1938-05-02 — Page 3

DANCE HALL OWNER LOSES PERFORMING

RIGHTS CASE

IMPORTANT TEST ACTION AFFECTS HONGKONG'S

MUSICAL WORLD

A test case of considerable importance to dance bands and the musical entertainment world of Hongkong, described by Counsel as "unusual," was heard by the Chief Justice, Sir Atholl MacGregor, in the Supreme Court this morning.

It concerned an action brought by the Performing Rights Society, Ltd., asking the Court for an injunction restrain- ing Denis Ponirls, otherwise known as Denis Victor, Proprietor of the Lido Dancing Academy, from performing in public and/or authorising the performance of musical works, the copy- right of which is vested in them; and claiming damages for in- fringement of three such works.

The musical works alleged to have letter of March 12'and in fact us Inte been infringed were: "Redsails in the as May 22, these works were still Sunset," written and composer by II. performed by the band.

defendant Williams and J. Kennedy and publish- In his interrogatorics, ed by the Peter Maurice Music Co., staled: I did not instruct the band Ltd.: "Whistling in the Dark,' com- to play the pieces. It was instruct- posed and written by D. Suessee, anded by ine to play good music, cach to minutes. I have not known published by Campbell Connelly and last three

THE HONGKONG

TELEGRAPH,

BRITAIN PLANS FAR EAST MEDIATION

(Continued from Page 13 Office will continue to put pressure on Tokyo by all possible means.

Welcomes. Denunciation Britain therefore welcomes the United States recent denunciation of Japan as a treaty breaker.

MONDAY, MAY

MOSLEY STONED IN MAY DAY AFFRAY

(Continued from Page 1.) munists paraded with banners which rend "Arms for Spain", "Down With the Fascists" and Turn Out The Chamberlain Government,"

+

At Hyde Park Mr. Herbert Mor- rison assailed the war-makers and pleaded for support for the Loyalists in Spain. Prior to the specel 10,000 The informant also said he believed Fascista paraded and were reviewed that the Anglo-talion Agreement by Sir Oswald Muloy ол West- might avenge the approach of Japanminster Bridge-United Press, to the anti-Comintern Pact.

He was of the opinion that Italy and Germany would welcome British mediation because both were pre- occupled in Europe, while President Roosevelt would welcome such mediation due to the American pub- lle's general desire to see the Orient peaceful.--United Press,

You know anything about the band which was playing there? Not to my knowledge, although I have been there once,

Did Mr. Castro go round and asks them about the pieces? I do not think to.

Is not that one of your methods? --No.

Mr. Potter: Does my friend sug- gest that we asked the band to play certain music, and after they had played it we brought action?

Mr. Fitzroy: No.

Mr. Strellcit; Mr. Castro was simply told to listen to the musle and

Serious Disorders In Polish Towns

Warsaw, May 1,

At least one was killed, and 80 injured, in a series of May Day clashes between Socialists and the newly organised Fascist "Falonga".

The police sold that in most cases the Falangos were the aggressors, invaded Ave Socialist outdoor meet- At Warsaw Falanga motor trucks

ings and attempted to disperse them. However, it is reported that police intervention prevented the serious spread of rioting. By nightfall more than 110 had been arrested.

At Poznan, 17 were injured before the arrival of the police.

hurt,

1938.

SUDETENS DEMAND

PLEBISCITE

(Continued from Page 1.) Sudeten deputy, Herr, Fritz Woolner, said: "Versailles is a mere scrap of paper. Hereafter we address our complaints, not to Geneva, but to Berlin. Our fighting front comprises 3,500,000 Sudetens, but behind us are 70,000,000 Germans.”

Czechs Celebrate Simultaneously Czech festivalı celebrated the 20th anniversary of the Itepublic. At Carlsbad 12,000 Social- lats shouled "Down with Henlein and Fascism." At Prague 280,000, mostly Czechs, cheered the Lord Mayor, M. Peter Zenkl, when he said: "Every man, woman and child is resolved to defend the nation's liberty to the last"

The sole clash of factions was nt Troppau, where one person Was wounded and severni others hurt be fore police intervened.-United Press

Police Fight Germans In Czech City

Prague, May 2.

