The Billboard 1924-01-05: Vol 36 Iss 1 (1924-01-05)

JANUARY 5, 1924 The Billboard ll BRIEFS ARGUED IN SUIT FOR INFRINGEMENT OF COPYRIGHT Decision To Be Made by Judge Learned Hand in “Kalua” Action Will Establish Copyright Law Precedent New York, Dec. 21.—Briefs were argued before Judge Learned Hand of the United States District Court on Saturday morning ip connection with the infringement of copy right suit brought by Fred Fisher, Inc., against e B. Harms Company, Charles Dillingham, Jerome Kern, Edward Royce and Anne Caldwell, on the ground that the song **Kalua”™ had a bass accompaniment similar to that of “Dardanella”. The briefs were submitted by Attorney Julian T. Abeles for Fred Fisher, Inc., and Nathan Burkan for the five defendants, at the request ef Jedze Hand, who recently reconsidered his decision In faver of the “Kalua” camp when he came to the conclusion that the point involved was very fine and that he might have becn in error. The hearing resulted im counsel for Fisher agreeing to drop proceedings against Anne Caldwell, who wrote the lyric of ‘‘Kalua”, and Edward Royee, who staged the show, ‘Good Morning, Dearie’’, of which the song was & part. Also Attorney Abeles asked for time until next Friday to submit another brief involving the point as to whether or not it was necessary for him at the trial to have placed the composer of “‘Dardanella’’ on the stand to deny that he got the idea of the bass from Weber's “Oberon”. The two important questions argued when the briefs were heard was the distinction between patent and copyright law, and did attorney for Fisher have to place Johnny Black on the stand to deny that he ever heard ef the figure used in the mermaid song from *‘Oberon"’ ? It was the contention of Fisher's counsel that it had been stipulated on the court record during the trial that the bass used fn ‘“Dardanella’’ was an estinato accompaniment never before used in a popular song. The mermaid figures, it is claimed, are different in number and are not used in ‘‘Dardanella’’. It was also brought out by Attorney Abeles that even tho a similar figure did exist in ‘‘Oberon"’, it did not preclude the “Dardanella’’ composers from securing a copyright, as deliberate copying of the figure bad to be shown. The law, he said, allowed a composer to copyright his music regardless of existing similar compositions provided the werk of the composer Is his independent labor and there is nothing to show that he did any pirating. If such was the case, Attorney Burkan argued, then from now on neo one in the years to come will ever be able to use the recurring bass as used in ‘“‘Dardanella’’. Judge Hand explained that this was not the case, for if independent labor is proved it may be used at any time. But tn the particular case of Jerome Kern, who wrote ‘‘Kalua’’ about a year after ‘‘Dardanella’’ was the most popular song on the market, it stood to reason that he must bave heard of the obstinato bass used in this song. The court said that such must be assumed as in the use of circumstantial evicence. Judge Hand took time to explain thot the case had been under consideration by him for CLEVELAND BOOKING OFF Mary, Quite Contrary”, Will Not Play Ohio Theater “Mary, “Mary, Mary, Quite Contrary’, starring Mrs. Fiske, will not play the Ohio Theater, Cleveland, O., in January, as had been planned by David Belasco, because of a disagreement over terms. “I give to the country at large the Same casts that I give New York,’ said Mr. Belasco, ‘‘and I could meet the local manager's terms only by cheapening my production, something I shall never do.” DOUGLAS BENEFIT SHOW In point of entertainment and returns the benefit show for James Douglas, staged December 28 at Labor Temple, Cincinnati, was a success, Those who participated were Tom and Mrs. Burns, Dwight Borman, Frank Stouten, Wm. King, Jake Wileg, Albert Hyams, Alex. White, Houston and Wade Marshall, Chas, Bisho® and the veteran Mr. Deéuglas. HIPP. SETS NEW RECORD st New York, Dee. 81.—The Hippodrome did better than $50,000 last week, hanging up a record for a vaudeville house. About 80,000 People are estimated to have visited the big playhouse, a longer time than any other and that when it is finally decided it will once and for al establish copyright law precedent, as in the past no definite decision has ever held good. The paramount issue will be the distinction between copyright and patent law, Patent law has been the dec ding factor in many cases as pointed out by Attorney Burkan in his brief. This law, as in all patent cases, gives the inventor the decision who can prove prior use regard ess of actual time of respective inventions coming into existence. Many copyright decisions from all parts of the country were cited by both sides. Judge Hiand also brought up the question of damages in the event he found for Fred Fisher, Inc. He asked whether damages were to be determined as an Injury and the profits sought, or whether to go according to the ecopyrizht law which allows the winner of a copyr ght action one dollar for every copy of sheet music sold, hundred dollars for each infringing performence, and eight cents on mechanical reproductions of the song. Attorney Abeles said that he would take the course alowed by the copyright law. Close to a million dollars in damages may be awarded in this manner, but during the recent trial Judge Hand mentioned the fact that he would keep the damages down to a minimum, as the point involved was so fine. one NOTED VILNA TROUPE COMING TO AMERICA New York, Dec. 31.