was the one sung in Trinidad.
In September of 1943 defendant Morey Amsterdam arrived in Trinidad as an entertainer for the U.S.O. He stayed about a month, during a period when, according to uncontradicted credible testimony, “Rum and Coca Cola” was at the peak of its popularity. Amsterdam claims never to have heard the song, except that on one occasion he heard one soldier sing the words “Rum and Coca Cola kill the Yankee soldier” to a tune resembling in structure “It Ain’t Gonna Rain No More.” Amsterdam said he subsequently wrote lyrics of his own and, as part of his program, sang them to a tune resembling in structure, “It Ain’t Gonna Rain No More.”
Upon his return to the United States he offered the lyrics to defendant Jeri Sullavan, who was to appear as a singer in a New York night club. The testimony of Amsterdam and defendant Paul Baron, alleged co-author of the accused music, concerning the writing of the music, is replete with contradictions and improbabilities. In any event, their final position is that Amsterdam told Miss Sullavan that he had been singing the lyrics to the tune “It Ain’t Gonna Rain No More.” She, in turn, relayed that information to Paul Baron when she asked the latter to write the music for the lyrics. Baron thereupon wrote the music, as published, of “Rum and Coca Cola.” Amsterdam, they assert, never met Baron until after Miss Sullavan’s rendition of the song at the night club met with resounding success. At some point after that event, which assured the song a successful career, Baron asked Amsterdam for a demonstration of how the latter had sung the song in Trinidad, to make sure that the accents of Baron’s composition were correct. Amsterdam there upon gave an “unable” demonstration of the tune “It Ain’t Gonna Rain No More”, to which Baron paid scant attention, being by then assured that the accents were correct.
Paul Baron testified that his inspiration for the song had come from two strains he had in his head. One was a Spanish melody entitled “Si formas Tuvieran Mis Pensamientos” and the other was a Calypso entitled “King Jaja” The court is satisfied that the Spanish melody has no significant similarity to “Rum and Coca Cola.” When Mr. Baron’s original deposition was taken, “King Jaja” was not mentioned; it was added at the time he signed it, some months later. Baron claims he heard “King Jaja” sung many times in this country, and has seen the music. He places the time in the late thirties, but has no recollection of where he saw the music nor in what form it was written; he has no recollection of where he heard the music nor who sang it. No other witness at the trial had ever heard “King Jaja” in this country.
Popular music is a field where professional reputation is of utmost importance, and the practice is to split royalties equally between composer of music and author of lyric. The first copyright application, in September, 1944, listed Amsterdam as sole author of words and music; the first contract between Feist, Amsterdam and Baron, dated October 18, 1944, provided that Amsterdam receive two-thirds of the royalties, and that Baron receive no credit as composer. The first 200,000 recordings of “Rum and Coca Cola” made by the Andrews Sisters carried labels identifying Amsterdam as composer of both words and music, making no mention of Baron. After Sullavan and Paul Baron consulted a lawyer, the nature of which consultation Baron cannot recall, a new contract dated December 14, 1944, split the royalties three ways, among the three individual defendants, and thereafter Miss Sullavan and Baron were credited and listed as co-authors of the music, Amsterdam as author of lyric.
Five copies of plaintiff’s “Calypso Songs of the West Indies” were in the library of the Columbia Broadcasting System’s New York office during the time Baron allegedly wrote the music of “Rum and Coca Cola”; Baron was at the time employed by that company and frequently made use of the library.
The accused song bears the kind of similarity to plaintiff’s song which, by standards set up by the Court of Appeals of this Circuit indicates internal evidence of copying even in the absence of proof of access. Heim v. Universal Pictures Co., 2 Cir., 1946, 154 F.2d 480; Hein v. Harris, D.C.S.D.N.Y., 1910, 175 F. 875, Affirmed, 2 Cir., 183 F. 107. The uninterrupted sequence of identical notes is too great to admit of any other inference but copying. The rhythm, construction and the harmony of both songs are little short of identical. To the lay ear substantial identity is the only inference.2 See Arnstein v. Porter, 2 Cir., 1946, 154 F.2d 464. As further evidence of copying, the first copyrighted version of defendant’s song (which is not the accused song), bears even greater correspondence to “L’Annee Passee”, the chief difference being in the final phrase of the verse, which is the phrase Grant said he changed
Further exploration of the evidence is unnecessary. There is no doubt in my mind that Amsterdam brought both the words and the music with him from Trinidad, and it was in substantially that form that defendants’ song was published. Baron’s claim to authorship of the composition is a fabrication.
