SUPREME COURT GRAMOPHONE RECORDS

Dominion, Volume 11, Issue 312, 21 September 1918, Page 3

SUPREME COURT

GRAMOPHONE RECORDS

COPYRIGHT LAW AND ROYALTIES In the. Supreme Court yesterday His Honour tho Chief Justice . (Sir Eobert Stout) heard the case of Bannatyne and Hunter, Limited, against the Anglo-American - Music Company (John William Bell and Matthew Guthrie). . The plaintiffs claimed tho sum . of £322 10s. 3d. in respect to the sale and delivery to the defendants of 309 packets of "Little Wonder" gramophone records, valued at £281 12s. 10d., on December 19, 1917; 54 packets of similar records, valued at £49 4s. od., on December 21, 1917; and 24 packets of similar records, valued at £23 155., on January 3, 1918, a total of £354 12s. 3d., less over-charge, cash and allowance £32 25., balance £322 10s. 3d. Tho defendants in their statement of defence and counter-claim admit the sales and deliveries mentioned, but say that each of tho said sales was subjeot to an express condition that such gramophone records had duly paid all royaltios, and otherwise might lawfully be sold without breach of copyright, and they further say that immediately they" ascertained suoh - records had not complied with the law of copyright' they returned or offered to return the same to the plaintiffs and paid for all.records they were unable to return. ~ As "a further defence, the defendants contended that there was implied in any sale of records a warranty on the part of the seller that all records so sold may be lawfully sold, and have been produced and sold with the consent and concurrence of the holders of the copyright in such records. That by reason of all the said records not having complied with the law bf copyright the same wero unsaleable and useless, and immediately on such fact being discovered the purchase was cancolled, and thoy demanded that tho said records be taken away. The defendants furthor claimed that if for any reason -whatever it he found that defendants are unable to reject the said goods and are limited to a claim for damages, then the.defendants say that by reason-of tho breach of warranty thev have sustained damages amounting" to the full sale price of the said records. Therefore the defendants counter-claimed for the sum of £322 10s. 3d.Mr. T. Young appeared for the plaintiffs, and Mr. A. W. Blair for the defendants.

Mr. Young, in opeuing, pointed out that in the trade they seemed to know what records could be sold in tho market. '.The practice, was to place an adhesive stamp on the records to signify that the royalty had been paid., The Toyalty amounted to }d. to Id. per record. The trade was not very particular about this copyright.

His Honour: The _ whole question turns upon this question of copyright. Mr."Blair: That is so, Your Honour, and when we found out that the records had not complied with _ the Copyright Law, we asked theplaintitts to take back the records. Mr ."Young: We will show that they knew all about the copyright wsition. Mr Young then dealt with the facts leading up to the several sales of records, and pointed out that the defendants were fully conversant with all the conditions, including the copyright position. Henry Alexander Goodwin, salesman in charge of the sales of gramophone records to Batinatyne ■ and Hunter, Ltd., said he had sold Columbia records to tho defendants, some of.which had adhesive stamps'and some not. In the case of thoso without tho stamps, the copyright period had expired. Tho "Littlo'Wonder" records, were a new line, and were obtained from Sydney. Ho gave details of the sale of tho latter to the defendants. The -record:, wero tried'iii the plaintiffs' premises, and tlio two defond'aiits, Mr. Huntci, .the witness, and others were present. There'was a general conversation in respect to copyright and royalties, and eventually sales wero made to'tlit defendants "at Bs. 9d. per dozen, and it was arranged that the retail price should be 15s. per dozen. It was further agreed that Mr. Bell (one of tho defendants) should have a' catalogue printed, and the plaintiffs agreed to pay half the cost. Mr. Hunter told the defendants that some of the -records were subject to copyright, but that'the matter was-still in abeyance. Mr. Hunter also told them that he would indemnify them against any royalty claims, and that adhesive stamps would bo affixed if'necessary.' ... ' ~ . In cross-examination, witness said it was not stated.that the records had paid all royalties, but the defendants were told that the royalties would be paid later if any were found to be unpaid.. Sales N of records were made to other firms, but no mention of royalties was made to them. Witness personally did not make any .reference to royalties to the defendants; Mr. Hunter mentioned tho matter to them. •

Honrv Chpl•les■ Huntci',' member of the firm of Bannatyno and Hunter, Ltd., also. gave, evideucc, and was closely cross-examined as to the copyright'position, of the records sold, and also the question of royalties.'. Mr. Blair addressed the Court for the defence, and referred at some length ■ to the copyright position, and stated that when, the re-sords were hsiiiß tried Bell deliberately asked if the absence of .adhesive stamps on the records was an indication that the rqynl-' ties had not bee'n'paid. and Bell was definitely assured by Mr: Hunter that it was all right. John 'WiHiam Bell said he was. the owner, with Mr. Guthrie,, of the AngloAmerican Music Store. He explained that one evening he received a telephone message to visit Bnnnntyne. and Hunter's to hear some new gramophone records.'■' Witness attended and had a talk with Hunter; and while engaged in conversation Mr. Mills came up and said that the records were not stamped, and he immediately asked Mr. Hunter, "What about it?" Mr. Hunter said the adhesive stamps were not necessary, and that the oopynotht was all right. \ Witness next day offered to take the whole consignment of "Little Wonder" records a,t 10 per cent, above Innded cost, which was declined, and the following day he handed thoi firm his order, the. first lot of which was delivered a day or two Inter. Had he known there was anything due in respect to royalties on the records he would never have bought them. There was a good sale for the records with the public. When they discovered that the rovalties had not «cn paid on some of tho records they notified Bannatyne and Hunter, ana ceased selling the records. The case had not concluded when the Court rose.