[ The article below, reproduced in its entirety, was published
 [ in Music Trade Review, June 29, 1912, page 29.  Ref.
 [ http://mtr.arcade-museum.com/MTR-1912-54-26/MTR-1912-54-26-29.pdf 
 [ Case citation:
 [ Aeolian Co. v. Royal Music Roll Co., 196 F. 926 (W.D.N.Y. 1912)

  INVOKE COPYRIGHT LAW TO PROTECT MUSIC ROLLS

  Details of the Action Brought by the Aeolian Co. Against the Royal
Music Roll Co. of Buffalo --
  How the Law Is Made to Apply Despite Practically Automatic License to
Record Music After Permission Has Once Been Granted --
  Preliminary Injunction Issued Against the Royal Music Roll Co. by the
United States District Court for the Western District of New York --
  An Important Decision of the Greatest Interest to Music Roll
Manufacturers.

The Aeolian Co. has succeeded in doing, under the provisions of the
copyright act of March, 1909, what has very generally been supposed to
be impossible.  It has made use of the copyright act as an instrument
of protection against the piratical copying of perforated music rolls.
The Aeolian Co. has created for itself, and hence for the trade, a very
simple, yet most effective, remedy against the evils of piracy in the
making and marketing of rolls.

The effect of this decision will be far-reaching.  Judge Hazel of the
United States District Court for the Western District of New York has
rendered an opinion sustaining the contention of the Aeolian Co. and
has granted the injunction prayed for.

Under the copyright act the copyright owner of sheet music can control
the making, originally, of perforated rolls from his copyrighted sheet
music, but if he makes such rolls or allows others to do so, then any
one can make rolls upon the payment of the royalty provided in the act,
but this right is limited by the provision of the statute which
declares that "any one can make a similar use of the copyrighted work,"
and this has now been legally held to mean that he can only make an
original roll from the copyrighted sheet music, but cannot copy the
roll made by any one else.  As Judge Hazel said, he cannot "pirate the
work of a competitor who has made an original perforated roll."

Another important point in the decision is that a mere licensee of the
copyright owner, though not having any exclusive license, which, of
course, be cannot obtain under the copyright act, can, nevertheless,
enjoin the piratical copying of his rolls under the provision of the
copyright act which allows "any party aggrieved" to enjoin the
violator of any of the rights secured under said copyright act.

Judge Hazel's decision follows:

DISTRICT COURT OF THE UNITED STATES, Western District of New York.
In Equity Order,
  The Aeolian Co., Complainant,
against
  Royal Music Roll Co., Defendant.

George D. Beattys, 49 Wall Street, New York, N. Y., for complainant.
Thayer & Tuttle, 500 D. S. Morgan Building, Buffalo, N. Y., for
defendant.
John R. Hazel, District Judge

The question raised in this case involves the right of the complainant,
the Aeolian Co., under the copyright act of March 4, 1900, to restrain
the defendant, the Royal Music Roll Co., from copying and duplicating
perforated music rolls or records manufactured by the former.

While, under the provisions of the copyright law, such music rolls or
records are not strictly matters of copyright, Congress in passing the
enactment evidently intended to protect copyright proprietors in their
right to their productions, and to give them an exclusive right to
print, publish, and vend the same.

If the copyrighted work be a musical composition, the owner, under the
provisions of the statute, after complying therewith, has the exclusive
right to perform it publicly for profit, and may, if he chooses so to
do, make "an arrangement or setting" of the musical composition,
published or copyrighted after the passage of the act, for mechanical
reproduction.  In this manner the copyright owner retains control of
the right to manufacture music rolls, and the mechanical reproduction
of such music or composition is optional with him.

If he elects to mechanically reproduce it, or knowingly acquiesces
in such use of reproduction by another, "any other person," the act
says, "may make similar use of the copyrighted work" upon payment
of a royalty.

The bill avers that prior to making the music rolls or records in
question complainant was given permission and license to mechanically
reproduce the copyrighted composition and to make perforated rolls
therefrom.  By such permission or license the owners of the copyright
transferred to the licensees their right to manufacture perforated
rolls, or parts, or instruments to mechanically reproduce the
copyrighted music.