—The Vilna Troupe of Yiddish players, who are noted thruout Europe for their artistic productions, will arrive here on the 8S. S. Majestic January 7, to play a five weeks’ engagement at Thomasefsky's Theater. They will bring an entire scenic equipment for a repertoire of seven plays, and will give the opening performance January 17 to an invited audience. The first public performance will be given January 18. At present the company is in London, where it has made a big hit after having played the leading capitals of the continent. While the Vilna company is occupying the Thomasefsky Theater, the resident company at present there will make a road tour. The Vilna Troupe is being brought here with the consent and approval of the Hebrew Actors’ Union, obtained only after long negotiations and solely in recognition of its contribution to Yiddish theatrical art. ASKS MILLION FOR DAMAGE Kansas City, Mo., Dec. 29.—Alleging that the motion picture, “The Covered Wagon’, hag caused her “to be held up to shame and ridicule’, Mrs. Virginia Bridger Hahn, of Kansas City, Kan., yesterday brought suit for $1,000,000 damages against the Famous Players-Lasky Corporation and the Paramount Pictures Corporation. The plaintiff? is the only surviving child of James Bridger, famous scout, guide and plainssan, whe plays a prominent part in the picture POTATO MATINEE Parkersburg, W. Va., Dec. 20.—The management of the Lincoln Theater gave the Salvation Army forty bushels of potatoes as the gross receipts of a recent children’s matinee, when the admission was five spuds. CHRISTMAS CELEBRATIONS Here, There and Everywhere Charleston, W. Va., Dec. 27.—The Kearse Theater, just completing its first year as the finest theater in West Virginia and playing Keith vaudeville, served a banquet to the artistes and members of the house staff on the stage after the last performance Christmas night. T. L. Kearse, owner, proved a splendid host indeed, for the menu consisted of everrthiag from the time-honored turkey to all the fixin’s. Several were made, the most appropriate being made by Mr. Kearse himself, who spoke of the tr'als and troubles he encountered while the under construction and the wonderful feeling of a ‘‘job well done” when the doors were thrown open to the pubile about a year ago. Abe Bloomberg, stage managef, made a short talk, as well as Ray Jan Shellabarger, musical director eof the Kearse orchestra. speeches house was A unique ‘‘call’’ was posted Christmas Eve on the board back stage in every Boston legitimate, vaudeville, stock and burlesque house, inviting all actors and actresses, not having other plans, to gather on historic Boston Common after Tuesday evening's performance and join the citizens of Boston in their community celebration of the night before Christmas. The call, issued by Hon. James M. Curley, mayor of Boston, on behalf of the city, is one of the few where the profession was invited to be part of the audience instead of being asked to provide free entertainment for others, It was a welcome innovation and many artists, away from home, gladly accepted the invitation, altho some were able to remain only a few moments, On Christmas every actor and actress received a personally addressed, engraved and suitably colored Christmas card, conveying the holiday good wishes of the city, signed by Mayor Curley. These were distributed in the early morning to actors and actresses in Boston hotels, Others received them when they went to the theater during the day. This card was [!n colors with red and green wreaths; the city seal of Boston showing thru the opened city gates im red tint, and the greeting read: “To the stranger within our gates This festive holiday season: The ecity of Boston extends Hospitable welcome, and the feat wishes of its citizens for a Happy Christmas and a Prosperous New Year."* This municipal Christmas card was repro duced in a film trailer and shown during Christmas week at movie houses in the city. Providence, R. 1., Dee. 29.—Representatives of five vandeville houses of Providence and vicinity were the bosts December 24 to more than 100 artistes appearing on Christmas-week bills at a midnight supper and entertainment in the Hotel Dreyfus. Included among the guests, also, were several vaudeville performers who are spending the holidays at their homes in Providence. Harry W. Crull, of the E, F. Albee Theater, was master of ceremonies, and Edward M. Fay, of Fay’s Theater, and Martin Toohey, of tue Emery Theater, assisted. The other two theaters represented were the State, of Paw tucket, and the Bijou, of Woonsocket. Tach of the artistes attending the party took part in the entertainment, which turned eut to be a rather gala affair. Spokane, Wash., Dec. 27.—Christmas was celebrated on two Spokane stages, with the managements of the Pantages and the Auditorium theaters giving dinners on Christmas Eve for the entire company on the current bills. Manager Nick Pierong, of Pantages, staged a feast in the dressing-room corridor, due to four shows being scheduled for the day An eleven o'clock dinner and entertainment was offered by Manager Charles York and the star, Frank Finney, for the “‘Laughlanders” at the Auditorium, Des Moines, Ia., Dec, 22.—Theater managers and office employees of the A. H. Blank theaters, operated in half a dozen principal Iowa cities, had their Christmas party tonight after the show. Offices in the Commonwealth Building were ntilized. There was a Christmas tree, burlesque vaudeville acts and refreshments, —_-—_ Peoria, Ill., Dec. 28.