Brown v. Republic Productions, Inc.

SCHAUER, J.

In this suit brought by plaintiff for the plagiarism, infringement, conversion or destruction of the music, lyrics and title of a certain musical composition known as “Puddin’ Head,” plaintiff appeals, on the judgment roll alone, from such portion of the judgment rendered by the trial court, sitting without a jury, as denies to plaintiff relief by injunction, damages, or otherwise, against a motion picture company and a music publishing company.

The court found, among other things that plaintiff, and defendants Jule Styne and Sol Meyer, were the coauthors and coowners of the composition; that before publication thereof defendant Styne, within the scope of his employment by defendant Republic Productions, Inc., used all of the music and a portion of the lyrics of the composition by incorporating them in a similar composition also entitled “Puddin’ Head,” and that defendants Styne and Republic Productions, Tnc., thereby altered and changed the original lyrics of plaintiff and his coauthors with knowledge of plaintiff’s rights; that thereafter defendant Republic Productions, Inc., used the revised composition in a motion picture produced by it which had been and is being distributed by it for profit; that defendant Mills Music, Inc., has distributed and is distributing for profit copies of the revised composition; that the use by the two corporate defendants of the revised composition was made pursuant to a written agreement executed by Styne and Meyer permitting and licensing such use; and that the alteration of the original composition and the licensing and use by defendants of the revised product were done without plaintiff’s knowledge or consent and without compensating him.

From such findings the court concluded that plaintiff was entitled to an accounting against his coowners Styne and Meyer for profits realized and to be realized by them from the use of the revised composition, but that he was entitled to nothing as against defendants Republic Productions, Inc., and Mills Music, Inc. Judgment was entered accordingly.

[869]

Plaintiff in support of his appeal from the latter portion of the judgment earnestly contends that, as alleged by him him in his complaint, the effect of the use by defendants of the revised composition “now is, and unless . . . enjoined, will continue to be, the impairment and