Page:United States Reports, Volume 209.djvu/33

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7
WHITE-SMITH MUSIC CO. v. APOLLO CO.
209 U.S.
 
Argument for Appellee

Musical compositions mentioned as the subject of copyright are tangible and legible embodiments of the intellectual product of the musician, and not the intangible intellectual product itself.

“Copies” which infringe a musical copyright must be tangible embodiments of the intellectual product of the composer in the same sense and for the same purpose as tangible embodiment which constitutes the copyrighted “musical composition.”

The primary use and adaptation of the thing determines its copyrightability or infringement of copyright. Intention as to use is material and may be controlling.

Things intended for mechanical function—for use in themselves—will not infringe copyright, and are not copyrightable merely because of incidentally being able to perform some part of the function of things copyrightable. Baker v. Selden, 101 U.S. 99; Amberg File Co. v. Shea, 82 Fed. Rep. 314, aff’g 78 Fed. Rep. 429; Rosenbach v. Dreyfuss, 2 Fed. Rep. 217.

The protection designed to be afforded to the composer by copyright of a musical composition is only the monopoly of the multiplication and selling of copies, and this applies to musical compositions as it does to all other subjects of copyright.

As to this definition of the monopoly see Stephens v. Cady, 14 How. 529; Stowe v. Thomas, Fed. Cases, 13,514; Lawrence v. Dana, Fed. Cases, 8,136; Perris v. Hexamer, 99 U.S. 674.

That perforated sheets and other mechanical means of automatically producing music audibly are not infringements of copyrights upon the musical compositions which are thus audibly reproduced, has been the conclusion of every court of England and America before which this question has ever come for decision. Stern v. Rosey, 17 App. D.C. 562; Kennedy v. McTammany, 33 Fed. Rep. 584; Boosey v. Whight, 15 L. T. R. 322 (1899); 1 Ch. 836 (1899); 80 L. T. R. (N. S.) 561.

These prior decisions have established a rule of property and of business, and should be sustained under the doctrine of stare decisis, unless greater injury would result from sustaining than from reversing them. Every enactment of Congress is