Appendix — Catholic Bishop of Chicago v. F.E.L. Publications, Ltd.

Supreme Court brief1982

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Appendix A

Opinion of the United States Court of Appeals for the

Seventh Circuit, dated March 25, 1982 .............cccceceee-s la

Appendix B

Memorandum Opinion of the United States District

Court for the Northern District of Illinois, Eastern

Division, dated January 9, 1981........ inipiiatineniccnetledidien 19a

Appendix C ;

F.E.L.’s Annual Copy License ..... . a

in the

United States Court of Appeals

Bor the Seventh Cirruit

No. 81-1333

F.E.L. PUBLICATIONS, LTD.,

Plaintiff-Appellant,

CATHOLIC BisHoPp OF CHICAGO,

Defendant-A ppellee

ARGUED NOVEMBER 13, 1981—DeciDED Marcu 25, 1982

Before SwYGERT, Senior Circuit Judge, PELL, Circuit

Judge, and GRANT, Senior District J:

SwyGeErT, Senior Circuit Judge. The plaintiff-a epee:

ae: a this case, F.E.L. Publications, Ltd. (“F.E.L.

blisher who pe ees and ag

to Chicago’s Catholic parishes in 1965. The

rere for the —- which F.E.L. supplies have

oy purchased from individual composers who assigned

the copyrights in their compositions in exchange for

royalties based on sales. The defendant-appellee Catholic

Bishop of Chicago (“Bishop”) is an Illinois corporation

* The Honorable Robert A. Grant, United States Senior

District Judge for the Northern District of Indiana, is sitting

by designation.

2a No. 81-1333

and owns all Catholic parish property within the arch-

iocese of Chicago. ‘

its songs on a two cents per basis, for use in

these custom-made apd pwd e, co ht in-

Annual Copying License (“ACL”) in 1972. The ACL per-

mits parishes to copy one or more of F.E.L.’s songs, cur-

rently numbering approximately fourteen hundred, in

unlimited quantities for a iod of one year. F.E.L.

provides a Master Title Index, listing its copyrighted

songs, to the licensee for its selection. The license fee is

$100 and requires that copies must be destroyed u

termination of the license unless renewed. Renewal of

the ACL requires a $100 payment per year.

In addition to the ACL, F.E.L. offers numerous other

ways to acquire its songs. These include a “One Time

Usage License” which permits a licensee to copy F.E.L.

songs for use at a single occasion at two cents per copy

~ song,' printed hymnals and songbooks sold for as

ow as thirty-nine cents hymnal and nineteen cents

per songbook (if in quantity) and sheet music

and ners cards, containing F.E.L.’s most popu-

lar songs. Nevertheless, the ACL is the only license

offered to parishes which allows the parishes to use

F.E.L. songs in a custom-made hymnal.?

When F.E.L. became convinced that the ACL had

failed to discourage illegal copying, it filed suit against

! This license requires that all copies must be destroyed after

they have been used. Fs

Ei Ay ah Bn pet Fy oh lho Benge

one year ata

of $25. eg dyleee p 15.00 for each additional

. Because this license was only offered after November

1979, it is not pertinent to this lawsuit.

No. 81-1333 3a 3

the Bishop in September 1976. The complaint alleged

t infringement under the 1909 ght Act

( Act”), unfair competition under the Lanham Act,‘

and unfair competition under the common and statutory

laws of Illinois. In the t claim, F.E.L. alleged

that the Bishop, throu is agents, copied and A

lis F.E.L. songs without permission from F.E.

F.E.L. further all that the Bishop produced hym-

nals ne F.E.L. songs and that the hymnals car-

ried a false designation of origin in violation of the

Lanham Act. )

As a result of an agreement between the parties, thou-

” hymnals were col-

lected from the hes and impounded by the United

States District for the Northern District of IIli-

nois. In all, over one and one-half million unauthorized

copies of F.E.L. songs were collected from the Bishop.

Upon conclusion of discovery, F.E.L. and the Bishop

both filed motions for summary judgment. F.E.L.'s

motion was denied and the Bishop's motion was granted.

The district court held that:

(1) F.E.L.’s copyright claim was barred because

(a) the ACL was used to illegaily extend F.E.L.’s

copyrights over exempt performances of the copy-

righ music, and (b) ACL was a tying con-

tract and a per se violation of the Sherman Act;5

(2) the Lanham Act claim must be dismissed be-

_ cause it failed to satisfy the jurisdictional element

requiring that the offending articles enter into com-

merce, and the a did not employ a false desig-

nation of origin; an

refer to the 1909

* 15 USC. § 1125(a).

* 15 USC. §§ 1 et seg.

4 4a No. 81-1333

(3) the state claims must be dismissed because the

district court declined to exercise pendent jurisdic-

It is our conclusion that the granting of summary

judgment for the Bishop was error.

F.E.L.’s copyright claim was dismissed on two grounds:

two issues will be considered separately.

Does the ACL license not-for-profit performances?

The exclusive rights of a copyright holder include the

ioe to print, publish, and copy a copyrighted work.

protected is the right to perform a work publicly

for profit. 17 U.S.C.§ 1.A oulpriate holder cannot pre-

vent a not-for-profit performance of his work nor can he

exact a fee for such performance. 17 U.S.C. § l(e); Asso-

ciated Music Publi Inc. v. Debs Memorial Radio

Fund, Inc., 141 F.2d 852, 854 (2d Cir.), cert. denied, 323

U.S. 766 (1944). More specifically, the singing of a

hymn at a rel service is a not-for-profit perform-

ance and F.E.L. cannot prevent congregations from

oiatenaine an fs its copyrighted works at a service.

evertheless, F.E.L. can prevent churches from copying

or publishing its ap Heo works, even if the churches

only ae to use the copies or publications at not-for-

profit religious services. If a church distributes copies of

a pondesn me song to its members, this amounts to a

a . that work and can only be done with the

ae ion of the copyright owner. See Macmillan v.

xing. 223 F'3d 862, 867 (D.C. D.Mass. 1914); Tiffa

Productions, Inc. v. Dewing, 50 F.2d 911, 914 (D.

D.Md. 1931); F.E.L. Publications, Ltd. v. Catholic Bishop

of Chicago, 199 U.S.P.Q. 85 (N.D. Tll. 1978). The right to

perform music at not-for-profit religious services con-

templates that the musical work is performed from

memory or from legal copies. Neither the religious ele-

No. 81-1333 Sa 5

ment* nor the non-profit element of a performance will

bl . Wihtol v. Crow,

Sata Paiste PE Kates Las

Catholic Bishop of Chicago, supra, 199 U.S.P.Q. at 85.

Our resolution of this particular issue ires an

ee Soe eS ere sew 5

censes performances or ng ishing.

pertinent sections of the ACL are: -

4. PERFORMANCE Ricuts. F.E.L. ts to USER

through F.E.L.’s ights ization:

aa One Lincoln Plaza, ‘New York. N.Y.

5. Ministry Exception. USER agrees to confine

use of the copies to USER’s premises as identified

below at Article 18, with the occasional exception of

agen

+4]

ote

;

gare

* See 17 U.S.C. § 104.

No. 81-1333

mit

iff

yee

ation

, even at nominal c

uding

oT BE

copies

hen al

sell,

persons

This

or not

ucts i

15. Soncs May Not Be Recorpep Or TAPED.

"ighted music and/or texts

t to perform the music at not-

oe ae agree with

its use of F.E.L.

we disagree on the

ACL lim

hich requires copies to be

iration of the license), and clauses

8 (w

afte

sre

slit

EeSs

churches method of publishing a work, ie., the

of oS See oe ae

custom-made the ACL licenses the

use of copies at not-for- t services, it does not license

author in his intellectual

Since a copyright holder has the right to protect

anyone from copying his music, he assuredly can limit

Se ee eee Sees eee eae

able periods. Further, the Copyright Act does not limit

a copyright owner’s ability to restrict the use of copies

to a specific location or for a specific purpose.

The Bi argues that the ACL exacts a legitimate

fee in the year for ing; in subsequent years,

the license must be or the copies must be de-

stroyed, and the copies having already been made, the

subsequent annual fees can only be for the right to per-

t fails to ize that the ACL grants

not a Soe ln dinteioette Bo, A pee angi

use copies istributing (publishing les

the pd. services. If F.E.L. sold

£35 RSS82

rion ee

Pat Bee

ae : sly

HP hie

Plates +t

g pistoe:

; ; gityt J:

sues atts | pe

: ALE iit Hee

ie Tf

582344 ARE Pas sity fl .

real aera

j2bags if it a

atic 8 iii . ae Hill i

ati tee etey

cay lplh H rg E THLE

335% 4 on £58 “ul or F

ell spent

BEY | if i:

‘pail ll Hain hl ele

cense under the precedent lished in Broadcast

Music, Inc. v. Columbia Broadcast System, Inc., 441 U.S.

In Broadcast Music, the Supreme Court scru-

imilar to the ACL we fail to see

how the instant case can be distinguished.

The ACL is a blanket license; for a fixed fee, it gives

the licensee the right to copy any or all of F.E.L.’s

songs, in any quantity, for a one-year period. Broadcast

invaived

two separate fees, a television network

was granted the right to perform any or all of the

compositions in the repertory of two copyright clearing

for a one-year period. The two clearing

between them held virtually every domestic ighted

composition in their repertories. In a se is, the

ity of a blanket license on whether the

ects of the license “almost always tend to restrict

competition and decrease output ... or instead...

markets more . . . competitive.'"° We have exam-

ined the ACL, its history, snd the market it operates in.

This examination leads u to the conclusion that the

ACL has many pro-competitive, redeeming features

which prevent us from presuming it il without

further inquiry. Northern Pac. RR v. United States, 356

U.S. 1, 5 (1958).