The May Day celebrations held in several Sudeten German communities were vetoed by the Czech authorities. Serious incidents accurred on Satur- At Lwow, Rightists and Socialists day night in Troppau where the police fought for 30 minutes, with nine peo-proceeded with rubber batons against ple seriously injured and 30 slightly German crowds, injuring many and dangerously injuring the lawyer, Dr. Hampel Zoltig, who had to be taken to

hospital. intervened again.

On Sunday morning the police of the Sudetic German Party handed Deputy Kuenzel in a complaint yesterday Minister OF Interior protesting against the assaults by the pollee and demanding the immediate dismissal of the chict of police Troppau.

At Kielze, the Socialists attacked note all the pieces he could recognise, a Falange stronghold and exchanged and made a report to me. He him-shots. Öne was killed and 27 injured. Co., Ltd.; and "Did I Remember, at any time that it played "Red-self does not know which ploce is

In the Industrial-districts where protected.

the Socialists are at their strongest, written and composed by W. Donald-salls in the Sunset or other works.

there were no serious disorders, United Press.

Co

.

son and published by the Sun Music

Ltd. At the end of the case, His Lord- ship gave judgment, with costs, for plaintiffs, saying there was no defence and never had been any. He awarded $20 damages for each of the 10 in. fringements, and also granted the in- Junction.

Mr. Eldon Potter, R.C. instructed by Mr. D. L. Strellett, of Geo, K. Hall Brutton and Co., appeared for the Society, and defendant was represent- ed by Mr. H. Somerset Fitzroy, on the Instructions of Mr. A. el Arculli.

EVIDENCE ON COMMISSION Before opening his case, Mr. Potter enquired of Mr. Fitzroy if he would accept the evidence on commission received from 11. Lang, the England by Mr. E. P. Registrar.

in

of which

Commenting on this, Counsel said that defendant's ignorance of the works was of no relevance at all. If he employed a band to play muzle or Instructed them to play musle, he was responsible for what it played. in a case of this kind, it was not sufficient for the defence to plead

Ignorance.

PLAYED FROM MEMORY

On April 2, Mr. Polter went on, Mr. Areuli admitted that a member of the band had told him the works were played in November but only from memory and not from score- sheets. Plaintiff's wrote back un April 12, requesting the man be

to questioned, but received a negative reply stating that he could not re- member the exact date.

"Unhappily," commented Counsel, "this man had been stricken with o Mr. Filztoy replied in the offirma- sad lapse of memory for although tive, and Mr. Potter then opened his he could remember playing the case by describing

bing the action as un- pieces in November, he could not, for usuel. The Society, he said, was the life of him, remember them hav- under English acts and local ordin- or February. Nevertheless, by this limited by guarantee, and registered ing been played in December, January

Ances. Mr. Sireflet was the attorney defendant admitted infringement, membership for the Society, the and it this could be established to:

was composed his Lordship's satisfaction, Mr. Pol- of authors, publishers and composers ter sald he would submit there was of literary and dramatic works. The no defence at all. sole object of the Society was to

to pros

will disprove the plea of tect the interests of these people. Ignorance by the evidence of a wit- The method whereby this object was ness, but even if he were not nvall- obtained wns that these persons able, there is no defence at all, bo-

become should

members of the cause it has been laid down by the Society and nssimed to it the rights Court of Appeal that if you employ

their particular works.

a performer and even if you don't As a result of this, the Society took know what he is going to perform, steps to protect their interests by pre-you tire nevertheless responsible for venting o

ing infringements, by Kranting licences to performers and by collect- fees, which were dis Ing licence tributed among

ong the members

ju the proportion Lo which they

were entitled. Actuntly, this task, which was of immense importance to the members, required a very extensive organisation as it was quite obvious that the composers could not keep track of the use of their works,

AUTHOR'S SOLE RIGHT TO PERFORM

of

performance. For these reasons I submit we are entitled to such damages te your Lordship sultable and in injunction."

thinkt

MR. STRELLET GIVES

EVIDENCE

Giving evidence. Mr. Strellett stated that the local branch of the Society was formed In June, 1935 and he was appointed attorney and agent, with power to grant and issue Heences for performance of works, the copyright of which was vested in it. No application for licence had been received from defendant.

