DIMOCK, District Judge.
Plaintiff obtained below an injunction against manufacture and distribution of phonograph records by defendant. The phonograph records bear recordings of performances by highly gifted artists of certain musical compositions. Since each party by stipulation disclaims ownership in any of the compositions by virtue of copyright, we treat them as in the public domain for the purposes of the case. Plaintiff derives its title, such as it is, from Telefunkenplatte, G.m.b.H., hereinafter called “Telefunken”, in Berlin, Germany, which purported to sell to plaintiff matrix records and to grant to plaintiff the right to manufacture and distribute copy records in the United States. Defendant derives its title, such as it is, from an alien property administration in Czechoslovakia which purported to grant to defendant’s predecessor in title the right to use identical matrix records and the right to manufacture therefrom, and distribute, copy records in the United States. Telefunken was the original owner of these matrix records which came from Czechoslovakia and had furnished them to an organization in that country giving it the right to reproduce and sell copies in a limited territory which did not include the United States.
The records have not been copyrighted. If they are subject to copyright we are clear that the rights of the parties to make and sell copies are to be determined under federal law. We must first determine, therefore, whether or not [660]*660phonograph records of compositions in the public domain recorded by musical artists are susceptible of copyright.
There can be no doubt that, under the Constitution, Congress could give to one who performs a public domain musical composition the exclusive right to make and vend phonograph records of that rendition. The question is whether Congress has done so.
It is plain that, prior to the 1909 amendmert of the Copyright Act, Congress had not accorded to one who performed such a composition that exclusive right. The Supreme Court held in White-Smith Music Publishing Company v. Apollo Company, 209 U.S. 1, 28 S.Ct. 319, 52 L.Ed. 655, that the holder of the copyright of a musical composition did not have the exclusive right to make and vend music rolls for mechanical pianos. It was determined that the music rolls were not “copies” of the musical composition within the copyright owner’s exclusive right to make “copies” of the composition. From this it follows that it was no'; the intention of Congress that a virtuoso’s rendition of a musical composition in the public domain could be copyrighted under the unamended Act because r; provided that “No person shall be entitled to a copyright unless he shall * * * not later than the day of the publication * * * deliver at the office of the Librarian of Congress * * * two copies” of the work of which the copyright was sought. R.S. § 4956, as amended by Act March 3, 1891, c. 565, § 3, 26 Stat. 1107, 17 U.S.C.A. § 13 note. Mechanical reproductions of such a rendition are the only possible means of duplication. The virtuoso himself could not give two performances precisely alike, yet “copies” were necessary to secure copyright and mechanical reproductions were not “copies”.
To me et the holding that the owner of the cops "right of a musical composition could not enjoin the making and vending of music rolls and records, Congress amended the Act in 1909, Act March 4, 1909, c. 320, 35 Stat. 1075. To change that result it could have declared that a mechanical reproduction of a musical composition should constitute a “copy” thereof within the meaning of the Act. Under such an amendment a virtuoso might copyright his rendition by depositing two records with the Librarian of Congress under section 4956 above quoted and thereafter be entitled to enjoin the reproduction of copies of those records. Congress, however, did not adopt that plan. Instead it enacted in section 1(e), 17 U.S.C. § 1(e), that any person complying with the provisions of the Act should have the exclusive right “[t]o perform the copyrighted work publicly for profit if it be a musical composition; and * * * to make * * * any form of record [of it] in which the thought of an author may be recorded and from which it may be read or reproduced”.
Thus Congress met the narrow problem presented by the Apollo case. From thenceforward one who had copyrighted a musical composition by publishing written copies thereof with the copyright notice
Congress provided no means for copyrighting a virtuoso’s rendition of a musical composition in the public domain. Under section 9 of the Act, 17 U.S.C. § 10, copyright is secured by publication with the notice of copyright. By section [661]*66119, 17 U.S.C. § 20, it is provided that the notice shall be applied in the case of a musical work “either upon its title page or the first page of music”. The old plan of deposit of copies was not abandoned, however, and now “copies” must be deposited with the Register of Copyrights under section 12, 17 U.S.C. § 13, and, under section 13, 17 U.S.C. § 14, the Register may, upon failure to deposit copies, bring proceedings which will result in voiding the copyright.
That the actual intent of Congress coincided with the intent as expressed in these words of the statute as amended in 1909 appears from the Report of the Committee on Patents which accompanied the House of Representatives bill that embodied the amendment. That Report, H.R.Rep., No. 2222, 60th Cong., 2d Sess. 10, stated, immediately following the discussion of section 1(e):
“It is not the intention of the committee to extend the right of copyright to the mechanical reproductions themselves, but only to give the composer or copyright proprietor the conti'ol, in accordance with the provisions of the bill, of the manufacture and use of such devices.”
