(after stating the facts as above). Whether the act above recited constituted infringement must be decided before any question of damages or fees can be considered.
[1] The separate copyright of the orchestral score has always belonged to- defendants, and that they had lawful right to have such arrangement both prepared and copyrighted cannot be denied, nor do we understand it to be contested in this case. Defendants had confessedly acquired the right to make this arrangement, and when made it was “substantially a new and distinct composition, and as such entitled to the protection ef the court.” Carte v. Evans (C. C.) 27 Fed. 862, and cases cited. Nor is this doctrine at all peculiar to musical works; the propriety of separate and independent copyright always depends upon the presence or absence of original work, as we pointed out in West, etc., Co. v. Edward Thompson Co., 176 Fed. 833, 100 C. C. A. 303.
. [2,3] If, then, defendants had lawful copyright in the orchestral arrangement, it was a piece of property wholly separate and independent from that which they had in the copyright of the song. The plaintiff’s knowledge of and acquiescence in what was done renders impossible any consideration of what might have been the case, had the sequence of notes in plaintiff’s song melody been used as a basis for a small part of the orchestral score without his consent and approbation. When, in this condition of facts, defendants assigned the song copyright to plaintiff, and did not assign that of tire orchestral score when settling and compromising their mutual differences, - the transaction by its nature is strong evidence of plaintiff’s continued acquiescence and approbation in defendants’ ownership and enjoyment of the copyright of the orchestral arrangement.
Thus for two reasons we find no infringement of plaintiff’s copyright by what defendants did: (1) There is evidence of intent in both parties not to lessen or change defendants’ enjoyment of the score copyright, when plaintiff acquired the rights on which he here depends for recovery; and (2) as matter of law the mere transfer of copyright in the song had no effect whatever on the copyright of the operatic score theretofore taken out. The two things were legally separate, and independent of each other; it makes no difference that such separate and independent existence might to a certain extent have grown out of plaintiff’s consent to the incorporation of his melody in the orchestration. When that consent was given, a right of property sprang into existence, not at. all affected by the conveyance of any other right.
Thus the facts prevent consideration of the query (dwelt on in the court below) whether as matter of law defendants were without plaintiff’s consent, entitled to sell copies of the song printed before the assignment of the copyright in suit. Taylor v. Pillow, L. R. 7 Eq. *899418; Howitt v. Hall, 6 L. T. Rep. [N. S.] 348; Troitzsch v. Ress, 3 Times Law Rep. 773.
It follows that the decree below must be reversed, and cause remanded, with directions to dismiss the bill. The defendants will recover one bill of costs in this court, as well as costs below.