Southern Music Pub. Co. v. Bibo-Lang, 10 F. Supp. 975 (S.D.N.Y. 1935)

Wattenberg & Wattenberg, of New York City (A. M. Wattenberg, of New York City, of counsel), for the motion.

Arthur L. Fishbein, of New York City, opposed.

WOOLSEY, District Judge.

I grant the within motion to dismiss the complaint on the ground that it does not state facts sufficient to constitute a valid cause of action against the moving defendant, but with leave to plaintiffs to amend their complaint within twenty days so as to allege the connection which they claim the defendant Engel-van Wiseman, Inc., has with the alleged infringement of the plaintiffs' copyright and the date on which such infringement by said defendant occurred.

I. The exhibit annexed to the amended complaint showing the defendant's allegedly infringing work shows a publication in 1934, copyrighted by the defendant in that year, in which the words only of the song "Home on The Range" are printed.

If the words of the song "Home on The Range" were an infringement of the plaintiffs' song, which I do not now determine, the publication by the defendant making this motion apparently came after the renewal of the copyright.

II. It is settled law that the so-called renewal of a copyright is a new grant of copyright, Silverman v. Sunrise Pictures Corporation, 273 F. 909, 19 A. L. R. 289 (C. C. A. 2), and therefore the copyright which was infringed by the moving defendant was a copyright granted in 1932 under the Act of March 4, 1909, as amended (17 USCA § 1 et seq.), which protects severally both the words and the music of a musical composition. Standard Music Roll Company v. F. A. Mills Company, 241 F. 360, 362 (C. C. A. 3). Consequently the case of M. Witmark & Sons v. Standard Music Roll Company (D. C.) 213 F. 532, affirmed 221 F. 376 (C. C. A. 3) is not applicable to the situation.

III. In order to save trouble and expense, the plaintiffs may submit, to the judge who may be sitting in motions at the time, their proposed amendment, if they make one, in the form of an additional paragraph to be added to the complaint with an appropriate number, together with an ex parte order permitting its filing as part of the complaint. This will make it unnecessary to rewrite the complaint.

Settle order on this motion on notice.