Dealing with the legal aspect of the case, Counsel said that the Copy-

From 1035 to October, 1937, he right Act of 1911 was enforced in employed Mr. Ramon Castro to make Hongkong by virtue of a proclama enquiries into any possible infringe- tion Issued by the Governor in July,ment, and to collect fees, 1912. Under the act, the sole right to perform was vested in the author, and consequently any person per forming without his consent com mitted an Infringement. The first of the musical works in question was

an English composition and the other two American, but the latter could acquire copyright under the Act if they were published in England and America in a period not exceeding 14 days of one another.

The evidence on commission, con- finued Counsel, would give a history of the pieces and would establish that no permission had been granted to defendant. Further, evidence would be adduced to show that these works had been performed by de- fendunt, who had caused the Society to go to considerable expense and trouble in gelling the commission, by his refusal to answer a volumin ous document, asking him to admit certain facts.

Witness then referred to the lettera mentioned by Counsel and said that no reply to any of them had been re- celved. Before attempting to take out the cominission, he delivered to defendant's solicitor u voluminous document asking him to selmit cer- tain facts, but he received no answer, Cross-examined, Mr. Strellett said that the Society kept a

complete register of all persons who had as- signed their performing rights to It. Mr. Fitzroy: Is there a list of all the works? I think the head office has one, but not the local branch,

Can you tell me any means by which any person in this Colony could find out whether a particular piece of music is controlled by your Society or somebody else? Yes, easily, lie would first enquire of the author and then ask for information ns to the performing rights either from him direct or through the Society. If he performs without the composer's permission he is committing an in- fringement.

Defendant had admitted in an am- davit that he was the proprietor and Heencre of the Lido Dancing The only method then is to apply Academy. Plaintiffs would prove, first to the author. That inkes o which was denied in the state- considerable time, doesn't it?—Yes. ment

of defence, that between 1037 and

31. 1037 these three works were performed

by the band of the Academy time after time. Further, plaintiffs would establish that even as late as May, at least two of these picces were played after letters had been sent to defendant and proceed- ings started.

PLEADS IGNORANCE The first of these letters was writ- ten on January 29, 1037, and in it the attention of defendant was drawn to the existence of the Society, the risk

HEARD PIECES PLAYED MANY TIMES

There is no means by which a person here can tell at once whether the rights of a particular, plece are vealed in you or not?-He can always maite enquiries.

These three pieces. You have heard them in many places in Hong kong?-I think so.

Have you heard them played in dance halls?-You are assuming... (Laughter). I must say I have heard them played frequently,

The reason why I ask you this is of infringement and the advisability that in your letter of March 31 you

out

a

of taking licenco. No reply to did not mention any particular lunca this was received, and on February but only asked defendant to join the 10 another letter was sent asking Society? I thought he was bound to him to apply for membership with because it is very difficult to avoid out delay. This letter was also not infringement. There are two or answered, and on March 12, Messrs. three million pieces protected by the Geo. K. Hall Brutian and Co. were Society. They are coming in every Instructed to take proceedings, claim- day and it is difficult to keep the list Ing compensation for. Intringement up to date,

Had you any particular plece in and applying for an injunction.-

Defendant had pleaded that it tie mind when you wrote that letter? did commit the infringement he did No.

so Innocently, but this Counsel sub- On March 12 you took a more de- mitted, was no defence. Plaintiffsnite line?-I complained of certain would prove that subsequent to the things ne examples.

HEARD THREE PIECES PLAYED

Red Army Paradca

Ramon Castro, in evidence, sald that up till October last year, he had been employed by Messrs. G. K, Holl-Brutton and Company, and as assistant to Mr. Strellett He was now u ġeneral broker. He received certain instruction from Mr, Strellett to make enquiries about music played in various places. He had known defendant for several years. On January 29, 1937, witness wrote defendant a letter on Mr. Strellett's ett's dictation, and simtiar letters sent to the proprietors of other dan- cing academics. Prior to this, wit, cavalry ness had discussed the activities of

were

on

to the

Moscow, May, 2. The Moscow May Day was cele-!

Reports from Jaegerndorf yesterday brated with the usual military parade evening atate that 10,000 Sudeten on the Red Square before M. Josef Germans held a celebration' there. Stalin, who took up his

but although Czechs staged a counter- the steps of the Lenin Mausoleum, demonstration demanding a "Czecho along with other high officers. He Slovakian Jaegerndorf" no incident: afterwards addressed the troops.

