The opinion of the court was delivered by: MOTLEY
FINDINGS OF FACT AND CONCLUSIONS OF LAW
This case is before this court on the motion of plaintiffs for a preliminary injunction enjoining defendants from: 1) presenting or performing the Rock Opera "Jesus Christ Superstar" or any portion thereof; 2) advertising or promoting any such performances and directing that all advertisements or promotional or written materials advertising, promoting or mentioning such performances be delivered to the court for destruction; 3) printing and using the unique design of plaintiff MCA Records, Inc., and directing that all plates, molds and printed material containing such design should be delivered to the court for destruction, pending the outcome of the trial. Rule 65, Fed. R. Civ. P.; 17 U.S.C. § 101.
A hearing on the motion was held on April 28 and 29, 1971, following which a temporary restraining order issued pending the court's decision on this motion.
Rule 65, Fed. R. Civ. P. The motion for preliminary injunction is now granted, except that there is to be no destruction of materials delivered to the court until the final disposition of this action.
The Rock Opera "Jesus Christ Superstar" was composed by plaintiff Timothy Rice, who wrote the lyrics and libretto, and Andrew Lloyd Webber, who composed the music. The opera is the story of the last seven days in the life of Christ.
In accordance with an agreement between plaintiffs Rice and Webber and Leeds Music, Limited, the copyrights to all of the compositions, except one (King Herod's Song), were assigned to Leeds. Performance or dramatic rights in the opera vested in the two composers under the terms of the agreement. All of the compositions and the libretto of the opera have been copyrighted by Leeds Music, Limited. (Pls' Exh. A). The copyright registration for the opera is for copyright in "dramatic" or "dramaticomusical" compositions, pursuant to 17 U.S.C. § 5(d). The copyright certificates give an opera as an illustration of a "dramatico-musical" composition.
An agreement between the two composers and the plaintiff, Stigwood Group, Limited granted Stigwood the sole and exclusive license to perform the opera on the professional stage. It also provides that the subsidiary performance rights (e.g. repertory concerts, etc.) would be held jointly by Stigwood and the two composers. Accordingly, Stigwood intends to present the opera on the Broadway stage this Fall. After the Broadway opening, Stigwood will present the opera in London and other cities throughout the United States.
Plaintiff MCA Records, Inc. is a corporation engaged in the business of recording, producing and distributing phonograph records and tapes for sale. It owns the record label "Decca Records." Until April 1, 1971 Decca Records was a division of MCA, Inc. In or about November 1970, Decca received a license from Leeds Music, Limited pursuant to which it released a phonograph album and tape entitled "Jesus Christ Superstar", which contains the opera. Decca created an original pictorial design for use on the cover of its album and on the labels of the records. This design has been copyrighted by Decca. (Pls' Exh. 6). The design consists of two angels perched upon the two ends of a crescent with a corkscrew design at the bottom. Decca has the exclusive right and privilege to its copyright. Decca has engaged in a program of promoting and advertising the album and libretto, and has spent substantial sums on said promotion and advertising. It extensively utilizes its design in connection with such promotion and advertising. (Pls' Exhs. 3, 4, 5). The record has been highly praised in the press. (Pls' Exh. 2).
Defendant American Rock Opera Company admits in its answering affidavit that the Rock Opera "Jesus Christ Superstar" has met with phenomenal success. Musical selections from the opera are constantly played on both AM and FM radio stations, says defendant.
About seven or eight weeks ago, Michael O'Daniel and Sidney Dockser of the defendant American Program Bureau requested the American Society of Composers, Authors and Publishers (ASCAP) to issue an ASCAP concert promoter's license with regard to the musical compositions in the ASCAP repertory. Such a license permits the promoter to perform the non-dramatic musical compositions of ASCAP's members in consideration of specified license fees. In addition to requesting this license, O'Daniel and Dockser asked whether they could perform "Jesus Christ Superstar". They were told by John Kloberg, Manager of ASCAP's district office in Boston, that ASCAP could not issue a license for performances of compositions from that opera because such compositions are "dramatico-musical" compositions to which the ASCAP license does not extend. This was later confirmed by the New York office of ASCAP to Kloberg who, in turn, so advised O'Daniel and Dockser.
Thereafter, on or about March 4, 1971, ASCAP entered into a license agreement with American Program Bureau. Paragraph 1 of the license limits the grant to "non-dramatic renditions of the separate musical compositions copyrighted by members of" ASCAP. Paragraph 3 excludes oratorios, choral, operatic and dramatico-musical works. This paragraph reads:
"3. This license shall not extend to or be deemed to include:
(a) Oratorios, choral, operatic or dramatico-musical works . . . in their entirety or songs or other excerpts from operas or musical plays accompanied . . . by words . . . of the work from which the music is taken; but fragments or instrumental sections from such works may be instrumentally rendered without words, dialogue, costume, accompanying dramatic action or scenic accessory, and unaccompanied by any stage ...