Page:Edward B. Marks Music v. Borst Music.pdf/6

 plaintiff’s prima facie case.” Gerlach-Barklow Co. v. Morris & Bendien, 2 Cir., 1927, 23 F.2d 159, 161. To like effect: Houghton Mifflin Co. v. Stackpole Sons, Inc., 2 Cir., 1939, 104 F.2d 306, 311; Edward B. Marks Music Corp. v. Wonnell, D.C.S.D.N.Y.1945, 61 F.Supp. 722, 725; Remick Music Corp. v. Interstate Hotel Co. of Nebraska, D.C.Neb.1944, 58 F. Supp. 523, 531; Freudenthal v. Hebrew Pub. Co., D.C.S.D.N.Y.1942, 44 F.Supp. 754, 755.

The signatures of Lottie Davis Smith on the first assignment of November 20, 1924, and the two subsequent agreements of June and July 1940 are obviously made by the same hand. The signature appears to have been written with that care and deliberateness which characterize the hand of a largely illiterate person. The only pertinent evidence defendants submit to substantiate their charges is a handwritten letter from Lottie Davis Smith to Edward B. Marks Music Corporation dated October 7, 1923. The letter is written in a handwriting clearly not the same as the signatures affixed to the agreements between Lottie Davis Smith and the plaintiff. But this alone is insufficient to overcome the presumption of validity which attaches to those documents. The letter may well have been written for Mrs. Smith by a more literate party. Such a practice is not uncommon. The letter bears no identification that the person writing the letter was Mrs. Smith herself. The assignments on the other hand were made before witnesses on a legal document and were acknowledged before a notary public in each instance.

Defendants contend further that as Davis’ wife remarried she lost her widow’s rights to a renewal copyright. No such restriction is expressed or implied in the wording of the Act nor does any recorded case under the Act lend support to the theory. Authority to the effect that a woman who remarries retains her status as widow of her first husband abounds in analogous branches of law. See for example: Trathen v. United States, 3 Cir., 1952, 198 F.2d 757, National Service Life Insurance Act, 38 U.S.C.A. § 801 et seq., Hansen v. Brann & Stewart Co., 1917, 90 N.J.L. 444, 103 A. 696, Workmen’s Compensation Act. Petition of United States, D.C.S.D.N.Y.1950, 92 F.Supp. 495, Jones Act, 46 U.S.C.A. § 688. The City of Rome, D.C.S.D.N.Y.1930, 48 F.2d 333, Death on the High Seas Act, 46 U.S.C.A. §§ 761, 762. In re Rhead’s Estate, 288 Mich. 220, 284 N.W. 706 (Descent & Distribution).

And so, having found as I did above that the defendants Borst Music Publishing Co. Inc., Arthur Borst and Cyrus Borst have infringed the plaintiff’s lyrics, there remains only the question of relief. The plaintiff may take the usual injunction against the defendants jointly and severally. The defendants are required to deliver up for destruction all infringing copies and all plates and other devices for making such infringing copies. In the absence of any proof of any actual damages as a result of defendants’ infringement, statutory damages in the sum of $250 are awarded to plaintiff on each of the infringements. The plaintiff is likewise entitled to a full bill of costs, but I will make no allowance of counsel fees, since that is discretionary.

An appropriate judgment may be submitted in conformity with the opinion herein expressed.