Summary
In Brown v. Republic Productions, Inc., 156 P.2d 40 (Cal. Ct. App. 1945), affirmed 26 Cal.2d 867, 161 P.2d 796 (Sup. Ct. 1945), the plaintiff was a joint author of a musical composition with the defendants, Styne and Meyer.
Summary of this case from Noble v. D. Van Nostrand Co.Opinion
Rehearing Denied March 2, 1945.
Hearing Granted April 19, 1945.
Appeal from Superior Court, Los Angeles County; Thomas C. Gould, Judge.
Action by George R. Brown against Republic Productions, Inc., Mills Music, Inc., and others for plagiarism, infringement, conversion or destruction of a certain musical composition, its lyrics and title. From that part of judgment denying relief against named defendants, plaintiff appeals.
Judgment affirmed.
See also __ Cal.App.2d __, 156 P.2d 42.
Ray Sandler, of Los Angeles, and Max Fink, of Hollywood, for appellant.
Loeb & Loeb, of Los Angeles, for respondents.
OPINION
MOORE, Presiding Justice.
The sole question for decision is whether the licensee of musical and lyrical compositions under license by two of the three tenants in common is liable to the third cotenant for profits and royalties.
Appellant brought his action for the plagiarism, infringement, conversion, or destruction of a certain musical composition, its lyrics and its title, to-wit, 'Puddin Head.' It was found that he was a joint author thereof with defendants Styne and Meyer in June, 1940. Before the compositions had ever been published, defendant Styne, in 1941, without plaintiff's consent, within the scope of his employment by Republic Productions, Inc., hereinafter referred to as Republic, used all of the Puddin Head musical composition and lyrics by incorporating them in a similar production also entitled Puddin Head. By such rewriting and alteration of the lyrics and music of the original Puddin Head, Styne and Republic altered the original lyrics of plaintiff and his cauthors with knowledge of plaintiff's rights and without compensating appellant for his interest in the production. Thereafter Republic caused reprints of the motion picture to be distributed and exhibited for profit and will cause additional prints to be made and displayed for profit. Also, Mills Music, Inc., hereinafter referred to as Mills, published and distributed, for profit, copies of the Puddin Head musical compositions as rewritten, without plaintiff's knowledge and without compensating plaintiff, and will cause additional copies to be printed and distributed for profit. As a result of the appropriation of such composition, Republic, Mills, Styne and Meyer have realized profits and royalties from and by virtue of the rewritten Puddin Head. However, the modification of the original Puddin Head composition and its use by Republic and Mills were done and made pursuant to an express written agreement of Styne and Meyer authorizing and licensing the use of such modified composition by Republic and Mills.
Upon the determination of such facts the court awarded judgment in favor of appellant against his former collaborators Styne and Meyer for an accounting to him of one-third of all profits received or to be received by such defendants in connection with or from the use or sale of such modified musical composition entitled Puddin Head and retained jurisdiction for further accountings, but denied judgment against both Republic and Mills. From that part of the judgment denying relief against respondents, plaintiff brings this appeal.
Inasmuch as appellant and defendants Styne and Meyer were owners in common of the property of the musical and lyrical compositions, the latter were severally entitled to use the compositions and to license others to use them without first consulting appellant with reference to such use or license. Klein v. Beach, D.C., 232 F. 240; 2 Cir., 239 F. 108; Lee Chuck v. Quan Wo Chong & Co., 91 Cal. 593, 598, 28 P. 45; Dinsmore v. Renfroe, 66 Cal.App. 207, 225 P. 886; Herbert v. Fields, 152 N.Y.S. 487. By lease or license one tenant in common may confer upon a stranger the right to occupy and use the property of the cotenants to the same extent that the licensor himself might have used it. Lee Chuck v. Quan Wo Chong & Co., supra. Such licensor's sole obligation is to account to his cotenants. Neither can exercise a superior authority. Herbert v. Fields, supra.
Appellant contends that he is entitled to judgment against Republic on the ground that the modification of the original composition and its adaptation to the motion picture of the same title deprives him of further enjoyment of his property and that such deprivation constitutes a destruction of his property in such creations. There is no finding that appellant was deprived of the lyrics or of the music by use of the modified compositions in a motion picture or by the sale and distribution of the rewritten music. All of the music and 'a portion of the lyrics' were used, from which it may be inferred that substantially the entire original musical composition and words were contained in the ultimate composition as used by Republic and as published by Mills. If the compositions were so manipulated by appellant's cotenants as to impair the later utility and profitable sale thereof, such is an incident of a tenancy in common wherein any cotenant may use or license others to use the property of the cotenancy. While such use or license of an intellectual creation results in the gradual depletion of public interest therein, yet so long as interest is alive and public demand exists for the product all owners in common are entitled to share in its fortunes.
But however wide a range its sale, use and publication may extend as a result of the license of its use by one of the tenants, the waning of public interest therein cannot be termed either a legal or a factual 'destruction' of the composition. Only corporeal things may be destroyed. While it may be that the modification and publication of the composition and lyrics involved herein reduced the sale value of the original composition, the acts of Styne and Meyer in licensing the use of the music and lyrics to Republic and in permitting the publication and sale thereof by Mills defeats any award against those corporations in favor of appellant. Such is the logical result of the appropriation and use of any musical or literary composition but it is not to be confused with the destruction of corporeal property by one of its co-owners in collaboration with a stranger. Herbert v. Fields, 152 N.Y.S. 487. A musical production is an incorporeal entity and cannot be destroyed in the sense intended by those authorities wherein the doctrine is treated. Italiani v. Metro-Goldwyn-Mayer Corporation, 45 Cal.App.2d 464, 114 P.2d 370.
Appellant's authorities are distinguished by their facts. In Osburn v. Schenck, 83 N.Y. 201, the property in which the plaintiff asserted interest as a tenant in common was a planing machine and it was actually destroyed. In Estergren v. Sager, 39 Cal.App.2d 401, 103 P.2d 177, the property owned by the parties was a tractor alleged to have been converted by defendant. The case of Scarborough v. Woodill, 7 Cal.App. 39, 93 P. 383, involved the destruction of cypress trees growing on the boundary line of orange orchards of the litigants. The case of Fuller v. Montafi, 55 Cal.App. 314, 203 P. 406, was brought by one cotenant against the other and his vendees for the cutting and removal of timber from the tenancy in common. Being an incorporeal entity, a musical production has no physical existence; hence it cannot be destroyed as a machine or trees.
The judgment is affirmed.
W. J. WOOD and McCOMB, JJ., concur.