These redeeming features are similar to those identi-

fied by the Supreme Court in Broadcast Music. The

ACL is a reasonable and flexible tool for dealing with

%” Broadcast Music, Inc. v. Columbia Broadcasting System,

Inc., supra, 441 US. at 20.

No. 81-1333 lla 1l

the unique problems associated with the Roman Catholic

liturgical music market." It gives caeriess holders

protection individual

oped in a vacuum; it grew out of a history of t

infri ts and was designed to protect musical

pra oo eyo a market where infringement is not easy

to detect and barder ww prevent.

Moreover, the ACL is not simply a protective device.

Much like the blanket Jicenses in Broadcast Music, the

ACL atfords efficiencies. Individual sales transactions

would be more expensive and would require individual

monitoring; the AUL obviates the need for oversight of

each individual customer. A blanket license is a “neces-

sary consequei.ce of the integration necessary to achieve

these efficienc’es, and a necessary consequence of an

aggregate license is that its price must be established.”

Broadcast Music also supports our conclusion that the

ACL is not a tying contract. The ACL is not a combina-

tion of individual song licenses; it is a unique product

" The Sherman Act has alw been discriminatingly

lied in the light of economic ities. Broadcast Music, 441

. at 14, citing Amicus Curiae on Petition for Certiorari in

K-91, Inc. v. Gershwin, 0.T. 1967, No. 147, p. 10. A musical

worthless unless an owner has a means of

12 12a No. 81-1333

“composed of the individual compositions plus the ag-

ag ete ie Here, “the whole is truly greater

the sum of its parts... .” Broadcast Music, Inc. v.

Columbia Broadcasting System, Inc., 441 U.S. at 21-22.

“(The ACL] allows the licensee immediate use of cov-

ered compositions without the delay of prior individual

ions and great flexibility in the choice of musi-

material.” Jd. Because the ACL is a singular com-

modity—musical compositions—there can be no tied or

tying products.

The district court reached the opposite conclusion but

at no point in the record are the tying and tied products

identi The district court refers to twenty-five or

thi —— songs which are the most desired and

conclu that a purchaser must buy all 1,400 songs

included on the Master Title Index in order to obtain

the popular songs. Establishing the existence of a tying

contract requires more than a bald assertion that some

songs are more popular than others. In any event, given

the substantial similarity between this case and Broad-

cast Music, there can be little doubt that the ACL is not

a per se violation of the Sherman Act." The ACL

“ The ACL may be com to a songbook or hymnal .

were al the songs are sold tagethe

practical

or conspiratorial impediments to ... obtaining individual

licenses.” 441 U.S. at 24. The licensor held non-exclusive

CE yy Se

inventory ae Broadcast Music), there was no alternative

to the ACL which allowed churches to | sen custom-made

hymnals and that this a@ per se vio of

Act. We do not agree with this reasoning. Even if Broadcast

(Footnote continued on following page)

No. 81-1333 13a 13

demands a more discriminating examination under the

rule of reason.

Although the district court did not evaluate the ACL

under the rule of reason, we think this issue is ripe for

priate for pow hed. Won ~ “Whether the

sum t. We agree.

alternatives to FEL’s ACL satisfy the antitrust laws

has become purely a legal determination. The contrac-

tual obligations, prices, and other important character-

istics of these alternatives is fully disclosed by the

record. Since we are convinced that a trial on this issue

would add nothing significant to the record, we see no

reason to rem the issue for reconsideration.

Under the rule of reason, an agreement is an unreason-

able restraint of trade if its anti-competitive effects out-

weigh its pro-competitive effects. National Society of

L Engineers v. United States, 435 U.S. 679

(1978). In our case, the balancing of pro- and anti-com-

petitive effects need not be undertaken because we find

that the ACL has no anti-competitive effect. In Broad-

cast Music, on remand, 620 F.2d 930 (2d Cir. 1980), the

Second Circuit determined that in a blanket license,

such as the ACL, there is no price competition between

the separate musical compositions included in the ACL.

The absence of price competition among songs,

however, does not mean that the blanket license is a

restraint upon any potential competition. For price

competition to exist there must be at least one

buyer interested in purchasing a product from two

or more sellers.

> * *

8 continued

Music mandated alternatives, the record in this case discloses

available alternatives to the ACL which allow the purchase or

ing of individual songs. These alternatives do not allow

es to produce custom-made hymnals, but this does not

render the ACL illegal per se. If the district court’s con-

clusions are accepted, this would make the mere offering of

a blanket license a se violation of the Sherman Act and

this is contrary to result reached in Broadcast Music.

14 ida No. 81-1333

If the nity to purchase orming rights to

to indivi songs is fully por eget it is custom-

er preference for the blanket license, and not the

license itself, that causes the lack of price competi-

tion among songs. Of course, even customer prefer-

ence cannot save some penton from ill ity

under the antitrust law. If competing sellers fix the

rices of their products, they violate § 1 no matter

much a buyer may prefer ery’ their fixed

ny to negotiating with each for a lower price.

ut a practice that is not a per se violation, and

this blanket license has authoritatively been found

not to be such, does not restrain trade when the

complaining customer elects to use it in preference

to realistically available marketing alternatives.

Id. at 935. In other words, the ACL does not restrain

trade or have anti-competitive effects if an alternative

opportunity to acquire rights to individual songs is fully

available. Jd. at 936. Having examined the various

methods of acquiring individual F.E.L. songs, we con-

clude that these methods are realistically available mar-

keting alternatives.

If a church desires to make copies of a single F.E.L.

song for use at a worship service, it can do so under the

one-time use license. If permanent copies are desired, a

church can purchase songbooks, songcards, or sheet

music. The Bishop maintains correctly that the ACL is

the only license offered by F.E.L. which allows parishes

to include F.E.L. songs in custom-made hymnals. This

fact alone does not make F.E.L.’s ACL unreasonable. A

in a form most convenient to its customers. Neither the

the right to produce custom-made hymnals; a copyright

owner can sell sheet music only if he so desires. We can-

not overlook F.E.L.’s alternative marketing practices

simply because they do not allow custom-made hymnals,

and neither the expense nor the inconvenience of these

alternatives makes them unreasonable. See Broadcast

Music, 620 F.2d at 937. Although inconvenience or

expense may in some cases be barriers to the availabil-

No. 81-1333 Sa 15

ity of alternatives, in this case we believe these factors

are not so obstructive that they constitute legal impedi-

ments to F.E.L.’s j

The Bishop contends that we cannot consider F.E.L.’s

songbooks or sheet music as alternatives to the ACL

because they are not copy licenses. In other words, the

relevant market which we must examine is the

licensing market, not the entire music publishing market.

Though we are not convinced that the Bishop's argu-

ment is correct,’* the one-time use license standing on

its own is an acceptable alternative. It is a copy license

which allows individual songs to be copied and used at

not-for-profit services; and its price is quite reasonable.

The availability of alternative means of acquiring

individual F.E.L. songs removes the potential for coer-

cion (in the form of price fixing) from the ACL. The

ACL has no anti-competitive effects. Therefore, there is

no question of fact, yet unresolved, as to whether the

pro-competitive effects are outweighed by the anti-com-

petitive effects. We conclude as a matter of law that the

ACL is not a violation of the antitrust laws."

hymnals, we could conceivably limit the availability of

liturgical music. By eliminating a publisher's alternative-

devices from consideration under the antitrust

laws, we force the license at issue to stand alone as a

com ive or anti-competitive agreement. Given this result,

a publisher may choose to withdraw a copy license altogether,

rather than increase the number of alternative licenses.

This result is not mandated by the Sherman Act and is

certainly not the best way to “promote the of the

useful art.” United States Constitution, Art. | § 6.

7 It is conceivable that the ACL would not violate the

Sherman Act even without a realistic alternative “ye

mechanism. See Broadcast Music, Inc. v. Moor-Law, Inc.,

US.L.W. 2370 (Nov. 24, 1981) (No. 1043 ATRR A-13).

16 16a No. 81-1333

Count 23 of F.E.L.’s complaint all a violation of

section 34(a) of the Lanham Act.” F.E.L. claimed that

the “homemade” hymnals collected from the Bishop's

parishes contained F.E.L. which did not have a

poser, the name of the copyright owner, or any indica-

tion of reprint permission. F.E.L. contends that by

applying the name of the ish and omitting F.E.L.’s

name from the hymnals, Bishop has falsely identi-

fied himself or his parishes as the source or owner of

the songs. Section 43(a) of the Lanham Act provides

Any person who shall affix, apply, or annex, or

use in connection with any goods or services, or any

container or containers for goods, a false designa-

tion of origin, or any false description or whe ed

sentation, including words or other symbols te ~

falsely to describe or represent the same, and s

cause such goods or services to enter into com-

merce, and any person who shall with knowledge of

the falsity of such designation or origin or descrip-

tion or representation cause or procure the same to

be transported or used in commerce or deliver the

same to any carrier to be transported or used, shall

be liable to a civil action by any person doing busi-

ness in the locality falsely indicated as t of

origin or in the region in which the locality is situ-

ated, or by any person who believes that he is or is

likely to be damaged by the use of such false de-

scription or representation.

The district court dismissed Count 23, stating that the

Bishop had not used any false designation of origin and,

in any event, the hymnals had not entered into com-

merce as required by the statute. The ultimate test of a

claim under the Lanham Act is whether there is a like-

lihood of confusion, deception, or mistake on the part of

® 15 U.S.C. § 1125(a).

the

origin of the songs contained therein is a question of

fact which has not been resolved in the instant case.

Section 43(a) of the Lanham Act is a remedial statute

ust be broadly construed. By rang its own

name on the nals and excluding F'.E.L.’s, the par-

ishes have a false designation of origin if the users

of the hymnals are confused as to the origin of the

songs. A resolution of this issue is not appropriate for

sum judgment on the basis of the record as pre-

sented. , the allegations set out by F.E.L. in

Count 23 do satisfy the jurisdictional element of inter-

state commerce in section 1125. Whether or not the

“homemade” hymnals leave the State of Illinois is not

important if they have a substantial effect on interstate

commerce. Maier Brewing Co. v. Fleischman Distilling

Corp., 390 F.2d 117, 120 (9th Cir. 1968). A false desig-

nation of origin on custom-made hymnals could have an

im on interstate sales of legitimate copies of copy-

righted music. It was error for the district court to dis-

miss count 23 of F.E.L.’s complaint.

