Buck v. Heretis, 24 F.2d 876 (E.D.S.C. 1928)

J. N. Nathans, of Charleston, S. C., and Wm. E. Arnaud, of Atlanta, Ga., for plaintiffs.

W. D. Dickey and A. F. Spigner, both of Columbia, S. C., for defendant.

ERNEST F. COCHRAN, District Judge.

This matter came up before me on hearing on infringement of copyright. The facts as admitted are as follows:

The plaintiff Leo Feist, Inc., is the owner of the copyright, and the American Society of Composers, Authors and Publishers, represented by Gene Buck, its president, is the assignee of the public performance rights in the musical composition "I've Grown so Lonesome Thinking of You."

The defendant, M. J. Heretis, is the proprietor and operator of the Savoy Café in Columbia, S. C., a restaurant operated by him for profit.

On August 26, 1927, while patrons of the restaurant were dining therein, the musical composition "I've Grown so Lonesome Thinking of You" was played on a victrola for the enjoyment of the patrons. The defendant claimed that no notice of copyright appeared on the phonograph record which was being played, and that the defendant had no notice and did not know that the said piece was copyrighted.

I do not think this a sufficient defense under the Copyright Act (17 USCA).

It is, therefore, ordered, adjudged and decreed: That the defendant, his agents, servants and all other persons acting under the direction, control, permission or license of the defendant, be and they hereby are perpetually enjoined and restrained from publicly performing for profit, said musical composition entitled, "I've Grown so Lonesome Thinking of You," and from causing or permitting the said composition to be publicly performed for profit in said restaurant or any other place owned, controlled, or conducted by the defendant, and from aiding or abetting the public performance of said composition in any such place or otherwise; and it is further ordered, adjudged and decreed: That the plaintiffs recover of the defendant, the sum of two hundred and fifty ($250.00) dollars as damages and the further sum of fifty ($50.00) dollars as an attorney's fee and the costs as taxed.