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: 429
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WHITE-SMITH MUSIC PUB. CO. V. APOLLO CO.
the payment of royalties, and was not transferred with the view of
divesting the composer of the title therein. The court has consid-
ered this question, and the phraseology of the agreement of June 18,
1897, by which it probably might be concluded that only the right to
publish the composition had been previously granted. Such an in-
terpretation of the contract, however, in view of the oral evidence
and acts of the parties, is not warranted. The proofs show, inter
alia, that the composer authorized the copyrighting of the musical
composition in the name of the complainant. The composition was
delivered to the complainant by the composer in May, with the un-
derstanding that it should be published, and subsequently, in writ-
ing, he expressly authorized complainant to copyright the same.
At this time, however, the composition had already been copyright-
ed by complainant in accordance with the laws of the United States
respecting copyrights. Giving consideration to all the facts and
surrounding circumstances, no repugnancy is perceivable between
the agreement mentioned and any prior arrangement or understand-
ing that complainant should possess the composition as its proprie-
tor. The question is whether in fact there was such an assignment
or transfer of the musical composition before copyrighting as to
carry with it the privilege given by the statute to the composer.
As the testimony upon this point is not entirely free from indefinite-
ness, we must look to the acts of the parties to ascertain their in-
tention. It is not a strained presumption, giving effect to the trans-
action and the proofs, that complainant or its agent, Mr. White, who
afterwards assigned the same to the complainant, was vested with
the legal title as proprietor of the composition. It may reasonably
be inferred that the composer, having placed the composition with
the publisher for publication and distribution, intended to authorize
him to obtain a copyright in his name, or in that of the corporation
in whose behalf the assignment appears to have been taken. Mifflin
v. White, 190 U. S. 263, 23 Sup. Ct. 769, 47 L. Ed. 1040; Belford v.
Scribner, 144 U. S. 505, 12 Sup. Ct. 734, 36 L. Ed. 514. It was held
in Callaghan v. Myers, 128 U. S. 658, 9 Sup. Ct. 177, 32 L. Ed. 547,
that a written assignment may be necessary to convey title after
obtaining a copyright, but a publisher undoubtedly may become the
owner by parol transfer of the rights of the author or composer.
Moreover, it clearly appears that the composer, Geibel, had knowl-
edge of the copyrighting by the complainant prior to the agreement
for royalties, and acquiesced therein. The later agreement con-
tained nothing derogatory to the prior transaction or transfer of the
composition, and would seem, in view of the facts, to be a ratifica-
tion of that which had gone before. Hence it is sufficiently estab-
lished by the evidence that the complainant had the exclusive right,
as proprietor, to multiply copies of the copyrighted musical compo-
sition, and to expose the same for sale.
As stated, the important question for consideration is whether
defendant's method of representing and reproducing the musical
compositions infringed the copyrights of the complainant. The
principle thought to control, based upon the Revised Statutes, is
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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/m1/440/: accessed November 17, 2018), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.