ITI

Counts 22 and 24 of F.E.L.’s complaint invoked the

ndent jurisdiction of the district court for their ad-

judication. When the other F.E.L. counts were dis-

missed, the district court in its discretion refused to

exercise jurisdiction over the State claims. We have

determined that the granting of the Bishop’s motion for

summary judgment on the copyright claims was incor-

rect as was the dismissal of Count 23. The issue of pend-

19 See James Burrough, Lid. v. Si the Beefeater, Inc., 540

F.2d 266, 274 (7th Cir. 1976 Aen Sh infringement under

Pep nf ty Ny lym

on public); oc. $30C.,

ine, x, Dallas Cap'& Emblem Mi o., 510 F.2d 1004, 1010

(5th Cir.), cert. ied, 423 US. 868 yi | (generally, the

ark infringe-

18 18a No. 81-1333

ent jurisdiction is now appropriate for reconsideration

by the district court.

The order of the district court is reversed and this

case is remanded to the district court for proceedings

= with this opinion.” Circuit Rule 18 shall

apply.

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit

*® FELL. wied, © mation Se -ceeviaers, be reste be Se

court with a document enti “FDLC Update of Music

Publishers’ Reprint ereeaee Policies” ( “FDLC Up-

On May 29 this court granted the motion to supplement. The

did not receive notice of F.E.L.’s motion to supplement

the record and, upon receipt of this court’s order, moved to

vacate it and deny the motion on June 4, 1981. On June 16

motion to vacate be referred to the

case at the time of oral argument.

i Distri

' , 495 F.2d 785, 788 (7th Cir. 1974). The

Bishop’s “Motion to Vacate Order Granting [F.E.L.’s] Motion

to Supplement the Record on Appeal” is granted.

_ USCA 5730—Midwest Law Printing Co., Inc., Chicago—3-25-82—400

19a

IN THE UNrtep States District Court

For the Northern District of Illinois

F.E.L. PUBLICATIONS, LTD.,

aera naan Plaineiff No. 76 C 3471

- » Before the Honorable

George N. Leighton,

CATHOLIC BISHOP OF CHICAGO, United States District Judge

a corporation,

Defendani, .

Memorandum

I ;

The plaintiff, F.E.L. Publications, Ltd., allegedly owns 21

copyrights to liturgical hymnals and songbooks, each contain-

ing large amounts of materials said to be wholly original either

with plaintiff or its assignor, one Dennis Fitzpatrick. In a

second amended and supplemental complaint, it alleges in 21

counts that defendant, the Catholic Bishop of Chicago, himself

or his agents and employees, have infringed these copyrights

“by publishing, distributing and/or selling in this district song-

books including songs which were copied largely from plain-

tiff’s aforesaid copyrighted work, and/or by allowing others to

publish, distribute and sell songbooks on property owned,

controlled, and supervised by the Catholic Bishop [sic].”'

Then, in three additional counts plaintiff invokes the pendent

jurisdiction of this court and makes claims which in substance

are based on the laws of Illinois.

‘The Catholic Bishop of Chicago is the juridical entity for the

under a special act of the Illinois legislature, Private Laws of Illinois,

22nd Generai Assembly, p. 78 (1861). He is also a natural person;

and for this reason, in this memorandum he will be referred to as such

by personal pronouns.

20a

Defendant has answered, denied all material allegations of

the complaint; and has pled 19 affirmative defenses, two of

which, the 8th and Iith, assert the claim that plaintiff has

facts which give rise to the controversy between the parties,

including the defense of copyright misuse, are not in dispute.

In December 1961, Pope John XXIII convoked the Second

Vatican Council. Such councils function to formulate law,

practice, and doctrine for the Roman Catholic Church. The

purpose of the council was to make those church observances

which are open to changes more responsive to the requirements

of modern umes.

In late 1963, Second Vatican promulgated the Sacred

Constitution on the Liturgy. Liturgy is the body of rites

prescribed for public worship in the Roman Catholic Church.

The Sacred Constitution changed Catholic liturgy in two re-

spects. First, it provided that religious services may be con-

ducted in the vernacular. Prior to this, Roman Catholic

religious services were conducted in Latin. Second, it com-

pelled encouragement of active participation by the congrega-

tion in the religious service. In this country and in others, this

allowed a congregation to sing Psalms and hymns during the

mass, in English. Prior to Second Vatican, Roman Catholic

religious services were conducted almost exclusively by the

priest, and if songs were sung at all, this was done only by the

choir, and in Latin. The changes made by Second Vatican

caused a period of adjustment within the parishes of all

American archdioceses.

The Sacred Constitution also encouraged development of

liturgical music in the vernacular, citing the need to provide an

opportunity for the entire assembly of the faithful to actively

participate. From this need a new market arose, a market for

2la-

Catholic liturgy music in the English language. The Church, in

an effort to maintain its independent identity, did not consider

existing English hymns of the Protestant reform appropriate for

use in Catholic religi se

Pursuant to the dictates of Second Vatican, administrative

co-ordinating commissions were created to implement the new

reforms. An example of this is the Liturgy Commission of the

Archdiocese of Chicago. Founded in 1964, its role was to keep

abreast of developments in liturgy and communicate them to

the parishes. Currently this function is served by the Liturgy

Advisory Board, which advises the Director of the Office of

Divine Worship and the Cardinal of the Archdiocese on the

liturgical needs and concerns of the parishes.

The Liturgy Commission of the Archdiocese of Chicago

determined that liturgy teams should be formed in the parishes

to implement Second Vatican reforms. These teams typically

included the parish priest and representatives of the laity.

Before Second Vatican, the priest was the sole minister at a

service of the Catholic Church. After Second Vatican reforms.

other members of the congregation actively participated in the

administration of communion and were allowed in the sanc-

tuary during mass. The form of religious services was changed

in order to expand the participation from the traditional roles of

priest and choir, to include all those present. The effort was to

allow the congregation to celebrate the mass, and in its own

language.

These developments led to a search by Catholic parishes

for music and prayer which conveyed the message of the

Church in contemporary terms. Plaintiff, formerly known as

Church Publications, Lid., is one among many companies

which began publishing English language hymnals suitable for

this use. Its founder, composer, and president, Dennis J.

Fitzpatrick, entered this business with Hymnal for Young

22a

Christians in 1966. Subsequently, he obtained copyrights to

several other works, some the subject of this suit, which he

assigned to the plaintiff. —

All of plaintiff's hymnals and songbooks concerning which

it brings this suit are compilations or collective works. A

number of them contain the substance of Catholic liturgy that

were originally composed during the early years of the Roman

Catholic Church. Some of the songs have an origin that has

been lost in antiquity. Included in the hymnals are traditiona!

historical religious songs which have long been in the public

domain, some of which have been set to a different melody by a

large number of composers who, pizintiff alleges, were its

employees. Those works which are in the public domain are

grouped with original works by plaintiffs authors and com-

posers and for which no royalties from licensing revenues are

paid. The materials in the public domain included in plaintiff's

copyrighted works are distinguished in its accounting books by

the notation “P.D.” Many of the songs included in plaintiff's

hymnals and songbooks are themselves not’protected by any

obtained by plaintiff through exclusive assignment to it of the

right to license their use in return for payment of royalty, and

by exclusive assignment to it of copyrights obtained by other

authors and composers, again with the right to license use of the

copyrighted works.

Prior to 1972, plaintiff occasionally authorized Catholic

parishes, religious organizations, and publishers to copy its

music at two cents per copy, per song. In November of that

year, it initiated a new marketing procedure which it called an

“Annual Copy License”, hereafter referred to as ACL. This

marketing technique was in response to plaintiff's heightened

awareness of unauthorized copying of its musical works. At the

time it announced the ACL, plaintiff offered three methods by

which a customer could obtain the benefit of its copyrighted

works.

23a

One allowed the prospective purchaser to accept the

provisions in its ACL and pay $100 per year for the “right to

'make unlimited numbers of copies from F.E.L.’s printed page

or from user’s own original master copy.” The right was to

terminate one year after the ACL was purchased. Further, the

purchaser was granted “the right to perform the music and/or

text at not-for-profit performances for purpose of worship

and/or classroom use [sic].”

The second was a “[o]ne time usage plan” which, for 2¢

per copy per song, with a minimum charge of $10, allowed the

customer to purchase the right to use any song of his choice.

After the one use, at a wedding or funeral, the copies had to be

destroyed.

The third and last allowed the customer to buy copies of

plaintiff's hymnals and songbooks, regardless of whether the

customer desired permanent copies of all or only a few

selections. .

The terms of the ACL incorporated a master title index

that listed the 1400 songs owned by plaintiff, together with the

names of the composers. The church that wanted to use one of

plaintiff's listed songs could not deal directly with any of the

authors or composers whose musical works or copyrights had

been exclusively assigned to the plaintiff. The ACL as a type of

marketing was not, and still is not employed by any other

publisher of religious music in this country; plaintiff acknowl+

edges that this marketing method was a pioneering effort in the

field of religious music licensing. Its ACL differs from tradi-

tional marketing of music in that it does not distinguish

between songs, but charges a lump sum for which the licensee

receives copying and use rights to all of plaintiffs 1400

available compositions, even though the purchaser may desire

to use only a few of the more popular songs. It also differs from

usual marketing practices in that it relies heavily on the licensee

to patrol his own use. On the anniversary of the license, the

customer has to destroy all copies he has made of the virtually

unlimited number allowed, unless he decides to pay plaintiff

24a

another $100 for an additional year of the ACL. The effect is

that the copies are the property of the buyer only as long as he

is able, or allowed, to continue buying the right annually.

