Page:United States Reports, Volume 209.djvu/29

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WHITE-SMITH MUSIC CO. v. APOLLO CO.
209 U.S.
 
Argument for Appellant.

v. Donaldson Co., 188 U.S. 239; American Mutoscope Co. v. Edison Co., 137 Fed. Rep. 262.

The mutuality of the contract which the Constitution evidently contemplates between the Government, on the one hand, and the author or inventor on the other, also leads to the same conclusion.

If an author has among his writings a musical composition, the only possible way of “securing” to him the “exclusive right” thereto is by giving him the monopoly of this musical composition, no matter in what form it may be represented; otherwise, he gets only a partial exclusive right thereto. No composer can be truly said to have “the exclusive right” to his musical composition writings secured to him so long as others have the right to publish, and sell them without his consent, in the form of perforated music.

“Musical composition,” the term of the statute under which this case comes, is broad enough to include perforated music.

As applicable to this case, the right conferred by the statute is the “sole liberty of printing, reprinting, publishing, completing, copying, executing, finishing and vending” the “musical composition.” The undeniable policy of the law is to cover all forms of piracy.

This court has substantially decided that the subject of property in a copyrighted musical composition is the order of the notes in the author’s composition, by adopting in Holmes v. Hurst, 174 U.S. 86, Mr. Justice Erle’s definition of the subject of property in a book or literary composition as being “the order of the words in the author’s composition.” And the same thing must also be true as to the notes of a musical composition. The only thing that has to be copied to constitute a copy of the copyright property is the order in which the notes were set down.

Appellee’s witnesses admit that in making the infringing perforated music they copy the order of the notes.

It is immaterial that in the year 1831, when the term “musical composition” was first placed in the copyright statute the