Mohamed Khan, holder of the copyright on Grant’s lyrics has already prosecuted a successful infringement action against Leo Feist, Inc., for plagiarism of the lyric of “Rum and Coca Cola.” Kahn v. Leo Feist, Inc., S.D.N.Y., 1947, 70 F.Supp. 450, affirmed 2 Cir., 165 F.2d 188.
In 1944, after publication of plaintiff’s book but before publication of defendants’ song, Belasco visited the office of Harry Link, an employee of Leo Feist, Inc. in charge of accepting songs for publication, on business unconnected with the issues in this case. On that occasion Link started to play for Belasco a recording of “Rum and Coca Cola.” Belasco asserted that the song was his, and finished it on the piano, playing “L’Annee Passee.” There is little dispute as to these facts. Link testified that he then asked Belasco for proof and waited in vain; Belasco never reappeared with the proof Link wanted. Belasco, corroborated by the testimony of Leighla Whipper, with whose collaboration Belasco had a later collection of songs published, testified that on numerous later occasions he, in her company, attempted unsuccessfully to see Link, but never found him available. Link never attempted, on his own, to get in touch with Belasco, but proceeded to have the accused song published, advising neither Paul Baron nor Amsterdam of Belasco’s claim.
The defendants have made an earnest effort to show that the song entitled “King Jaja” which bears a strong resemblance to “L’Annee Passee”, is a popular folk tune of the West Indies. I have concluded that Paul Baron never knew of that song, and that in fact the music of defendants’ “Rum and Coca Cola” was copied from the song of the same name popular in Trinidad. Whether “King Jaja” is part of the public domain can have no bearing, therefore, except as it might throw doubt upon Belasco’s authorship of “L’Annee Passee.” See Fred Fisher, Inc. v. Dillingham, D.C.S.D.N.Y., 1924, 298 F. 145. But I find that it does not. Even assuming that Belasco’s work is similar to “King Jaja”, and that the latter is authentic, I am satisfied that “L’Annee Passee” is Belasco’s original work and that Baron had no access to “King Jaja.” In these circumstances the existence of similar songs, whether in the public domain or not, is no defense to an infringement suit. It is immaterial that other songs are similar unless it casts doubt upon the originality (copyrightability) of plaintiff’s song or upon the fact that defendant copied plaintiff’s song. Both these issues having been established to the court’s satisfaction, “King Jaja” or any other song showing similarity to defendant’s or plaintiff’s song, becomes unimportant. Detective Comics, Inc. v. Bruns Publications, Inc., 2 Cir., 1940, 111 F.2d 432; Hartfield v. Peterson, 2 Cir., 1937, 91 F.2d 998; Wilkie v. Santly Bros., Inc., 2 Cir., 1937, 91 F.2d 978, affirmed on reargument, 2 Cir., 1938, 94 F.2d 1023; Sheldon v. Metro-Goldwyn Pictures Corp., 2 Cir., 1936, 81 F.2d 49, certiorari denied 298 U.S. 669, 56 S.Ct. 835, 80 L.Ed. 1392.
Even if “King Jaja” were crucial, its authenticity is doubtful. The only extant form of the song is in a booklet entitled “Land of the Calypso”, written by Charles Espinet and Harry Pitts and published in Trinidad in 1944. Neither Pitts nor Espinet were shown to have the kind of musical background a study of this kind would require. Pitts, in a deposition dated February 13, 1947 asserts that records of the booklet’s sale had long since been destroyed. Although Pitts, in his deposition, did not include “King Jaja” among what he considers to be the ten foremost Calypsos, its music, along with only two other songs, was printed in his booklet. The testimony of defendants’ witnesses who claim to have heard “King Jaja” in the 1930’s in Barbados, but cannot identify which of their friends sang it, is not impressive. Both Dr. Merick an outstanding expert on Calypso music, and Clark testified that they were acquainted with “King Jaja” but that it has always been known to them as a monotone chant, completely devoid of any melody.