Plaintiff has sought to enforce its ACL, allowing past violators

to redeem themselves by remitting a proportionate monthly fee

multiplied by the duration of the claimed infraction.

Defendant's archdiocese contains 447 parishes. Of these,

between 22 and 30 had purchased plaintiff's ACL at the time

the complaint in this case was filed. Nine had paid plaintiff for

prior copying releases; and in 149 there had never been any

copying of plaintiff's songs or music. In 122 of them, if there

had been any copying, this had occurred more than three years

before plaintiff filed its suit in this case, but home-made

hymnals had been distributed at masses and church services

after 1973. There were insertions in these hymnals of some of

the more popular of plaintiff's copyrighted songs in the oti. r of

defendant's parishes. The copying was apparently done by

priests and laymen of these parishes. All of the copying. and

their use by distribution to parishioners, were only for the

purpose of enabling members of the congregation to participate

by singing in a Catholic mass, a not-for-profit religious service.

No sale was ever made of any of plaintiff's copied songbooks or

musical works.?

2 In each of the 21 counts of its second amended and supplemen-

tal complaint, plaintiff alleges that there were sales of “songbooks . . .

copied largely from [its] aforesaid copyrighted work.” However,

defendant has supported his motion for summary judgment with

affidavits which show that despite one instance of a mimeographed

book containing a price tag of $5, no sale has ever been made of a

songbook copied from plaintiff's copyrighted works. Plaintiff does not

contradict these affidavits; therefore, plaintiff relies only on its allega-

tions concerning sales.

It is well established that an adverse party may not rest on the

allegations of his pleadings when a motion for summary judgment is

made. Macklin v. Butler, $53 F.2d 525 (7th Cir. 1977); of. Weit v.

Continental Illinois Nat. Bank and Trust Co. of Chicago, 467 F. Supp.

197 (N.D. Ill. 1978); Fed. R. Civ. P. 56(¢). Accordingly, this court

concludes that neither defendant nor any of his agents or employees

have ever sold a songbook copied from plaintiff's copyrighted works.

25a

Based on these facts, supported by affidavits, excerpts from

depositions, and exhibits, defendant has moved for summary

judgment on his affirmative defenses that plaintiff has misused

its copyright monopoly, comes to this court with unclean hands,

and is thus not entitled to any relief on its claim of copyright

infringement. Defendant argues that the Copyright Act of 1909

did not give plaintiff the right to license the not-for-profit

singing of hymns at a mass or other religious service; and in

imposing on Catholic parishes its ACL, plaintiff has misused its

alleged statutory monopoly on the right to copy by compelling

churches to pay for not-for-profit performances which involve

the singing of religious songs. Further, defendant contends that

plaintiff's ACL policy misuses its copyright monopoly, by tying

the purchase of all its religious compositions (its least popular

ones), to its most popular or “blockbuster” songs.

Plaintiff opposes defendant’s motion for summary judg-

ment, arguing that it asserts only a broad, vague defense of

his dislike for the way plaintiff does business but do not provide

a defense to copyright infringement. As to the theory that

plaintiff has illegally extended its copyrights by licensing not-

for-profit performances of songs at religious services, plaintiff

contends this is not relevant and thus need not be considered

because the claim of infringement by performance has not been

asserted in this case. Against defendant's theory that the ACL

is an illegal tying arrangement in violation of the antitrust laws,

plaintiff argues that this contention has been considered and

rejected in the context of blanket ccpyright licenses in Columbia

Broadcasting System, Inc. v. American Soc. of Composers, 400

F.Supp. 737 (S.D. N.Y. 1975), rev'd, 562 F.2d 130 (2d Cir.

1977), rev'd, Broadcast Music, Inc. v. Columbia Broadcasting

System, Inc., 441 U.S. | (1979), on remand, Columbia Broad-

casting System, Inc. v. American Soc. of Composers, Authors

26a

and Publishers, 607 F.2d 543 (2d Cir. 1979) and 620 F.Supp.

930 (2d Cir. 1980).

Thus the issue presented is whether plaintiffs ACL is a

misuse of its copyright monopoly to hymnals and musical works

described in this lawsuit and bars it from recovery for the

quires this court to determine (1) whether plaintiff's ACL was a

means by which it sought to license the not-for-profit perform-

ance of religious songs for worship, and an unlawful extension

of plaintiff's copyright monopoly; and (2) whether plaintiff's

ACL is a tying contract per se illegal under the Sherman Act.

A. Is plaintiff's ACL a means by which it sought to license the

not-for-profit performance of religious songs for worship

and thus an unlawful extension of its copyright monopoly?

In Novernber 1972 when plaintiffs ACL policy was an-

nounced, its founding composer and president, Dennis J.

Fitzpatrick, knew, and as a consequence so did plaintiff, that

there were people in Catholic parishes who made either

Xeroxed or typewritten hymnals from songs in copyrighted .

hymaals, but only for the purpose of enabling a congregation to

participate in the mass or other religious service. Of course, to

the extent this was done to plaintiff's musical works, this could

have been held to be copyright infringement under the

3In its second amended and supplemental complaint, plaintiff

alleges that “[aJll references to the Copyright laws refer to the 1909

answer, defeadant appears to agree with this view. In fact, plaintiff's

position is supported by the cases. See Walt Disney Productions v. Air

Pirates, 581 F.2d 751 (9th Cir. 1978) cert. denied, O'Neill v. Walt

Disney Productions, 439 U.S. 1132 (1979); of. Davies v. Bowes, 209

F. $3 (D.C. N.Y. 1913), aff'd, 219 F. 178 (2d Cir. 1914).

27a

1962). As the market for Catholic liturgical music developed,

Fitzpatrick also knew, as did plainiiff, that there was, for one

reason or another, the copying from published musical works in

American Catholic parishes. In fact, his November 1972 letter

addressed to “Dear Worship Leader”, and sent to Catholic

churches throughout the country, discussed the general problem

of hymnal copying and announced that “[fjor a one time

annual payment of $98.76 [later raised to $100] you may copy

in any form you choose, in any quantity you wish, with

unlimited usage during the year, any music and/or text; in any

arrangement, accompaniment or edition; printed, published

and copyrighted by F.E.L. Publications, Ltd.”

The license was intended to grant a “specific church

and/or school, or institution, or local chapter of an organiza-

tion, .. .” referred to as the “User”, the right to copy any music

or text copyrighted by the plaintiff. It defined the “additional

rights of user” in Article 4 and provided that “User” could

“perform the music and/or text at not-for-profit performances

for purposes of worship. . . .” In Article 5, the license provided a

ministry exception by which the “[u]ser agrees to confine use of

the copies to users’ premises...” identified as the church or

other place of worship named on the license.

The provisions of the license were carefully drawn to

preclude any sale of copies made by any music or text owned

by the plaintiff. F.E.L. told its licensees that “[s]eparate

charges and licenses are required to permit copies to be sold to

the congregation or others when allowed by F.E.L.” The user

further agreed “not to sell, lend, or otherwise dispose of the

copies to any church, school, entity, or person other than those

persons in the service of users (agents) and necessary to permit

user to carry out the uses licensed herein.”

Fitzpatrick knew, and so did plaintiff, that Catholic parish

priests and those who worked with them, did not engage in the

business of copying songs into hymnals for the purpose of sales.

Therefore, plaintiff is charged with the knowledge that the only

28a

use to which copied hymnals are put in a Catholic parish is the

singing from them by a congregation in a mass or other

religious service, all not-for-profit performances.

The exclusive rights as to copyrighted works given a

includes performance of “the copyright work publicly for profit

if it be a musical composition; and for the purpose of public

performance for profit, and for the purposes set forth in

subsection (a) hereof, to make any arrangement or setting of it

or of the melody of it in any system of notation or any form of

record in which the thought of an author may be recorded and

from which it be read or reproduced ... .” Courts which have

construed this section have uniformly held “that the monopoly

given the copyright owner is only to perform his work ‘for

profit’. Associated Music Publishers, Inc. v. Debs Memorial

Radio Fund, Inc., 141 F.2d 852, 854 (2nd Cir. 1944). cert.

denied, Debs Memorial Radio Fund v. Associated Music Pub-

lishers, 323 U.S. 766 (1944): of Buck v. Hillsgrove Country

Club, Inc., 17 F.Supp. 643 (D.C. R.L. 1937): Gay v. Robbins

Music Corporation, 38 N.Y.S. 2d 337 (1942); and see Andur,

This, however, does not mean that money has to be

collected at the door of the place where the copyrighted music

is performed. In Herbert v. Shanley Co., 242 U.S. 591 (1917),

the Supreme Court had before it iwo cases in which copy-

righted musical works were perfor:ued in a restaurant and a

hotel dining room for the entertainment of patrons who did not

pay to hear the music. The courts below had ruled that these

performances did not infringe the copyrights. However, speak-

ing for the court, Mr. Justice Holmes said, 242 U.S. 591 at 594-

595:

“The purposes set forth in Subsection (a) of Section |, Co-

pyright Act of 1909, are to give any person complying with the

and vend the copyrighted work.” 17 U.S.C. § I(a).

29a

“If the rights under the copyright are infringed only

by a performance where money is taken at the door, they

are very imperfectly protected. Performances not different

in kind from those of the defendants could be given that

might compete with and even destroy the success of the

monopoly that the law intends the plaintiffs to have. It is

enough to say that there is no need to construe the statute

so narrowly. The defendants’ performances are not

eleemosynary. They are part of a total for which the

public pays, and the fact that the price of the whole is

attributed to a particular item which those present are

expected to order is not important.”

Therefore, it is not the payment of money that determines

whether a performance is for profit; it is the nature of the

performance. Cf. Robert Stigwood Group, Lid. v. O'Reilly, 346

F.Supp. 376 (D.C. Conn. 1972), rev'd, 530 F.2d 1096 (2d Cir.

