BROWN v. REPUBLIC PRODUCTIONS (1945)

The issues of this case are identical with those of its companion action, 14693, this day decided. —— Cal.App. ——, 156 P.2d 40. Pursuant to appropriate pleadings the court found that in 1940 appellant with defendants Styne and Meyer in collaboration created and composed the music and the lyrics of five songs, to-wit: ‘All This and Heaven Too,’ ‘Peek-A-Boo,’ ‘I Could Love You Any Time At All,’ ‘Hunky-Dunky-Dory,’ and ‘Bonita Lolita’, which songs and music were not leased, published, or sold jointly anywhere by the authors. Thereafter, within the scope of his employment by Republic Productions, Inc., hereinafter referred to as Republic, Styne used certain portions of the musical compositions of ‘All This And Heaven Too’ and incorporated them into a composition entitled ‘Who Am I,’ with which he used different lyrics. Subsequently, Styne and Meyer within the scope of their employment by Republic, without the consent of plaintiff, used 24 bars of the melody ‘Peek-A-Boo’ by incorporating them in a composition entitled ‘Look At Me, Look At You,’ but used different lyrics for the melody as modified. Thereafter Styne and Meyer in the scope of their employment by Republic used eight bars of ‘Peek-A-Boo’ by incorporating them in a similar composition entitled ‘Melody Ranch,’ with which they used different lyrics. Also, the same defendants within the scope of their same employment used 16 bars of the melody of the song ‘I Could Love You Any Time At All’ with slight variation by incorporating them in a musical composition entitled ‘Cracker Barrel County,’ but used different lyrics. Subsequently, the same defendants within the scope of their same employment used the entire 32 bar of the melody with a slight variation as well as the lyrics of the song ‘Bonita Lolita’ by incorporating them in a composition entitled ‘Tumble Down Shack in Havana.’ Such use of the music and lyrics of which appellant is a tenant in common with defendants Styne and Meyer, by incorporating them in the new compositions and in using the original melodies with new lyrics, was without the knowledge or consent of appellant.

Thereafter, Republic produced the following pictures for profit, to-wit: ‘Hit Parade of 1941,’ ‘Sis Hopkins,’ ‘Melody Ranch,’ ‘Riding On A Rainbow,’ and ‘The Singing Hill.’ In such pictures Republic made use of the modified lyrics and musical compositions. The songs are sung and their accompanying music is played with musical instruments throughout the respective pictures in which they severally appear. Of each of the original musical and lyrical productions appellant was a tenant in common with Styne and Meyer. Not a song or a musical composition appearing in the named motion pictures is an original composition but each of them was created by Styne, Meyer and Republic by copying into the re-written productions the original musical compositions theretofore created by appellant, Styne, and Meyer in 1940. Republic caused prints of such motion pictures to be made, distributed and exhibited for profit and Mills printed, published and distributed for profit copies of the modified musical compositions. Such acts of Republic and Mills in using the original music and lyrics in the publication and sale of such motion pictures and musical compositions were done pursuant to a written agreement whereby Mills and Republic were permitted to make use of the modified songs and the new titles created and composed by Styne and Meyer while in the employ of Republic.

Upon the finding of the foregoing facts the court awarded appropriate judgment in favor of appellant against his cotenants in common of the music and songs originally created by the trio, and required of such defendants Styne and Meyer to account for all sums received or to be received by them as royalties or otherwise by reason of the use of the musical compositions and lyrics theretofore created by them, but denied any relief against the corporate respondents. From the portion of the judgment denying such relief comes this appeal.

By reason of the identity of issues with that of its companion action, 14693, our conclusions are the same as there derived and for the reasons therein defined.

The judgment is affirmed.

MOORE, Presiding Justice.

W. J. WOOD and McCOMB, JJ., concur.