Buck v. Lester, 24 F.2d 877 (E.D.S.C. 1928)

J. N. Nathans, of Charleston, S. C., and Wm. E. Arnaud, of Atlanta, Ga., for plaintiffs.

E. A. Blackwell, of Columbia, S. C., for defendants.

ERNEST F. COCHRAN, District Judge.

This matter came up before me on hearing on infringement of copyright. The facts as admitted are as follows:

The plaintiff, Leo Feist, Inc., is the owner of the copyright, and the American Society of Composers, Authors and Publishers, represented by Gene Buck, its president, is the assignee of the public performance rights in the musical composition "Sleepy Time Gal."

The defendant, Sue E. Lester, is the manager and officer of the Rialto Theatré Corporation, which operates a picture theatre in the city of Columbia, South Carolina, under the name of Rialto Theatre. On May 6th, 1927, while performances were being given in such theatre the musical composition "Sleepy Time Gal" was played on a piano player from a perforated roll for the enjoyment of the patrons.

The defendants claim that no notice of copyright appeared on the perforated roll which was being used, and that the defendants had no notice and did not know that the said piece was copyrighted.

I do not think this a sufficient defense under the Copyright Act (17 USCA).

It is, therefore, ordered, adjudged and decreed: That the defendants, their officers, agents, servants, and all other persons acting under the direction, control, permission or license of the defendant, be and they hereby are perpetually enjoined and restrained from publicly performing for profit said musical composition entitled "Sleepy Time Gal," and from causing or permitting the said composition to be publicly performed for profit, in said theatre or any other place, owned, controlled, or conducted by the defendants, and from aiding or abetting the public performance of said composition in any such place or otherwise; and it is further ordered, adjudged and decreed: That the plaintiffs recover of the defendants the sum of two hundred and fifty ($250.00) dollars as damages and the further sum of fifty ($50.00) dollars as an attorney's fee and the costs as taxed.