THOMAS 'V. LENHON.

849

the policy was (lelivered to him, and the first premium was paid, be discovered that the,. agent had' committed a fraud upon him ,and upon the .cQ.mpany, 'because it was fraud both upon the assured and the company, then it was his duty to stop,and to decline to go any further with tbe transaction. But I tbink if be did not discover before tbe policy was delivered and the first premium paid,thathe was not called iIpon after that'to take any steps for the cancellation of the contract. The' defendartt blts Here' in the sum of $888.26. You will, in any event,retutn a 'verdict for tnat will make suehorder with regard 'to hoS'ts .as may be' cOIlsidered'rignt, after you have' returned your' if you nb'more than t n M . · · f ,', '" ': The' 'q\1estioh' lor you todetermirie is whether the wboleamount, of this 'policy lis: dii&,' to' be oblyfor the al'ti<Junt tendered, wnicn 1's $888.2tj;f""If 'y6u nnd for theplaintiff inthl3whole amount,you; Will 'give hUn at th'e! rate of 6 percent., pe¥ riutri from6(j dayii thedi1t'e wheri the' proof was 'tbat' date is tbe'fdurleenth of Dederi:lber; 1880, so that interest 'would beghl1;o ,ruri'fromthefonrteetithofFebruary, 1881.' You will have to beat'fil niina these dates. ' Your verdict, therefore, for the sum of or for the amount of the policy,withinterestfroni February 14, 1SS1. The jury rendered a verdict for plaintiff for the amount Of icy, with interest, and the defendant thereupon took an appeal to the c'ourt. '

a

THOMAS (fJircuit (Jourt, D.

v.

LENNON.

JanualV 19. 1883.)

1. COPYRIGHT':""DEDicATiON-SCOPE OF. A dedication to the public of the arrangl'ment of a musical composition for
   

thepiall-o doee not dedicate W'hat it does not ,and what cannot be duced frow it, and defendantdoell not, therefore,po&sess and has no right to performspch composition as for an orchestra, although he should ha:ve the opportunity to copy it.
2.

1. common nOOK, as to the nile. that. he, who obtains simUarresults, better or worse, by similar means, though the opportlinlty is fUrnished by an unprotected book; should be held to infringe'the rights ofthecompoSllr. '
   0Pllla w:rnore llke a pateutedinvention thlln
   

COMPOBITION....RIGHTB OF CoMPOSER.

, v.:14,no.14-54

850
8 ·.

FEDERAL

REPOBTE&

Where defendant has undertaken the ofplaintitI's full score, and has hastened his preparations and changed the day to an earlier one for the pUrpose of anticipating :theperformance of' plaiilttlff'aassigns. a. motion to enjoin its.performa.nce ,will be granted.

In Equity. . Browne, Holmes cf Browne, fOJ; complainant. , .T. W. Clarke and fl. Burke, Before LOWELL and, NELSON, JJ. . LOWELL,C; J. This is a mqtion to enjoin the from <lansing to be performed Gounod's. oratorio, or "The Redemption," with full orchestral The plaintiff is a. <litizen of New York, and' is a of Massachusetts. The he!tring was on the bill, the answer,,Cto be an affidavit,) a stipulati()p. of the. parties, OJ:al :evidence of eiperl/J. Charles Gouij.od, of Paris, composed the oratonoin witQ"an tral accompaniment £or40 pr more and it to .be performed for the first time, under his own direQtion, at Birmingham, in England, in August last, on ocoasion of a tnusical festival. The been published. in defendant avers his belief that the full England, but Pl;oofof ,this, and.. the stipulation finds that· this ,rests,:only ,upon understanding ,that the of England requires a deposit of a copy of the score.in the BritishMusew:nwithinthree months, after the .The Jaw. ap-pears to make this requirement unless the score is in manuscript; but we have no evidence whether the score was or was not in manuscript at the time when it should have been deposited if not in manuscript, nor whether it was so deposited, and, if so, whether it is open to public inspection. There is -evidence that at some time, not specified, except that it was before the answer was filed, a few copies have been printed, marked "as inanusc'riptonly," for the use of the performers. We do not need to decid.e were manuscript in'the sense of the statute. There has been. til)le, since t1'.le defendant first tindertook to act aSlf the oratorio wReopert to ascertain; the truecircumstan,ces of the case in respect to this supposed publication.. The composer did permii the vocal parts of his oratorio, Bet· ·to·an accompaniment for the piano, to be IJ11blished in El'.igland·; and th:e pook cllrt.'be bought 'in Boston, and has evidence. lIt "believed an{admi,tted to con· tain all the melodies and harmonies of the original oratorio. : Ithe,s, in the IDf1rgin, references to the particular insu'umentBwhi'ch are to
,.

