Page:United States Reports, Volume 209.djvu/31

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5
WHITE-SMITH MUSIC CO. v. APOLLO CO.
209 U.S.
 
Argument for Appellee

not made a test of copyrightability or of infringement by the statute. So long as it can be read or reproduced in any way, it makes no difference what assistance the person calls in from means known in the art.

Whether a musical composition, in addition to the musical function performed by the order of its notes, does, or does not, perform also a mechanical function is not made a test of copyrightability or of infringement by the statute.

It is impossible to say that the order of the perforated notes is the mere adjunct of a valve mechanism, because the valve mechanism would work with the perforations in .whatever order. It is not the machine that puts or requires the perforations in this order, but the appellee.

There is no controlling authority opposed to complainant’s contention. The two decisions in this country relied upon by the appellee are neither binding upon this court nor apposite to the facts disclosed by this record. Kennedy v. McTaremany, 33 Fed. Rep. 584, and Stern v. Rosey, 17 App. D.C. 562, discussed and distinguished. The English decision of Boosey v. Whight, L. R. 1900, 1 Ch. 122, was based upon the narrow wording of the English statute, and in view of the amendment of that statute in 1902, can no longer be regarded as authority, even in England.


Mr. Charles S. Burton and Mr. John J. O’Connell for appellee:

Copyright is strictly statutory in the United States. If a common law right ever existed it was taken away by the statute of Anne, and that statute and those amendatory of it are now in England the only source of an author’s right. There never existed any common law right of copyright in the United States. Copyright in this country is the creature of statute pure and simple. Wheaton v. Peters, 8 Pet. 591, see p. 664 quotation; Banks v. Manchester, 128 U.S. 244; Thompson v. Hubbard, 131 U.S. 123.

Existing by virtue of statute only, the limitations of copyright are those which the statute fixes, or, more accurately