Page:Edward B. Marks Music v. Charles K. Harris Music Publishing.pdf/6

 proper”—the very procedure provided by 28 U.S.C. § 2202. The course plaintiff adopted was thus not unusual.

Second, defendant contends, and the district court agreed, that the eleven-year delay prejudiced its defenses against the infringement claims. But the record shows that the defendant consented to or joined in applications for these delays. So clearly it was then unworried as to prejudice resulting from them. Moreover, its affidavits show no specific prejudice; and the court’s findings of “manifest prejudice” are not supported by anything in the record. The record does show, however, commendable efforts on the part of both parties to litigate all their claims concerning ownership of Howard’s songs in this proceeding. Amendments of the pleadings indicate that the claims were complex, which probably accounts to some degree for the delay. Doubtless the parties, too, were both stimulated to renewed interest by the renaissance of old songs under the benign auspices of radio and television. Each case where laches is urged as a defense must be decided on its own facts. Under the circumstances here present it seems unfair to tax plaintiff, the rightful owner, rather than defendant, the infringing wrongdoer, with severe penalties for the delay in which they both participated.

On the defendant’s appeal affirmed; on the plaintiff’s appeal reversed and remanded for further proceedings in accordance with this opinion.