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FIFTY-EIGHTH

ANNUAL REPORT OF THE

REGISTER OF COPYRIGHTS
FOR THE FISCAL YEAR ENDING JUNE 30, 1955

COPYRIGHT OFFICE

The Library of Congrtrr


WASHINGTON :19jS
I L. C . C a d Np. 1055017
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This report ig;.J$ preprint of thc
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Annual Repod. of$+&Liirarian
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yf Congress
for the fiscal year inding June 30, 1955
Contents
Volume of Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Universal Copyright Convention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Administrative Developments .................................
Compilation of the Copyright Lawa of the World ............
"Related Rights" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Design Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Sale of Records as Publication of Recorded Work . . . . . . . . . . .
Copyright Cataloging. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Subject Correspondence Control . . . . . . . . . . . . . . . . . . . . . . . . . .
Assignment Title Index: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Bulletins of Court Decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Revision of Fonns and Circulars . . . . . . . . . . . . . . . . . . . . . . . . . .
Legal Developments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
International Relations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Statement of G m Cash Receipts, Yearly Fees, Number.of Regis-
trations. Etc., for the Fiscal Years 1951-55 . . . . . . . . . . . . . . . . . .
Number of Articles Deposited During the Fiscal Years 1951-55 . . . .
Registration by Subject Matter Classes for the Fiscal Years 1951-55 .
Summary of Copyright Business, Fiscal Year 1955 . . . . . . . . . . . . . .
Assignments and Related Documents Recorded in Fiscal Years
1951-55 and Number of Individual Titles Specified (Chart) ....
Number of Musical Compositions for Which Notices of Use Were
Filed in Fiscal Years 1951-55 (Chart) . . . . . . . . . . . . . . . . . . . . . .
Registrations by Subject Matter Classes in the Fiscal Year 1927 and
Renewals by Subject Matter Classes in the Fiscal Year 1954 ....
Percentage of Renewals in the Fiscal Year 1954 to Registrations in
the F k a l Year 1927 (Chart) ..............................
Publications of the Copyright Office . . . . . . . . . . . . . . . . . . . . . . . . . .
The Copyright Office
Report to the Librarian of Congress by the Register of Copyrights
SIR: The work of the Copyright Office ;ight deposits, an increase of nearly 4
for the fiscal year ending ending June 30, percent over 1954.
1955, is summarized as follow: The activities of the Reference Division
in seeking compliance with the copyright
Volume of Bwiness law continued to result in a marked increase
Earned &venue during the fiscal year in the number of registrations and in the
1955 was the largest in the history of the value of materials obtained. These efforts
Copyright Office, surpassing the previous were responsible for 14,262 registrations for
high reached in the fiscal year 1954. Gross which $61,440 in fees and deposits valued
receipts amounted to $941,365.75, of which at $98,267 were received. I n 1954 the
$715.06 proved to be uncollectible, and compliance activity resulted in 11,887 reg-
$42,081.81 was refunded. Applied fees istrations, with fees and value of deposits
transferred into the Treasury of the United amounting to $50,000 and $61,106, re-
States were $881,017, an increase of spectively.
$9,553.50 over fiscal 1954.
The steady increase in copyright regis- Universal Copyright Convention
trations, which began in fiscal 1951, con- The history of the development of the
tinued in fiscal 1955 Registrations rose Universal Copyright Convention has been
from 222,665 in fiscal 1954 to 224,732 in recorded in the annual reports of the Reg-
fiscal 1955, an increase of 1 percent. Of ister of Copyrights for the last several years.
these registrations, 13,257 were for foreign During the past year the final achievement
works deposited under Public Law 84of the of the years of preparatory work was in
81st Congress, an increase of 1,188 or 10 sight. On June 16, 1955, there was de-
percent over last year. posited with UNESCO in Paris the instru-
There was also an increase in other activ- ment of adherence by the twelfth country,
ities such as the recording of assignments which, under the terms of the Convention,
and other documents and of notices of use, will bring the Convention into force on
the furnishing of certifications, and the September 16, 1955. The United States
supplying of copyright registration data. will then become, for the first time, a mem-
Three of the classes accounted for 76 per- ber of a system of international copyright
cent of all registrations made. Compara- protection that may achieve virtually
tive totals of these classts for the fiscal years worldwide adoption.
