Gabriel v. McCabe

This is a hill for injunction to restrain infringement of a copyright. The complainant claims a copyright upon a religious song entitled icWhen the Roll is Galled up Yonder.” It is admitted that on January 1, 1894, complainant licensed George D. Elderkin to use this copyright in a hook to be entitled “Finest of the Wheat No. 2.” Defendants, among other defenses, claim right under this license. The proof shows that the defendants have issued abridged copies of the “Finest of the Wheat No. 2,” in which the .copyrighted song was included, and also a hook comprising the whole of “Finest of the Wheat No. 2,” and another book of religious songs, known as “Finest of the Wheat No. 1.” In neither the abridgment nor the enlarged work is there any change in the print of the music or the words of the copyrighted song, nor is there any change in the music and words of the other songs, except that, in the abridgment, certain songs are omitted. It is not contended that either the abridgment or the enlarged book is in its general character different from that of “Finest of the Wheat No. 2.”

The question presented is whether the use of the copyrighted song-in this abridgment and in the enlarged book is a fair use under the license. I have been furnished with no adjudications pertinent to *7451liis question. It ¡seems to me that. tlie autlior of an article who has licensed its use in some general book containing articles of a like character, such, for instance, as an encyclopaedia, fairly and reasonably intends, in the absence of some explicit declaration to lire contrary, that future editions of the book containing the article may be issued, and also that such future editions may be characterized by omissions or additions of oilier articles, or changes in the other articles, within fair limits, if such changes be not inconsistent with the geueral temor of the original book. To hold otherwise would practically forbid any new editions of books of compilation, for the consent of all the authors contributing could not, in many instances, be obtained. A license to publish a song in a book of songs would not fairly permit of its publication alone as sheet music, even though hearing the title of the book of songs. Suck a use would, in its effect upon the receipts of tlie author and profits of ihe publisher, he a decisive departure from the apparent intention of the parties. While it is true that, by a process of emendation, the book known as “Finest of the Wheat No. 2’’ might, in the end, come to be a publication of the complainant’s song alone, the actual facts of this case are otherwise. It may be difficult to draw the line where the rights of the publisher end, but, until his conduct, offends one’s sense of fair play and a reasonable interpretation of the parties’ intentions, the line has not been reached.

I am of the opinion that the publication known as the “abridgment:” and tie enlarged book, called to my attention, are not outside of the reasonable intendment of the parties. The abridgment does not approach the point of publication of the song as a single sheet of music, — the smallest one brought to my attention having upwards of 100 songs, — lull, is evidently intended as an exhibit of samples of the original hook. For these reasons the bill will be dismissed.