In some quarters the possibility has been suggested that section 4 of the Copyright Act added in 1909, 35 Stat. 1076,17 U.S.C. § 4, providing “the works for which copyright may be secured under this Act shall include all the writings of an author”, constituted an exhaustion of the constitutional power of Congress to extend copyright protection and consequently clothed phonograph records with copyright protection. Hale, 13 C.J.
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DIMOCK, District Judge.
Plaintiff obtained below an injunction against manufacture and distribution of phonograph records by defendant. The phonograph records bear recordings of performances by highly gifted artists of certain musical compositions. Since each party by stipulation disclaims ownership in any of the compositions by virtue of copyright, we treat them as in the public domain for the purposes of the case. Plaintiff derives its title, such as it is, from Telefunkenplatte, G.m.b.H., hereinafter called “Telefunken”, in Berlin, Germany, which purported to sell to plaintiff matrix records and to grant to plaintiff the right to manufacture and distribute copy records in the United States. Defendant derives its title, such as it is, from an alien property administration in Czechoslovakia which purported to grant to defendant’s predecessor in title the right to use identical matrix records and the right to manufacture therefrom, and distribute, copy records in the United States. Telefunken was the original owner of these matrix records which came from Czechoslovakia and had furnished them to an organization in that country giving it the right to reproduce and sell copies in a limited territory which did not include the United States.
The records have not been copyrighted. If they are subject to copyright we are clear that the rights of the parties to make and sell copies are to be determined under federal law. We must first determine, therefore, whether or not [660]*660phonograph records of compositions in the public domain recorded by musical artists are susceptible of copyright.
There can be no doubt that, under the Constitution, Congress could give to one who performs a public domain musical composition the exclusive right to make and vend phonograph records of that rendition. The question is whether Congress has done so.
It is plain that, prior to the 1909 amendmert of the Copyright Act, Congress had not accorded to one who performed such a composition that exclusive right. The Supreme Court held in White-Smith Music Publishing Company v. Apollo Company, 209 U.S. 1, 28 S.Ct. 319, 52 L.Ed. 655, that the holder of the copyright of a musical composition did not have the exclusive right to make and vend music rolls for mechanical pianos. It was determined that the music rolls were not “copies” of the musical composition within the copyright owner’s exclusive right to make “copies” of the composition. From this it follows that it was no'; the intention of Congress that a virtuoso’s rendition of a musical composition in the public domain could be copyrighted under the unamended Act because r; provided that “No person shall be entitled to a copyright unless he shall * * * not later than the day of the publication * * * deliver at the office of the Librarian of Congress * * * two copies” of the work of which the copyright was sought. R.S. § 4956, as amended by Act March 3, 1891, c. 565, § 3, 26 Stat. 1107, 17 U.S.C.A. § 13 note. Mechanical reproductions of such a rendition are the only possible means of duplication. The virtuoso himself could not give two performances precisely alike, yet “copies” were necessary to secure copyright and mechanical reproductions were not “copies”.
To me et the holding that the owner of the cops "right of a musical composition could not enjoin the making and vending of music rolls and records, Congress amended the Act in 1909, Act March 4, 1909, c. 320, 35 Stat. 1075. To change that result it could have declared that a mechanical reproduction of a musical composition should constitute a “copy” thereof within the meaning of the Act. Under such an amendment a virtuoso might copyright his rendition by depositing two records with the Librarian of Congress under section 4956 above quoted and thereafter be entitled to enjoin the reproduction of copies of those records. Congress, however, did not adopt that plan. Instead it enacted in section 1(e), 17 U.S.C. § 1(e), that any person complying with the provisions of the Act should have the exclusive right “[t]o perform the copyrighted work publicly for profit if it be a musical composition; and * * * to make * * * any form of record [of it] in which the thought of an author may be recorded and from which it may be read or reproduced”.
Thus Congress met the narrow problem presented by the Apollo case. From thenceforward one who had copyrighted a musical composition by publishing written copies thereof with the copyright notice
Congress provided no means for copyrighting a virtuoso’s rendition of a musical composition in the public domain. Under section 9 of the Act, 17 U.S.C. § 10, copyright is secured by publication with the notice of copyright. By section [661]*66119, 17 U.S.C. § 20, it is provided that the notice shall be applied in the case of a musical work “either upon its title page or the first page of music”. The old plan of deposit of copies was not abandoned, however, and now “copies” must be deposited with the Register of Copyrights under section 12, 17 U.S.C. § 13, and, under section 13, 17 U.S.C. § 14, the Register may, upon failure to deposit copies, bring proceedings which will result in voiding the copyright.