1976), cert. denied, O’Reilly v. Robert Stigwood Group, Lid., 429

U.S. 848 (1976). See Annot. 23 A.L.R.Fed. 974.

From this principle, it can be deduced that aside from the

question whether the occasion is public, the singing of hymns in

a Catholic mass or other religious service is a not-for-profit

performance. See Wihtol v. Crow, 199 F.Supp. 682, 685 (S.D.

Iowa 1961), rev'd on other grounds 309 F.2d 777 8th Cir.

1962); of. 17 U.S.C. § 104 repealed by P.L. 94-553, October 19,

1976. But the copyright monopoly which the owner of a

exclude others from performing the composition “in public for

profit....” 17 U.S.C. § 1(e). In other words, the copyright

laws have always distinguished the performance of musical and

nondramatic literary works for profit from those performances

which are not-for-profit. Nimmer, in discussing the underlying

rationale for this distinction, one that is found in the Copyright

Act of 1909, tells us:

“It was thought that to prohibit unlicensed nonprofit

performances of musical and nondramatic literary works in

such places as schools and churches would constitute an

30a

undue restriction on the benefits which should be available

to the public.” 2 Nimmer on Copyrights § 8.15 [A] at 8-144

(1980).

In this case, the only use to which a licensee under

plaintiff's ACL could put copied music was the “not-for-profit

performances [of the musical works] for purposes of wor-

ship... .” This fact becomes clear when the Destruction

Clause, Article 8 of the ACL is considered. It is there required

that the “User... destroy all copies licensed herein and to

notify F.E.L. ... within ten days after the expiration of this

license . . . that copies were destroyed.” This being the case, the

conclusion is inescapable that plaintiff's ACL is simply a means

by which it licensed the not-for-profit religious performances of

its copyrighted works; it is an extension of its copyright

monopoly not authorized by the copyright laws. See M.

Witmark & Sons v. Jensen, 80 F.Supp 843 (D. Minn. 1948),

app. dism’d, M. Witmark & Sons v. Berger Amusement Co., 177

F.2d 515 (&th Cir. 1949). A copyright owner, like a patentee,

may not increase the scope of the monopoly afforded by the

v. Ideal Industries, Inc., 347 F.Supp 1384, 1386 (N.D. IIL

1972).

B. Is plaintiff's ACL a tying contract illegal per se under the

Sherman Act?

Despite plaintiff's originality as a publisher of religious

music, its ACL is a blanket license. See Columbia Broadcasting

System, Inc. v. American Society of Composers, 400 F.Supp.

737, 743 (S.D. N.Y. 1975), rev'd on other grounds 562 F.2d 130

(2d Cir. 1977), rev'd, Broadcast Music, Inc. v. Columbia

Broadcasting System, Inc., 441 U.S. 1 (1979), on remand,

Columbia Broadcasting System, Inc. v. American Soc. of Com-

posers, Authors and Publishers, 607 F.2d 543 (2d Cir. 1979)

and 620 F.Supp. 930 (2d Cir. 1980). A blanket license, as

plaintiff insists, is not per se unlawful under the antitrust laws

where it is granted by nonexclusive agents of copyright owners,

3la

and an acceptable mechanism for at least a part of the market is

available to those who want to purchase the right to perform

copyrighted musical compositions. Broadcast Music, Inc. v.

Columbia Broadcasting System, Inc., 441 U.S. 1, —_., 99 S.Ct.

1551, 1564 (1979). Nor is such a license, under the law of

reason, a violation of the antitrust laws in the absence of

evidence that its existence restrains competition among owners

of copyrights » musical selections. Columbia Broadcasting

System, Inc. v. American Society of Composers, 620 F.2d 930,

939 (2d Cir. 1980). In Columbia Broadcasting System, Inc. v.

American Society of Composers, 400 F.Supp. 737, 781 (S.D.

N.Y. 1975) rev'd on other grounds 562 F.2d 130 (2d Cir. 1977),

rev'd, Broadcast Music, Inc. v. Columbia Broadcasting System,

Inc., 441 U.S. 1 (1979), on remand, Columbia Broadcasting

System, Inc. v. American Soc. of Composers, Authors and

Publishers, 607 F.2d 543 (2d Cir. 1979) and 620 F.Supp. 930

(2d Cir. 1980), the district court held that the case before it

involved a blanket license and was essentially one of tie-in or

block booking which required proof of coercion to establish

illegality under the antitrust laws; but issuance of a blanket

license under provisions of consent decrees which allowed

direct licensing from individual owners of copyrights saved the

scheme from being coercive and, hence illegal.

Here, however, by obtaining assignments of the songs with

the right, on behalf of the composers, to license their use for an

annual fee, and by obtaining assignment of copyrights for the

same purpose, plaintiff either absolutely controls or has own-

ership power over copyrights to hymnals, songbooks, and the

1400 religious songs listed in its master title index. A Catholic

church or parish that wants to purchase the right to copy and

use a song either in one of plaintiffs hymnals, songbooks, or

those listed in its master title index, cannot deal directly with

owners of the copyrighted works listed by plaintiff. In most

instances, a church or parish does not desire permission to use

all of plaintiff's listed songs; there is no interest in all of the

songs in plaintiff's hymnals, songbooks, and listed in the master

32a

index. The most desired are about 25 or 30 of the more popular

or “blockbuster” songs. Yet, plaintiff's policy has always been

“all or nothing”; the church or parish desiring to purchase the

right to copy and use some of the listed songs has to pay for

permission to use all of them. The songs are different; in many

instances, the composers are different, yet purchase of the right

to use the more popular has been tied by the plaintiff to the

purchase of all, including the less popular.

It is now well known that a tying arrangement whereby a

party agrees to sell one product but only on condition that the

buyer also agrees to purchase a different or tied product is

prohibited by the Sherman Act, and by the Clayton Act. See

Siegel v. Chicken Delight, Inc., 448 F.2d 43 (9th Cir. 1971),

cert. denied, 405 U.S. 955 (1972); of. Tire Sales Corp. v. Cities

Service Oil Co., 410 F.Supp. 1222, 1227 (N.D. Ill. 1976). In

the field of copyrighted feature motion pictures, a subject

matter analagous to the licensing of copyrighted music, the

Supreme Court has held that block booking, that is, tying the

sale of wanted motion picture films to a package containing one

or more unwanted or inferior films, is a violation of the

Sherman Act. United States v. Loew’s, Inc., 371 U.S. 38, 49

(1962). Earlier, in United States v. Paramount Pictures, 334

U.S. 131, 159 (1948), the Court in an opinion by Mr. Justice

Douglas, held categorically that it was illegal under the Sher-

man Act for a licensor to refuse to license one or more

copyrights unless another copyright is accepted. Said Mr.

Justice Douglas, 131 U.S. at 158:

Where a high quality film greatly desired is licensed

only if an inferior one is taken, the latter borrows quality

from the former and strengthens its monopoly by drawing

on the other. The practice tends to equalize rather than

differentiate the reward for the individual copyrights.

Even when the films included in the package are of equal

quality, the requirement that all be taken if one is desired

increased the market for some. Each stands not on its own

footing but in whole or in part on the appeal which another

film may have.

33a

This statement, made concerning different motion picture

films, is equally applicable to the different copyrighted songs on

plaintiff's master title index. The right to copy and perform the

high quality, or so-called “blockbuster” songs on plaintiff's list

which Catholic parishes and churches desired could be ob-

tained by them only if the inferior ones were taken; thus the

latter group of songs borrowed quality from the former and

strengthened its monopoly by drawing on the other. This being

so, it must be concluded that plaintiffs ACL involving co-

pyrights is a tying contract which is illegal per se under the

Sherman Act. Cf. Alden-Rochelle, Inc. v. American Soc. of C.,

A. and P., 80 F.Supp. 888 (S.D. N.Y. 1948); see Annot.,

Antitrust-Tying Arrangement, 46 A.L.R. Fed. 516.

A copyright, like a patent, is a statutory grant of monopoly

privileges. Broadcast Music, Inc. v. Columbia Broadcasting

System, Inc., 441 U.S. 1, ——, 99 S.Ct. 1551, 1567 (1979)

(Stevens, J., dissenting; concurring on this point). Being a

statutory grant, the rights are only such as the statute confers,

and may be enjoyed only on the terms and conditions which it

specifies. See Loew’s, Inc. v. Columbia Broadcasting System,

Inc., 131 F.Supp. 165, 173 (S.D. Cal. 1955), aff'd, Benny v.

Loew’s, Inc., 239 F.2d 532 (9th Cir. 1956), aff'd, Columbia

Broadcasting System, Inc. v. Loew's, Inc., 356 U.S. 43 (1958):

18 C.J.S. Copyright and Literary Property § 18. And as one

eminent authority has pointed out, “The Copyright Act accords

to each copyright owner a limited form of monopoly. An

attempt to extend the scope of this monopoly will, under certain

circumstances, result in violation of the antitrust laws... . Apart

from the issue of antitrust violation .. . courts will on occasion

invoke the equitable doctrine of unclean hands [a concept

which includes copyright misuse] as a defense in a copyright

infringement action . . . whether [it] is one of law or in equity.”

34a

3 Nimmer on Copyrights § 13.09{A}|[B]. The policy underlying

the misuse doctrine is designed to prevent a patentee [and a

his admittedly valid grant beyond the limits of his legal

monopoly. Panther Pumps & Equipment Co. v. Hydrocraft,

Inc., 468 F.2d 225, 231 ( 7th Cir. 1972) cert. denied, Hydrocraft,

Inc. v. Panther Pumps & Equipment Co., 411 U.S. 965 (1973):

cf. M. Witmark & Sons v. Jensen, 80 F Supp 843 (D. Minn.

