ited right to sue elsewhere has been given. In patent cases it is the district of which the defendant is an inhabitant or in which acts of infringement have been committed and the defendant has a regular and established place of business. (Judicial Code, sec. 48 (Comp. St. sec. 1030); W. S. Tyler Co. v. Ludlow-Saylor Wire Co., 236 U. S. 723, 35 Sup. Ct. 458, 59 L. Ed. 808.) In cases under the antitrust laws it is where the defendant "resides or is found or has an agent " (Act Oct. 15, 1914, c. 323, sec. 4, 38 Stat. 730, 731; Comp. St. sec. 8835d), and, in the case of corporations, the "district whereof it is an inhabitant" or "any district wherein it may be found or transacts business." (Sec. 12, p. 736; Comp. St. sec. 8835k.) It is not reasonable to conclude that Congress intended in copyright cases to give a right far greater than these. "Agent" is a word used in the law in many senses. What it means in a statute is to be determined from the context and the subject matter. The president of a business corporation is, commonly, authorized to represent it for many purposes, and it may often be said properly that he is acting as its agent. But induction into office does not impress upon a person the status of agent of the corporation, so that he must be deemed its agent in every jurisdiction which he happens to enter, although the corporation transacts no business there and he is not there in any way representing it. The service of process made upon Mr. Adkin was, clearly, not service upon an agent of the corporation within the meaning of the copyright act (U. S. Comp. St. sec. 9517 et seq.).

As there is in this case only one defendant, the provision concerning suits in States which contain more than one Federal judicial district can have no application. (See Judicial Code, sec. 52 (Comp. St. sec. 1034); Camp v. Gress, 250 U. S. 308, 314, 39 Sup. Ct. 478, 63 L. Ed. 997.) Whether, under the copyright act, service upon an agent would be effective as upon one "found," if it appeared that the agent when served was transacting some business for defendant within the jurisdiction, but was there only temporarily, and had his residence and place of business elsewhere, is a question which we need not decide in this case.

Affirmed.

MCCARTHY & FISCHER (INC.) v. WHITE ET AL.

(District Court, S. D., New York. July 2, 1919)

259 Fed. Rep. 364

COPYRIGHTS MUSICAL COMPOSITION-ABANDONMENT TO PUBLIC. The public performance of a musical composition is not an abandonment of the composition to the public, which will invalidate a subsequent copyright.

In equity. Suit by McCarthy & Fischer, Incorporated, against George White and Lou Holtz. On motion for preliminary injunction. Granted.

Nathan Burkan, of New York City, for complainant. O'Brien, Malevinsky & Driscoll, of New York City, for defendants.

AUGUSTUS N. HAND, District Judge. This is a motion for an injunction pendente lite because of the alleged infringement of a copyrighted musical composition belonging to the complainant. The affidavits seem to show that the defendants had caused the composition to be sung by defendant Holtz at vaudeville performances, at the request of the complainant, for several weeks prior to copyright. He had received a copy of the song to enable him to render it as part of the entertainment he was giving while in the employment of the defendant White. Proof, by affidavit, is also offered by the defendants that during the same period other persons sang it at public performances, with the consent of the complainant and authors. Holtz also swears that after the date of copyright the complainant, in substance, requested him to agree to use the song in his vaudeville performances for the entire season, and he promised to do this. He admits, however, that the alleged promise, which complainant denies ever making, was made on an occasion when he was asked by complainant to give up singing the song because his performance interfered with another. Prior to the time of the alleged promise Holtz certainly had no more than a revocable license.

The defendants insist that the presentation of the song by Holtz in vaudeville prior to the date of copyright was a complete dedication to the public. It is, however, well settled that the public performance of a dramatic or musical composition is not an abandonment of the composition to the public. (Ferris v. Frohman, 223 U. S., at page 435, 32 Sup. Ct. 263, 56, 1 Ed. 492; Crowe v.

Aiken, 2 Biss. 208, Fed. Cas. No. 3, 441; Palmer v. DeWitt, 47 N. Y., at page 543, 7 Am. Rep. 480; Thomas v. Lennon (C. C.), 14 Fed., at page 851; Carte v. Ford (C. C.), 15 Fed., at page 442.) Only a publication of the manuscript will amount to an abandonment of the rights of the author and a transfer of them to the public domain. It was not such a publication to give the song to a limited number of artists to sing prior to the date of copyright. There is no evidence or probability that any of the copies were sold, or that they were given out for any purpose but a limited use by a few vaudeville artists. (Werckmeister v. American Lithographic Co., 134 Fed. 321, 69 C. C. A. 553, 68 L. R. A. 591; Press Publishing Co. v. Monroe, 73 Fed. 196, 19 C. C. A. 429, 51 L. R. A. 353.) Because there was no publication, but only a performance of the musical composition, the authorities as to dedication relied on by the defendants are quite inapplicable.

