Page:Edward B. Marks Music v. Borst Music.pdf/3

 a counterclaim. No evidence was presented as to the counterclaim and no reference has been made to them in the briefs; consequently the counterclaim is deemed to have been abandoned.

The music and lyrics of the piece were composed of Gussie L. Davis, a pullman porter. A History of Popular Music in America, by Sigmund Spaeth, p. 267. Read ’Em and Weep, by the same authority, p. 153. Blue Book of Tin Pan Alley, by Burton, p. 26. This fact was further substantiated by the testimony of a friend and contemporary of the composer. Mr. Davis assigned the composition to Howley Haviland & Co., publishers, who, on August 20, 1896, obtained a copyright on the words and music, which under the act extended for a twenty-eight-year term.

The widow of the author, Lottie Davis Smith, now deceased, applied for and obtained a renewal copyright on July 23, 1924, pursuant to the Copyright Act of March 4, 1909:

"“* * * the widow, widower, or children of the author, if the author be not living, or if such author, widow, widower, or children be not living, then the author’s executors, or in the absence of a will, his next of kin shall be entitled to a renewal and extension of the copyright in such work for a further term of twenty-eight years * * *.” Title 17 U.S.C. § 24 note."

The renewal application was registered in the United States Copyright Office and a certificate issued by the Register of Copyrights.

Lottie Davis Smith by agreement dated November 20, 1924, assigned her renewal rights in the song to Edward B. Marks in return for certain royalty concessions. The signature of Lottie Davis Smith was witnessed by one Max Sharks and her acknowledgment taken before a notary public. The assignment was recorded in the Copyright Office on February 17, 1925. Edward B. Marks in turn assigned his rights to “In the Baggage Coach Ahead” to the Edward B. Marks Music Corporation, the plaintiff in this action, on July 1, 1932. This assignment was recorded in the Copyright Office on July 2, 1932.

The allegations of infringement focus upon the lyrics of a song entitled “Baggage Coach Ahead,” for which the defendant, Arthur Borst, claims he composed both music and lyrics during 1947. He obtained a copyright October 23, 1947, and assigned the rights to defendant Borst Music Publishing Co., Inc., on May 27, 1949. The assignment was recorded that same year with the United States Copyright Office.

The protection afforded literary or musical property by the copyright law differs in substantial respect from that afforded the patentee under the patent law. The originator of a patentable article is protected against infringements even as against a subsequent originator who had no notice of the patented article. In the realm of copyrights, however, each originator has a property right in his artistic achievement and the complainant must bear the burden of establishing that the defendant was guilty of plagiarism; access to plaintiff’s work must be shown. Twentieth Century-Fox Film Corp. v. Dieckhaus, 8 Cir., 1946, 153 F.2d 893, 894.

The plaintiff’s property, “In the Baggage Coach Ahead,” enjoyed considerable popularity during the first two decades of this century; it acquired folk song notoriety. Even in recent years it has been classed as a steady seller. A History of Popular Music in America, Sigmund Spaeth, p. 268. Blue Book of Tin Pan Alley, Burton, pp. 26, 27. The probability that Arthur Borst either consciously or unconsciously had access to the lyrics is great. Plaintiff submitted four books of songs all published by it containing the original music and lyrics as written by Gussie L. Davis. These song books enjoyed wide publicity and distribution prior to the date upon which defendant allegedly was inspired to compose a like ballad. Mountainside Melodies, 1934, p. 10. Time to Sing, 1938, p. 10. Along Memory Lane, 1941, p. 29. Memories of the Gay Nineties, 1942, p. 22.

In addition, an examination of the lyrics of the two songs leaves no doubt in my mind