1954 and 1955 follow : The 12 countries among which the Con-
Clo~s 7954 7955 vention will become effective on Septem-
A (Books). ............... 51,763 54,414 ber 16, 1955, listed in the order of their
B (Periodicals). . . . . . . . . . . 60,667 59,448 ratification or accession, are Andorra,
E (Muaic) ...............
...........
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58,213
-57,527
170,643 171,389
Cambodia, Pakistan, Laos, Haiti, Spain,
Totals.. United States of America, Costa Rica,
The Copyright Office turned over to the Chile, Israel, German Federal Republic,
Library of Congress for addition to its col- and the Principality of Monaco. In de-
lections a total of 216,445 items from copy- positing its ratification, the United States,
1
2 REPORT OF THE REGISTER OF COPYRIGHTS, 1 9 5 5

pursuant to Article XI11 of the Conven- And it will extend to works of United
tion, gave notice that the Convention will States authorship the privilege heretofore
also be applicable to the territories of accorded to works of foreign authorship, of
Alaska, Hawaii, Puerto Rico, the Virgin importing, after ad interim registration,
Islands, and the Panama Canal Zone. up to 1,500 copies of English-language
Meanwhile, at the close of the fiscal year, books and periodicals fimt published
a number of other countries were in the abroad.
process of considering legislation or of
completing administrative action necessary
Administrative Developments
for adherence to the Convention, and ad- Compilation of the Copyright Laws of
ditional adherences during the ensuing the World. The Copyright Office con-
months were anticipated. tinued its cooperation with UNESCOand
On the same date that the Convention the United Kingdom Board of Trade in
goes into effect, September 16, 1955, the important and valuable undertaking
Public Law 743, approved August 31,1954, by UNESCOto publish an English-
will also become effective. This act will language compilation of the copyright laws
modify the United States copyright law and related decrees, orders, regulations,
(Title 17, United States Code) in the etc., together with the international copy-
particulan necessary to comply with the right convention and treaties, of all the
Convention. countries of the world. The Copyright Of-
Under the provisions of the Convention fice is contributing translations of the laws
and the new law, the works of nationals and related material for 20 countries and
of countries adhering to the Convention is assisting in the editorial work on the
and works fint published in such countries entire compilation. This compilation is
(except works by authors who are nationals expected to be completed and published in
or domiciliaries of the United States and looseleaf form during the next fiscal year.
any works fint published in this country) It is to be kept current thereafter by the
will be given copyright protection in the periodic issue of looseleaf supplements.
United States, if all published copies bear "Related Rights".-A draft interna-
the symbol @ together with the name of tional convention known as the "Rome
the copyright claimant and the year date Draft Convention," prepared under the
of first publication placed in such manner auspices of the Berne Bureau (the Bureau
and location as to give reasonable notice of the International Union for the Protec-
of claim of copyright. For works protected tion of Literary and Artistic Works) with
under the Convention, it will not be neces- the participation of the International
sary to make deposit or registration in the Labor Organization, is concerned with the
Copyright Office except as a prerequisite to problems of the so-called "related rights"
the institution of an infringement action (droits voisins), which would afford pro-
in the United States courts. tection for performing artists, phonograph
United States authors will obtain copy- record manufacturers, and radio and tele-
right protection in all the other member vision broadcasters. These problems have
countries of the Convention if, in respect been the subject of discussion in many
to those countries that would otherwise re- countries over an extended period. The
quire formalities such as deposit or regis- Copyright Office has been analyzing the
tration, all published copies of their works problems involved in this matter as they
hear the specified form of notice. relate to copyright and has arranged to co-
Public Law 743 will also make two operate in legal and factual studies as an
changes in our domestic law regarding essential prerequisite to further develop-
works by United States authors. I t will ment of pending proposals in the field of
permit the use of the symbol @ in the "related rights." In collaboration with
copyright notice for all classa of works. other departments of the Federal Govern-
REPORT OF THE REGISTER OF COPYRIGHTS, 1 9 5 5
3
merit, the Copyright Office has participated bar and the trade, and the acceptance of
in the organization of a panel Or repre- the dicta in these decisions might jeopard-
sentatives of industries and groups in the ize rights which have been thought to exist
United States most directly concerned with in a great many musical compositions. In
these problems, and two meetings of the an effort to settle this question, members
panel, under the chairmanship of the of the copyright bar have formed an ad hoc
Register of Copyrights, have been held. committee to develop proposals for re-
The Register also attended meetings held solving the legal issues on this point. The
in Berne and Geneva in March 1955 at Copyright Office has given assistance to
which the program for further develop- this committee by analyzing the legal prob-
ment of a convention was considered. lems involved and has been kept informed
Design Protection.-The Supreme Court of the committee's deliberations.