The second defense of a license is, I think, equally fragile. A theoretical consideration for the alleged promise of Holtz to sing the song during the entire season might be worked out more naturally than as related by Holtz, if complainant were said to have given some promise in return. I am asked to believe that complainant granted an oral license in praesenti without any substantial consideration in return-not for a promise to sing and pay a royalty but only to sing a song which had been advertised already by well-known singers. I think complainant's conceded legal title, supported by his affirmation that no such agreement was ever made, furnishes sufficient proof to offset such an illusory license, and to justify a preliminary injunction, which I accordingly grant, the bond to be fixed on the settlement of the order.

MANNERS v. FAMOUS PLAYERS-LASKY CORPORATION

(District Court, S. D. New York. December 11, 1919) 262 Fed. Rep. 811

1. CERTIORARI-PENDENCY NOT STAY OF SUIT BY DEFEATED PARTY INVOLVING CONTRACT IN SUIT.

Pendency of certiorari proceeding in the Supreme Court to review a decree construing a contract held not to act as a stay in suit, by party defeated below against a third person, based on his construction of the contract.

A provision of a contract granting exclusive license to produce a play, which includes also motion-picture rights, that no "alterations, eliminations, or additions" shall be made without the author's consent, held to apply to motionpicture productions, and while alterations made necessary by the different method of production may be made without the author's consent, such as constitute a substantial deviation from the locus of the play, or the order and sequence of the development of the plot, may not.

In equity. Suit by J. Hartley Manners against the Famous Players-Lasky Corporation. Decree for complainant.

David Gerber, of New York City, for plaintiff.

Nathan Burkan and Elek J. Ludvigh, both of New York City, for defendant.

MAYER, District Judge. This is a suit to restrain the production and release of the motion picture "Peg o' My Heart" and the making of additions thereto and alterations thereof. On January 19, 1912, plaintiff entered into a contract with one Morosco, which was modified in certain particulars by a supplemental agreement dated July 20, 1914.

A litigation arose between the parties as to whether Morosco had acquired the motion-picture rights, and, in a suit brought by plaintiff against Morosco, the court dismissed plaintiff's bill, holding that Manners had conveyed these rights to Morosco. The details of this controversy will be found in Manners v. Morosco (D. C., 254 Fed. 737, affirmed 258 Fed. 557, C. C. A. -) Thereafter the Supreme Court allowed a writ of certiorari (250 U. S. 638, 39 Sup. Ct. 494, 64 L. Ed. —), and the cause is now on the calendar of the Supreme Court awaiting a hearing, a motion to advance having been opposed by Morosco and having been denied by the Supreme Court.

Under paragraph "eleventh of the supplemental agreement, supra, it was provided:

Eleventh. Said Morosco is hereby expressly authorized to lease, sublet, assign, transfer, or sell to any person or persons, firm, or corporation whatsoever any of his rights acquired under said original agreement or this supplemental agreement; it being expressly understood and agreed that no such leasing, subletting, assignment, transfer, or sale shall in any way release or discharge said Morosco from his personal liability to pay to said J. Hartley Manners the royalties in amounts, manner, and at the time as

specified in said original agreement and in this supplemental agreement.

On December 14, 1918 (a day after the decree dismissing the bill against Manners was filed), Morosco granted to this defendant

the exclusive right to reproduce "Peg o' My Heart" in the form of motion pictures or of a photoplay, and to publicly represent and cause to be represented such reproduction in the United States and Canada.

In view of Manners v. Morosco, supra, defendant, so far as appears from this record, is entitled to reproduce the play in motion pictures.

[1] The pendency of the certiorari proceedings between Manners and Morosco does not in any manner act as a stay in this suit between Manners and this defendant. The suggestion that the court, as matter of respect and courtesy, should wait until the Supreme Court shall have decided Manners v. Morosco, is not pertinent.

The production of a motion picture by these defendants will not render moot the question pending in the Supreme Court; for if the Supreme Court should reverse, Manners will have his appropriate remedies against Morosco, and could make this defendant (if the picture were produced) respond to an appropriate accounting.

[2] There is thus left for determination the question arising out of paragraph "seventh" of the agreement between Manners and Morosco, which reads as follows:

No alterations, eliminations, or additions to be made in the play without the approval of the author.

This paragraph is not only a part of the original agreement, but, under the terms of the supplemental agreement, with other paragraphs, it was "in all respects ratified, confirmed, and approved." It can not be held, therefore, that this paragraph seventh refers only to the spoken play, but, on the contrary, it applies as well to a motion-picture reproduction of the spoken play.

At the outset it is necessary to determine the proper construction of this paragraph. It is obvious that a spoken play can not be literally reproduced on the screen. The screen must convey by pantomimic action and legends, or concise statements, whether by way of narrative or dialogue, the subject matter and action of the play.