Opinion
Civ. No. 70.
August 14, 1940.
Poore, Krammer Cox and Taylor H. Cox, all of Knoxville, Tenn., and I.T. Cohen, of Atlanta, Ga., for plaintiffs.
Wood Dietzen and Wilkes T. Thrasher, all of Chattanooga, Tenn., for defendant.
Action by Gene Buck, as president of the American Society of Composers, Authors and Publishers, and another against Robert Pettijohn to enjoin, and recover damages for, infringement of a copyright.
Order granting injunction and awarding damages to plaintiffs.
This suit is brought charging infringement of the copyright of a certain composition and prays for an injunction, damages, costs, and attorney's fees.
Finding of Fact.
The plaintiffs, citizens of New York, were on July 29, 1939, the owners of the copyright of a musical composition entitled "You Must Have Been a Beautiful Baby".
The defendant, a citizen of Tennessee, operated a business for the entertainment, accommodation, and refreshment of the public, on the Hixson Pike, Lupton City, Tennessee, called "New Nite Club Drum Room". On July 29, 1939, an orchestra gave a performance for the purpose of entertaining the persons patronizing defendant's night club, and for the purpose of obtaining money for the members of the orchestra by donations from said patrons, and among other tunes played was the piece called "You Must Have Been a Beautiful Baby".
The orchestra played at the defendant's place of business intermittently and the entertainment furnished was to the mutual benefit of the members of the orchestra and the defendant.
The defendant was never granted permission or authority to publicly perform for profit in his night club the musical composition above mentioned.
Conclusions of Law.
The orchestra, in the "New Nite Club Drum Room" on July 29, 1939, infringed the musical copyright of the plaintiffs by playing the musical composition "You Must Have Been a Beautiful Baby", although no admission was charged to hear the orchestra. The defendant is liable in damages for the wrongful act of the orchestra, although he may not have authorized or knew that this composition was played, for the reason that he received benefits to his business by this orchestral performance.
The plaintiffs are entitled to an injunction as prayed for against Robert Pettijohn, and the plaintiffs are entitled to recover from the defendant damages, costs, and a reasonable attorney's fee.
An order will be drawn in accordance with this opinion.