Schultz

This is a copyright infringement suit involving musical compositions, brought under 17 U.S.C.A. § 1 et seq. Plaintiff seeks to enjoin the publishing and selling of two pieces of popular music and to recover damages for infringement.

After a trial without a jury, judgment was entered for defendants and plaintiff appeals. The only question presented on this appeal is whether the findings of fact to the effect that plaintiff’s music was not copied are clearly erroneous.

In 1941 Mrs. Mildred Becker Schultz, the plaintiff and appellant herein, wrote the words and music for a composition which she entitled “Good Old Army.” She copyrighted this composition on April 7, 1941. While the composition was not accepted by a music publishing house, Mrs. Schultz had five hundred copies of the piece printed. Many were distributed to orchestra leaders, piano players, and singers in the San Francisco area where Mrs. Schultz lived. The piece was publicly played in several night clubs and other places of entertainment, but it did not prove to be marketable.

*943 In 1949 Mrs. Schultz rewrote the words and made some changes in the music, and gave the piece a new title— “Waitin’ For My Baby.” She…