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EDWARD B. MARKS MUSIC CORP. v. FOULLON

May 11, 1948

EDWARD B. MARKS MUSIC CORPORATION
v.
FOULLON et al.



The opinion of the court was delivered by: GODDARD

This is a suit by the plaintiff for alleged infringement of a copyright and for an accounting and royalties under Sections 1(e) and 25(e) of the Copyright Act of March 4, 1909, 17 U.S.C.A. § 1(e) and 25(e).

Subsequent to filing the complaint against defendants Foullon and United Masters, Inc., plaintiff filed an amended complaint containing identical allegations but which included Bard Record Company, Incorporated, as a defendant.

 The first cause of action alleges that the plaintiff has all right, title and interest in and to the copyright of the song 'Malaguena' and that the plaintiff has published the work or permitted the publication by license or otherwise in strict conformity with the provisions of the Copyright Act of March 4, 1909. The plaintiff then alleges that 'the defendants made or caused to be made a musical version and arrangement of the work entitled 'Malaguena"; that 'the said version and arrangement was and is being used by defendants for commercial purposes'; that 'the said musical version and arrangement was made without the knowledge or consent of the plaintiff'; that 'the said musical arrangement infringes upon the copyright of the plaintiff'.

 The second cause of action alleges that the defendants recorded or caused to be recorded the alleged infringing arrangement and version; that the plaintiff has filed a notice of sue of the said musical work upon parts of instruments serving to reproduce it mechanically; that defendants have not filed in the Copyright Office a notice of intention to use the copyrighted work in the manufacture of phonograph records; although plaintiff has requested reports as to the number of records manufactured, and payment of the statutory royalties due the plaintiff, the defendants have failed and refused to furnish reports and pay the royalties.

 The plaintiff's prayer for relief is that the defendants account and pay damage suffered by the plaintiff for the infringing arrangement and version; or, in lieu thereof, statutory damages and furnish a report and pay royalties due on the manufacture of the records, plus the usual injunctive relief against subsequent infringement.

 Motions for summary judgment by defendants and by plaintiff were denied by Judge Leibell on the ground that there were issues of fact which required a trial.

 The defendants, Foullon and United Masters, Inc. in their answer, although they admit that an arrangement and version was made and was being used for commercial purposes denied that the version and arrangement was made without the knowledge and consent of the plaintiff, or that it infringed the copyright of the plaintiff.

 The defendant's, Bard Record Company, Incorporated, answer is a general denial.

 The defendants, Foullon and United Masters, Inc. admit in their answer that there is owning to the plaintiff a certain amount of royalties. All defendants set up as a separate and distinct defense the existence of an alleged license agreement between plaintiff and defendant, United Masters, Inc., which appears to give the latter the right to use the words and music of the copyrighted song in the manufacture of records.

 The process in making a record to be sold at retail was as follows: The defendant, Foullon, as president of United Masters, Inc. engaged artists and a recording studio; the artists rendered a version and arrangement of the copyrighted composition which was recorded on a wax or acetate disc; this disc was then sent to an electroplating plant with whom United Masters, Inc. had contracted, and there a metal master, a mother and stampers were made. Upon the instruction of United Masters, Inc. the stampers were then sent to the defendant Bard and all the other equipment was left in the possession of the electroplating plant. Defendant Bard then used the stampers to press out the shellac record the consumer purchases. Neither the artists, the electroplating plant nor the recording studio are defendants.

 The plaintiff's first cause of action against all defendants appears to be based on the following premises:

 1. The right to make a version and arrangement of a copyrighted musical composition is exclusively that of the copyright owner;

 2. The alleged license relied on as a defense is not a separate and distinct contract but is merely a memorandum of the defendant, United Masters, Inc. use of the compulsory license provision of Section 1(e) of the Copyright Act of March 4, 1909.

 3. The compulsory license provisions of Section 1(e) does not include the right to make a ...


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