decision in the case of Mazer v. Stein, 347 Copyright Cataloging.-After an inten-
U. S. 201, discussed in last year's annual sive review by the Cataloging Division of
report, gave new impetus to the movement its rules for the cataloging and indexing of
among bar and industry groups to develop copyright registrations, a new code of rules
legislative proposals for the protection of was drafted and put into effect as of Jan-
nonfunctional useful designs. The inter- uary 1, 1955, to coincide with the start of
ested bar groups have organized a Design a new 5-year segment of the Office's card
Coordinating Committee to study the p m b catalog. Meanwhile, a comprehensive
lem. The Copyright Office has under- study of the content of the catalog entries
taken to collaborate with the Patent Office continues with the view of simplifying the
and the Coordinating Committee in pur- entries insofar as is consistent with the
suing this study in view of the overlap be- requirements for adequate records and
tween the areas of the copyright and patent indexes of copyright registrations.
laws and the broad field of design. A Subject Correspondence Control.-An-
comprehensive bibliography on the sub- other study begun during the year is de-
ject of design protection was prepared in signed to develop a system for the more
the Copyright Office by Miss Barbara effective control by subject of the Office's
Ringer, Head of the Renewal and Assign- correspondence (letters, memoranda, re-
ment Section of the Examining Division, ports, ctc.) of subject significance. As a
assisted by Mrs. K. M. Mott of that Sec- result of this study, a plan for the establish-
tion. It was distributed among the inter- ment and maintenance of a subject filing
ested groups. system has been proposed and is expected
Sale of Records as Publication of Re- to be put into operation during the next
corded Work.-The dicta in two recent fiscal year.
court decisions, Mills Music, Inc. v. Crom- Assignment Title Index.-A project to
zuell Music, Inc., 126 F. Supp. 54 (S. D. fill a gap in the title index to the assignment
N. Y. 1954), and Biltmore Music Corp. records of the Office for the period 1927
et al. v. Robert W. Kittinger (S. D. Calif., through 1937, when no such title index
Oct. 15, 1954), following a dictum in the was made, neared completion at the close
1950 decision in Shapiro-Bernstein B Co., of the fiscal year. Preparation of the in-
Inc. v. Miracle Record Co., Inc., 91 F. dex cards, numbering about 330,000, had
Supp. 473, have raised a problem of far- been completed and the remaining task of
reaching import. I n thesc decisions, re- integrating them into the permanent card
viewed more fully later in this report, the file was under way. The closing of this
judges made statements to the effcct that gap will facilitate searches of the assign-
the sale of phonograph records of a musical ment records by the Office staff and the
composition would constitute publication public.
of the composition. Heretofore, the con- Bulletins of Court Decisions.-Bulletin
trary has generally been assumed by the No. 29, the latest in the series of volumes
REPORT OF THE REGISTER OF COPYRIGHTS, 1 9 5 5
4
containing court decisions in copyright law was enacted. This was Public Law
cases, was compiled and sent to the printer 743, which has already been discussed in
before the end of the fiscal year. The new connection with the Universal Copyright
volume, covering the court decisions dur- Convention.
ing 1953 and 1954, is expected to come off H. R. 5876, introduced by Congressman
the press in the fall of 1955. The Office ' Emanuel Celler on April 27, 1955, in re-
has begun the preparation of a cumulative sponse to a communication from the
index of the court decisions published in Librarian of Congress to the Speaker of the
Bulletins 17 through 29, covering the years House, would authorize the Register of
1909 through 1954. Copyrights to accept the deposit of photo-
Revision of F o r m and Circulars.-With graphs in lieu of actual copies of certain
the Universal Copyright Convention and classes of works where the deposit of copies
the amendments of the copright law by is impractical because of their "size,
Public Law 743 becoming effective on weight, fragility or monetary value!' This
September 16, 1955, the Ofiice began the bill passed the House of Representatives on
important task of revising its application June 7, 1955, and awaits consideration by
forms and its infomation circulars to re- the Senate at the next session of the 84th
flect the changes to be brought about by Congress.