The lack of specificity regarding the origin of this song, and the equivocal testimony of those who claim to know it cast grave doubt upon its authenticity. No witness testified to hearing the song before 1906. There is ample ground, for the reasons discussed, to disregard the existence of this song.
Defendants realize the weakness of their case based upon the theory that Paul Baron wrote an original song, and so have attempted to defeat the action by predicating their defense upon the proposition that the music of “L’Annee Passee” was not original with Balasco but was part of the public domain, that Maurice Baron’s copyright protects only his particular arrangement of the melody. This defense is entitled to succeed only if the melody as introduced by Grant, and sung in Trinidad, may be said to be in the public domain, since the facts show that this is the source of defendant’s song. The protracted and argumentative testimony concerning the behavior of Trinidad Calypso singers was of little help. The defense contended that although Calypso singers in their competitive calling never pirated lyrics from each other, they all drew on a common fund of folk melodies to which all felt equally free to set their lyrics. The plaintiff claimed that melody was as inviolate as lyric, and that each composed his own music. But the general practice, whatever it may be, is not determinative. Concerning the melody of “L’Annee Passee” itself, there has been much testimony that the melody was unknown before Belasco wrote it. It has not been shown that any of the other songs in evidence bears as great a similarity to “L’Annee Passee” as “Rum and Coca Cola” nor that any antedated 1906. Belasco has never authorized or condoned the publication of his song or its plagiarism. It has been admitted on trial that Paul Baron did not copy or derive inspiration from any of these songs (save “King Jaja,” which I have discounted), and even if he did, copying from an unauthorized copy is no defense to an infringement suit. Gilmore v. Anderson, C.C., S.D.N.Y., 1889, 38 F. 846. Further, there is the testimony of Grant that he consciously used Belasco’s song. None of this testimony in any way categorizes Belasco’s song as in the public domain.
Nor does the length of time elapsing between the composition and the copyrighting of Belasco’s song destroy his exclusive rights in it. There is no limit to the time a common law copyright may run, unless an act of dedication destroys it, 17 U.S.C.A. § 2 and annotations thereunder. That the law of Trinidad, where the song was written, does not differ from American law on the point, is not controverted. There has been no dedication in the case at bar. When “L’Annee Passee” was copyrighted in 1944 Belasco’s previously existing common law right was transformed into Baron’s statutory one, and there is no reason why it should not be protected. See, generally, Amdur, Copyright Law and Practice, Chap. II.
Thus far it has been established that Belasco wrote a song which defendants copied from one who knowingly used it. If that song was validly copyrighted by plaintiff, plaintiff must recover.
Defendants have cited the form of plaintiff’s application for copyright, the form of the Certificate of Registration itself, and the “Foreword” included in the collection, “Calypso Songs of the West Indies”, as indicative, first, of the fact that plaintiff’s song was understood by Maurice Baron, Belasco, and Miss Patterson to be, and that in fact it was, a song in the public domain, and second, of a limitation of the copyright protection to Maurice Baron’s individual arrangement and not to the basic melody.
On the first point, the testimony has convinced the court that the principals to the contract understood, and that in fact “L’Annee Passee” was, an original composition of Belasco. (Credit for co-authorship was understandably given Miss Patterson for her suggestions, her arranging of the interview with Maurice Baron, her translation of the Creole lyric, her work in the preparation, and her promised public rendition of the songs.) The first two paragraphs of the “Foreword”:
“The editor wishes to make acknowledgment to Miss Massie Patterson and Mr. Lionel Belasco, collectors of these authentic “Calypso” songs from the lips of the Lesser Antilles natives; . . .
“These songs, though emanating from various parts of the West Indies, are, nevertheless, familiar to the natives of Trinidad, Barbados, Martinique, Guadeloupe, Santa Lucia, etc.’
are satisfactorily explained by the commercial desirability of designating songs of this nature as authentic. In addition, there was considerable testimony that it was only about Belasco’s time, and largely through his efforts, that this kind of song actually became the music of these islands. No conflict was therefore shown between Belasco’s authorship of the song and its authenticity as a native song. In the booklet itself each song bears the legend “A ‘Calypso’ by Massie Patterson and Lionel Belasco.” There was ample credible testimony that at all stages of preparation of the collection and arrangement of the contract all the songs were recognized by the parties to the contract as original melodies composed by Lionel Belasco.