Occurred. He sent fraternal greetings to In Budweis o largé crowd of Czech Republican Spain and China,

people gathered outside "the German detachments Impressive

of infan- House", where about 2,000 Sudeten and tonks took part, Germans held meeting yesterday whilst squadrons of bombing planes evening,

police, appeared overhead. A

year of heavier Transocean. types of offensive weapons, Most of the detachments of Secret Police were motorised whilst some were equipped with big guns.

A military parade was followed by nurch past of the masses. Stalin, however, left the Red Square Immediately after the military parade, was over.-Transoccan.

The

however,

the plaintiff company with defendant. ing was made this Eger show-managed to disperse the crowd.

He had also sent an application form to defendant, and later saw him and explained it to him.

On Instructions, witness went to the Lido Dancing Academy about 11 p.m. on January 31, 1937. Defendanta was present. He stayed at the Lido for an hour and a half, and during being played at least twice each. He that time heard the three pieces handed his notes to Mr. Strellett the next day.

011

M.

leader nightly, and had nothing to do with the band as a whole.

BRITISH STEAMER WRECKED OFF H.K.

(Continued from Page 1.)

of slipping off the rocks and sinking. There was a heavy fog in the vicinity of her mishap, Latitude 22.03% N., Longitude 111.16 East, this morning.

It is learned from the agents, Dodwell and Company, that the Thurland Castle carried seven round. the-world passengers and was bound for longkong from Manila when she ran aground.

On February 9, witness visited the Lido again, where the three tunes were again played. They were also

In January, 1937, Castro came to The Thurland Castle's message says heard in a subsequent visit on Feb-him, and told him about a certain she is ashore on Tam Kan Islatid, one ruary 15, and

society, and also gave defendant of the Lema Group. February 22 lat. "Redsails in the Sunset," und "Did i

On January 29, defendant re- Remember?" were played. These

ceived a letter from Mr. Strellett, two pieces were also played on March

and that was the first he had heard 3, and on March 10, und he heard all

of the existence of the Performing Rights Society. Defendant asked the band leader if he knew about the Society, but the man replied that he The Defender reached the ship at did not. Defendant then went to

7.30 a.m. The Henry Keswick, see Sub-Inspector Whelan of the

Kowloon Docks' salvage tug. left at police about the Society, as the police 8.30 a.m. officer was then in charge of

of dance

The naval tug, Alliance, arrived balls. He showed the Inspector the Mr. Fitzroy, letter and the list, but was told that on the scene at 9.30 o'clock this morn- witness said he had seen the three he should not pay any attention to

ing. pieces displayed for sale in Colony. He did not natire If there nothing. On February 10, he re

the the letter. Defendant therefore did was anything of those pleces of

three. Witness sald he identified the three compositions with those mentioned in the evidence taken in the Commission.

DID NOT KNOW IF RIGHTS WERE RESERVED

Cross-examined by

music suggesting that their rights veived another letter, but ngain did

no

were reserved. There were records of the names of the tunes in the office.

Part of his duties were to go around dance halls, and he agreed that it was common for people to ask for certain pieces of music to be played. Witness himself never made any suelt request. Witness had seen the band playing from sheet music. He could not say if the band leader sup- plled bands to other dance halls.

nothing.

knew

Defendant declared he nothing of the tunes complained of. The band leader remained with him for about a year, and during that time, defendant had not given him any instructions as to what he should play. He declared he had also shown the letter of March 12 to the band leader.

BAD FEELING ALLEGED Applications for licences came through his hands, and there were

Cross-examined by Mr. Potter, about 10 such applications between defendant said that the band leader January

and March from hotels, frequently changed the bondsmen, cinemas, private Institutions and It he had given the band an order, few dance halls to which witness had he would expect it 10 obey him. been. Witness sald he

He had not been to see Mr. Strellcti amateur musician and knew most of

because there was ill-feeling between the tunes played in dance

Mr. Strellett and himself. halls, Besides the three compositions com- plained of, he reported several other tunes to Mr. Strellett.

was 113

After consulting Mr. Strelleit, Mr.. Putter said that was the first Mr. Strellett had heard of 11.

