Waring v. WDAS Broadcasting Station, Inc.

57 Citing cases

  1. Flo & Eddie, Inc. v. Sirius XM Radio, Inc.

    827 F.3d 1016 (11th Cir. 2016)   Cited 5 times   3 Legal Analyses
    Discussing Waring, 194 A. at 634–35

    ” Id. “The magician usually wears a frock coat; surrounds himself with attractive female assistants; assumes a serious, wise and important attitude, but on close analysis the mixed drink performance is the old sleight of hand trick.” Id. Hoffman, relying inter alia on Waring v. WDAS Broadcasting Station , 327 Pa. 433, 194 A. 631 (1937), argued that “the stunt is a child of his brain, created by heavy investments of time and labor, and therefore is an intellectual production protected by the common law.” Id. at 55.

  2. Flo & Eddie, Inc. v. Sirius XM Radio, Inc.

    28 N.Y.3d 583 (N.Y. 2016)   Cited 6 times   1 Legal Analyses
    Concluding that Mercury Records overruled Whiteman, but solely in the context of anti-piracy

    that, because copyright laws were originally created to protect the written word, courts have been confronted with challenges in attempting to apply those laws to new or different forms of communication or expression (see Naxos, 4 N.Y.3d at 552, 797 N.Y.S.2d 352, 830 N.E.2d 250 ). Indeed, several of the cases cited in the immediately-preceding text above, as well as many others, have addressed what constitutes a general publication of a sound recording, such as would commit the recording to the public domain and divest it of common-law copyright protection. Federal statutes define "publication," but the definition only applies to works falling within the statutes themselves; pre–1972 sound recordings are not covered (see id. at 557, 797 N.Y.S.2d 352, 830 N.E.2d 250 ; 17 U.S.C. § 101 ). Despite this digression, publication is not at issue in our discussion of the certified question here.Several cases addressing New York common law cite the decision of the Pennsylvania Supreme Court in Waring v. WDAS Broadcasting Sta. , 327 Pa. 433, 194 A. 631 (1937). There, an orchestra sued a radio station for broadcasting the orchestra's records, despite a label on each record stating that it was not licensed for radio broadcast (see 327 Pa. at 436–437, 194 A. at 632–633 ).

  3. Flo & Eddie, Inc. v. Sirius XM Radio, Inc.

    2016 N.Y. Slip Op. 8480 (N.Y. 2016)

    Despite this digression, publication is not at issue in our discussion of the certified question here. Several cases addressing New York common law cite the decision of the Pennsylvania Supreme Court in Waring v WDAS Broadcasting Station (327 Pa 433, 194 A 631 [1937]). There, an orchestra sued a radio station for broadcasting the orchestra's records, despite a label on each record stating that it was not licensed for radio broadcast (see id. at 436, 194 A at 632-633).

  4. Flo & Eddie, Inc. v. Sirius XM Radio, Inc.

    229 So. 3d 305 (Fla. 2017)   Cited 3 times

    Id. The Eleventh Circuit also noted that Glazer referenced Waring v. WDASBroadcasting Station, 327 Pa. 433, 194 A. 631 (Pa. 1937), in which the Supreme Court of Pennsylvania held that a plaintiff orchestra had a common law right of performance that could be enforced in equity to prohibit a defendant radio station from publicly broadcasting a lawfully purchased recording of the orchestra's musical performance. Flo & Eddie, 827 F.3d at 1021 (discussing Waring, 194 A. at 634–35 ).

  5. Capitol Records v. Naxos

    4 N.Y.3d 540 (N.Y. 2005)   Cited 49 times   1 Legal Analyses
    Holding that New York's common-law protection for pre-1972 recordings continues until federal preemption occurs

    State courts then had to deal with the operation of this dual system of copyright protection. In Waring v. WDAS Broadcasting Sta. ( 327 Pa 433, 194 A 631), the plaintiff, a conductor and owner of an orchestra, had contracted with a phonograph company to produce recordings of the orchestra's performances to be sold to phonograph dealers and the public. To avoid interfering with a different contract the orchestra had for weekly radio broadcasts of live performances, the record labels contained a printed warning that they were "[n]ot licensed for radio broadcast."

  6. Ettore v. Philco Television Broadcasting Corp.

    229 F.2d 481 (3d Cir. 1956)   Cited 66 times
    Suggesting narrow construction where licensor was not "an experienced businessman" and had no "reason to know of the . . . potential" for new uses at the time he signed the relevant agreement

    In an article published in 41 Harv.L.Rev. 945 (1928) entitled "Equitable Servitudes on Chattels," Professor Chaffee advanced the theory that the principle of equitable servitude was applicable to personal and property rights of a sort not unlike those involved here. The Supreme Court of Pennsylvania in Waring v. WDAS Broadcasting Station, Inc., 1937, 327 Pa. 433, 194 A. 631, discussed infra, speaks of unfair competition. Unjust enrichment is referred to at a later point in this opinion.