That the actual intent of Congress coincided with the intent as expressed in these words of the statute as amended in 1909 appears from the Report of the Committee on Patents which accompanied the House of Representatives bill that embodied the amendment. That Report, H.R.Rep., No. 2222, 60th Cong., 2d Sess. 10, stated, immediately following the discussion of section 1(e):
“It is not the intention of the committee to extend the right of copyright to the mechanical reproductions themselves, but only to give the composer or copyright proprietor the conti'ol, in accordance with the provisions of the bill, of the manufacture and use of such devices.”
In some quarters the possibility has been suggested that section 4 of the Copyright Act added in 1909, 35 Stat. 1076,17 U.S.C. § 4, providing “the works for which copyright may be secured under this Act shall include all the writings of an author”, constituted an exhaustion of the constitutional power of Congress to extend copyright protection and consequently clothed phonograph records with copyright protection. Hale, 13 C.J. 1035; Weil, Copyright Law (1917), 214; Howell, The Copyright Law (3rd ed. 1952), 8. Not only does the language of the rest of the amendment negate the intention to extend copyright protection to phonograph records, as above indicated, but again the above quotation from the Report of the Committee on Patents gives the answer when it states, “[i]t is not the intention of the Committee to extend the right of copyright to the mechanical reproductions themselves.”
This express disclaimer of intention to extend the right of copyright to the mechanical reproductions themselves makes it impossible to misunderstand a further statement in the Report of the Committee on Patents, p. 10:
“Section 4 is declaratory of existing law. It was suggested that the word ‘works’ should be substituted for the word ‘writings’, in view of the broad construction given by the courts to the word ‘writings’, but it was thought better to use the word ‘writings’ which is the word used in the Constitution. It is not intended by the use of this word to change in any way the construction which the courts have given it.”
From the foregoing it appears, first, that Congress, before the 1909 amendment, intended that one who performed a public-domain musical composition should not be able to obtain copyright protection for a phonographic record thereof, and, second, that nothing in the 1909 amendment indicated any change in that intention.
That conclusion is supported by the opinion in RCA Mfg. Co. v. Whiteman, 2 Cir., 114 F.2d 86, 89, where this court stated arguendo that phonograph records are not registerable under the Act. Judge Leibell in Jerome v. Twentieth Century Fox-Film Corp., D.C.S.D.N.Y., 67 F.Supp. 736, 742, affirmed, 2 Cir., 165 F.2d 784, said that a “victrola record cannot be copyrighted”, citing Judge Hazel’s opinion in Aeolian Co. v. Royal Music Roll Co., D.C.W.D.N.Y., 196 F. 926, 927, “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.” In Waring v. WDAS Broadcasting Station, Inc., 327 Pa. 433, 194 A. 631, 633, it was admitted on all hands that the right claimed by [662]*662an orchestra proprietor to prevent the sale of records of his performances was not the subject of protection under existing copyright laws.
Since the Copyright Act does not deal with the protection of phonograph records of the performances of public-domain compositions by virtuosos, we have no basis for applying federal law. We mast apply the law which would have been applied in the courts of the state embracing the district of the court below. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188. To decide the case before us we must resolve the competing claims of a plaintiff which derives its rights from a grant from Telefunken in Germany and a defendant which derives its rights from a grant from an alien property administration in Czechoslovakia. We must determine what law the New York State courts would apply to ascertain the extent of the respective rights of plaintiff and defendant. We find a complete dearth of authority on the question in New York and consequently must make the decision upon principle. We believe that where the extent of literary property within a given jurisdiction is in question and that extent depends upon acts which have taken place outside of that jurisdiction, the determination should be made according to the law of that jurisdiction as "hough the acts had taken place within its borders. Literary property is in essence a right to exclude, to a greater or lesser extent, others from making some or all use of the expressed thoughts of an authoi. The number of the conceivable grades of the extent of the exclusion ami the number of the conceivable kinds of uses of the thoughts of authors are almos; limitless. If we leave those questions of the scope of the right to any law other than that of the place where the right is sought to be exercised we may be faced with dealing with property interests unknown to our law.
The English rule seems to be that such questions are determined according to the' law of the place where the rights are sought to be exercised. In the leading case of Celementi v. Walker, 2 Barnewall & Cresswell 861, it was ruled that what would have been a dedication in England had the effect of a dedication even though it took place abroad. Then too the rule that we are adopting is in harmony with the settled law that a copyright has no extra-territorial effect. See American Code Co. v. Bensinger, 2 Cir., 282 F. 829, 833. Until we have a uniform international law of literary property, it will be much more convenient to determine the effect of each act by the law of the place where the right of property is sought to be exercised.
We shall therefore determine the respective rights of plaintiff and defendant as though they had been created by the law of the State of New York.
Telefunken, in Germany, purported to grant to defendant’s predecessor in title the right to make and vend the phonograph records in Czechoslovakia. Defendant’s predecessor proceeded to make and vend the phonograph records in Czechoslovakia. Telefunken, in Germany, likewise purported to grant to plaintiff the right to make and vend the phonograph records in the United States. Plaintiff likewise proceeded to make and vend the records in the United States. Defendant is making and vending the records in the United States.