The application for registration was submitted by Maurice Baron on Form E, reserved for original musical compositions. But in the blank left for the name of composer the word “composer” was stricken, “arranger-transcriber” substituted, and Maurice Baron’s name inserted in the blank. In the blank left for ‘author of words’ is the inscription “Creole lyrics collected by Massie Patterson (U.S.A.) and Lionel Belasco (Trinidad, B.W.I.) — English version by Olga Paul (U.S.A.).” The Certificate of Registration bears substantially the same listing of credits.
If the copyright application and certificate had designated Belasco the author of the song here in issue, judgment on all the evidence would go to plaintiff, since the evidence bears out Belasco’s authorship and defendants’ copying. I do not consider these documents sufficiently persuasive, under the circumstances, to negate that authorship. Only if in some way they estop plaintiff from asserting such authorship, or by their nature limit the rights now asserted can these documents affect the disposition of the case.
While there is language in the rules of the Register of Copyrights indicating the desirability of naming the author of a work, the language is clearly not mandatory. Rules 31 and 32, 17 U.S.C.A. following section 53,3 Amdur, supra, p. 435. It is true that neither the certificate nor the application designates Belasco the author of the music; but no author at all is designated, nor is there any requirement that there be one named. Since there is no requirement that the name of the author be included in a copyright application, and since neither the certificate nor the application characterizes the collection of songs as public domain material, the only force of the use of such terms as “arranger-composer” and “Creole lyrics collected by” could have is as a rebuttable basis for a factual inference of unoriginality. In the light of the other evidence, already discussed, this inference cannot be drawn. § 55 of the Copyright Act, 17 U.S.C.A. 55, provides that the certificate of copyright registration “shall be admitted in any court as prima facie evidence of the facts stated therein”. Such fact may, therefore, be controverted by plaintiff, it would seem, no less than by defendant, especially when the words therein are relied upon to defeat the claim of valid copyright. Nothing in the Act nor in any authority pointed out by defendants suggests that the characterization of Maurice Baron as the arranger-composer may estop plaintiff from proving the originality of the composition. The courts, in their interpretations of the requirements of the Copyright Act, have shown a tendency to deal liberally with those thought entitled to its protection, in accordance with the broad purpose of that legislation, Washingtonian Pub. Co. v. Pearson, 1939, 306 U.S. 30, 59 S.Ct. 397, 83 L.Ed. 470; United States v. Backer, 2 Cir., 1943, 134 F.2d 533; Campbell v. Wireback, 4 Cir., 1920, 269 F. 372; Patterson v. J. S. Oglivie Pub. Co., C.C., S.D.N.Y., 1902, 119 F. 451.
In any event I should hesitate to insist on a rigorous adherence to form in light of the defendants’ position. There has been no assertion that defendants were misled by plaintiff’s certificate, nor was there any contention that they believed their published and copyrighted song to be an arrangement of a public domain melody. On the contrary, the contended, in the face of overwhelming evidence of copying, that the song was original with Paul Baron, and made no attempt to investigate the claim made by Belasco before publication that the song was his.
The evidence clearly establishes infringement of plaintiff’s copyright, and judgment must go for plaintiff. Reference will be had to a master on the issue of damages.
Footnotes
1 A Calypso song is a song distinguished by a certain form, rhythm, and narrative style, apparently indigenous to the Island of Trinidad.
2 This identity exists between the verse of “L’Annee Passee” and the verse of “Rum and Coca Cola”, the only parts of such song in issue. Testimony established that the chorus of “Rum and Coca Cola” is merely an obligato of the verse.
