Page:United States Reports, Volume 209.djvu/30

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4
 
OCTOBER TERM, 1907.
 
209 U.S.
Argument for Appellant.

perforated form of musical compositions was not known. See Edison v. Lubin, 122 Fed. Rep. 240, holding that while the advance in the art of photography has resulted in a different type of photograph, yet it is none the less a photograph.

So, as to music, while the perforated notation is a different type of notation, yet it is none the less a “musical composition;” none the less a perfect record, and none the less a “writing.”

Where the order of the notes or words is copied, infringement of literary or musical compositions is not avoided by variations in other respects. Jollie v. Jacques, 1 Blatch. 625; Blume v. Spear, 30 Fed. Rep. 631; Daly v. Palmer, 6 Blatch. 266; Nicols v. Pitman, 26 Ch. Div. 374; Edison v. Lubin, 122 Fed. Rep. 240; Fishel v. Leuckel, 53 Fed. Rep. 499; Falk v. Howell, 37 Fed. Rep. 202; Falk v. Donaldson, 57 Fed. Pep. 32; Turner v. Robinson, 10 Ir. Ch. 121, 510; Drone on Copyright, 385; Scrutton on Copyright, ed. 1903, 135, note.

The meaning of “musical composition” in § 4952, must be read in the light of its manifest meaning in § 4966 wherein it is the subject of protection against public performance.

The prohibition of the public performance of a copyrighted “musical composition” is the prohibition of the public reproduction of that order or succession of notes which constitutes the composition. It is the musical composition that is publicly performed, and not a sheet of music.

Public performance is prohibited, whether or not any notation or record be used. And it cannot be questioned that a performance in public of a musical composition upon an Aeolian organ or pianola, by means of perforated music, would be as much a public performance of a musical composition as if it had been played in public from a printed sheet of music in staff notation, and as such would be equally within the condemnation of the statute, provided the musical composition had been copyrighted. One who, like the appellee, sells the musical composition is a contributory infringer with the infringer under § 4952 who plays it in public.

Readability by the person without mechanical assistance is