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: 431
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WHITE-SMITH MUSIC PUB. CO. V. APOLLO CO.
ing, publishing, etc. It is contended that the enactment of January
6, 1897, 4966 [U. S. Comp. St. 1901, p. 3415], indicates that Con-
gress in the earlier provision, used the words "musical composi-
tion" with a view of securing protection to the author for his mu-
sical conception. The later provision inhibits the public perform-
ance of a copyrighted musical composition without the consent of
the proprietor, unless the same has previously been dedicated to
the public. Werckmeister v. American Lithographic Co. (C. C.
A.) 134 Fed. 321. These two provisions, however, are not conflict-
ing, and I perceive no reasonable objection to their standing to-
gether. I am of opinion that the reference to musical compositions,
as employed in section 4952, is restricted to a writing, as that word
is defined in the Sarony Case, supra. Moreover, the perforated
sheets of music or records are not copies of the musical composi-
tion protected by the copyright laws. The significance of the word
"copying," as applied to the subject under consideration, has
been several times legally construed. Kennedy v. McTammany
(C. C.) 33 Fed. 584; Boosey v. Whight  1 Ch. Div. 836:
Stern v. Rosey, 17 App. D. C. 562. In the Kennedy Case, which
was decided in 1888, Judge Colt held that perforated music rolls or
strips of paper are not infringements of copyright sheets of music,
and that such perforated sheets are designed not to occupy the
field of sheet music, but are a mechanical invention to mechanically
perform tunes. The Boosey Case was under a statute which did
not in terms mention "musical composition," but the work of the
composer was referred to in the English copyright act as sheet
music, and in the decision appears to have been treated as if it
were a book. Lindley, Master of the Rolls, speaking of the per-
forated sheets and the meaning of the word "copy," said:
"I have consulted Johnson's, Richardson's, and Murray's Dictionaries to
ascertain the meanings attributed to the word 'copy'; and I do not myself
think that the perforated sheet can be said to be a copy of the sheet of music,
unless the word 'copy' is used in a very loose and inaccurate sense."
In the Stern Case, decided in 1901, it was held (Justice Shepard
writing for the court) that the ordinary meaning of the words
"copying," "publishing," etc., cannot be enlarged to include the
reproduction through the agency of the phonograph of the sounds
of musical instruments playing the music composed and published
by the complainants. There apparently is little difference between
the facts of the Stern Case and the facts here, except that in that
case the alleged infringing record consisted of a disc or cylinder
for reproducing sounds by means of the phonograph. The court
"It is not pretended that the markings upon waxed cylinders can be made
out by the eye or that they can be utilized in any other way than as parts of
the mechanism of the phonograph."
The principles of the cases mentioned, which manifestly wero
enunciated after careful consideration. are fully applicable. The
distinction insisted upon by counsel for complainant between a
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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/m1/442/: accessed October 19, 2018), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.