the Convention and the amendments to S. 125, introduced by Senator Everett
the law. I n preparing the new fofms and M. Dirksen on January 6,1955, would have
circulars, other revisions that experience directed the Register to accept an appli-
has shown to be desirable will be made. cation for registration of a claim to copy-
Legal right by the State of Illinois for an em-
- Developments
- blematic design. The Libraty of Congress
International relations.-In addition to suggested that the protection desired by the
the Universal Copyright Convention, two State of Illinois could be given more appro-
other important developments in our in- priately and more effectivclly by legislation
ternational copyright relations occurred along the lines of existing statutes protect-
during the past fiscal year. On October
ing emblems of the Red Cross, the Boy
21,1954, diplomatic notes were exchanged
between the United States and India con- Scouts, etc. The Senate Judiciary Com-
firming the continuation after August 15, mittee adopted this suggestion and a re-
1947, of the reciprocal copyright relations vised bill, giving the State of Illinois the
that had been established through the exclusive right to use thc emblem in inter-
United Kingdom before India became in- state commerce, was passed by the Senate
dependent; and a Proclamation was issued on July 30, 1955, and by the House on
by the President affirming that citizens of August 1, 1955, and was approved by the
India were entitled to the benefits of Title President on August 11, 1955, becoming
17 of the United States Code, including Public Law 339.
mechanical musical rights, after August 15, A number of bills to eliminate the so-
called "juke-box exemption" in Section
1947, as well as before that date. The
second noteworthy event in our intema- 1 (e) of the copyright law, which provides
tional relations was the deposit by Chile, on that the rendition of music on coin-oper-
March 14, 1955, of its ratification of thc ated machines shall not bc deemed a public
Buenos Aircs Convention of 1910, whereby performance for profit, were introduced
Chile joined with 14 other Latin American during the past year: S. 590 by Senator
countries and the United States as mem- Harley M. Kilgore and nine other Senators
bers of that Convention. on January 21, 1955; H. R. 4316 by Rep-
Legislation.-Although there were an kentative Frank Thompson, Jr., on Feb-
unusually large number of copyright bills ruary 23,1955; H. R. 6654 by Representa-
introduced in Congress during the past tive James C. Murray on June 5, 1955;
year, only one bill amending the copyright H. R. 6855 by Representative Philip J.
REPORT OF T I I E REGISTER OF COPYRIGHT'S, 1955

Philbin on Junc 15, 1955; and H. R.68% and H. R. 6970 by Representative Albert.
by Representative James J. Delaney on HaBosch on June 23, 1955. T ~ C Sbills
C
June 16, 1955. No action was taken' on could autoinatically return all vested copy-
any of these bills during thc first session of rights, with a few stated exceptions, to "the
the Congress. persons cntitlcd thereto." The bills would
The annual reports for the last 2 years also provide for the payment of claims,
made mention of a growing movement within certain limits, for sums received by
among the bar and trade groups concerned the Government for the use of these copy-
with copyright for a comprehensive revi- rights while vested. No action was taken
sion of the copyright law. A bill intro- on any of these bills during the first session
duced by Representative Frank Thompson, of the 84th Congress.
Jr., on January 20,1955, H. R. 2677, would Two bills by Representative Kenneth B.
provide for the appointment of a Commis- Keating on which no action was taken in
sion composed of 7 Presidential appointees the 83d Congress were rein t d u c e d by him
and 6 Members of Congress to conduct in thc 84th Congress on January 5, 1955.
studies and make recommendations for re- The first, H. R. 781, would provide for a
vision of the copyright law. A similar bill, statute of limitations on civil actions under
H. R. 5366, was introduced by Representa- the copyright law, and the second, H. R.
tive Charles C. Diggs, Jr., on March 30, 782, would revise the provisions of the
1955. Senator William Langcr also intro- present copyright law regarding the posi-
duced a similar bill, S. 1254, on March 2, tion of the copyright notice, one of the im-
1955, but a few days later he asked for and portant problems to be considered in the
received unanimous consent of the Senate general revision of the law. No action on
for indefinite postponement of considera- either of these bilb was taken.
tion of his bill. No action was taken on A bill, H. R. 6716, to provide for the
the Thompson or Diggs Bills. Meanwhile, institution of infringement actions or the
the American Bar Association's Committee filing of claims against the United States
on Program for Revision of the Copyright for copyright infringement was introduced
Law considered the problem and issued a by Reptesentative Shepard J. Crumpacker
report recommending that studies be con- on June 8, 1955. In his statement on the
ducted by the Copyright Office with the floor, introducing this bill, Reprwcntative
assistance of an advisory committee of Crumpacker pointed out that there is no
specialists and representatives of the vari- existing remedy for copyright proprietors,
ous groups and industries concerned to be as there is for holders of patents, when thc
appointed by the Librarian of Congress. Government infringes their works. No
These studies would servc as the basis for action was taken on this bill.