3 References are to the Copyright Act before the 1947 codification, since all rights in this case matured before 1947.
Kahn v. Leo Feist, Inc. 165 F.2d 188 (C.A.2 1948)
Related Case: Baron v. Leo Feist (1948)
Complaining Work |
Defending Work |
|
Mohammed H. Kahn “Victory Calypsoes” |
Leo Feist “Rum and Coca-Cola” |
Opinion by Judge Augustus N. Hand
This is a suit to enjoin infringement of the copyright of the plaintiff Khan in the song ‘Rum and Coca-Cola,’ of which the following is the text:
‘Rum and Coca-Cola (By Invader)
Since the Yankees came to Trinidad
They have the young girls going mad
The young girls say they treat them nice
And they give them a better priceThey buy rum and coca-cola
Go down Point Cumana
Both mother and daughter
Working for the Yankee dollar.I had a little mopsy the other day
Her mother came and took her away
Then her mother and her sisters
Went in a car with some soldiers
They buy rum and coca-cola etc.There are some aristos in Port-of-Spain
I know them well, but I won’t call names
In the day they wouldn’t give you a right
But you can see them with the foreigners
late at night.A couple got married one afternoon
And was to go to Mayaro on a honeymoon
The very night the wife went with a Yankee lad
And the stupid husband went staring mad.Inspector Jory did a good job
At St. James he raid a recreation club
There was carrying on the club as a brothel
The condition in which he found the girls
I cannot tell.’
The defendants’ song contained the following stanzas which are practically identical with the first stanza of the plaintiff’s song:
‘Since the Yankee came to Trinidad
They got the young girls all goin’ mad
Young girls say they treat ‘em nice
Make Trinidad like Paradise.’‘Drinkin’ Rum and Coca Cola
Go down ‘Point Koomahnah’
Both Mother and Daughter
Workin’ for the Yankee Dollar.’
The four lines last quoted were sung as a chorus in each song and in form and substance are almost identical.
Judge Byers, before whom the suit was tried, found on substantial evidence that one Rupert Grant, a native of Trinidad, composed the lyrics and words of the song ‘Rum and Coca-Cola’ during February 1943 and that on or about March 1, 1943 Grant assigned to the plaintiff in Trinidad the right to procure a copyright, who thereupon procured a copyright of a booklet containing the song entitled ‘Victory Calypsoes.’ Judge Byers also found that the plaintiff became the owner of the song and procured the copyright therefor in accordance with the provisions of the British Copyright Law of 1911, the particular clauses of which are set forth in the margin FN1 and also in accordance with the provisions of the Ordinances of Trinidad, the pertinent clauses of which are similarly set forth. FN2
The Judge also found that on or about May 1, 1945, the plaintiff as copyright owner procured from the Copyright Office of the United States a certificate for ad interim copyright of the booklet containing the song and that on or about June 19, 1945, the plaintiff obtained a United States copyright covering the booklet as originally copyrighted in Trinidad.
The Acting Colonial Secretary of Trinidad certified to receipt of three copies of the booklet ‘Victory Calpysoes’ which had been produced in accordance with the requirements of Section 3 of the Trinidad Copyright Law. While it is argued on behalf of the defendants that under Section 3 of the Trinidad Ordinances these copies should have been delivered to the Colonial Secretary by the printers, we think that Judge Byers properly held in his opinion that the plaintiff had mailed the copies on behalf of the printers and that the latter could act through Khan as their agent in making the delivery.
The assignment of the song and of the right to copyright it made by Grant to Khan in Trinidad on or about March 1, 1943, was oral, but later Ellis reduced the assignment to writing, as appears in Plaintiff’s Exhibit 17, which we set forth in the margin, FN3 and Grant executed it.
The written agreement by Grant dated April 16, 1945, confirmed the plaintiff’s proprietorship in the song that entitled him to the protection of the copyright laws of the United States. FN4 Defendants contend that the assignment by Grant to the plaintiff was invalid because it was not made in writing at the time of oral agreement therefor. But the writing, like the memorandum of an oral agreement under the statute of frauds, FN5 we regard as sufficient to satisfy the British Copyright Law by confirming the prior oral assignment.
In December 1944 the defendants obtained a United States copyright for their song ‘Rum and Coca-Cola’ in the name of Amsterdam and later in the joint names of Amsterdam and the other individual defendants. Two of the stanzas of this song, as we have already said, were identical with those copyrighted in Trinidad by the plaintiff. Though the music for the defendants’ lyrics was composed by Baron, the words and music of defendants’ song were copyrighted as a whole. So far as Baron cooperated in the infringement of those lyrics which were identical with verses copyrighted by plaintiff, Baron was an infringer, as well as Amsterdam who furnished the lyrics, and Leo Feist, Inc., the publisher. The extent of Baron’s liability as a contributor for any profits that have been realized through the infringement of plaintiff’s verses will have to be determined on the accounting which has been ordered.