S. A. R. Ismail, clerk employed by Mr. Potter: What did you do to Messrs. G. K. Hall Brutton, said that find out if the letter was true or not? on May 22, he went to the Lido Dancing Academy about 10.30 pm. but when they told me they did not Defendant: I went to the police. Defendunt was present, and during know, I went to see my solicitor. the evening, "Redsolls in the Sunset, Why did you not tell the band not and "Whistling in the Dark," were played.

to play any of those tunes?-I did tell them.

and certain dance halls.

THE DEFENCE

on

no

Into

was the his

COOLIDGE HELD UP The luxury liner, President Coo- lidge, sister ship to the lost President Hoover, was held up by the fog

which caused the Thurland Castle's mishap.

At 2 p.m. to-day the Dollar Steam- ship Company had not been advised of the time of arrival of the ship, aboard which is Senor Manuel Que- zon, President of the Philippind Islands.

The Coolidge at one time wos standing by the wreck, and prepared to lend what assistance was neces→ sary.

DEFENDER BRINGS RESCUED PASSENGERS TO H.K.

(Continued from Page 1J

Mr. Kelleher said. "Any smallest thing that coukt be done for our per- sonal comfort was done. The British sallors could not have been better."

Tell Of First Reactions

Miss Smith, another round-the- world passenger, said the fog signal lind been

sounding continuously from 1.30 a.m. At 3.18 .m, there WAB terrific blast on the whistle and immediately afterwards came the frightful impact.

"But from there," sald Miss Smith, "everything went very coolly and efficiently."

"I thought we might have hit an- other ship," said Miss Kershaw, an- other round-the-world cruiser, and

I ran up on deck with other passen- gers and saw, in front of us, what appeared to be a huge-mountain."

No-one was frightened, she went on. Everyone was very quiet, "We just drank coffee."

All the passengers have been put up at the Metropole Hotel, the agents, Dodwell and Company, making the arrangements in the emergency.

said he went to the Lido on Instruc- orders?--Yes,

Replying to Mr. Flizroy, witness Did you expect them to obey those tlons. Witness was not a musician, but he knew the tunes.

Addressing the Court, Mr. Fitzroy Witness said the band leader was An in- reported to Mr. Strellett following Monday.

the dependent contractor. Defendant was not a musician, and did not know At this point, Mr. Potter remarked what was being played. He did not that licences were issued

by the know if any of the works were copy. Society to hotels, cinemas, Z.B.W, right, and it was impossible to find out if the rights of reproduction or The case for the plaintiff closed performance were reserved. The de- after Mr. Potter had made references fence claimed that it did not play to the evidence of the three tunes the tunes, and the band was not taken by the Commission.

under defendant's orders.

Replying, Mr. Potter said that Mr. Fitzroy had suggested that there were means of ascertaining whether said that the pieces of music were of music or not, If that

Opening the defence, Mr. Fitzroy there was any copyright to a piece played by the band leader who wan case, counsel could jump an Independent contractor. The de- friend's motor car, drive it away, and. fence was that defendant play it. He gave instructions to the it belonged. A piece of music was did not inter say he did not know to whom band to play good music, but he did as much private properly as a motor not know what was going to be play- car. ed. Furthermore, there were no Defendant not only took no steps means of knowing the tunes were to stop the band playing the three copyright at all.

lunes after March 13, but persisted Defendant, in the witness box, enid in doing so. Defendant had given that he had been in the Colony for the Society much trouble and put taining $3.85 Hongkong money and 45 years. He first engaged the band them to vast expense, counsel con- $2.10 in Chinese currency, Teol Man, through the band leader on October cluded.

39, unemployed, was charged before 1, 1936. There were six persons in Giving judgment for the plaintiffs, Mr. R. Edwards at the Central Magis the band, including the leader. The his Lordship remarked that there tracy this morning. only instructions witness gave the was no defence, and never had been leader was that he play good music one. He granted the nominal sum Defendant was not a musician, and of $25 In respect of each the had never seen any music in the sixteen infringements listed, and also Lido. The band, he declared, play- 'granted un Injunction and costa ed by ear. Defendant pald the bond against deferidaní.

mean

of

BANISHEE BACK FOR ROGUERY

Accused of theft of a wallet con-

A second charge of returning from banishment was preferred and he was sentenced to three montlis' imprison- ment for the theft, and twelve months' on the second charge. The sentences. Ard concurrent.

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