Opinion
October 27, 1942.
Julian T. Abeles and Leopold Bleich for plaintiffs.
S. Robert Zimmerman for defendants Kunkis et al.
Herman Block and Joseph Sawyer for defendant Red Star News Company.
Plaintiffs own, publish, advertise, and sell numerous copyrighted popular songs. Defendants have published, sold, and distributed magazines containing parodies in which they use the titles of some of plaintiffs' songs, but different words and no music. Presumably, such different words are supposed to be at least capable of being sung to the tunes of plaintiffs' songs, but no proof of that fact has been made. Expressly disclaiming any intention of claiming an infringement of their copyrights, and thus entitled to redress in the Federal courts only ( Condon v. Associated Hospital Service, 287 N.Y. 411, 416; Cohan v. Robbins Music Corp., 244 A.D. 697), plaintiffs claim that defendants' use of their titles constitutes unfair competition. It is plain to me, however, that no one desiring plaintiffs' songs would be misled into thinking that in purchasing defendants' magazines they are purchasing plaintiffs' songs, and I consequently am constrained by Gotham Music Service v. Denton Haskins Music Pub. Co. ( 259 N.Y. 86, 89) to dismiss the complaint, but without costs. (See, also, Hebrew Publishing Co. v. Scharfstein, 288 N.Y. 374.)
Enter judgment of dismissal accordingly.