'

.

.

.

.1. .'"

in

mOIUS V. LENNON·

851

,

• e'qlpl9y,ed in , playing,.the (" parts of, the piece, or of . , " . 'them. ' The plaintiff owns'for this c'ountry whatever exclusive rights Go;unod retained or could retain a,fter the publication of.the book. JThy ' to tli{plaintfff tb buy the: exclusive, right of performing ('the 6ratorio in Boston, but. w!\S told that negotiations Sdciety, of this city. for ,were .ihatright.:'These purchase by tbat suciety.'The defendant appears to have gathered; from something which was said to him by the plaltitiff,that'ihe negOtiations with the Ha,ndel alid 'Baydn 'Society were likely faJi to htLvebegun his preparatiofta it' thea sure. When he he'ard that 1 the bargain wYJ.s made,: he to' and' to adVance his pe'rformance as to' bring out Gounod'sl<Redemption" the ' time fixed by the society for their first performance, and accordingly owq for next Sllnday, January 2tst.' trhereupon this filen, and the his advertisement, byad-Vice of part mMef'ial to this' it read tnus:" ' " ' " ."
  "
  

,

,

'

to

so

so

SUNnAYEvENING, JANuARY 21, rssa, First: Performance in Boston of '
,,'GOUN01YSRED"£'MPTION,'

BOSTON

'l'HE.A:.T:eR:

',

With New Indications,in' the 'published'

]?iano-forte

of defendant score, bu,t thebari:<1 parts to' be unnamed composer or arranger ,of music., .' J have beep' abiy 'us: First, ,the p'ublicatlon'f of'' , _ .\.." with'. the ''; tbebook, (, - , , "for and , _," '".' . Illa,rginal note,sl,gIvesto fIght, to revroduce or oopy the 'orchestral's'core if he can; second,' wballiet' orchestration, n6,t -dopied fro.m 'ihe 'original by memory, or oth'erwise;butm.ade from the book, ,These ,'it a 0l:l

C'It is admitted;

'the

" Two

1

·. ,

·.:

.,;

.

_

.

.

",

.

.

;

a'new

of theauthqr !4 Ph,il.'.) {,.. l1.oucic(Lttlt' 157,'{ tJj. :)L, .
)j

,jJ

bis

;Rf

d.

.,

.....

,,_, ..

,or lyrIcal notentiUefl Whea.tley, -.r: it iReh, Biss. L,·_,d.

859

FEDERAL REPORTER.

.

208; Palmer v. 'De Witt, 47 532; v.Halleck, 138 Mass. 32. 1. It is clear that the book is common property in the United States. What does it aedicate to the public? It was ,to instruct us upon this point that experts were examined; and theil' opinions were unanimous that the score for the piano contains all the substance of the oratorio, but that the limitations of the instrument are such that it is to, expre!5s iIi a score what the orchestra ex· presses it.s various and that anyone who adapts such a score for an orchestra must add a. deal to it, no.t In the way ofne", 'and melodies, but hI the way of carryillg?ut at;ld thew to produce effectsuponnotesand coJl1piano. An orchestration can be mad:e fromthElscore by competent arranger, and several may be in, ,:ijoElton', blltthe, p,recise, called by the witnesses "colorl C9mpos'er'gives t?, produced, because the possible variations 'which' may be produced by slight changes in the :U-l6 several instruments are innnite. Twelve ,12 different orchestrations. It may be doubted whether GQupod"himself could reproduce it, if we can suppose him to have 110 ,aiq Jrom ,We understand by this evidence that all theorata#os tbus, mapl;lwould be somewhat like the original, and all would differ more or less from it. It is able that some one might be considered better than Gounod's, if madeb;w he; but ,the plIances that ppey w,ould worse; ,(lnd mIght be,J;>roperly imitations IOf his'. work, Tllese the 'facts, we consider jt' to l;>edea,r that,a to the pub,lic ofthe {or tllepiano40es not it dges ana what bereprotlciced the fact no set'for. an If !3hould)l!tve the opportumty to copy he not,ooper< to it.> " " , " . , ' ' '. ' . ' , " , " . " , 2... th,attlil'l ,ap, ,d?es, ia per.'rItpout ,wbat TbJS of ,?opk 7 4 App. Cas. 7lL ,A similar decisiOli' was announced' in this country iri1882,' in a' very 'able and

