Phillips, Nizer, Benjamin & Krim, New York City, Louis Nizer, Paul Martinson and Bernard Segelin, all of New York City, of counsel, for appellant.
Arthur E. Garmaize, New York City, for appellee.
Before L. HAND, Chief Judge, and SWAN and FRANK, Circuit Judges.
SWAN, Circuit Judge.
This is a suit for a declaratory judgment with respect to motion picture rights in the copyrighted opera “Madame Butterfly,” the renewal copyright of which is owned solely by the plaintiff. Federal jurisdiction is claimed on diversity of citizenship, the plaintiff being a partnership composed of Italian citizens and the defendant a New York corporation. After answer, both parties moved for summary judgment upon the pleadings, affidavits and exhibits. The district court granted the plaintiff’s motion and awarded a judgment declaring the plaintiff to be the exclusive owner of motion picture rights in the renewal copyright of the opera and enjoining the defendant from interfering with the plaintiff’s exercise of such rights. The defendant has appealed.
There is no dispute as to the facts. In 1897 John Luther Long wrote a novel entitled “Madame Butterfly,” which was published in the Century Magazine and copyrighted by the Century Company. In 1900 David Belasco, with the consent of the copyright owner, wrote a play based upon the novel and having the same title. The play was not copyrighted until 1917. In 1901 Long and Belasco made a contract with the plaintiff by which they gave it “the exclusive rights * * * to make a libretto for an Opera of his [Belasco’s] dramatic version of Madame Butterfly, founded on the original theme, written by Mr. John Luther Long * * * the said Libretto and all rights therein, dramatic or otherwise, to be the exclusive property of Messrs. G. Ricordi & Company for all countries of the world.” It is upon this agreement that the plaintiff grounds its claim to motion picture rights in the world-famous opera, with music and lyrics by Puccini in collaboration with Giacosa and Illica, which was copyrighted by the plaintiff in 1904, and of which the renewal copyright was acquired by the plaintiff from the son of Puccini.
The defendant does not deny that the plaintiff is the sole owner of the renewal copyright of the opera but it asserts that it owns the motion picture rights in the John Luther Long basic story and in the Belasco dramatic version thereof, and, consequently, if the plaintiff wishes to make a motion picture version of the opera, the defendant’s consent must be obtained for the use of the Long novel and the Belasco play. Its primary contentions are two: (1) that the 1901 agreement of Long and Belasco with the plaintiff did not grant any motion picture rights; and (2) that in any event the expiration in 1925 of the copyright of Long’s novel and the expiration in 1945 of the copyright of Belasco’s play put an end to any exclusive license of the plaintiff to use the novel and the play for a motion picture version of the opera. Long had obtained in 1925 a renewal of the copyright on his novel and in 1932 his administrator granted to the defendant the motion picture rights therein. In the same year, 1932, the defendant obtained from the trustee under Belasco’s will an assignment of the motion picture rights in Belasco’s play. So far as appears there was no renewal of copyright in the play.
The district court was of opinion that the primary question for decision was whether the 1901 agreement granted to the plaintiff motion picture rights in the oper-
