Tams-Witmark Music Library, Inc. v. New Opera Co.
New York Court of Appeals
I. Irrespective of the validity or invalidity of plaintiff’s copyright, defendant’s agreement to pay royalties in respect of a period prior to termination of the license is enforcible. There was no failure of consideration because in fa.ct defendant received everything for which it bargained, irrespective of the validity of the copyright, and enjoyed substantial benefits under the contract. (Marston v. Swett, 66 N. Y. 206; Hyatt v. Bale Tile Mfg.
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I. Irrespective of the validity or invalidity of plaintiff’s copyright, defendant’s agreement to pay royalties in respect of a period prior to termination of the license is enforcible. There was no failure of consideration because in fa.ct defendant received everything for which it bargained, irrespective of the validity of the copyright, and enjoyed substantial benefits under the contract. (Marston v. Swett, 66 N. Y. 206; Hyatt v. Bale Tile Mfg. Go., 106 N. Y. 651, 125 U. S. 46; Farnsworth v. Boro Oil & Gas Go., 216 N. Y. 40; Palmer v. Be Witt, 47 N. Y. 532; Saltus v. Belford Go., 133 N. Y.…
1DissentThacher, J.
The license agreements in this case purported to grant performance rights to the defendant for which it agreed to pay royalties. For some time these royalties were paid, but, having learned of the ruling in Brown v. Select Theatres Corp. (56 F. Supp. 438) the licensee withheld payment of future royalties and demanded repayment of royalties previously paid. Withholding payment of royalties and deposit of the royalties withheld in a special account, pending determination of the licensor’s rights in “ The Merry Widow ”, cannot be taken as a renunciation of the license agreement. The licensee…
2Cases cited10 opinions
- Scott Paper Co. v. Marcalus Manufacturing Co.Supreme Court of the United States · 1945
- Marston v. . SwettNew York Court of Appeals · 1876
- Dale Tile Manufacturing Co. v. HyattSupreme Court of the United States · 1888
- Drackett Chemical Co. v. Chamberlain Co.Court of Appeals for the Sixth Circuit · 1933
- Marston v. . SwettNew York Court of Appeals · 1880
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