AUGUSTUS N. HAND, Circuit Judge.
This is a suit to enjoin infringement of the copyright of the plaintiff Khan in the song “Rum and Coca-Cola,” of which the following is the text:
“Rum and Coca-Cola
(By Invader)
Since the Yankees came to Trinidad
They have the young girls going mad
The young girls say they treat them nice
And they give them a better price
They buy rum and coca-cola
Go down Point Cumana
Both mother and daughter
Working for the Yankee dollar.
I had a little mopsy the other day
Her mother came and took her away
Then her mother and her sisters
Went in a car with some soldiers
They buy rum and coca-cola etc.
There are some aristos in Port-of-Spain
I know them well, but I won’t call names
In the day they wouldn’t give you a right
But you can see them with the foreigners late at night.
A couple got married one afternoon
And was to go Mayaro on a honeymoon
The very night the wife went with a Yankee lad
And the stupid husband went staring-mad.
Inspector Jory did a good job
At St. James he raid a recreation club
They was carrying on the club as a brothel
The condition in which he found the girls I cannot tell.”
The defendants’ song contained the following stanzas which are practically identical with the first stanza of the plaintiff's song:
“Since the Yankee come to Trinidad
They got the young girls all goin’ mad
Young girls say they treat ’em nice
Make Trinidad like Paradise.”
“Drinkin’ Rum and Coca Cola
Go down ‘Point Koomahnah’
Workin’ for the Yankee Dollar.”
The four lines last quoted were sung as a chorus in each song and in form and substance are almost identical.
Judge Byers, before whom the suit was tried, found on substantial evidence that one Rupert Grant, a native of Trinidad, composed the lyrics and words of the
song
“Rum and Coca-Cola” during February 1943 and that on or about March 1, 1943 Grant assigned to the plaintiff in Trinidad the right to procure a copyright, who thereupon procured a copyright of a booklet containing the song entitled “Victory Calypsoes.” Judge Byers also found that the plaintiff became the owner of the song and procured the copyright therefor in accordance with the provisions of the British Copyright Law of 1911, the particular clauses of which are set forth in the margin
and also in accordance with the provisions of the Ordinances of Trinidad, the pertinent clauses of which are similarly set forth.
The Judge also found that on or about May 1, 1945, the plaintiff as copyright owner procured from the Copyright Office of the United States a certificate for ad interim copyright of the booklet containing the song and that on or about June 29, 1945, the plaintiff obtained a United States copyright covering the booklet as originally copyrighted in Trinidad.
The Acting Colonial Secretary of Trinidad certified to receipt of three copies of the booklet “Victory Calypsoes” which had been produced in accordance with the requirements of Section 3 of the Trinidad Copyright Law. While it is argued on behalf of the defendants that under Section 3 of the Trinidad Ordinances these copies should have been delivered to the Colonial Secretary by the printers, we think that Judge Byers properly held in his opinion that the plaintiff had mailed the copies on behalf of the printers and that the latter could act through Khan as their agent in making the delivery.
The assignment of the song and of the right to copyright it made by Grant to Khan in Trinidad on or about March 1, 1943, was oral, but later Ellis reduced the assignment to writing, as appears in Plaintiff’s Exhibit 17, which we set forth in the margin,
and Grant executed it.
The written assignment by Grant dated April 16, 1945, confirmed the plaintiff’s proprietorship in the song that entitled him to the protection of the copyright laws of the United States.
Defendants contend that the assignment by Grant to the plaintiff was invalid because it was not made in
writing at the time of the oral agreement therefor. But the writing, like the memorandum of an oral agreement under the statute of frauds,
we regard as sufficient to satisfy the British Copyright Law by confirming the prior oral assignment.
