Page:Edward B. Marks Music v. Borst Music.pdf/5

 The rhythm is the same. The story and sequence are identical. There is but one notable variation, defendant omits one entire stanza of Davis’ composition. The testimony of Arthur Borst and his witnesses is not of a character sufficient to offset this patent similarity of verse. This court finds that defendants have infringed plaintiff’s rights in Davis’ composition. Robbins Music Corp. v. Weinstock, D.C.S.D.N.Y.1952, 107 F.Supp. 102.

Plaintiff’s title to the [sic] Davis’ composition is questioned by defendants. Assignment of a copyright in general terms does not include conveyance of renewal interests. These must be specifically set forth in the assignment. Fred Fisher Music Co. v. M. Witmark & Sons, 1942, 318 U.S. 643, 653, 63 S.Ct. 773, 87 L.Ed. 1055; Silverman v. Sunrise Pictures Corp., 2 Cir., 1921, 273 F. 909, 19 A.L.R. 289; White-Smith Music Pub. Co. v. Goff, 1 Cir., 1911, 187 F. 247. The assignment of the original copyright to Howley Haviland & Co. has not been shown to have included the renewal rights.

In the absence of a showing of Davis’ intention to assign renewal rights either by evidence or implication from evidence, those rights are deemed preserved. The Certificate and Record of Death submitted on plaintiff’s case indicates that the author died in 1899. Under Section 24 of the Copyright Act, Title 17 U.S.C., therefore, the widow or children gain the right to a renewal extension of the copyright. Defendants’Defendants [sic] submit that William Davis, a brother of Gussie L. Davis, applied for renewal rights one day earlier than did Lottie Davis Smith. This fact does not impair the widow’s right to renewal; by the terms of the statute, the rights of the next-of-kin are non-existent if the widow lives.

Defendants contend that the person who applied for and obtained the renewal copyright under the name of Lottie Davis Smith was not in fact that person and was not the widow of Gussie L. Davis. Defendants make the same contentions as to the assignment of renewal rights to plaintiff.

A certificate of copyright registration is prima facie evidence of title and of all that appears on the face of the certificate. A significant fact which tends to disprove defendants’ contention that Mrs. Smith was not the widow of Gussie L. Davis is that the latter’s brother who filed the earlier application for renewal rights apparently entered no protest to the application filed by Lottie Davis Smith. It would seem likely that the brother would have been quick to object to the granting of the renewal rights to Lottie Davis Smith is she were not Gussie L. Davis’ widow.

“The plaintiff made a prima facie case of title, and the burden of going forward with evidence to show that plaintiff’s title was defective then shifted to defendant * * * defendant’s denial upon information and belief cannot be regarded as evidence overcoming