The opinion of the court was delivered by: CONGER
Action for copyright infringement and unfair competition.
Plaintiff is asking for a preliminary injunction enjoining defendant, pending the final hearing and determination of the case from infringing of its musical composition entitled 'I'm In The Mood For Love' and for incidental relief.
The complaint alleges (and there is no denial in the opposing affidavits) that prior to July, 1935 Jimmy McHugh and Dorothy Fields created and wrote an original musical composition entitled 'I'm In The Mood For Love'; that the said Jimmy McHugh and Dorothy Fields prior to July 10, 1935 duly assigned to plaintiff, a music publisher, the said musical composition and the right to secure copyright thereof in its name; that in July, 1935 plaintiff applied for copyright of the said musical composition and did succeed and did receive from the Registrar of Copyrights a certification of registration under date of July 12, 1935; that since on or about that date plaintiff has published said musical composition and has licensed its use mechanically by others; that since July 11, 1935 plaintiff has been and still is the sole proprietor of all the rights, title and interest in said musical composition.
Plaintiff contends and alleges that after July 11, 1935 defendant infringed said copyrighted musical composition by manufacturing and putting on the market, without consent of plaintiff, certain phonograph records, versions of plaintiff's musical composition under the titles of 'I'm In The Mood For Love', 'Mood For Love' and 'Moody Mood For Love', and which versions plaintiff claims were copies largely from plaintiff's musical composition.
There seems to be only one defendant here, Robert S. Weinstock, who conducts his business under the firm names and styles of Prestige Record Company and Prestige Musical Co.
Defendant is in the music publishing business and part of his business is the manufacturing and selling of phonograph records. Defendant admits that he did sell to the public the records complained of.
Plaintiff complains of the record placed on the market by Prestige Record Company bearing No. 703 and entitled 'I'm In The Mood For Love' which defendant alleges was a composition by James Moody and was recorded by him and his band.
In its moving papers plaintiff asks for a preliminary injunction against the further exploitation of this record. On the argument before me my recollection is that relief on this motion is only directed against those records that contain lyrics. This record is a reproduction of only instrumental music with no words. As a matter of fact the information before me is too meager to base an opinion as to the alleged infringement of plaintiff's song by this record.
I shall confine myself to a consideration of those alleged infringing records known as the Pleasure records with the titles:
'Mood For Love'- King Pleasure Vocal with Teacho and Band
'Moody Mood For Love'- King Pleasure Vocal with Teacho and Band
While an injunction is a powerful and extraordinary remedy, still there are times when its use is justified. In cases of infringement of copyright, an injunction has always been recognized as a proper remedy because of the inadequacy of the legal remedy- where the plaintiff has made a prima facie case in regard to the existence of the copyright and its infringement, temporary injunction will, as a general rule, be issued. American Code Co. v. Bensinger, 2 Cir., 282 F. 829.
The whole picture here indicates to me that plaintiff has made out a prima facie case of infringement of the lyrics of the chorus of its song by the lyrics in the so-called Pleasure records.
Plaintiff's song has had a great deal of success. Since its publication it has been used and featured in a number of outstanding motion picture productions. I can take judicial notice of the fact that ...