Duchess Music Corporation v. Martin Stern

This interlocutory appeal requires construction of the remedial and compulsory license provisions of the Copyright Act of 1909, 17 U.S.C. §§ 1 (e) and 101(c), (d) and (e). Appellants are a group of music companies which own the copyrights to musical compositions by such diverse and well-known musicians as Elvis Presley, Johnny Cash, *1307 Burt Bacharach, Mick Jagger, Joni Mitchell, and Buck Owens. They allege that appellee Pearl Rosner and others are music pirates who make cassette tape recordings of phonograph records legitimately issued by appellants from copyrighted compositions. After a nationwide search, appellants discovered a major pirate haven in Phoenix, Arizona. With the aid of private investigators and the local police, they obtained sufficient information to secure from the District Court an ex parte order to show cause, a temporary restraining order and a writ of seizure, all directed against the alleged pirates.

The writ of seizure, issued pursuant to 17 U.S.C. § 101 (c) and the Rules of Practice issued by the Supreme Court, 1 directed the marshal to seize

The marshal seized and impounded 25,000 complete tape recordings and master recordings, which serve to…

(dissenting):

I respectfully dissent.

My disagreement with the majority opinion is that it sanctions relief which I do not believe is available to these appellants. The basis of this disagreement is in differing interpretations as to what is truly in issue. In my view, the appellants are not seeking to protect the copyrights they hold on the musical compositions in controversy. This is not a case, as I see it, where the holders of the copyright are seeking retribution for the uncompensated use of their musical compositions. Rather, this conflict may be seen as an attempt by these copyright holders to preclude forever, Rosner’s appropriation of their recordings of these compositions. The majority opinion’s approval of such a consequence discounts, as I see it, Rosner’s subsequent compliance with the compulsory license provisos. It is to that consequence to which my views, as were those of the district court, are directed.

The legislative history of the recently enacted amendments to the Copyright Act serves as an instructive guide setting forth the limitations of the Act at the time the events in controversy occurred.

In its report on the bill amending the Copyright Act, the…

458 F.2d 1305 22 A.L.R.Fed. 475, 173 U.S.P.Q. 278 DUCHESS MUSIC CORPORATION et al., Petitioners-Appellants, v. Martin STERN et al., Respondents-Appellees. No. 71-1854. United States Court of Appeals, Ninth Circuit. March 13, 1972. Rehearing Denied April 26, 1972. Robert C. Osterberg (argued), John S. Clark, of Abeles & Clark, New York City, Pasquale R. Cheche, of Meadow, Cheche, Thrasher & Zalut, Phoenix, Ariz., for petitioners-appellants. B. Allen Millstone (argued), Hollywood, Cal., William C. Loftus, Phoenix, Ariz., for respondents-appellees. Before KILKENNY and CHOY, Circuit Judges, and BYRNE, * Senior District Judge. CHOY, Circuit Judge: 1 This interlocutory appeal requires construction of the remedial and compulsory license provisions of the Copyright Act of 1909, 17 U.S.C. Secs. 1 (e) and 101(c), (d) and (e). Appellants are a group of music companies which own the copyrights to musical compositions by such diverse and well-known musicians as Elvis Presley, Johnny Cash, Burt Bacharach, Mick Jagger, Joni Mitchell, and Buck Owens. They allege that appellee Pearl Rosner and others are music pirates who make cassette tape recordings of phonograph records legitimately…