re-

filOllASV. LENNONi

vigorolls ;o,pinion by Chancellor TULEy;of the circuit court 'of Cook county, Illinois. GoZdm2rk v. CoUlner, (printed by itself in a pamphlet.) In the English case there was no dissent in either the court ofap. peal or the house of lprds, and the d,ecision of the vice-chancellor, whichwasieverseJ,w,lts point of he did ilit\1;IJ.ate that anyone might taket4e by meWQry, 1f, there were no, copyright, which is not thaJaw ofthis:!cpuntry. S.till, in that case, the infringement was almost taken fot:granted. ,The ar· gument against it, which was urged here, and is given by Drone in his aHa itud suggestive work on Copyright, 609, is this: "By the applying to books, anyone may make sllch use as he can of finds in a if he does ,not copy from it j a Jortwn, if he can reconstruct an opera or oratOrIO from a book t1W"Q"rchestral score which is commAAs which is protected, he is blameless." This argument has a logical and consistent appe"aranM, plied'toR musieaHvork of very great. Such a workis a is an .fr()ll:l, ,somethipg'else necessarily an imperfect imitation, the same field, and may ruin the original. .In this respect an opera is more., likea'patented' 'thah"like cOllltfton hookj"'ne, who shall similar results, better or '-',:r'-: . ,,, -', I. ), by ilboU;ld]¥ held of the"coOlPQsi:lJ:. ' ,.Thia is . very well stated by Chancellor TULEY. Another pr8i<ltiealJ."pbi'nt of some importance is that it would be .very case'E3;W;l1:ether If necessary to the fogic of' that the publication of the piano score is a restricted dedication of that and nothing more. This seems to be the opinion of thl:l !E'nglish 6xact"olbhe'StraHon judges, fortheyl!ppear 'to hAve thmiglit thal could be written from the book by any skilled arranger. ,!:i " Lastly.. I , I!tlis'plaini defet1dMlt' :})t\g tb t Gounod' Bj full. sP011el t (f Eventhis 1moaified' iud it 'may notify ,etperta, that the, repro<tuctioh' eanfi'Ot';be·exae1, .is i cal0Ulaited M express ,to thatlGbUDod' 8" iWork>iti,itg, etititety;j.gi to,b&' ,performed' by 11i1l1/ for the sst J mnd !he haateI1M,Iii.! aratic:misJ,and chiangedltrre of these.ciiroollJst&riaes' in:ftringetnentappear-t: t& us. to',

is

a

I

:'

854

J'l!lDu.u. BEPOBTJilB.

mitted· for the purposes .of this motion, even if it were otherwise doubtful. (, Motion .grantedr.
i,

,.

.

See H1lbbrtrd v. Thompson, 14 FED. REP. 689; The" Mark Twain" Id.:728'; Yuengling v. SchUe, 12 FED. UEP. 97; MackayB v.Mallory, Id. 328; Chapman. v. Ferry, 693, and 696; Ehret v: Pie/'ce, 10 FED. \'tEP. [,53; B1trtoh v. Strattonj:J.2.FEI>. REP. 696, and note; 704; Shaw Stocking Uv. v. Mack,Id. 707,and llQte; 717.

THE CHASE.

Oou'1't, .8. D. Florida. December, 1882.)
LAWS,

lllesl bosrds power to fix: rates of pilotage are not void as'\ granting powers which may not . , be delegated. ,·,ri' , . ·
2. SAME.

"I (

They are enacted by a powerorfginally within the states an<l'not by that COIlferredby the Unhcd States.
3. SAliS,

They Peep nllt and uniform throughou,t the state, but may be reguaccorqing to local needs. .
4.

TO FIX

The power to fix and determine'rtites also authorizes the determining what proportion of the regular rates may be. demanded when services are tendered and ,. "

5.

(]LAUSE.

It :is l1 ot necessary that a repealing clause be embodied in an act; if the sub. stance olthe previous act is inconsililtent with that of the lluollequent one it is tepelded by'implication. . .

In A.dmiralty. , W. O.,,¥aloney, Jr., for libelant. G. Bowne Patterson, for respondent. LOCKE, D. J. The legislature of Florida, by the act of February 27, 1872, a, certain schedule of rates of pilotage, which should bepa,iit &j pilot by /lony'vaSile} entering any port of the state, when spoken, his sftlivioeswere'aocepted or not; but by the act of March: 7, 1819, it subs£lqqently,<!etllared' tha;tthe severllliboards of comDlisSlQlllerll; fQ'l'ctbeseveral ports of· the state should determine i the.. -l'a.tes ofpill>tage which· should be paid by any vessel at. their ports, such'rate not to, :be:greater than those then provided.