The provision of the statute that "any other person may make similar
use of the copyrighted work" becomes automatically operative by the
grant of the license, but the subsequent user does not thereby secure
the right to copy the perforated rolls or records.  He cannot avail
himself of the skill and labor of the original manufacturer of the
perforated roll or record by copying or duplicating the same, but must
resort to the copyrighted composition or sheet music, and not pirate
the work of a competitor who has made an original perforated roll.

The defendant contends there is no provision in the copyright act for
an action of this kind by the manufacturer of perforated rolls or
records -- a licensee of the copyright proprietor -- and that the
license herein granted conveyed nothing beyond the right to use the
copyrighted music.  This court, however, is of a different opinion and
thinks that Congress gave to the owner of the copyrighted work and to
his licensee the right to maintain an action such as this.

By Section 36 of the copyright act it is provided that any party
aggrieved may file a bill in equity and a circuit (district) court of
the United States may grant an injunction to prevent and restrain the
violation of any rights secured by such act.

To effect the purpose intended by Congress this provision must be
given reasonable construction, (Bobbs-Merrill Co. v. Straus, et al.,
210 U.S. 339) and to give it such construction requires holding that
the phrase "any party aggrieved" includes a licensee who has obtained
a right to manufacture and sell perforated rolls.  The phrase is not
limited merely to owners of the copyright, but is broad enough to
include licensees or others having permission from the owner of the
copyright to mechanically reproduce the musical composition.

The allegation charging copying of the rolls by the defendant is not
denied.  The motion for temporary injunction is granted.

Dated, June 18, 1912.
John R. Hazel, U. S. J.

 - - -

The Judge's Order.

  At a Stated Term of the United States District Court for the
  Western District of New York, held at the Federal Building in
  the City of Buffalo, New York, on the 24th day of June, 1912.

Present:
  Hon. John R. Hazel, District Judge,
In Equity Order,
  The Aeolian Co., Complainant,
against
  Royal Music Roll Co., Defendant.

The Court having heretofore on the 13th day of May, 1912, allowed an
order to show cause why a preliminary injunction should not be issued
in the above stated cause, in accordance with the prayer of the bill
of complaint herein, returnable on the 28th day of May, 1912, and the
defendant having filed a demurrer to said bill of complaint on the
ground that the same did not set forth facts sufficient to constitute
a cause of action; and upon the return of said order to show cause,
and upon reading the bill of complaint filed in this cause, and the
affidavits annexed to said order to show cause, and the said demurrer
filed by defendant; and said motion upon the order to show cause and
said demurrer having both been brought on for argument before said
Court;

now after hearing George D. Beattys, Esq., of counsel for complainant,
in support of said motion, and in opposition to said demurrer, and
Wallace Thayer, Esq., of counsel for defendant, in opposition to said
motion and in support of said demurrer, and due consideration having
been had therein;

Now on motion of George D. Beattys, solicitor for complainant, it is

Ordered that the motion upon said rule for preliminary injunction
be and the same hereby is in all respects granted; and it is further

Ordered, that an injunction do issue restraining and enjoining said
defendant, the Royal Music Roll Co., its officers, directors,
stockholders, agents, servants, clerks, attorneys, employees and
successors, and each of them, from making any perforated roll from
the use of complainant's roll described in said bill of complaint,
or copying the same, and from publishing advertising, selling or
exploiting for sale, circulating or using, or from being in any way
concerned in the making, sale, advertising or exploiting for sale,
circulating or otherwise disposing of or using the same or any one or
more of said perforated rolls or any copy of duplicate thereof, or any
other roll or rolls made in whole or in part from any perforated rolls
made or sold by complainant; or using or permitting the same to be used
for its benefit or for that of any one else; except that the defendant
is not to be restrained from purchasing from complainant or in the
market rolls made or sold by complainant and reselling the same as of
complainant's make; and it is further

Ordered, Adjudged and Decreed that the demurrer herein be and the same
hereby is overruled, and that defendant herein be directed to make and
file an answer to the bill of complaint herein on the next rule day,
and that in case of a failure so to do complainant have final judgment
against said defendant for the relief demanded in the bill of
complaint.

(Signed.) John R. Hazel, U. S. J.