Before SWAN, Chief Judge, and AUGUSTUS N. HAND and FRANK, Circuit Judges.
This is an appeal by the plaintiff from a judgment dismissing his complaint on the merits after trial to the court without a jury. The complaint sought rescission of a contract of sale of master phonographic recordings of portions of a jazz concert presented by the plaintiff, damages for breach of the contract, an accounting of profits, a permanent injunction, and attorney's fees in the amount of $3,000. Federal jurisdiction rests on diversity of citizenship. The district judge rendered an opinion, reported in 98 F.Supp. 906, and made detailed findings of fact and conclusions of law in conformity with his opinion. Only two of the findings of fact are attacked by the appellant. They will be discussed hereinafter.
Norman Granz is a well-known promoter and producer of jazz concerts under the designation "Jazz At The Philharmonic." One such concert he caused to be recorded in its entirety on a sixteen-inch master disc from which he re-recorded on six twelve-inch master discs that part of the concert constituting the rendition of two musical compositions entitled "How High the Moon" and Lady Be Good." These master discs, three for each composition, revolved at 78 revolutions per minute, and were usable in manufacturing commercial phonograph records of the same size and playable at the same speed as the master discs. Granz sold the master discs to the defendant pursuant to a contract dated August 15, 1945.*fn1 The contract required that in the sale of phonograph records manufactured from the purchased masters the defendant should use the credit-line "Presented by Norman Granz" and explanatory notes which Granz had prepared. Some time in 1948 the defendant re-recorded the musical content of the purchased masters on ten-inch 78 rpm masters from which he manufactured phonograph records of the same size and speed. Such records he sold both in an album and separately. Concededly, at first the album cover did not conform to the contract in that, although it bore the designation "Jazz At The Philharmonic" it did not contain the credit-line or the explanatory notes, but the court found that the cover was later corrected upon the plaintiff's demand. He found also that there was no deletion of music in the ten-inch 78 rpm records. In 1950 the defendant re-recorded the entire contents of the purchased masters on a ten-inch 33 1/3 rpm master and from this manufactured records of the same size and speed for retail sale.
The questions presented by the appeal are whether any right of the plaintiff was violated by the defendant: (1) by manufacturing and selling ten-inch 33 1/3 rpm records; or (2) by manufacturing and selling ten-inch 78 rpm records; or (3) by selling records singly instead of as part of an album containing both "How High the Moon" and "Lady Be Good."
On the authority of RCA Mfg. Co. v. Whiteman, 2 Cir., 114 F.2d 86, certiorari denied 311 U.S. 712, 61 S. Ct. 393, 85 L. Ed. 463, and a finding that the contract was one of sale rather than license, the district court answered the first question in the negative, 98 F.Supp. 906, 910. We agree with this conclusion and see no need to add to his opinion.
He also gave a negative answer to the third question, 98 F.Supp. 910-911. We adopt his reasoning and conclusion on this point also.
Determination of the second question turns upon findings of fact. Obviously a ten-inch record revolving at 78 revolutions a minute has a shorter playing time and a smaller content than a twelve-inch record revolving at the same speed. Findings 25 and 26 state that all that was deleted in the smaller record was audience reaction consisting of whistles, cheers and screams;*fn2 that there was no deletion of music, and the plaintiff's contribution to the original musical production was not changed or affected in any way; and, "Accordingly, when the defendant, at the plaintiff's insistence, corrected the album covers of the ten-inch 78 rpm records to conform to the agreement, he was not, as claimed, attributing to the plaintiff the work of some one else." The court based his finding that there was no deletion of music on his own listening to the records (exhibits 4 and 14 played in the court room) and on the testimony of Mr. Hammond, a musical expert called by the plaintiff. A perusal of this expert's testimony discloses statements patently at odds with the judge's finding.*fn3 Nor can we understand, after ourselves listening to the records, the judge's finding that nothing but audience reaction was omitted from the ten-inch records. Fully eight minutes of music appear to us to have been omitted, including saxophone, guitar, piano and trumpet solos. In our opinion the trial judge's finding that there was no substantial musical deletions is erroneous.
We are therefore faced with the question whether the manufacture and sale by the defendant of the abbreviated ten-inch records violated any right of the plaintiff. Disregarding for the moment the terms of the contract, we think that the purchaser of the master discs could lawfully use them to produce the abbreviated record and could lawfully sell the same provided he did not describe it as a recording of music presented by the plaintiff. If he did so describe it, he would commit the tort of unfair competition.*fn4 But the contract required the defendant to use the legend "Presented by Norman Granz," that is, to attribute to him the musical content of the records offered for sale. This contractual duty carries by implication, without the necessity of an express prohibition, the duty not to sell records which make the required legend a false representation. In our opinion, therefore, sale of the ten-inch abbreviated records was a breach of the contract. No specific damages were shown to have resulted.*fn5 As such damages are difficult to prove and the harm to the plaintiff's reputation as an expert in the representation of jazz concerts is irreparable, injunctive relief is appropriate.*fn6 Hence we think the plaintiff was entitled to an injunction against having the abbreviated ten-inch records attributed to him unless he waived his right. As already ready noted the district court found that the album cover of the shortened record was corrected "at the plaintiff's insistence," and consequently the defendant was not "attributing to the plaintiff the work of some one else." The only evidence we can discover to support the theory of waiver is the following bit of testimony by the defendant who was called as a witness by the plaintiff:
"As soon as I have received the letter from his [Granz's] attorney, probably about a couple of weeks later or month later, I called in my attorney and he said, What is Norman Granz's complaint, and he said he wanted to see his attorney, and he said he did not like the arrangement, and that was the question discussed, change the cover."
What this testimony means is far from clear. Even if Granz's attorney requested that the cover be corrected immediately and without waiting for the case to come to trial, we are not satisfied that this would necessarily operate as a waiver of Granz's right to an injunction, if sale of the abbreviated records under the legend "Presented by Norman Granz" constituted a breach of contract or the tort of unfair competition, as we have found it did. Whether he intended to waive all claims or whether that result would follow regardless of his intention depends upon what was said and done in the negotiations regarding correction of the cover. We think the case must be remanded for additional evidence on this point and a finding as to what, if anything, Granz did consent.
Dismissal of the complaint is affirmed with respect to sales of the ten-inch 33 1/3 rpm records and with respect to selling records singly. With respect to the sale of ten-inch 78 rpm records and the claim of attorney's fees the cause is remanded for further proceedings in conformity with the opinion. One-half costs of appeal are awarded the appellant.
FRANK, Circuit Judge, (concurring).
1. I agree, of course, that, whether by way of contract or tort, plaintiff (absent his consent to the contrary) is entitled to prevention of the publication, as his, of a garbled version of his uncopyrighted product. This is not novel doctrine: Byron obtained an injunction from an English court restraining the publication of a book purporting to contain his poems only, but which included some not of his authorship.*fn7 American courts, too, have enforced such a right.*fn8 Those courts have also enjoined the use by another of the characteristics of an author of repute in such manner as to deceive buyers into erroneously believing that they were buying a work of that author.*fn9 Those courts, moreover, have granted injunctive relief in these circumstances: An artist sells one of his works to the defendant who substantially changes it and then represents the altered matter to the public as that artist's product. Whether the work is copyrighted or not, the established rule is that, even if the contract with the artist expressly authorizes reasonable modifications (e.g., where a novel or stage play is sold for adaptation as a movie), it is an actionable wrong to hold out the artist as author of a version which substantially departs from the original.*fn10 Under the authorities, the defendant's conduct here, as my colleagues ...