
    BUCK et al. v. COE.
    Civ. A. No. 251.
    District Oourt, M. D. Pennsylvania.
    April 9, 1940.
    C. H. Welles, 3d, of Scranton Pa., and Edward A. Montgomery, of Pittsburgh, Pa., for plaintiffs.
    J. J. Cimino, of Scranton, Pa., and John F. Sudnick and-Peter V. Dabbieri, both of Sayre, Pa., for defendant.
   WATSON, District Judge.

The Plaintiffs are owners of certain interests in the copyrights of three musical compositions herein involved. They instituted this action against Frank M. Coe charging infringement of the copyrights of these compositions and pray for an injunction, damages, costs, and attorneys’ fees. The case was called for trial during the regular term of Court for March, 1940, and the Defendant being absent, the matter was heard ex parte. From the testimony taken and the evidence submitted, the Court finds the facts to be as follows:

The Plaintiffs, citizens of New York, were, on July 1, 1939 the owners of copyrights of the musical compositions, “My Blue Heaven”, “That Sly Old Gentleman (From Featherbed Lane)”, and “The Waltz You Saved For Me.”

The Defendant, Frank M. Coe, a citizen of Pennsylvania, owned, managed and operated a place of entertainment known as Kinney Hotel, 524 Main Street, Towanda, Pennsylvania, on July 1, 1939.

On July 1, 1939, an orchestra gave a performance for the purpose of entertaining persons patronizing the Kinney Hotel during the course of which performance the tunes “My Blue Heaven”, “That Sly Old Gentleman (From Featherbed Lane)”, and “The Waltz You Saved For Me” were played.

The Defendant was never granted permission or authority to publicly perform for profit in the Kinney Hotel the musical compositions listed above.

The Plaintiff American Society of Composers, Authors, and Publishers is the owner of the non-dramatic public performing rights of the compositions above noted.

Except for the interest of the American Society of Composers, Authors, and Publishers as above indicated, the Plaintiff Leo Feist, Inc., is the owner of the copyrights “My Blue Heaven” and “The Waltz You Saved For Me”; the Plaintiff Santly-JoySelect, Inc., is the owner of the copyright of “That Sly Old Gentleman (From Featherbed Lane)”.

From the foregoing facts as found, the Court makes the following Conclusions of Law:

The orchestra in the Kinney Hotel, on July 1, 1939, infringed the musical copyrights of the Plaintiffs by playing the musical compositions “My Blue Heaven”, “That Sly Old Gentleman (From Feather-bed Lane)” and “The Waltz You Saved For Me”, although no admission was charged to hear the orchestra.

The Defendant, Frank M. Coe, is liable in damages for the wrongful act of the orchestra employed by him even if the particular wrongful acts were committed without his authority and against his orders.

The Plaintiffs are entitled to an injunction as prayed for against Frank M. Coe and the Plaintiff American Society of Composers, Authors, and Publishers is entitled to recover from the Defendant, Frank M. Coe, damages, costs, and a reasonable attorney’s fee.

A judgment in accordance with this opinion may be submitted by counsel.  