1948), app. dism’d, M. Witmark & Sons v. Berger Amusement

Co., 177 F.2d 515 (8th Cir. 1949); United States v. United

States Gypsum Company, 124 F.Supp. 573, 594 (D.C. D.C.

1954); see Morton Salt Co. v. G. S. Suppiger Co., 314 U.S. 488,

493 (1942) reh. denied, 315 U.S. 826.

In the case at bar, this court has determined that through

the terms of the ACL, plaintiff extended the monopoly privi-

leges of its copyrights by licensing not-for-profit performances

of copyrighted religious music for worship. This the plaintiff

could not do. See CableVision, Inc. v. KUTV, Inc., 335 F.2d

348, 351 (9th Cir. 1964), cert. denied, Klix Corp. v. CableVi-

sion, Inc., 379 U.S. 989 (1965). The court has also determined

that plaintiff's ACL is a tying contract which is per se illegal

under the Sherman Act. United States v. Loew's, Inc., 371 US.

38 (1962); United States v. Paramount Pictures, 334 U.S. 131

(1948). Thus, the undisputable facts show that plaintiff.

through the policy represented by its ACL, has misused its

musical works described in this lawsuit. It continues to do so; in

fact, it has expanded the utilization of this licensing policy.$

5 For example, in 1977 plaintiff joined several of its competitors

in forming The Copyright Sharing Corporation. The three corporate

35a

Insofar as plaintiff seeks injunctive relief. its suit is one

invoking the equity jurisdiction of this court. Tempo Music, Inc.

v. Myers, 407 F.2d 503, 507 n.8 ( 4th Cir. 1969). But a court of

equity will not aid a wrongdoer, a rule having its origin in the

maxim that “one seeking equity must do equity and must show

‘clean hands’ at the threshold.” Udall v. Littell, 366 F.2d 668,

675 (D.C. Cir. 1966), cert. denied, Littell v. Udall, 386 U.S. 939

(1967). Only recently, Judge Bua of this court pointed out that

a court of equity is prevented by the doctrine of unclean hands

from granting relief to a wrongdoing plaintiff. He said, “Thus a

court may deny equitable relief if the applicant has been guilty

of misconduct, fraud or bad faith toward the party against

waym relief is sought in connection with the transaction under

consideration.” Great Western Cities, Inc. v. Binstein, 476

F.Supp. 827, 832 ( N.D. Ill. .1979), aff'd 614 F.2d 775 ( 7th Cir.

1979).

The doctrine of unclean hands is not limited to suits in

equity; the general principle it expresses is equally suited to

damage actions. Kuehnert v. Texstar Corp., 412 F.2d 700 ( Sth

Cir. 1969). Equitable estoppel applies both in law and in

equity to deny a party the right to plead or prove an otherwise

important fact in this case, the alleged acts of copyright

infringement because of something plaintiff has done or has

omitted to do. Tempo Music, Inc. v. Myers, 407 F.2d 503, 507

(4th Cir. 1969); 18 Am.Jur.2d Copyright and Literary Property

§§ 26, 27; Nimmer on Copyrights § 13.09{B]. In a court-tried

case, the reason for invoking the “unclean hands” doctrine to

bar an equitable claim applies with equal force to a claim at law

for damages. Urecal Corporation v. Masters, 413 F.Supp. 873.

876 (N. D. Ill. 1976).

Accordingly, these principles of law and equity require that

defendant’s motion for summary judgment on his copyright

Footnote continued from previous page.

Broadcasting Sysiem, Inc., 441 US. 1, 10-12 (1979), on remand,

Columbia Broadcasting System, Inc. v. American Soc. of Composers,

Authors and Publishers, 607 F.2d 543 (2d Cir. 1979) and 620 F Supp.

930 (2d Cir. 1980).

36a

misuse defense be granted as to plaintiff's first 21 counts

alleging copyright infringement. A copyright owner, like a

patentee, who comes into a court of equity seeking relief from

alleged infringements is not entitled to recover unless he can

show that the misuse in which he has engaged has been purged.

Cf. Berlenbach v. Anderson Thompson Ski Co., 329 F.782 ( 9th

Cir. 1964), cert. denied, 379 U.S. 830 (1964); Krampe v. Ideal

Industries, Inc., 347 F.Supp. 1384 (N.D. Ill. 1972); Duplan

Corp. v. Deering Milliken, Inc., 444 F Supp. 648 ( D. S.C. 1977)

aff'd in part, 594 F.2d 979 (4th LCir. 1979), cert. denied,

Ateliers Roannais de Constructions Textiles v. Duplan Corp.,

444 US. 1015 (1980). This does not nullify the copyrights; it

merely prevents enforcement of them against the defendant in

this case. See Kearney & Trecker Corp. v. Cincinnati Milacron,

Inc., 562 F.2d 365, 371 (6th Cir. 1977); cf In re Yarn

Processing Patent Validity Litigation, 472 F Supp. 180 (S.D.

Fla. 1979).

Having decided on the disposition by dismissal of the 21

counts which allege copyright infringement, there remain three

counts in which plaintiff alleges claims against defendant under

the laws of Illinois. Count 22 seeks relief for conduct which

defendant committed during pretrial proceedings in this case.

It appears that in September 1976 the parties, in open court.

agreed to the collection of all the home-made hymnals which

plaintiff claims infringed its copyrights. These, according to the

plaintiff, were to be delivered to its attorneys. Plaintiff alleges

that defendant, as the Catholic Archbishop of Chicago, wrote a

letter to his parishes, and to all Catholic institutions under his

jurisdiction, directing them to remove from their premises the

alleged infringing home-made hymnals, together with all of

plaintiff's copyrighted works. This action, plaintiff alleges.

interfered with the contractual relations it enjoyed through the

sale of its ACL to a number of Catholic parishes which had

done business with the plaintiff. According to the plaintiff, this

37a

conduct constituted interference with prospective economic

advantage and was unfair competition, in violation of the

common law of Illinois.

Defendant answers this count, admitting that on Septem-

ber 30, 1976 there were proceedings in this court in which the

parties agreed that all of the alleged infringing home-made

hymanals would be collected. He insists, however, that plaintiff

has misread what was said by counsel and has misinterpreted

the agreement of the parties. He admits having circulated the

letters alleged by the plaintiff; but denies they give rise to the

claims being made.

Count 23 seeks to allege a claim of false description or

representation as to defendant’s goods; that is, the home-made

hymnals. It is alleged that defendant has failed to piace any

name of the copyright owner, or any indication of reprint

permission from the plaintiff in the infringing hymnals. This

conduct, plaintiff alleges, constitutes a false designation of

origin and a false description or representation of defendant's

goods within the meaning of Title 15 U.S.C. § 1125(a). This

statute provides that:

“Any person who shall affix, apply, or annex, or use in

connection with any goods or services, or any container or

containers for goods, a false designation of origin, or any

false description or representation, including words or

other symbols tending falsely to describe or represent the

same, and shall cause such goods or services to enter into

commerce, and any person who shall with knowledge of

the falsity of such designation or origin or description or

representation cause or procure the same to be transported

or used in commerce or deliver the same to any carrier to

be transported or used, shall be liable to a civil action by

any person doing business in the locality falsely indicated

as that of origin or in the region in which the locality is

situated, or by any person who believes that he is or is

likely to be damaged by the use of such false description or

representation.”

38a

The affidavits, excerpts from depositions, and exhibits

furnished the court by the parties in this summary judgment

proceeding show that none of defendant's agents or employees

affixed, applied, annexed, or used any false designation of

origin on the home-made hymnals.® Also, the statute on which

plaintiff relies requires that the goods or services to which a

false designation of origin is affixed, applied, annexed, or used

“enter into commerce.” See Scotch Whiskey Ass'n. v. Barton

Distilling Co., 489 F.2d 809 (7th Cir. 1973). The facts in this

case, as they have been flushed out by discovery, show that all

of the home-made hymnals were used in the singing of mass

and conduct of religious services within defendant's parishes,

all in the state of Illinois.

Count 24, the last one, alleges facts asserting a claim for

unfair competition under Illinois law. Plaintiff states that it has

expended large amounts of time and money in creating and

pre .ecting its copyrighted works; that it has always offered and

continues to offer its ACL to churches, schools, and other

institutions in defendant's parishes, for a reasonable royalty.

Plaintiff asserts that defendant has sought to avoid payment of

royalties and compliance with the licensing program initiated

by it through the ACi_.. In this way, alleges the plaintiff, it has

been damaged by defendant’s “deceptive trade practices, unfair

competition and misappropriation in this district in violation of

common law of the state of Illinois.” Defendant has answered

and denied the material allegations of these counts.

For adjudication of the claims made, plaintiff invokes the

pendent jurisdiction of this court, and relies on 28 U.S.C.

§ 1338(b) which provides that “(t]he district court shall have

original jurisdiction of any civil action asserting a claim of

*In fact, the evidentiary materials submitted in support of the

parce gen to a of the things about which complaint is made. At

most, may be able to show that in some of defendant's

39a

unfair competition when joined with a substantial and related

claim under the copyright ... laws.” However, pendent

jurisdiction is a doctrine of discretion, not of plaintiff's right,

and its justification lies in consideration of judicial economy,

convenience and fairness to litigants; if these are not present, a

federal court should hesitate to exercise jurisdiction over state

claims even though bound to apply state law to them. Nevills v.

State of Illinois, 338 F. Supp. 622 (E.D. Ill. 1974). This court

is satisfied that plaintiff has not asserted a claim of unfair

competition joined with a substantial and related claim under

the copyright laws; and since all of plaintiffs claims for

ant’s motion for summary judgment sustaining the copyright

misuse defense, pendent jurisdiction will not be exercised. See

United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966);

Palmer v. Ticcione, 576 F.2d 459 (2d Cir. 1978), cert. denied,

440 U.S. 945 (1979). Accordingly, a judgment order pursuant

to Fed. R. Civ. Proc. rule 58, 28 U.S.C., will be entered

granting defendant's summary judgment motion and dismissing

plaintiff's suit in its entirety.

