Page:Edward B. Marks Music v. Charles K. Harris Music Publishing.pdf/5

 the future, coupled with notice of a prior claim before payment, might deprive a subsequent purchaser of the status of a bona fide purchaser under § 30, Rossiter v. Vogel, supra, 2 Cir., 134 F.2d 908, 911, the doctrine has no application to a prior purchaser, which is what plaintiff is here. Thus in order to upset the 1933 agreement, defendant must show the lack of any consideration, which obviously is out of the question. Plaintiff’s ownership, therefore, is well supported by the record, and the district court correctly rejected defendant’s claims to the songs at issue.

We come, then, to plaintiff’s appeal from the denial of its motion for an adjudication of infringement and for an accounting. If plaintiff is not barred by laches this relief is proper. 28 U.S.C. § 2202 specifically provides that: “Further necessary or proper relief based on a declaratory judgment or decree may be granted, after reasonable notice and hearing, against any adverse party whose rights have been determined by such judgment.” We take this to mean that the further relief sought—here monetary recompense—need not have been demanded, or even proved, in the original action for declaratory relief. The section authorizes further or new relief based on the declaratory judgment, and any additional facts which might be necessary to support such relief can be proved on the hearing provided in the section or in an ancillary proceeding if that is necessary. Cf. Security Ins. Co. of New Haven v. White, 10 Cir., 236 F.2d 215. Here the further demand for relief is based on the declaration of plaintiff’s ownership of the songs at issue and, unless otherwise barred, is proper under the statute. The real question, then, is whether the district court was correct in holding that the eleven-year delay between the institution of the suit and the trial constitutes laches which estops plaintiff from now receiving the further relief which it seeks.

Plaintiff instituted this action in 1944, some six years after it had notice of threatened infringement by defendant’s predecessor. We see no basis for the application of laches concerning this six-year period, for it appears that in 1941 (some three years after notice) plaintiff commenced a suit against defendant’s predecessor concerning the renewed copyright in one of Howard’s songs where the question at issue was the effect of the 1916 conveyance. Although that suit was discontinued, Edward B. Marks Music Corp. v. Jerry Vogel Music Co., D.C.S.D.N.Y., 49 F.Supp. 135, it was dropped only after defendant’s predecessor withdrew her claim to the song under the conveyance, which would indicate that defendant’s predecessor then believed that the 1916 conveyance did not pass renewal rights. Under the circumstances it seems clear that the plaintiff can be charged with no serious delay in instituting the suit.

Of course, as we know, failure to prosecute a suit diligently, resulting in a substantial delay which causes actual prejudice to the adverse party, can constitute laches. D. O. Haynes & Co. v. Druggists’ Circular, 2 Cir., 32 F.2d 215; Pollitzer v. Foster, 6 Cir., 59 F.2d 901. Here the delay was eleven years, and defendant contends that this should estop plaintiff from now demanding damages in addition to the awarded declaratory and injunctive relief. First, the defendant claims that plaintiff waived such additional relief by failing in its complaint to allege infringmentinfringement [sic] and consequent damages. But obviously this argument is specious. If plaintiff had proved infringement on the trial it would have been entitled to damages under F.R.Civ.Proc., rule 54(c); but under the declaratory judgment statute it was not compelled to take this course. Hence defendant was not entitled to assume from the absence of a plea for damages that plaintiff would not seek them at trial. Likewise defendant was not entitled to assume that plaintiff would not seek damages after trial and entry of the declaratory judgment because plaintiff’s complaint ended with the prayer “that upon application therefor, plaintiff be granted such further relief based on said declaratory judgment as may be necessary or