Opinion
A. Walter Socolow, New York City, for plaintiff.
Walter Hofer, New York City, for defendant Pacemaker Music.
COOPER, District Judge.
Plaintiff seeks a preliminary injunction pendente lite enjoining defendants from infringing its copyrighted musical composition 'Don't Let the Sun Catch You Cryin'.' Defendants recorded and are currently selling a single 45 R.P.M. record and an album entitled 'Don't Let The Sum Catch You Crying.' Plaintiff also seeks preliminary relief on its claim of unfair competition.
The evidence presented is insufficient to sustain a preliminary injunction on either theory. Plaintiff has not demonstrated actual copying of or access to its composition; upon a hearing of the exhibits, little similarity exists. Mere similarity of the title line is not in itself enough. Whitney v. Ross Jungnickel, Inc., 179 F.Supp. 751 (S.D.N.Y.1960).
There is no showing by plaintiff that the public was sufficiently familiar with its composition to enable defendant to reap the benefit of plaintiff's efforts. Accordingly, the basis of a claim for unfair competition under New York law is not made out. McGraw-Hill Book Co. v. Random House, Inc., 32 Misc.2d 704, 225 N.Y.S.2d 646 (S.Ct.1962).
Defendant moves to dismiss plaintiff's action because it commenced a declaratory judgment suit in this Court prior to the institutional of the action before us. Dismissal is uncalled for on that ground; the parties to the two actions are not the same.
As an alternative, defendant seeks consolidation of the two actions. To this plaintiff agrees. The actions shall be consolidated.
Plaintiff's action for unfair competition is attacked as insufficient by defendants. The action is valid when combined with a copyright suit. 28 U.S.C. § 1338.
Plaintiff's motion for summary judgment is denied.
Defendant's motion for dismissal of the complaint and dismissal of the unfair competition claim is denied.
The parties shall submit promptly a stipulation consolidating this action with Pacemaker Music Co., Inc. and Pacer-music Ltd. v. Northern Music Corp.
This shall be considered an order. No settlement thereof is necessary.
So ordered.