  7. Gee v. CBS, Inc.

    471 F. Supp. 600 (E.D. Pa. 1979)   Cited 118 times
    Interpreting Pennsylvania law

    Our view that a Pennsylvania court would apply the doctrine to the specific chose in action involved in this claim ( i.e. Bessie Smith's artistic performance) is further supported by the Pennsylvania Supreme Court's statement that "At common law, rights in a literary or artistic work were recognized on substantially the same basis as title to other property." Waring v. WDAS Broadcasting Station, 327 Pa. 433, 439, 194 A. 631, 634 (1937). It is also important to determine which statute of limitations will apply.

  8. Capitol Records v. Mercury Records Corp.

    221 F.2d 657 (2d Cir. 1955)   Cited 63 times   1 Legal Analyses
    Applying Erie Railroad v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, and then making a choice of law under state law

    Judge Leibell in Jerome v. Twentieth Century Fox-Film Corp., D.C.S.D.N.Y., 67 F. Supp. 736, 742, affirmed, 2 Cir., 165 F.2d 784, said that a "victrola record cannot be copyrighted", citing Judge Hazel's opinion in Aeolian Co. v. Royal Music Roll Co., D.C.W.D.N.Y., 196 F. 926, 927, "While, under the provisions of the copyright law, such music rolls or records are not strictly matters of copyright, Congress in passing the enactment evidently intended to protect copyright proprietors in their right to their productions, and to give them an exclusive right to print, publish, and vend the same." In Waring v. WDAS Broadcasting Station, Inc., 327 Pa. 433, 194 A. 631, 633, it was admitted on all hands that the right claimed by an orchestra proprietor to prevent the sale of records of his performances was not the subject of protection under existing copyright laws. Since the Copyright Act does not deal with the protection of phonograph records of the performances of public-domain compositions by virtuosos, we have no basis for applying federal law.

  9. Leverton v. Curtis Pub. Co.

    192 F.2d 974 (3d Cir. 1951)   Cited 43 times
    Finding false light invasion of privacy where the Saturday Evening Post published a photo of a child who was nearly struck by a car next to an article about pedestrian carelessness in the role of accidents

    The Pennsylvania attitude is well analyzed by Feinberg. The Law of Privacy, 48 Col.L. Rev. 713, 714 (1948), "Misapplication of the privacy doctrine has occurred in Pennsylvania as well, in a lengthy Supreme Court concurring opinion which characterized a `name band's' interest in preventing unauthorized broadcasts of its recordings as a right of privacy (Waring v. W.D.A.S. Broadcasting Station, 327 Pa. 433 [ 194 A. 631]). However, although two later cases in the Common Pleas Court of Philadelphia County cite the opinion as authority, they are safer on their facts (Clayman v. Bernstein, 38 Pa. D[ist.] C. 543 and Harlow v. Bruno Co., 36 Pa. D[ist.] C. 101).

  10. White v. Kimmell

    94 F. Supp. 502 (S.D. Cal. 1950)   Cited 9 times

    A limited publication which communicates the contents of a manuscript to a definite group and for a limited purpose, and without the right of diffusion, reproduction, distribution or sale, is considered a "limited publication", which does not result in loss of the author's common-law right to his manuscript. Abernethy v. Hutchinson, 1824, 3 L.J. Ch. Reports 209; Prince Albert v. Strange, 1849, 2 De Gex S.M., 652, 41 Eng.Rep. (Reprint) 1171; Prince Albert v. Strange, 1849, 1 Mc. G. 25, 64 Eng.Rep. (Reprint) 293; Werckmeister v. American Lithographic Co., 2 Cir. 1904, 134 F. 321, 325, 68 L.R.A. 591; Jewelers' Mercantile Agency v. Jewelers' Weekly Publishing Co., 1898, 155 N.Y. 241, 49 N.E. 872, 41 L.R.A. 846; Kurfiss v. Cowherd, 1938, 233 Mo.App. 397, 121 S.W.2d 282; Waring v. WDAS Broadcasting Co., 1937, 327 Pa. 433, 194 A. 631; Berry v. Hoffman, 1937, 125 Pa. Super. 261, 189 A. 516. An early American case contains a very clear statement of the conditions which render a publication limited in nature: "The distinction between a public circulation of written copies, and a restricted or private communication of their contents, was, for some purposes, recognized before the use of printing. * * * But, except under special and unusual circumstances, an author who then parted with a manuscript copy gave to it the most public circulation of which it was capable.