—The first Dee Robin son memoria] party for the children of the city was held at Madison Theater, which Mr. Robinson built and of which he was active manager at the time of his death a few weeks ago. It had been his custom to give a Christmas party every year to the youngsters and they all knew and admired him. The Theaters Operating Company, which Mr. Robinson headed and which owns the theater, announced this year that as a memorial to him the enstom will be continued, but instead of calling it a Christmas party the name will be changed to the Robinson memorial party. the Omaha, Neb., Dec, 24.—During the past ten years Manager Johnson has allowed a collection to be taken up at the Gayety Theater one week preceding Christmas at each performance for The Daily News Santa Claus fund. The money is used for the purchase of gifts for the poor children of the city and distributed at the City Auditorium. “Breezy Times’’ Company was playing the Gayety this week and after an appropriate talk before the curtain by Mr. Hall, of the company, the girls of the chorus passed among the audience taking up the collection. The amount received this year wa< $784.26, and a total of $8,000 for the ten years. Mr. Johnson has always thrown the doors of his theater open to any charitable institution and thousands of dollars save been secured for worthy causes at the Gayety. Des Moines, Ia., Dec. 27.—Karyl Norman, Al Herman, Keeler and Mason, Rome and Gaut, the Parisian Trio and other acts on the Orpheum bill were the guests of Manager George Peck at a Christmas Eve party at Hotel Ft. Des Moines, Thomson’s Theater, Old Forge, N. Y., was the scene of a Christmas party given by the Shriners to about 200 children Monday afternoon, December 24. The theater was prettily decorated for the oceasion with electric lights, evergreen and tinsel. A Bill Hart picture and a comedy, *“‘Kinky’’, were shown and gifts were presented to the. children by a Santa Claus, who wandered up and down the aisles making their acquaintance. An orchestra played Christmas music. It was the first of a series of similar entertainments to be given annually by the Shriners, p Artistes on last week's bills at the Keith and Palace theaters in Cincinnati were tendered a sumptuous midnight dinner Christmas night at the Hotel Metropole, following which they staged a merry frolic. The affair was sponsored by the Keith-Harris-Lisbon interests, which control the two vaudeville theaters and most of the principal down-town movies, The same firm was host to all its stage employees and operators Thursday night, December 27, at the Metropole, a banquet preceding an entertainment, in which Harvey Brownfield, pianist of the Keith Theater, and Kern Aylward, of the local Irving Berlin office, and his brother, Charles Aylward, singer, featured. The musicians of these houses are to be dined and entertained by their employees Thursday night, January 3. The Philadelphia vaudeville managers svurpassed all their past history as hosts to visiting artists at the big midnight Christmas party, at which over 100 artists and gcores of prominent citizens were the guests of honor. The grand ballroom of the Hotel Adelphia was the scene of the Christmas night jollification, and besides the banquet and the entertainmen* there was dancing, 8 Christmas tree and gifigiving that kept the big gathering awake until next morning. London, Ont., Dee. 28.—Altho members of Col. Lewis Talbot’s “Wine, Woman and Song”’ Company were many miles from their respective homes Christmas Day, this fact did not deter them from haviug a real Christmas dinner as the guests of Col. Talbot. Christmas afternoon, between the matinee and the evening show, the members of the company, together with a few guests, gathered in the Indian Room at the Tecumseh House, where they were greeted by Col. Talbot. Sitting down to dinner the lengthy menu was gone thru with dispatch, after which several toasts and speeches were made. In addition to those of the company who felicitated €.1. Talbot, the owner himself delivered a splendid address. He urged all those on the North American continent who had plenty and who were not suffering on this Christmas Day to remember those in Eurogean countries who had not enough to eat or wear. Captain Secord, an oldtimer with Col. Talbot, but now living in London; Dr. McGregor and J. C. Rowan, London Advertiser, spoke briefly. Bertrand and Harry S. LeVan, comedians of the cast, entered into the spirit of the day and supplied the laughter. Bert Wilson joined the Talbot show in Detroit, replacing Al Dupont, who was forced to leave owing to illness. His wife also joined as a member of the chorus. Col. Talbot, in recognition of his kindness and sterling character on Christmas Day, was presented with a magnificent wardrobe trunk by the members of ‘‘Wine, Woman and Song’’. Amsterdam, N. Y., Dec. 29.—Fifteen hundred children were guests of Manager John A. Hutcheson at the Rialto Theater, Amsterdam, Saturday afternoon, December 22. The performance began at one o'clock. The adults in the theater were there by sufferance only and were forced to stand in the rear of the house. The performers entered into the spirit of the occasion and cut up capers, which sent the children into paroxysms of delight. On the bill were: Val and Ernie Stanton, John Regay, assisted by Vera Delores; the Five Balasi, El Cleve and Davis and Sanford. Besides ad mitting the children free of charge Manager Hutcheson presented them with gifts. Manager Hutcheson inaugurated the custom last year. North Adams, Mass., Dec. 26.—Every seat in the Union Square Theater was filled Sunday afternoon (December 23), when the Elks gave a Christmas party to 1,400 children. It was the Christmas entertainment of the A pleasing feature of the affair was (Continued on page 107) fourth annual local Elks. — oe) a