So ordered,

/s/ George N. Leighton,

George N. Leighton,

United States District Judge

Dated: January 9, 1981

40a

ANNUAL COPY LICENSE

F.E.L. Publications, Ltd. * 1925 Pontius Ave.

Los Angeles, CA 90025 * Phone: (213) 478-0053

To complete this “Annual Copy License,” fill out lines indicated

by arrow at Article 18 on page 3

To apply for the “Retroactive Release,” fill out lines indicated by

arrows at A, C, and H on page 4

1. CONSIDERATION. In consideration of the payment

of the sum of $100.00, receipt of which is hereby acknowl-

edged, F.E.L. Publications, Ltd., an Illinois Corporation, here-

inafter referred to as “F.E.L.,” hereby grants a License to the

specific church, and/or school, or institution, or local chapter of

an organization, physically located at the premises identified

below at Article 18, hereinafter referred to as “USER” ( USER

of this License), for the non-exclusive right to reprint, mim-

eograph, duplicate, or otherwise reproduce in any form on

paper, and/or slides, and/or transparencies (these forms of

reproduction are hereinafter referred to as “copies” ) any music

and/or text; in any arrangement, accompaniment, or edition:

printed, published, and copyrighted by F.E.L. subject to the

conditions of this License.

2. TERM. The term of this License will be for one year.

The License Number will indicate the exact effective and

expiration dates as completed below by F.E.L. at Article 19.

ADDITIONAL RIGHTS OF USER

3. UNLIMITED COPIES. F.E.L. grants to USER the

right to make unlimited numbers of copies from F.E.L.'s

printed page or from USER’s own original master copy. F.E.L.

cannot be responsible for the copyability of its printed page.

The copying right is primarily designed to permit USER to

make copies from USER’s own original typed, hand written, or

engraved master copy rather than F.E.L.’s printed page.

4la

4. PERFORMANCE RIGHTS. F.E.L. grants to USER

the right to perform the music and/or text at not-for-profit

performances for purposes of worship and/or classroom use

(including related C.C.D., Christian Education, and Sunday

School classes) at USER’s premises identified below at Article

18. All public performances for profit are to be cleared through

F.E.L.’s performance rights organization: A.S.C.A.P., One Lin-

coln Plaza, New York, N.Y. 10023.

5. MINISTRY EXCEPTION. USER agrees to confine

use of the copies to USER’s premises as identified below at

Article 18, with the occasional exception of homes, lecture

rooms, and other places where the agent of USER might need

copies in the performance of the agent’s ministry, music, or

teaching profession in the service of USER. This exception is

not intended to be a “free continuing” License for places the

agent of USER might visit ( other churches, retreat houses, and

schools not on contiguous premises ) but is designed only for the

convenience of the agent of USER at times when the agent is

present in the service of USER at premises other than those

identified below at Article 18. This is not a License for a group

of churches, for a diocese, for conventions, for national, inter-

national, or other territorial organizations, etc., but only for a

specific church, and/or school, or institution, or local chapter of

an organization.

THREE “CONTINUING” OBLIGATIONS OF USER

(Articles 6, 7, and 8)

6. MAKE THREE ACKNOWLEDGEMENTS. USER

agrees to make three acknowledgements in USER's copies

(including slides and transparencies) of F.E.L.’s music and/or

texts:

1) THE COMPOSER AND AUTHOR ACKNOWL-

EDGEMENT (Example: “Words and Music by Ray

Repp” precedes the actual music and/or text)

42a

2) THE COPYRIGHT ACKNOWLEDGEMENT

follows the actual music and/or text)

3) THE PUBLISHER AND LICENSE NUMBER

ACKNOWLEDGEMENT shall be made at the bottom of

the first page of copies, or if a collection, on the inside

cover, or where other publisher acknowledgements appear,

bearing USER’s assigned License Number given below at

Article 19, in the following words:

F.E.L. works are reprinted with permission under

License Number For recordings and further

information, write: F.E.L. PUBLICATIONS, LTD..,

1929 Pontius Avenue, Los Angeles, California 90025,

Phone: (213) 478-0053

To simplify locating the correct composer, author, and year

of copyright information required above for |) the Composer

and Author Acknowledgement, and, 2) The Copyright Ac-

knowledgement, F.E.L. will provide USER with its current

edition of the “Master Title Index.” One free copy of this

document will be returned to USER with this License on receipt

of payment and is here incorporated as Exhibit A and made a

part of this License by reference. The “Master Title Index,”

inside cover, Exhibit A, provision |, contains the precise form.

position, and “word for word” requirements ( with an example )

for these two acknowledgements. (Please note that the com-

poser and music copyright acknowledgements are always to be

given, even when words alone are copied, since the composer's

melody will be sung from memory rather than music notation. )

Reasons: Proper credits in place protect others from

unknowingly making illegal copies, help to legally protect

F.E.L. copyrights, and give the composer and author the

recognition due their creativity.

7. MAIL COPIES. USER agrees to mail to F.E.L. one

complete copy of any newly created copies or collection of

43a

copies within 10 days of making copies (including any slides

and transparencies). If no newly created copies are made by

USER during the term of this License, (assuming that the

copies used by USER were made in a prior consecutive licensed

term) USER agrees to mail to F.E.L., prior to the first day of

August of the curren: license term, one such complete copy

again or a signed letter stating that no copies were made or

used. The copies shall be mailed at no expense to F.E.L. and

shall be a copy of the complete worship or music collection used

by USER even though F.E.L.’s music and/or text might only

constitute a part of a copied collection.

Reasons: F.E.L. does not require that USER count each

composer and author credit but does so itself from the

copies supplied by USER in order to allocate royalties to

F.E.L. composers and authors and to verify the three

required acknowledgements of Article 6.

8. EXPIRATION. Upon the expiration of this License,

and its nonrenewal, all rights granted herein shall cease and

terminate and the right to make further use of the copies shall

also cease and terminate. If this License is not renewed, then

USER agrees to destroy all copies licensed herein and to notify

F.E.L. with a signed letter within 10 days after the expiration of

this License specifying that copies were destroyed.

Reason: Continued use of copyrighted music and/or words

without a current license could constitute copyright in-

fringement under the Copyright Act of 1976, 17 U.S. Code

Section 501. Such infringement could subject user to

liability for injunctive relief, damages, court costs and

attorney’s fees (17 U.S.C. 502-505). Even though the

copies are not sold, an infringer could be liable for

Statutory damages for each work as follows. a) “...asum

of not less than $250 or more than $10,000” (17 U.S.C.

504 [c] [1]): or, where the court finds the infringement

was committed willfully, | that is, intentionally infringing a

ted work, b) “... a sum of not more than

$50,000” (17 U.S.C. 504 {c] {2]).

44a

THREE “PRIOR” OBLIGATIONS OF USER

(Articles 9, 10, and 11)

9. PAY FOR ANY PRIOR COPYING. The agent

completing this License for the USER states that the USER has

not copied nor has in its possession or at its disposal any

unlicensed copies of F.E.L.’s copyrighted music and/or texts

made or used prior to the effective date of this License, or in the

alternative, USER agrees to concurrently pay and make appli-

cation to F.E.L. for a “Retroactive License,” which will be

given by F.E.L. in the form attached hereto. The “Retroactive

License” among its provisions, requires back payment. USER

may then use prior copies provided that they meet the acknowl-

edgement and mailing requirements given below at Articles 10

and 11.

Reason: Many USERS have renewed this License for a

number of consecutive years. It would not be just or

equitable to these USERS to allow an unlicensed copier,

during the same time period, to evade his legal obligation

(which under the law, continuing at the present could

subject the violator to damages far in excess of the

Retroactive License fees ).

10. CORRECT PRIOR COPIES (THE STICKER OP-

TiON). USER agrees to correct acknowledgements on any

existing copies to conform to the requirements given above at

Article 6 before using them. USER may wish to use copies

already made (including slides and transparencies) under the

terms of this License. Rather than destroy the existing copies

and then to newly create copies solely to conform to the three

required acknowledgements given above at Article 6, USER

has the option of affixing a “Special F.E.L. License Sticker.”

The sticker shall be affixed at the bottom of the first page of

copies, or if a collection, on the inside cover, or where other

publisher acknowledgements appear, or on the first slide or

transparency. Each sticker shall bear USER’s assigned License

Number given below at Article 19. F.E.L. will accept the

affixing of these stickers in lieu of the three required acknow!l-

45a

edgements given above at Article 6. USER may print his own

sticker (including USER’s License Number) containing the

precise wording given in the “Master Title Index,” inside cover,

Exhibit A, provision II; or, USER may purchase the preprinted

stickers from F.E.L. and fill in USER’s License Number.

USER agrees not to use the existing copies until the acknowl-

edgements are correct. It is specifically understood that newly

created copies may not bear the sticker but will conform to each

of the three required acknowledgements given above at Article

Reason: See Article 6.

11. MAIL CORRECTED PRIOR COPIES. USER

agrees to mail to F.E.L. one complete copy of the corrected

copies or collection of copies (with affixed and numbered

sticker, if this option is utilized ) within 10 days of making such

corrections as described above at Article 10 (including all slides

‘and transparencies), at no expense to F.E.L.

Reason: See Article 7.

INSPECTION AND CANCELLATION

12. INSPECTION. USER agrees that F.E.L. shall have

the right through F.E.L.’s designated representative(s), during

usual office hours, to examine any of USER’s worship and

music collections or copies, even though F.E.L.’s copyrighted

music and or text might not be included or only constitute a

part thereof. USER shall provide any collections and copies for

such inspection upon 24 hours notice to verify compliance with

the articles of this License. F.E.L. shall have the continuing

right for a period of three years subsequent to the termination

‘of this License to make inspections as above provided in its

entirety.

