United States District Court, E. D. Pennsylvania.

Jack GEE, Jr. and William D. Harris, Esquire, Executor of the Estate of Jack

Gee, Sr.


CBS, INC., and Columbia Records, Inc.

Civ. A. No. 75-1792.

471 F. Supp. 600 (E.D. Pa. 1979)

Aff’d mem 612 F.2d 572 (3d Cir. 1979) (Becker, J.)

March 7, 1979.


 EDWARD R. BECKER, District Judge.

 I. Preliminary Statement

 This suit for damages and injunctive relief arises out of the luminous career of the late Bessie Smith, who may be fairly described as "Empress of the Blues." See C. Albertson, Bessie (1972). Bessie Smith ("Smith") was a great singer and composer *610 of the "blues." [FN1] During the 1920's, Smith was one of America's top box office attractions and recording stars. From 1923 to 1928, the theatres in which she appeared on tour were filled to overflowing and thousands were turned away. During that period Smith earned from $1,500 to $2,000 per week, a staggering sum for anyone then to earn, and an awesome achievement for a black woman of that era.

FN1. "Blues" is a distinctive form of music. Stanley Edgar Hyman, the noted critic, describes it as follows:

Technically and as a musical illiterate I simply parrot my betters the blues is usually a song in twelve bars: melodically peculiar in that the third and seventh intervals, and sometimes the fifth, are flated, harmonically restricted to a simple progression of the tonic, subdominant, and dominant seventh, the old hymn chords; rhythmically 4/4 with offbeat phrasing. The lyrics are a rhyming couplet with the first line repeated, AAB, each line in four bars, with the words characteristically ending in the middle of the third bar, leaving the accompaniment to fill out the remaining bar and a half. That is the standard form, but there are many variants: eight-bar blues that are a simple AB; sixteen-bar blues often AAAB; even a twelve-bar form that the performers call "fast blues". . . . Despite the variations, the harmonies are always the same fixed sequence, and all of the thousands of blues that have been sung fit into a form as tight and perfect as the Petrarchan sonnet.

Hyman, The Blues, 1 Bennington Review 104 (1978).

 From 1923 until her death in 1937, Smith was an exclusive recording artist for Columbia Phonograph Company, whose successor, Columbia Records, Inc. and its parent corporation, CBS, Inc., are the defendants herein. Some of plaintiffs' claims relate to Columbia Phonograph Company in the 1920's and 1930's and some to actions of its corporate successors in the 1950's and 1970's. For convenience defendants will simply be referred to as "Columbia." Smith died on September 26, 1937, in a tragic automobile accident near Clarksdale, Mississippi.[FN2] She was survived by her husband, Jack Gee, Sr., who died in 1975. His executor, William D. Harris, is one of the plaintiffs herein. The other plaintiff is one Jack Gee, Jr., who claims to be the adopted son of Smith and Jack Gee, Sr.[FN3]

FN2. The circumstances of Smith's death have themselves been the focal point of much public attention and controversy, and ultimately became the subject of a 1960 Edward Albee play, "The Death of Bessie Smith." The controversy relates to whether Smith died as the result of catastrophic injuries and loss of blood sustained in the accident or because she was denied admission to a "white" hospital and died from loss of blood before she could be attended at an inadequately equipped "black" hospital to which she then was taken. See generally C. Albertson, Bessie (1972) ch. 11.

FN3. Apparently, no one has ever located adoption records or an amended birth certificate such as usually accompanies a decree of adoption. Jack Gee, Jr. asserts his claim as Smith's adoptive son herein on the basis of certain records and correspondence from schools.

 The multifaceted suit asserts a variety of claims against Columbia arising out of its dealings with Smith and her recordings during her lifetime, and out of Columbia's posthumous issue and reissue of those recordings. The case was originally filed only by Jack Gee, Jr., and its initial allegations concerned only federal copyright protection which Smith either obtained or might have obtained for the approximately forty (40) songs she composed, as well as recorded, between 1924 and 1934.[FN4] The original complaint alleged that this copyright protection was subsequently infringed by defendants.

FN4. Smith composed approximately one quarter of all of the songs she recorded.

 Columbia filed a motion to dismiss, based on plaintiff's failure to allege ownership of the copyrights and renewals upon which he based his claim. At this juncture, alleging that many if not all of the copyright registrations referred to in the original complaint were renewed in the name of Jack Gee, Sr. "as spouse and heir of Bessie Smith" and that they were still in effect, Jack Gee, Jr. filed an amended complaint adding Mr. Harris, Jack Gee, Sr.'s executor, as party plaintiff. What is now before us, however, on defendants' motion to dismiss, or in the alternative for summary judgment, is plaintiff's Second amended complaint ("complaint") which adds a number *611 of additional claims [FN5] which may be summarized as follows.[FN6]

FN5. The copyright claims now appear in Count III of the complaint.