Defendants argue that the alleged infringing lyrics were not subject to copyright by Grant because they had become part of the public domain, but the trial judge found that Grant was the author upon the basis of what must be regarded as substantial evidence and we can discover no justification for reversing the finding.
Defendants further contend that the English Copyright Act and the applicable Trinidad Ordinances invalidated any assignment by Grant to Khan that was not in writing and executed at the time the latter received a conveyance of Grant’s rights. As we have already said, the requirement of the Copyright Act that an assignment be in writing was satisfied by the written confirmation of the prior oral assignment by Grant to Khan.
The English decisions FN6 on which the defendants rely are inapplicable to the case at bar and do not affect the rights of the plaintiff. We however have found no controlling decision invalidating an oral assignment which has been confirmed by a later writing.
Clementi v. Walker and Chappell v. Purday, supra, turned on the holding of the court that the copyright statute of Queen Anne did not extend protection to foreigners where there had been publication by third parties in England before the execution of a written assignment. In each case there had been publication abroad by a foreign author and importation into England prior to a later assignment in writing to the plaintiff. It was held that in such circumstances there was a dedication to the public which prevented a subsequent copyright protection in England. It is to be remembered that these two decisions preceded the enactment of an international copyright law and dealt with the rights of Englishmen to copy foreign writings which had been published in England before any copyright had been perfected in that country.
In the Jude decision as assignment was not involved, but only a license. In Performing Right Society the question was whether an assignment of literary property to be acquired in the future transferred more than equitable rights to future copyrighted property and it was held that the legal title to such copyrighted property remained in the assignor. We think the decision has no bearing on the case before us. Nicol v. Barranger held that a plaintiff who had no title to a copyright at law or in equity at the time when he commenced his action could not secure relief in that action by means of a title subsequently acquired, but must discontinue and begin another suit after obtaining an assignment.
The defendants further attack the plaintiff’s song and the suit to enforce his copyright because of its alleged immoral tendencies. It seems exaggerated to hold that the rather cheap and vulgar verses would tend to promote lust. We hold that Judge Byers properly refused to grant a dismissal of the suit on such a ground.
The defense of laches in bringing suit also interposed is clearly without merit.
Judgment affirmed.
Footnotes
1 ‘1.- (1) Subject to the provisions of this Act, copyright shall subsist throughout the parts of His Majesty’s dominions to which this Act extends for the term hereinafter mentioned in every original literary dramatic musical and artistic work, if-
‘(a) in the case of a published work, the work was first published within such parts of His Majesty’s dominions as aforesaid; and ‘(b) in the case of an unpublished work, the author was at the date of the making of the work a British subject or resident within such parts of His Majesty’s dominions as aforesaid;
‘(2) For the purposes of this Act, ‘copyright’ means the sole right to produce or reproduce the work or any substantial part thereof in any material form whatsoever, * * *
‘(3) For the purposes of this Act, publication, in relation to any work, means the issue of copies of the work to the public, and does not include the performance in public of a dramatic or musical work, the delivery in public of a lecture, the exhibition in public of an artistic work, or the construction of an architectural work of art, but for the purposes of this provision, the issue of photographs and engravings of works of sculpture and architectural works of art shall not be deemed to be publication of such works.
‘5.- (1) Subject to the provisions of this Act, the author of a work shall be the first owner of the copyright therein:
‘Provided that-
‘(2) The owner of the copyright in any work may assign the right, either wholly or partially, and either generally or subject to limitations to the United Kingdom or any self-governing dominion or other part of His Majesty’s dominions to which this Act extends, and either for the whole term of the copyright or for any part thereof, and may grant any interest in the right by licence, but no such assignment of grant shall be valid unless it is in writing signed by the owner of the right in respect of which the assignment or grant is made, or by his duly authorized agent;
‘27. The Legislature of any British possession to which his Act extends may modify or add to any of the provisions of this Act in its application to the possession, but, except so far as such modifications and additions relate to procedure and remedies, they shall apply only to works the authors whereof were, at the time of the making of the work, resident in the possession, and to works first published in the possession.