the development of proposals for consid- S. 1954 by Senator Henry M. Jackson
eration by the Congressional committees in and H. R. 6254 by Representative Clair
charge of copyright rnattcrs. In the Legis- Engle were introduced on May f 1 and 16,
lative Appropriation Act, 1956, Public Law 1955, respectively, for the purpose of
242, Congress approved a sum of $20,000 amending the organic act of Guam. These
to enable the Copyright Office to initiate identical bilis contain a provision extend-
studies as a part of a 3-year program for ing the copyright laws of the United States
the general revision of the copyright law. to this territory. No action was taken on
Several bills were introduced for the either bill.
purpose of divesting all German and Japa- H. R. 7300, introduced by Reprcscnta-
nese copyrights previously vested by the tive Frank Ikard on July 13, 1955, shortly
Alien Property Custodian and the Attorney after the dose of the fiscal year, proposed
General, namely: S. 2227 by Senator Kil- an amendment to the Internal Revenuc
gore on June 14,1955, H. R. 6730 by R e p Code to afford tax relief with respect tcl
resentative J. Percy Priest on June 8, 1955, sums recovered in infringement proceed-
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6 REPORT OF THE REGISTER OF COPYRIGHTS, 1955

ings. As originally introduced, this bill Southern District of California in Biltmore


related to both copyright and patent in- Music Corp., et al. v. Kittinger. The facts
fringements, but as enacted-Public Law in this case are complicatcd but in essence
366, approved August 11, 1955-4 related thcy appear to be as follows: A musician,
only to patent infringements. without authorization by the copyright
Litigation.-As previously indicated, two owner of a musical composition, made his
court decisions during the past year have own organ arrangcmcnt which hc recorded
created doubts as to the validity of the as- for the defendant rccord manufacturer.
sumption upon which the bar and trade He later rccorded the same arrangement
have acted for many years, that the sale of for another record manufacturer and as-
phonograph records of a musical composi- signed his rights in the arrangement to this
tion does not constitute publication of the second record manufacturer, who also ob-
composition. In a 1950 decision in the tained a license to use the original compo-
case of Shapiro-Bernstein 43 Co., Inc. v. sition. The second record manufacturer
Miracle Record Co., Inc., 91 F. Supp. 473 assigned all his rights to the plaintiff, who
(N. D. 111 ) ,Judge Igoe, in a dictum that registered a claim of statutory copyright in
was then unique, stated the view that the the arrangement and filed a notice of use.
sale of phonograph records of an uncopy- The plaintiff then sought to restrain the
righted musical composition was such a defendant from making and sclling further
publication of the composition as would copies of its records. In dismissing the
terminate the common law literary prop- complaint, the court held, without specify-
erty rights of the composer. ing the bases for its conclusions, that ( 1)
The first of the 2 recent decisions bear- the failure of the copyright owne? of the
ing on this question, Mills Music, Inc. v. original composition to file a notice of use
CromweN Music, Inc., 126 F. Supp. 54 precluded any recovery from the defendant
(S. D. N. Y. 1954), involved the song for his recording of that composition; (2)
"Tzena Tzena," which had been composed, the composer of the arrangement had au-
performed, and recorded in Israel but, as thorized the defendant to make and sell
the court found, had never been published. records of his arrangement; (3) the failure
The Israeli recording company, contrary of the plaintiff's assignor to file a notice of
to the composer's wishes, arranged to have use in respect of the arrangement precluded
records of the song made and sold in thc any recovery from the defendant for its
United States. The court held that the recording of the arrangement; and (4)
subsequent making and sale of records in since the arrangement had been published
the United States by the defendant com- (presumably by the sale of records) before
pany infringed the common law rights of copyright was secured, the claim of copy-
the composer's assignee since the records right subsequentIy registered was invalid.
previously sold had not been authorized by Another concept of long standing was
the composer. The court added, however, shaken by the decision of the Federal Court
the dictum that if the composer had of Appeals for the Second Circuit in
authorized the manufacture and sale of Shapiro, Bernstein and Co,, Inc. v. Jerry
phonograph records in this country, their Ir'ogel, 221 F. 2d 569, modified in 223 F. 2d
sale "would have constituted a publication 252. It has generally been thought that
of his composition * * * capable of de- collaboration between the composer and
stroying his common law copyright." The lyricist was necessary to constitute a joint
court added further that a statutory copy- work of music and words. In this case the
right, if previously obtained, would not be musical composition, "Twelfth Street Rag,"
affected by the mamfacture and sale of had been composed by Euday L. Bowman
records. as instrumental music alonc. He assigned
The second casc rclating to this question all his rights to a publisher who, several
is an unreported decision of Octobcr 15, years later, arrangcd to have James S.