13. CANCELLATION. USER agrees that failure to

comply with any of the articles of this License shall automati-

46a

cally result in the cancellation, expiration, and termination of

this License. F.E.L. retains the right to reinstate this License if,

within 10 days after notice by F.E.L. to USER, USER corrects

the violation. Satisfactory correction shall be in the sole

judgement of F.E.L. If this License is not reinstated by

F.E.L., USER shall forfeit any sums paid without recourse as

partial liquidated damages and USER shall immediately de-

stroy the copies. As further liquidated d~mages, USER agrees

to pay damages pursuant to the provisions of the Copyright Act

of 1976, Title 17, U. S. Code, Chapter 5 (or any successor

Statute in that regard) and all court costs and attorney's fees

resulting from securing compliance with this License.

MISCELLANEOUS PROVISIONS

14. COPIES MAY NOT BE SOLD. USER agrees not to

sell the copies. Separate charges and licenses are required to

permit copies to be sold to the congregation or others when

allowed by F.E.L. USER further agrees not to sell, lend, or

otherwise dispose of the copies to any church, school, entity, or

person other than those persons in the service of USER

(agents) necessary to permit USER to carry out the uses

licensed herein. This is not a license for publishers, businesses,

or not-for-profit organizations who wish to sell products in-

cluding F.E.L. copyrighted music and/or texts, even at nominal

charges.

15. SONGS MAY NOT BE RECORDED OR TAPED.

USER agrees not to record, tape, or use as sound-tracks for film

strips or motion pictures, or sound reproduce in any manner the

music and/or texts licensed herein. Separate charges and

licenses are required to sound reproduce when allowed. This is

a License to copy only and does not authorize any use of

F.E.L.’s music and/or texts not expressly set forth above at

Article 1.

47a

16. F.E.L. OWNERSHIP. USER acknowledges that all

right, title, and interest in and to the copyrighted music and/or

texts provided herein reside in F.E.L. All rights not specifically

granted herein are reserved by F.E.L. F.E.L. warrants only

that it has the legal right to grant this License, and this License

is given and accepted without other warranty or recourse.

17. JURISDICTION. This License shall be deemed to

have been made in the State of California, and its validity.

construction, and effect shall be governed by the laws of said

State. The parties hereto consent to and accept the jurisdiction

of the courts of the State of California with respect to the

determination of any claim, dispute, or disagreement which

may arise from the interpretation, performance, or breach of

this License, or with respect to any matter involved herein.

18. THE LICENSED ENTITY AND PREMISES LOCA-

TION. (USER may also specify the related school if adja-

CHURCH ADDRESS:

Please type or print

CITY, STATE, ZIP PHONE:

SCHOOL: ADDRESS:

Or instwwoon of local chapter of an Organization

CITY, STATE, ZIP: PHONE:

BY: POSITION:

Please type or print agent's name on behalf of hoemed entity. Pastor. Ast. Pastor. Chow Director Teacher. etc

ADDRESS: CITY. STATE. ZIP:

Please type of print if masing address of agent wgning 1s different (nan amuse licensed premmney

SIGNATURE: PHONE.

Please do not write in the space below.

48a

19. THE LICENSE NUMBER AND TERM DATES.

LICENSE NUMBER: EFFECTIVE DATE:

EXPIRATION DATE:

20. F. E. L. PUBLICATIONS, LTD.

By.

ORDER BLANK

Dear F.E.L.: Please send the following items to the above address:

Numberof THE STICKER OPTION: Exra MASTER TITLE INDEX (4310)

Sheets FEL LICENSE STICKER Copies ‘men: index alphabetioed by trie of

ith “word

SHEETS (#104) An “Annual Ne RSs, eee

cee de ar: Ne anon author and year of copyright ac =

om any existing copies, saving seofal pulannd and recoeded i

reprinung costs. |0 peel-off suc- cation sources for each F.EL.

kers on a sheet (Size: 2* x 4”); song. Cae cag Soe iS Cees

50€ per sheet. (32 pp.). per additional «

copy.

To cover shipping and handling charges for the above ems, please add 75¢ if the amount of your

order is less than $25, or add 3% if the amount of your order is more than $25. California

residents please include 6% Sales Tax for the cost of the above items only (noi the License).

Please do not send currency, all prices are subject to change without notice. 4/78

My payment consists of $100.00 for the “Annual Copy ONE TIME USAGE

License,” F.E.L. has an additional opuon for

“One Time Usages” where the

+$ for the “Retroactive License” (see Cee SS te en ee

at singular occasions as

+s for the “Stickers” and/or “Indexes” pany ete wep Melle Lo pe

vapiegraltes 2€ per copy per copyright. Write

=$ TOTAL AMOUNT Of ie Se SS alge

My check or money order for this wral amount is enclosed (simply make payable to

Master Charge /Interbank card.

Credit Card Number.

his sin: <— nerapeeometecabnbas

left.

Signature:

49a

The following is to be completed only if you must comply with

Articles 9, 10, and 11 (continued use of prior copies) of the

“Annual Copy License”, or, if you desire a “Retroactive

License” for prior copying and no longer intend to use

F.E.L.’s copyrighted music and/or texts.

“So if you bring your gift to the altar and then

remember that your brother has something against

you, leave your gift at the altar and go to your

brother first to be reconciled, then come and offer

your gift.” Mt. 5:23-24

APPLICATION FOR A RETROACTIVE LICENSE

A. APPLICANT’S NAME AND ADDRESS. (APPLI-

CANT may also specify the related school if adjacent)

CHURCH: ADDRESS:

Please type or pra.

CITY, STATE, ZIP: PHONE:

SCHOOL: _._ADDRESS:

Or Insutunon of tocal chapter of an Organizanon

CITY, STATE, ZIP- PHONE:

B. PRIOR COPYING FEE. APPLICANT has enclosed

with this application, as payment in full for the prior copying of

F.E.L.’s copyrighted music and/or texts subject to the terms

and limitations of this License, the sum of $500.00

C. AGREEMENT TO PURCHASE F.E.L.’"S “ANNUAL

COPY LICENSE” OR PLEDGE TO DESTROY THE

COPIES. APPLICANT states that he has additionally en-

closed $100.00 for the purchase of F.E.L.’s “Annual Copy

License” attached hereto, or, has destroyed all copies in the

month of 19

D. APPLICATION FOR A LIMITED RETROACTIVE

LICENSE. APPLICANT states that he has not sound repro-

50a r

duced or offered for sale printed copies of F. E. L.’s copyrighted

music and/or text without obtaining a license or release from

F. E. L. separate from the “Retroactive License,” which is the

subject matter of this Application.

E. INSPECTION. APPLICANT agrees that F. E. L.

shall have the right through F. E. L.’s designated representa-

tive(s), during usual office hours, to examine any of APPLI-

CANT'S worship and music collections or copies, even though

F. E. L.’s copyrighted music and/or text might not be included

or only constitute a part thereof. APPLICANT shall provide

any collections and copies for such inspection upon 24 hours

notice to verify compliance with the information stated in this

Application. F. E. L. shall have the continuing right for a

period of three years subsequent to the date the “Retroactive

License” was issued to make inspections as above provided in

its entirety.

F. NULL AND VOID. APPLICANT agrees that any

information incorrectly stated in this Application shall

automatically cause the “Retroactive License” to be deemed

null and void from its inception. APPLICANT shall forfeit any

sums paid without recourse as partial liquidated damages and.

as further liquidated damages, APPLICANT agrees to pay

damages pursuant to the provisions of the Copyright Act of

1976, Title 17, U. S. Code, Chapter 5 for any, successor statute

in that regard) and all court costs and attorney’s fees resulting

from securing compliance with this License.

G. JURISDICTION. APPLICANT requests that this

“Retroactive License” shall be deemed to have been made in

the State of California, and its validity, construction, and effect

shall be governed by the laws of said State. APPLICANT

hereto consents to and accepts the jurisdiction of the courts of

the State of California with respect to the determination of any

claim, dispute, or disagreement which may arise from the

interpretation, performance, or breach of this License or with

respect to any matter involved therein.

Sla

H. THE AGENT OF THE APPLICANT.

BY: POSITION:

Please type or pret agent's name on Pastor. Asst. Pastor. Choir Director. Teacher. etc.

behalf of the APPLICANT

ADDRESS: CITY, STATE, ZIP-

Please type or prim if mating address of agent s different than APPLICANTS address above at A.

SIGNATURE: PHONE:

Please dv not write in the space below

RETROACTIVE LICENSE

1. CONSIDERATION. In consideration and upon

reliance of all information supplied in the above attached

“Application for a Retroactive License and for the nonrefund-

able sum provided above at B of said Application, receipt of

which is hereby acknowledged, F. E. L. Publications, an Illinois

Corporation, hereinafter referred to as “F. E. L.” hereby grants

to the APPLICANT, identified above at A in said Application.

a Retroactive License covering APPLICANT'S unlicensed use

or unlicensed reprinting, mimeographing, duplicating, or other-

wise reproducing in any form on paper, and/or slide and/or

transparencies (these forms of reproducing are hereinafter

referred to as “copies”) of amy music and/or text: in any

arrangement, accompaniment or edition, printed, published.

and copyrighted by F. E. L., subject to the conditions of this

License.

J. LICENSE LIMITATIONS. This is not a License for

sound reproductions or printed copies offered for sale. This

License is granted in reliance upon the information supplied at

C in the above Application that copies were either destroyed on

or prior to the date this License is issued, or in the alternative.

that APPLICANT concurrently paid and made application to

52a

F. E. L. for its “Annual Copy License” attached hereto. (See

Articles 10 and 11 of the “Annual Copy License” before using

the prior copies.) All rights not specifically waived are reserved

by F. E. L.

DATE: BY:

Dated at Los Angeles. Califorma F. E. L. PUBLICATIONS. LTD.

1925 Ponnus Ave.

Los Angeles. CA 90025

Phone (213) 478.0055

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.