The New York herald., 1850-10-29

Family Polka" is, or Is not, musical composi,io,
within the meaning of the statute.
II is not cl,amed that Loder is the author of tn
melody or air; but simply, that by skill and labor
he has adapted il to a new use, or TO new instru
ment the Piano-foyte for instance, instead OF the
| clarionet.
held that musical composition was protected by
| copy right within the words "bOOks or other
wrihngs;" and is now, under the 8 and Wet. ch.
40, z, ii is declared that in the construction OF
the act, the word f." book" shall BE- construed to
mean and include every volume, part, or division
of volume, pamphlet. sheet of letter press, sheet
OF music, NC and under these acts, II has beea
determined, ia effect, thas the arrangement, and
adaptation OF a well known air, either by chang
ing II 10 dance, or by transferring ii from oae
instrument 10 another, is not a work emitting al
s aaIhor OF one music TO copy right, tl2, and vol
2ss DAlmaine vs. Boosey)
The composition of aew air or melody
is entitled to protection, and the appropriation of
the whole or any substantial part OF il, without the
license of the authors, is piracy. How far the
appropriation might be carried, in the arrangement
and composition Of a new piece of music without
in infringement, is question that must be len to
the facts IN each particular case.
IL the new air be substantially the same as the
old, II is, no doubt, piracy; and, the adaptation
Of it, either by changing il to dance, or by Trans
ferng II from one instrument to another, if the ear
detects The same air in the new arrangement,
will not relieve ii from the penalty and the adoi.
tion Of variations makes no difference. The origi-
nal air requires genius for its construction but,
mere mechanic IN music, II Is Sdld can make the
adaptation or accOmpaniment.E
The musical composition contemplated by the
statute must, doubtless, be substantially new
and original work and not copy of piece al
ready produced, with additions and variations,
which writer OF music with experience and
shill might readily make. Any other construc-
tion of the act would fail to afford the protection
intended to the original piece, from which the air
is apprOP lated. The new arrangement aud adap-
taton must not be allowed 10 incorporate such
parts and portions OF 1t AS may seriously interfere
with the right OF the author; otherwise, the copy
right would be worthless. That portions may be
taken and mixed up in the arrangement and
composition cannot, probably, be denied; and there
may be great difficulty In distinguishing between
those new compositions that do, or do not absorb
the merit of the original work. Each case must
depend upon its own particular facts and circum-
stances Persons of skill aud experience IN the art
must he called in, TO assist IN the determination of
the question. Ii may often be a very nice one,
1t is admitted in the bill, in the case before MS,
that the basis Of the arrangement in the Z" Serious
Family Polka " was taken from German musical
compositions andt is further insisted by the defend
ants, that II is nothing more than substantial
copy of that piece; the whole Of the air being the
same, with slight and unimportant variations,
which any person of ordinary skill and experience
in music could have made.
The evidence on this part of the case is conflict
ing, and not sufficiently full to enable us TO deter
mhe on which side the truth lies. We shall,
therefore, suspend the ecision the motion for
the in junction, and direct an issue At law upon the
question; and that, in the mean tlme the defend
ants keep an account Of the sales and report 10 the
clerk monthly, under oath
IL has been argued on the part OF the COM
plainant, that the name or title OF his piece OF mi-
SIC is original in the connection 10 which Is used,
end that, conceding the musical composition, Itself
not 10 be within he protection OF the statute, still
he is entitled 10 the injunction 10 restrain the de-
fendants from the use of the same name IN their
publications
II must he remembered that this is a suit found
ed upon the copyright act, (see Act Of Cong FEB.
I5, 1919, in on with the act of Feb. 3, IS)
and in order TO maintain il, the complainant mast
make title under his copyright. Independently of
this ground, we have jurisdiction Of the case,
both parties residents, aud, Tor aught there
appears, CT zens OF New York.
The que eston, there fore, whether the court will
interfere prevent the of the title in fraud of
the compliments, upon principles relating to the
good will oi trades, is not before US.
The &C, of 1881 grants copyright 10 the author
OF {" musical composition" provided he complies
with the acquisitions the rein prescribed, ahd,
among oihers, deposits the title with the Clerk OF
The Cour. who shall record II al length, and aief-
wards deposits copy Of the work within three
months The right secured Is the property IN the
piece Of music, the production OF the mad ana ge'
Mus of the author, and not 10 the mere name gwen
to The work. That - essential, ss well IN taxing
out the copyright as In identiyio the composition
protected sometimes, doubtless, the source OF as
much profit the intrinsic merit of the work II
self. But il u not the thing protected or intended
TO be protected. There need he no novelty or orr
gnalty in II, even the production ot the au'hor
| Tor anyihng IN the act; IL may be taken from the
| suggestion Of friend, or picked up from any
source, as the author may desire.
The title or name is an appendlge 10 the booh or
piece Of music, for which the coy right ~ taken
our, and If the latter fails 10 bs protected, the title
goes with it, as certainly the principal carries
with il the incident.
We do not say how the question might be
decided in the case of valid copy right of the
work, and an infringement oi the Tile by the de-
PENDANTS. That would be A different question IL
may be that the title should he considered AS fall
ing within the purview of the statute, and that
protection Of the work would require the security
Of the tile from piracies. But We express no oPin.
ion on this question.
The proposition assumes that the piece Of music
il not protected within the statute; aud II so, we
think il clear the name is not also IL must abide
the result in this respect OF the thing to which II IS
attached,
The Union OF the Three cities.
The present census will show that nearly 10000