Herbert v. Shanley Co.
District Court, S.D. New York
In Equity. Suit by Victor Herbert and others against the Shan-ley Company. The plaintiffs are together the authors of a comic opera, “Sweethearts,” of which Herbert composed the music and the other three individual, plaintiffs wrote the words.
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In Equity. Suit by Victor Herbert and others against the Shan-ley Company. The plaintiffs are together the authors of a comic opera, “Sweethearts,” of which Herbert composed the music and the other three individual, plaintiffs wrote the words. This has been performed in New York and elsewhere, and the words and music together have been printed by the corporate plaintiff, G. Schirmer, Incorporated, which took out a copyright upon the whole opera and upon various pieces as musical compositions. The plaintiff Harry B. Smith also took out a copyright upon the libretto of the opera, in so doing…
1Opinion of the CourtLearned Hand, District Judge
(after stating the facts as above). [1, 2] That the opera was a dramatico-musical composition *345seems to .me to admit of no question; a performance need not, therefore, be ‘'for profit” to infringe, under the rule in Church Co. v. Hilliard, 221 Fed. 229, 136 C. C. A. 639, decided by the Circuit Court, of Appeals for the Second Circuit February 9, 1915. Furthermore, a performance in words and music alone infringed the dramatico-mu-sical copyright, for words and music alone may constitute a dramatic performance (Russell v. Smith, 12 Q. B. 217), and it did not matter that the. performance was only…
2Cases cited2 opinions
- Brady v. DalyCourt of Appeals for the Second Circuit · 1897
- John Church Co. v. Hilliard Hotel Co.Court of Appeals for the Second Circuit · 1915
3Cited by5 opinions
- Remick Music Corp. v. Interstate Hotel Co. of NebraskaDistrict Court, D. Nebraska · 1944
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- Robert Stigwood Group Limited v. O'ReillyCourt of Appeals for the Second Circuit · 1976
- The Robert Stigwood Group Limited, Plaintiffs-Appellants-Cross-Appellees v. John T. O'reilly, Defendants-Appellees-Cross-Appellants. Track Music, Inc., Plaintiffs-Appellants-Cross-Appellees v. Contemporary Mission, Inc., Defendants-Appellees-Cross-AppellantsCourt of Appeals for the Second Circuit · 1976