In December 1944 the defendants obtained a United States copyright for their song “Rum and Coca-Cola” in the name of Amsterdam and later in the joint names of Amsterdam and the other individual defendants. Two of the stanzas of this song, as we have already said, were identical with those copyrighted in Trinidad by the plaintiff. Though the music for the defendants’ lyrics was composed by Baron, the words and music of defendants’ song were copyrighted as a whole. So far as Baron cooperated in the infringement of those lyrics which were identical with verses •copyrighted by plaintiff, Baron was an infringer, as well as Amsterdam who furnished the lyrics, and Leo Feist, Inc., the publisher. The extent of Baron’s liability as a contributor for any profits that have been realized through the infringement of plaintiff’s verses will have to be determined on the accounting which has been ordered.
Defendants argue that the alleged ■infringing lyrics were not subject to copyright by Grant because they had become part of the public domain, but the trial judge found that Grant was the author upon the basis of what must be regarded as substantial evidence and we can discover no justification for reversing the finding.
Defendants further contend that the English Copyright Act and the applicable Trinidad Ordinances invalidated any assignment by Grant to Khan that was not in writing and executed at the time the latter received a conveyance of Grant’s rights. As we have already said, the requirement of the Copyright Act that an assignment be in writing was satisfied by the written confirmation of the prior oral assignment by Grant to Khan.
The English decisions
on which the ■ defendants rely are inapplicable to the case at bar and do not affect the rights of the plaintiff. We however have found no controlling decision invalidating an oral assignment which has been confirmed by a later writing.
Clementi v. Walker and Chappell v.
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AUGUSTUS N. HAND, Circuit Judge.
This is a suit to enjoin infringement of the copyright of the plaintiff Khan in the song “Rum and Coca-Cola,” of which the following is the text:
“Rum and Coca-Cola
(By Invader)
Since the Yankees came to Trinidad
They have the young girls going mad
The young girls say they treat them nice
And they give them a better price
They buy rum and coca-cola
Go down Point Cumana
Both mother and daughter
Working for the Yankee dollar.
I had a little mopsy the other day
Her mother came and took her away
Then her mother and her sisters
Went in a car with some soldiers
They buy rum and coca-cola etc.
There are some aristos in Port-of-Spain
I know them well, but I won’t call names
In the day they wouldn’t give you a right
But you can see them with the foreigners late at night.
A couple got married one afternoon
And was to go Mayaro on a honeymoon
The very night the wife went with a Yankee lad
And the stupid husband went staring-mad.
Inspector Jory did a good job
At St. James he raid a recreation club
They was carrying on the club as a brothel
The condition in which he found the girls I cannot tell.”
The defendants’ song contained the following stanzas which are practically identical with the first stanza of the plaintiff's song:
“Since the Yankee come to Trinidad
They got the young girls all goin’ mad
Young girls say they treat ’em nice
Make Trinidad like Paradise.”
“Drinkin’ Rum and Coca Cola
Go down ‘Point Koomahnah’
Workin’ for the Yankee Dollar.”
The four lines last quoted were sung as a chorus in each song and in form and substance are almost identical.
Judge Byers, before whom the suit was tried, found on substantial evidence that one Rupert Grant, a native of Trinidad, composed the lyrics and words of the
song
“Rum and Coca-Cola” during February 1943 and that on or about March 1, 1943 Grant assigned to the plaintiff in Trinidad the right to procure a copyright, who thereupon procured a copyright of a booklet containing the song entitled “Victory Calypsoes.” Judge Byers also found that the plaintiff became the owner of the song and procured the copyright therefor in accordance with the provisions of the British Copyright Law of 1911, the particular clauses of which are set forth in the margin
and also in accordance with the provisions of the Ordinances of Trinidad, the pertinent clauses of which are similarly set forth.
The Judge also found that on or about May 1, 1945, the plaintiff as copyright owner procured from the Copyright Office of the United States a certificate for ad interim copyright of the booklet containing the song and that on or about June 29, 1945, the plaintiff obtained a United States copyright covering the booklet as originally copyrighted in Trinidad.