FN6. The original and first amended complaints also named Empress Music, Inc., as a defendant, but Empress was dismissed following a settlement.

 First, the complaint asserts that all the recording contracts and copyright agreements entered into by Smith and Columbia between 1924 and 1933 are invalid because of their unconscionability and Columbia's overreaching: Columbia is said to have taken advantage of Smith's illiteracy and lack of sophistication in business affairs. Complementing these allegations are the claims that the invalid contractual dealings were the product of race discrimination. On the average, Smith received a flat fee of $200 per selection recorded for Columbia with no royalties, allegedly in contrast to much larger sums, including royalties, paid to white artists then recording for Columbia such as Eddie Cantor, Ted Lewis, Rudy Vallee, Sophie Tucker and Bing Crosby. The complaint alleges that this corporate racism constituted wilful and intentional violation of the civil rights of Smith and of others similarly situated "by failing to afford them the opportunity to make and enforce contracts to the full extent as is enjoyed by white citizens, in violation of 42 U.S.C. s 1981."

* * *

 We engage in such extensive discussion notwithstanding what we deem to be an inexorable result (given the many problems with plaintiff's claims) for two reasons. First, we are impressed with the great resourcefulness and sophistication of the arguments advanced by plaintiffs' counsel. Second, given the great stature of Bessie Smith in the history of American music and the consequent importance of this case, we can do no less.

* * *

C. "At the Christmas Ball"

 The second discrete claim in Count IV, also a subject of plaintiffs' cross motion for summary judgment, concerns the song "At the Christmas Ball." The history of this song is very different from the eight records discussed above.

 Unlike the eight above, "At the Christmas Ball" was "rejected" by Columbia at the time the recording was made. It appears on the ledger sheet marked D-17 as a recording made on November 18, 1925. We have attached that ledger sheet as Appendix B to this opinion. The title of the record has been crossed out thereon, and the abbreviation "Rej" written in the column headed "O.K.' d." The columns showing money paid to Bessie Smith is blank, as are the columns showing the date payment was made and the date the record was listed. (We have placed an arrow on Appendix B to highlight the entry "At the Christmas Ball.") Defendants, however, have not admitted that Smith was not paid, stating only she "may not" have been paid. See Defendants' memorandum in support of their motion to dismiss, at 23, note 13.

 No recording of "At the Christmas Ball" was issued before Bessie Smith's death. It was not until 1951 that it was first issued, in Columbia LP Album CL 857, volume 3 of the "Bessie Smith Story Golden Era Series." [FN25] The jacket notes for the 1951 album (Exhibit F-3) state: " 'At the Christmas Ball' was so far removed from the successful type of Bessie Smith record that it was left unissued until the writer dug it out of the files." The record was re-recorded *652 and re-issued in 1972 as part of Columbia LP s 31093 "Nobody's Blues But Mine."

 Plaintiffs' claim that since Smith was never paid initially for this performance, Columbia had no right to issue the record of "At the Christmas Ball" either in 1951 or 1972; that such issuance constitutes a misappropriation of Smith's and her heirs' property; and that defendants must make an accounting to her heirs, instant plaintiffs, for any profits received.

* * *

 Looking to the record evidence under these pro-plaintiff assumptions, several matters are clear. First, the claim based on the 1951 record album issuance is time-barred in an action filed in 1975. Columbia did not conceal the fact that it issued the record in 1951, nor did it conceal the fact that " At the Christmas Ball" had been previously unissued during Bessie Smith's lifetime. See quotation from 1951 record jacket Supra at p. 651. Moreover, there is not other basis for tolling the statute of limitations. Therefore, plaintiffs were required to bring suit on this claim within six years after the 1951 issuance. Because suit was not timely brought, we will grant defendants' summary judgment on this claim.

 The 1972 re-issuance presents a different question. The mere fact that someone commits a tort in 1951 does not necessarily mean he acquires the right to do it again in 1972. Thus although recovery on the 1951 wrong may be time-barred in a suit filed in the 1970's, recovery on the 1972 wrong may still be had. This is so unless an inference of "consent," "waiver" or some similar doctrine is drawn from the wronged party's failure to take action upon the 1951 tort, which would somehow give license to commit the subsequent action. The foregoing discussion references generalized tort principles. What affects plaintiffs' rights in the present situation is a property doctrine, to which we now turn.

 [73] It is a well-known doctrine of property law that title will be transferred to one whose possession is originally unlawful, if that person openly and under color of right acts for a prescribed period of time as though he were entitled to ownership and continued possession. We obviously are referring here to the doctrine of "adverse possession."