‘31. No person shall be entitled to copyright or any similar right in any literary, dramatic, musical, or artistic work, whether published or unpublished otherwise than under and in accordance with the provisions of this Act, or of any other statutory enactment for the time being in force, but nothing in this section shall be construed as abrogating any right of jurisdiction to restrain a breach of trust or confidence.
2 ‘1. This Ordinance may be cited as the Copyright Ordinance.
‘2. In this Ordinance- “infringing’ when applied to a copy of a work in which copyright subsists, means any copy, including any colourable imitation, made or imported in contravention of the provisions of this Ordinance;
‘3. Three printed or lithographed copies of the whole of every book, * * * which shall be printed or lithographed in the Colony * * * shall, within one month after the day on which any such book shall first be delivered out of the press, and notwithstanding any agreement (if the book be published) between the printer and the publisher thereof, be delivered free of any charge, claim, or demand whatsoever by the printer, bound, sewed, or stitched together, and upon the best paper on which the same shall be printed or lithographed, to the Colonial Secretary. * * * The Colonial Secretary shall thereupon give a receipt in writing for the copies so received.’
3 ‘Know All Men By These Presents that I, Rupert Grant, of Port of Spain, Trinidad, have heretofore assigned and do, by these presents, assign to Mohamed Khan of Port of Spain, Trinidad, his heirs, executors, administrators and assigns, all my right, title and interest in and to the words and lyrics of a certain song created and written by me entitled ‘Rum and Coca-Cola’ including the right to apply for a copyright thereof in Trinidad, the United States of America and any other country in the world and complete and unrestricted rights of publication, private and public performances and mechanical and electrical reproductions or otherwise.
‘The transfer of title to the said song and the rights herein granted are subject to the terms of an agreement defining the respective interests of the undersigned, Mohamed Khan, and others in the proceeds of a claim and suit to be brought for infringement of the copyright of the said song obtained by Mohamed Khan in Trinidad. This assignment is an affirmation of a previous oral assignment of said rights to Mohamed Khan but does not, in any way, change or affect the respective interests of the undersigned, Khan and others as expressed in writing in an agreement with Emil K. Ellis, Esq., attorney of 1270 Sixth Avenue, New York, N.Y.
‘In Witness Whereof, I do hereby set my hand and seal this 16th day of April, 1945.
‘(Signed) Rupert Grant
‘Emil K. Ellis
Witness’
4 Section 8 of the Act of March 4, 1909 governs United States copyrights taken out by alien authors or proprietors and reads as follows:
Ԥ 8. Authors or proprietors, entitled; aliens. The author or proprietor of any work made the subject of copyright by this title, or his executors, administrators, or assigns, shall have copyright for such work under the conditions and for the terms specified in this title. The copyright secured by this title shall extend to the work of an author or proprietor who is a citizen or subject of a foreign State or nation only:
‘(a) When an alien author or proprietor shall be domiciled within the United States at the time of the first publication of his work; or
‘(b) When the foreign State or nation of which such author or proprietor is a citizen or subject grants, either by treaty, convention, agreement, or law, to citizens of the United States the benefit of copyright on substantially the same basis as to its own citizens, or copyright protection, substantially equal to the protection secured to such foreign author under this title or by treaty; or when such foreign State or nation is a party to an international agreement which provides for reciprocity in the granting of copyright, by the terms of which agreement the United States may, at its pleasure, become a party thereto.
‘The existence of the reciprocal conditions aforesaid shall be determined by the President of the United States, by proclamation made from time to time, as the purposes of this title may require.’17 U.S.C.A. § 8.
5 Williston on Contracts, Revised Ed., § 590.
6 Clementi v. Walker, 2 Barnewall & Cresswell’s Reports 861; Chappell v. Purday, 4 Younge & Collyer 485; In Re Jude’s Musical Compositions (1907) 1 Ch.Div. 651; Performing Right Society, Ld. v. London Theatre of Varieties, Ld., Law Reports, Appeal Cases 1924, p. 1; Nicol v. Barranger, English Ch. Div., Court of Appeal (April 14, 1921), MacGillivray Copyright Cases (Eng.) 219.