Page:Shapiro, Bernstein v. Bryan (123 F.2d 697).pdf/2

 Appeal from the District Court of the United States for the Southern District of New York.

Action by Shapiro, Bernstein & Company, Incorporated, against Alfred Bryan, and others, to adjudicate the right to a renewal of the copyright in a song, and to enjoin its infringement. From the judgment, 36 F.Supp. 544, the defendants appeal.

Affirmed.

John Schulman and Hays, St. John, Abramson & Schulman, all of New York City (Milton Sargoy, of New York City, of counsel), for appellants.

Leo J. Rosett and House, Grossman, Vorhaus & Hemley, all of New York City (Joseph Fischer, of New York City, of counsel), for appellee.

Before L. HAND, AUGUSTUS N. HAND, and CLARK, Circuit Judges.

L. HAND, Circuit Judge.

The defendants, Bryan and Fisher, appeal from a judgment which declared void their renewal under § 23 of the Copyright Act, 17 U.S.C.A. § 23, of the copyright in a song, written and composed by them; which enjoined them from infringing the renewed copyright of the plaintiff in the same song; and which dismissed their counterclaim. (Fisher’s company is also an appellant, but its interest may be ignored.) The dispute centers upon who had the right to renew the copyright of the song whose words Bryan wrote, and whose music Fisher composed, and which one, [sic] Maurice Shapiro, the plaintiff’s predecessor in title, copyrighted on October 18, 1910. The copyright would have expired on October 18, 1938, and any application for its renewal under § 23 had to be made within the year beginning October 19, 1937; consequently the plaintiff filed an application for renewal on October 19th, as owner of the copyright; and Bryan and Fisher filed applications—one for the words and the other for the music—on the same day. The plaintiff claims the right of renewal as “an employer for whom such work was made for hire;” Bryan and Fisher claim it as “authors.” The appeal involves only two issues; whether the words and music were in fact composed while Bryan and Fisher were working under contracts with Shapiro—Bryan’s, dated September 10, 1910 and Fisher’s, dated August 25, 1909—and whether those contracts made Shapiro an “employer for whom” the song was “made for hire.” The judge held with the plaintiff on both points; we shall first consider his finding of fact as to the time of composition of the song, remembering that we must accept it unless it was “clearly erroneous.”

There was written evidence under the hands of Bryan and Fisher themselves proving that the song had not been written or composed before September 10, 1910, the date of Bryan’s contract, although each swore definitely to a much earlier date. Shapiro introduced a clause into each contract in which the employee set out all compositions of his that had not up to that time been published, and expressly declared that there were no others; Bryan mentioned twelve; Fisher mentioned none; Shapiro inquired of all publishers in New York and found no other songs composed by either. That Bryan understood precisely the effect of this clause is proved from his writing a qualifying phrase into it with his own hand: “excepting such others as can be ascertained by inquiry of the different publishers.” One or both might of course have forgotten the song in issue when he made his contract, but when he left Shapiro’s employ each knew that Shapiro had copyrighted it under a claim of right to do so, because each signed an assignment which