Edward B. Marks Music Corp. v. Jerry Vogel Music Co.

Comment by Charles Cronin:

This dispute does not involve the typical music infringement case claim that the defendant’s work substantially copied the expression of the plaintiff’s. The issue here is whether the work in question – a seemingly maudlin song, but with a paraprosdokian ending* — should be considered a joint work, in which case both authors enjoy equal rights to enforce, and benefit from, its copyright. Because the issue of joint authorship is so relevant to musical works, particularly vocal numbers, we have included this case in the MCIR.

This 1944 Second Circuit case is an appeal from the Southern District Court (NY) decision in a case with the same name (42 F. Supp. 859, 1942). The lower court case combines three claims, each having labyrinthine circumstances that the reader is encouraged to sort through on his own. The appeal dealt with only one of these, which involved the song, “December and May,” owned by both plaintiff and defendant, the copyright renewal of which was affected by the plaintiff alone.

The plaintiff originally owned the words to the song, which he sold to a publisher who engaged a musician to set them to music, and then registered the work. When the initial copyright term was expiring, the plaintiff (surreptitiously) renewed the registration in his words and assumed the music, which had been provided by the defendant, would not be simultaneously renewed, and thereby fall into the public domain. If his ruse were successful, he could prevent the defendant from any further publication of “December and May” comprising both the music and the words of the song.

Judge Learned Hand upheld the district court’s decision, which determined that the song was a joint work, despite the fact the authors of the words and music did not work together, or even know each other. Both intended their contributions to be complementary and result in a unique combinatorial work. Hoisted with his own petard, the plaintiff, hoping to enrich only himself, by renewing the copyright in his words, benefited the defendant as well by unwittingly and simultaneously renewing the copyright in the music.

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* Much along the lines of the plot of Donizetti’s Don Pasquale, in which a seemingly demure young bride, once married, turns into a virago, to the profound regret of her superannuated husband.

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Court Opinion: PDF