1954, by the Federal District Court for the Sumner write lyrics to accompany the
REPORT OF THE REGISTER OF COPYRIGHTS, 1955 7
music. Thc opinion of the district court prietor of the motion pictuir: "Gaslight"
( 115 F. Supp. 754), reviewed in last year's against the broadcaster and pcrforrner of
annual report, held that the music and a radio and television parody of the mo-
lyrics together constituted a composite tion picture. The court granted an in-
work, not a joint work, with the conse- junction against the making of a film of
quence that the owner of renewal copyright the parody for television broadcast, hold-
in the lyrics was not entitled to use the ing that parody of the entire motion picture
music together with the lyrics. The cir- was not "fair use" of the copyrighted work.
cuit court, overruling the district court, The court considered that thc doctrine of
held that the music and lyrics together con- "fair use" would be more liberally con-
stituted a joint work, so that thc separate strued where the field of learning is con-
owners of the renewal copyrights were each cerned than where commercial exploitation
entitled to use thc music and lyrics together, and gain is involved.
with an accounting between the two copy- In last year's annual report, reference
right owners for such use of the joint work. was made to the case of E. B. Marks Music
Capitol Records, Inc. V. Mercury REG- Corp. v. Continental Record Co., 120 F .
ords, Inc., 221 F . 2d 657 (2d Cir. 1955), Supp. 275 (S. D. N. Y. 1954), in which
is a case of considerable interest with re- the district court held that a musical com-
spect to the scope of copyright under the position copyrighted in 1902 did not, by
Constitution. The plaintiff had acquired virtue of renewal in 1929 and 1930, obtain
from a German recorder, to whom the per- the mechanical reproduction rights pro-
forming artist had assigned his rights, the vided for in the law of 1909, for the reason
exclusive right to make and sell in the that such rights were in the public domain
United States phonograph records of a pcr- at the time of the first publication of the
formance of public domain music. The composition This opinion was upheld by
plaintiff, having made and sold such rcc- the court of appeals in 222 F. 2d 488 (2d
ords, sought to enjoin the defendant from Cir. 1955). A petition for writ of certiorari
making and selling copies of the same re- was filed with the United States Supreme
cording. The three circuit court judges Court by the plaintiff on July 7, 1955.
agreed (1) that the recorded performance A case of copyright interest in which a
of a performing artist is a "writing" of an petition for writ of certiorari was rejected
"author" under the Constitution and could by the Supreme Court during the past year
therefore be given protection by Congress is Warner Bros. Pictures, Inc. v. Columbia
under the copyright law; (2) that Con- Broadcasting System, Inc., et al., 206 F . 2d
gress has not provided for the protection of 945 (9th Cir. 1954), cert. denied, 348 U. S.
performing artists in the copyright law; 97 1 (March 28,1955). The dispute arose
and (3) that performing artists have out of the contention by the plaintiff
literary property rights in their perform- motion picture company that its acquisi-
ances under the common law. The major- tion of rights in the defendant Dashiell
ity of the Court held further, with Judge Hammett's copyrighted book The Maltese
Learned Hand dissenting, that the sale of Falcon included the exclusive right to the
records of the performance did not termi- use of the principal character under the
nate the performer's common law right, name of Sam Spade. Defendant author
acquired by the plaintiff, to restrain the had subsequently written a series of detec-
making and sale of unauthorized copies tive stories for broadcast which utilized the
of the recording. same principal character under the same
A novel and interesting case relating to name. The court dismissed the complaint,
the perplexing doctrine of "fair use" was holding that, in the absence of a specific
Loew's Inc. v. Columbia Broadcasting provision in the contract, his sale of the
System, Inc., 131 F. Supp. 165 (S. D. author's story did not preclude his using
Calif. 1955). This case involved an in- the same character and name in his later
Ilingement action by the copyright pro- works.