The Federal Reporter. Volume 139 Cases Argued and Determined in the Circuit Courts of Appeals and Circuit and District Courts of the United States. September-December, 1905. Page: 428
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139 FEDERAL REPORTER.
In Equity. Suits for infringement of copyrights.
Dickerson, Brown, Raegener & Binney (Charles E. Hughes, Ed-
win H. Brown, and Alexander P. Browne, of counsel), for complain-
Wilcox & Brodek (Charles S. Burton and Munday, Evarts &
Adcock, of counsel), for defendant.
HAZEL, District Judge. These actions were brought to restrain
the alleged infringement of copyrights in the musical compositions
"Little Cotton Dolly" and "Kentucky Babe Schottische," composed
by Adam Geibel. The bill avers that complainant was the publisher
and proprietor of both copyrights, the musical compositions having
been assigned and transferred to it by the composer. The answers
are denial of infringement and of complainant's title to the copy-
rights in question. The elicited facts, which are not in serious con-
flict, apply to both cases, and the records in each are substantially
the same. The legal principles involved, though important, are
not, in view of prior adjudications, difficult of application. Com-
plaina'nt contends that the copyrights mentioned have been unlaw-
fully infringed by the defendant, which concededly has sold the
copyrighted musical compositions in the form of perforated records
or sheets adapted to mechanically reproduce the music upon the
pianoforte, pianola, and other musical instruments. The general
question raised is whether the perforated music sheets for use in
connection with mechanism for playing musical instruments is an
infringement of complainant's copyrighted musical composition.
The proofs show that perforated music sheets corresponding to staff
notations are produced in various ways by persons skilled in the art,
technically called the "cutter" or "arranger." Perforated matrices
are prepared either from a printed sheet of music, from a perforated
music roll, or by means of an automatic recording device, which
simultaneously operates to produce a matrix while music is being
played upop the piano. In the preparation of the matrices, as
distinguished from a music roll prepared by a recording device,
perforations or slots of varying width, are indicated; their positions
and character are longitudinally and transversely arranged and
accurately defined by a system of measurements correlative with the
staff notations. The impracticability of reading a perforated sheet
of music for the purpose of singing or playing the composition rep-
resented by the perforations is not seriously disputed, although com-
plainant claims that the automatic records, like the staff notations,
may be deciphered and learned. The evidence, however, quite con-
clusively establishes that the single purpose of the perforated sheets
is to mechanically reproduce musical sounds, and that they are not,
like the sheet music, addressed to the vision, or intended to be read.
Before discussing the principal point involved, it is proper that
the question of disputed title of the copyrights be first considered.
The defendant contends that the musical composition "Little Cot-
ton Dolly" was licensed to the complainant as publisher, subject to
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The Federal Reporter. Volume 139 Cases Argued and Determined in the Circuit Courts of Appeals and Circuit and District Courts of the United States. September-December, 1905., legislative document, 1906; Saint Paul, Minnesota. (digital.library.unt.edu/ark:/67531/metadc38185/m1/439/: accessed December 17, 2018), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.