Republished decision, June 15, 1954.
APPEAL from a judgment of the Supreme Court in favor of plaintiff, entered October 20, 1953, in New York County upon a decision of the court on a trial at Special Term (VALENTE, J.).
Arthur F. Driscoll of counsel (Edward C. Raftery, Paul D. O'Brien and Milton M. Rosenblum with him on the brief; O'Brien, Driscoll & Raftery, attorneys), for appellant.
Lionel S. Popkin of counsel (William Klein with him on the brief; Klein & Lund, attorneys), for respondent.
Plaintiff recovered judgment for accumulated royalties under a letter agreement, dated September 14, 1917. Defendant appeals.
The nub of the case turns on the duration of the 1917 agreement. It contained no expressed term, but provided that defendant was entitled to publish an English adaptation of a German musical play, 'Maytime', and for this right defendant was to pay a royalty on each published copy of the play or selections from the play.
When the agreement was made Sam S. & Lee Shubert, Inc., apparently an affiliate of plaintiff's predecessor, held an annually renewable agreement from the German owner to reproduce an
English adaption of the play, together with the right to interpolate new musical numbers. At the expiration of the agreement or on default by the Shuberts, all rights would revert to the German owner. The musical play was a 'hit' in 1917, when the agreement in suit was executed.
Defendant was and is a well-known musical publisher. It faithfully paid the royalties due under the agreement until the copyrights entered in defendant's name expired in 1945. In 1946, defendant made an agreement with the author of the interpolated music, Sigmund Romberg, and renewal copyrights were taken out by Mr. Romberg, and assigned to defendant. Since the expiration of the earlier copyrights in 1945, defendant has declined to pay the royalties.
It is significant in evaluating the background for these arrangements that Mr. Romberg was retained by the Shuberts to perform his services. He was expressly hired on a salary basis for the purpose of composing the incidental music and songs, which have become the subject of this litigation. It is these songs and selections which have retained their popularity through the years. They were consequently the product of an employment arranged for and paid for by the Shuberts.
There can be no question that the Shuberts and the publisher could have agreed on any term for the payment of royalties. The period could have been less than the term of the copyright, for the term of the copyright, or for a period extending beyond the term of the copyright. Indeed, the parties could have agreed upon a lump sum payment, or installments, or for royalties of indefinite duration, in each case as consideration for the right to publish the musical selections, ...