Consuelo Stephanie Pye and Iris Lee Hammer v. James Mitchell, Arthur Mitchell and Cinema Seven, Inc.

This is an infringement action under the 1909 Copyright Act, Act of March 4,1909, c. 320, § 25, 35 Stat. 1081 , as amended prior to the comprehensive revision by Pub.L. No. 94-553, Title I, § 101, Oct. 19,1976, 90 Stat. 2541 , effective January 1, 1978. Inasmuch as the cause of action arose prior to January 1, 1978, it is governed by Title 17, U.S.C. “as it existed when the cause of action arose,” section 112, Pub.L. No. 94-553.

Defendants/Appellants James Mitchell, Arthur Mitchell, and Cinema Seven, Inc. were found liable for infringement of Plaintiff/Appellee Consuelo Pye’s copyright in the musical work “Lucy’s Song.” The district court awarded Pye $5,000 for the use of “Lucy’s Song” in defendants’ movie “Flesh and Brimstone” and $5,000 for its use by defendants in the movie “Sex Odyssey.” Defendants do not contest their liability for infringement of “Lucy’s Song” but argue that the measure of damages is not justified by the damage provisions of the Copyright Act, 17 U.S.C. § 101 (b). Defendants were also found liable for infringement of Consuelo Pye’s and Iris Hammer’s undivided one-third interests in the musical composition “Whatever Happens.” The district court awarded Pye…