White-Smith Music Pub. Co. v. Apollo Co., 209 U.S. 1 (1908)
White-Smith Music Publishing Company v. Apollo Company
Nos. 110
, 111
Argued January 16, 17, 1908
Decided February 24, 1908
209 U.S. 1
APPEALS FROM AND CERTIORARI TO THE CIRCUIT
COURT OF APPEALS FOR THE SECOND CIRCUIT
Syllabus
While this Court is not bound under the doctrine of stare decisis by the decisions of lower federal courts which have not been reviewed by this Court as to the construction of a federal statute, or by the decisions of the highest courts of foreign countries construing similar statutes of those countries, where all of such decisions express the same views on the subject involved, the omission of Congress, when subsequently amending the statute, to specifically legislate concerning that subject may be regarded by this Court as an acquiescence by Congress in the judicial construction so given to the statute.
While the United States is not a party to the Berne Copyright Convention of 1886, this Court will hesitate to construe the Copyright Act, as amended March 3, 1891, in such manner that foreign authors and composers can obtain advantages in this country which, according to that convention, are denied to our citizens abroad.
What is included within the protection of the copyright statute depends upon the construction of the statute itself, as the protection given to copyright in this country is wholly statutory.
The amendment of § 4966, Rev.Stat., by the Act of January 6, 1897, 29 Stat. 481, providing penalties for infringements of copyrighted dramatic or musical compositions, did not enlarge the meaning of previous and unamended sections.
A "copy" of a musical composition within the meaning of the copyright statute is a written or printed record of it in intelligible notation, and this does not include perforated rolls which, when duly applied and properly operated in connection with musical instruments to which they are adapted, produce the same musical tones as are represented by the signs and figures on the copy in staff notation of the composition filed by the composer or copyright.
The existing copyright statute his not provided for the intellectual conception, even though meritorious, apart from the thing produced, but has provided for the making and filing of a tangible thing against the duplication whereof it has protected the composer.
Considerations of the hardships of those whose published productions are not protected by the copyright properly address themselves to Congress, and not to the courts.
147 F. 226 affirmed.
The facts are stated in the opinion.