The Acting Colonial Secretary of Trinidad certified to receipt of three copies of the booklet “Victory Calypsoes” which had been produced in accordance with the requirements of Section 3 of the Trinidad Copyright Law. While it is argued on behalf of the defendants that under Section 3 of the Trinidad Ordinances these copies should have been delivered to the Colonial Secretary by the printers, we think that Judge Byers properly held in his opinion that the plaintiff had mailed the copies on behalf of the printers and that the latter could act through Khan as their agent in making the delivery.
The assignment of the song and of the right to copyright it made by Grant to Khan in Trinidad on or about March 1, 1943, was oral, but later Ellis reduced the assignment to writing, as appears in Plaintiff’s Exhibit 17, which we set forth in the margin,
and Grant executed it.
The written assignment by Grant dated April 16, 1945, confirmed the plaintiff’s proprietorship in the song that entitled him to the protection of the copyright laws of the United States.
Defendants contend that the assignment by Grant to the plaintiff was invalid because it was not made in
writing at the time of the oral agreement therefor. But the writing, like the memorandum of an oral agreement under the statute of frauds,
we regard as sufficient to satisfy the British Copyright Law by confirming the prior oral assignment.
In December 1944 the defendants obtained a United States copyright for their song “Rum and Coca-Cola” in the name of Amsterdam and later in the joint names of Amsterdam and the other individual defendants. Two of the stanzas of this song, as we have already said, were identical with those copyrighted in Trinidad by the plaintiff. Though the music for the defendants’ lyrics was composed by Baron, the words and music of defendants’ song were copyrighted as a whole. So far as Baron cooperated in the infringement of those lyrics which were identical with verses •copyrighted by plaintiff, Baron was an infringer, as well as Amsterdam who furnished the lyrics, and Leo Feist, Inc., the publisher. The extent of Baron’s liability as a contributor for any profits that have been realized through the infringement of plaintiff’s verses will have to be determined on the accounting which has been ordered.
Defendants argue that the alleged ■infringing lyrics were not subject to copyright by Grant because they had become part of the public domain, but the trial judge found that Grant was the author upon the basis of what must be regarded as substantial evidence and we can discover no justification for reversing the finding.
Defendants further contend that the English Copyright Act and the applicable Trinidad Ordinances invalidated any assignment by Grant to Khan that was not in writing and executed at the time the latter received a conveyance of Grant’s rights. As we have already said, the requirement of the Copyright Act that an assignment be in writing was satisfied by the written confirmation of the prior oral assignment by Grant to Khan.
The English decisions
on which the ■ defendants rely are inapplicable to the case at bar and do not affect the rights of the plaintiff. We however have found no controlling decision invalidating an oral assignment which has been confirmed by a later writing.
Clementi v. Walker and Chappell v. Purday, supra, turned on the holding of the court that the copyright statute of Queen Anne did not extend protection to foreigners where there had been publication by third parties in England before the execution of a written assignment. In each case there had been publication abroad by a foreign author and importation into England prior to a later assignment in writing to the plaintiff. It was held that in such circumstances there was a dedication to the public which prevented subsequent copyright protection in England. It is to be remembered that these two decisions preceded the enactment of an international copyright law and dealt with the rights of Englishmen to copy foreign writings which had been published in England before any copyright had been perfected in that country.
In the Jude decision as assignment was not involved, but only a license. In Performing Right Society the question was whether an assignment of literary property to be acquired in the future transferred more than equitable rights to future copyrighted property and it was held that the legal title to such copyrighted property remained in the assignor. We think the decision has no bearing on the case before us. Nicol v. Barranger held that a plaintiff who had no title to a copyright at law or in equity at the time when he commenced his action could not secure relief in that action by means of a title subsequently acquired, but must discontinue and begin another suit after obtaining an assignment.
The defendants further attack the plaintiff’s song and the suit to enforce his copyright because of its alleged immoral tendencies. It seems exaggerated to hold
that the rather cheap and vulgar verses would tend to promote lust. We hold that Judge Byers properly refused to grant a dismissal of the suit on such a ground.
The defense of laches in bringing suit also interposed is clearly without merit.
Judgment affirmed.