
    PALLANT v. SINATRA et al.
    District Court, S. D. New York.
    Jan. 5, 1945.
    Gresser & Walker, of New York City, for plaintiff.
    Gordon E. Youngman, of New York City (Cyril S. Landau, of New York City, of counsel), for defendant.
    Jaffe & Jaffe, of New York City, for defendant Frank Sinatra.
    Spring & Eastman, of New York City, for defendants Cahn and Styne.
   GODDARD, District Judge.

These are motions by defendants, Sinatra, Cahn, Styne and R.K.O.-Radio Pictures Corporation to strike the plaintiff’s demand for a trial by jury of the Third and Fourth Causes of Action.

The First alleges an infringement of a statutory copyright; the Second an infringement of a common law copyright; the Third a breach of fiduciary relationship in using the composition in suit; the Fourth claims damages for breach of contract in the use of it.

Plaintiff alleges that he is the author of a composition entitled “Come Out, Come Out, Wherever You Are”; that the chorus of the song was copyrighted on November 20, 1938, and that the verses were not copyrighted. The First cause of action is for infringement of the copyrighted chorus. The Second cause of action is for infringement of the common law copyright of the verses.

Plaintiff further alleges that he submitted his composition to defendants, Dorsey and Sinatra, who conducted a radio program over the National Broadcasting Company, including a contest for unpublished songs of amateurs; that Dorsey and Sinatra represented that the winning song would be published and the author would receive a royalty. There is no allegation that plaintiff’s song was selected as a winning composition, but it is alleged that Dorsey and Sinatra caused portions of the music and verse to be published by defendants, Robbins Music Corporation and T. B. Plarms Co. as the original creation of defendants, Cahn and Styne; that the song was rendered by Sinatra and was featured in the R.K.O.-Radio Pictures Corporation movie entitled “Step Lively”; that the National Broadcasting Company and the Columbia Broadcasting System performed the song on the air, and that Decca Records, Inc., 'manufactured and distributed phonograph records of the song. The Third cause of action sets forth a breach of this alleged fiduciary relationship between plaintiff and defendants, Dorsey and Sinatra, and a conscious participation in that breach by defendants, Cahn, Styne and R.K.O.-Radio Pictures Corporation.

The Fourth cause of action alleges a breach of contract by defendants, Dorsey and Sinatra, and asks damages for the breach. The contract referred to in this cause of action is implied from the representations alleged in the first three causes of action, and unless the plaintiff prevails in one or more of them, he cannot recover under the Fourth cause of action.

The first two ' causes of action are conceded to be causes of action in equity —hence triable by that court without a jury. The Third cause of action for a breach of implied trust is also an equitable action. Taylor v. McKeever, D.C., 1 F.R.D. 565, 566. See Beatty v. Guggenheim Exploration Co., 225 N.Y. 380, 386, 122 N.E. 378.

The Fourth cause of action is an incident to the equitable relief asked for in the first three causes of action and does not entitle plaintiff, under the circumstances, to a common law trial. Clark v. Wooster, 119 U.S. 322, 325, 7 S.Ct. 217, 30 L.Ed. 392; Pease v. Rathbun Jones Engineering Co., 243 U.S. 273, 279, 37 S.Ct. 283, 61 L.Ed. 715, Ann.Cas.1918C, 1147; Arnstein v. Twentieth Century Fox Film Corporation, D. G, 3 F.R.D. 58; Williams v. Collier, D.C., 32 F.Supp. 321. See also National Labor Relations Board v. Jones & Laughlin, 301 U.S. 1, 48, 57 S.Ct. 615, 81 L.Ed. 893, 108 A.L.R. 1352; Young v. Loew’s, Inc., D.C., 2 F.R.D. 350.

Motions granted.

Settle order on notice.  