Under the law of New York, the owner of literary property may, by a negative covenant, subject the use of literary property to restrictions in the hands of a remote assignee. Murphy v. Christian Press Ass’n Pub. Co., 38 App. Div. 426, 56 N.Y.S. 597, per Cullen, J. Defendant cannot, therefore, claim rights to make and vend the records outside of Czechoslovakia.
Plaintiff must, however, succeed on the strength of its own title rather than the weakness of defendant’s. Did Telefunken’s grant vest any rights in plaintiff? The New York rule that literary property may be subjected to restrictions in the hands of a remote assignee presupposes the effectiveness of an assignment of literary property. [663]*663Here both the assignment and the re-trietion to the United States were valid.
Granting that plaintiff was in the beginning vested with the right to make and vend the records in the United States, was that right lost as soon as plaintiff sold the first records? In RCA Mfg. Co. v. Whiteman, 2 Cir., 114 F.2d 86, 88, 89, supra, this court stated that the common-law property in the performances of musical artists which had been recorded ended with the sale of the records and that thereafter anyone might copy them and use them as he pleased. If that is the law, plaintiff has no more right to demand that defendant cease its unauthorized making and vending than has the merest interloper.
Our conclusion is that the quoted statement from the RCA case is not the law of the State of New York. Since its decision the New York courts have had close contact with the question in Metropolitan Opera Ass’n v. Wagner-Nichols Recorder Corp., 199 Misc. 786, 101 N.Y.S.2d 483; Id., 279 App.Div. 632, 107 N.Y.S.2d 795. We believe that the inescapable result of that case is that, where the originator, or the assignee of the originator, of records of performances by musical artists puts those records on public sale, his act does not constitute a dedication of the right to copy and sell the records.
In the Metropolitan Opera case the Metropolitan Opera Association had purported to grant to the American Broadcasting Company the exclusive right to broadcast its performances, and to Columbia Records, Inc., the exclusive right to make and vend records of its performances. Defendant Wagner-Nichols Recorder Corporation, without obtaining any consent, made and sold records of the broadcasts. The Appellate Division, affirming the Special Term, held that this constituted unfair competition and upheld a complaint seeking an injunction in favor of Metropolitan Opera and Columbia. As appears from the record on appeal, Columbia had recorded opera performances which were specially rendered and not broadcast and had placed on the market the records so made. Two of the operas thus recorded by Columbia were among the ones performances of which were caught by defendant from the broadcasts and recorded and sold. It is to be noted that, in spite of the fact that Columbia had sold recordings of these two operas, it was held to be entitled to an injunction against the sale by defendant of recordings of the same two operas made by intercepting the broadcasts.
If the view of the New York courts had been that Columbia had dedicated to the public the right to copy the records of those two performances, the injunction against the defendant’s sale of recordings of performances of the same two operas would have left the world at large free to copy the two performances from Columbia records. That could not have been the intention of the New York courts. It would be capricious to enjoin at Columbia’s suit sale of records made from the broadcasts of operas while the copying of Columbia’s records of the same operas and the sale of the copies thus made were open to all the world. The damage wrought by the sale of records made from broadcasts would be so little greater than the incompensable damage already suffered as a result of the dedication that the difference would not support a plea for an injunction. The fact that the New York courts, in the case of the two operas which had already been the subject of records sold by Columbia, made no exception and prohibited the sale of recordings of them along with the rest indicates that the New York courts’ view was that Columbia’s sale of the records of the two operas did not put in the public domain the right to copy them and sell the copies.
We thus conclude that plaintiff has not lost the exclusive right to make and sell the records in the United States.
Defendant says that this court ought not to recognize any rights in plaintiff because the recordings were made under contracts containing Nazi racial provisions which offend our public policy. [664]*664Our public policy does not go so far as to outlaw the products of an economy from which persons are excluded on racial grounds.
A further point urged is that the decree is void because of the absence of necessary parties, Telefunken and defendant’s predecessor in title in Czechoslovakia. It is true that they cannot be bound by a decree obtained in their absence and that some of the issues here may have to be relitigated between them and defendant with possibly divergent results. Nevertheless that does not make it impossible to determine the controversy as between this plaintiff and defendant in their absence. Hence they are not necessary parties.
Defendant complains that it has been enjoined from selling eight out of the thirty-four records involved without the presentation of the appropriate contract between ihe artist and Telefunken. Judge Leí o ell found that it could not be disputed that the recordings were made for Telefunken by the artists. We agree.
Affirmed.
The new method of securing copyright prescribed by section 9 of the amended Act, 17 U.S.C. § 10.