Opinion
March 9, 1954.
Abeles Bernstein, New York City, for plaintiff.
Maxwell Okun, New York City, for defendants.
Plaintiff's motion for summary judgment under Fed. Rules Civ.Proc. 56, 28 U.S.C.A. (No. 27 — February 23, 1954) and defendants' motion for judgment on the pleadings under Fed. Rules Civ.Proc. rule 12(c) (No. 40 — February 23, 1954) are denied.
Defendants' motion for summary judgment under Fed. Rules Civ.Proc. 56 (No. 39 — February 23, 1954) is granted and the complaint is dismissed on the merits.
"In The Good Old Summer Time" having been first copyrighted and published on May 24, 1902, the mechanical reproduction thereof was in the public domain from that time on.
White-Smith Music Publishing Co. v. Apollo Co., 209 U.S. 1, 28 S.Ct. 319, 52 L.Ed. 655.
The right of anyone to mechanically reproduce it was not impaired by the subsequent 1909 revision of the copyright law, which specifically excluded compositions published and copyrighted prior to July 1, 1909.
35 Stat. 1075 § 1(e), 17 U.S.C.A. § 1(e).
M. Witmark Sons v. Standard Music Roll Co., 3 Cir., 221 F. 376.
The renewal of the copyright of the lyrics on May 23, 1929 and of the music on January 4, 1930 cannot, in the absence of any expression of Congressional intent so to do, be held to have created an author's control of mechanical reproduction, previously nonexistent.
Debates, 60th Cong. and H.R. Rep. 2222 on H.R. 28192.
The summary judgments recently granted in four cases in this district do not support plaintiff's instant motion because the copyright of each of the four compositions there involved was initially granted subsequent to July 1, 1909.
Shapiro, Bernstein Co., Inc. v. Remington Records, Inc., Civ. 80-268-copyrighted March, 1952; Oxford Music Corporation v. Remington Records, Inc., Civ. 80-269-copyrighted January, 1952; St. Nicholas Music, Inc. v. Remington Records, Inc., Civ. 80-270-copyrighted May, 1949; Meridian Music Corp. v. Remington Records, Inc., Civ. 80-271-copyrighted August, 1951.
Settle orders.