 [74][75] While adverse possession is generally thought of as a doctrine relating to titles in land, the doctrine applies with equal force to personal property, or at least to chattels. See III American Law of Property s 15.16, at 834 (1954); Brown on Personal Property s 16, at 33 (2d ed. 1955). As applied to chattels, the function of the doctrine is the same as when applied to land: " The modern adverse possession is a doctrine of inchoate title which may ripen into perfect title by the lapse of time." Bordwell, Property in Chattels, 29 Harvard L.Rev. 374, 378 (1915). Moreover, in the case of both land and chattels, the policy behind the doctrine is the same:

Where an individual has for the years prescribed by the statute openly exercised the rights of an owner, thus giving rise to interests in the property affected on the part of vendees, licensees, and creditors, a strong public policy forbids adverse claimants from disturbing the existing situation by the presentation of ancient rights, concerning which proof may be difficult because of faulty recollection and the absence of essential witnesses.

  Brown on Personal Property, supra, at 35. Both New York and Pennsylvania, the two possibly concerned jurisdictions in this suit, have recognized the applicability of adverse possession to chattels. See, e. g. Priester v. Milleman, 161 Pa.Super. 507, 55 A.2d 540 (1947); Lightfoot v. Davis, 198 N.Y. 261, 91 N.E. 582 (1910).

 [76] The doctrine operates as follows: the time allowed the owner to recover possession of the real or personal property under the applicable statute of limitations is also the time for determining whether an adverse possessor's inchoate title has ripened into "perfect" title, good against the world, including the previous title-holder. As succinctly stated in Brown on Personal Property :

While in form these statutes (of limitation) merely limit the right of the owner to bring legal proceedings to repossess his property . . . all but universally in *654 the United States the expiration of the statutory period has the effect, not only of barring the legal remedy, but also of extinguishing the owner's title and of transferring it to the adverse possessor or possessors.

  Id. at 33. Or as stated in Priester v. Milleman, supra, in describing favorably a decision by a sister state's court,

The case must be understood as holding only that if during the running of the period prescribed by a statute of limitations relating to the recovery of chattels, they are held adversely to the true owner, the latter cannot recover them by the process of self-help after the expiration of the period, And that upon the expiration of the period title vests in the adverse holder.

  161 Pa.Super. at 512, 55 A.2d at 543 (emphasis added). "A new title has arisen simply and solely because of the wrongful possession followed by the statutory extinguishment of the former title." III American Law of Property s 15.2, at 761 (1954).

 [77] Whether both New York and Pennsylvania would extend the notion of adverse possession to the intangible property right at issue in this case is an intriguing question. The first problem is how the state courts would classify the right. "At the Christmas Ball" apparently was not composed by Bessie Smith, and plaintiffs have nowhere alleged that she authored the song. We therefore must assume that plaintiffs are asserting a right in Smith's Recording of that song; I. e. the style and manner in which she performed it in the recording session.[FN26] In our view, both Pennsylvania and New York would classify this kind of right as a "chose in action," following Brown 's description of that term:

FN26. Plaintiffs are not claiming any contractual rights. Rather, they are asserting Bessie Smith acquired the rights simply by virtue of singing the song. We assumed above, for purposes of defendants' motion, that the word "reject" in the ledger sheet meant not only that Columbia did not in fact pay Smith, but also that it obtained no rights to her recorded performance because it failed to pay her in other words, we assumed the legal consequences most favorable to plaintiffs from the fact of non-payment. In parity, we also assume that both New York and Pennsylvania would recognize and protect Smith's recording rights in the performance of "At the Christmas Ball" under common law copyright infringement or some similar doctrine. In other words, for purposes of this motion we assume Bessie Smith had protectible rights in her sound recording made in 1925. Moreover, we assume for purposes of this motion that both states would recognize this intangible property right as one that is Descendible, I. e. not like a "reputational" interest which may not be capable of descent or distribution to heirs. See W. Prosser, Law of Torts at 898-901 (4th Ed. 1971).

(M)any rights do not . . . concern specific tangible things but consist of claims against third persons which, since they may be enforced by action . . . are of value and thus entitled to be termed property in the broader sense. Bank accounts, debts generally, corporate stock, patents and copyrights are common instances of this class of (intangible) property.

  Brown on Personal Property s 7, at 13 (1955). While "choses in action" are usually "represented by a piece of paper" (I. e. savings pass-book, federal copyright certificate), the essence of a "chose in action" is a "right of property which . . . is essentially intangible in that it can ultimately only be claimed or enforced by action, not by taking physical possession." Id. at 11.

 [78] The question then becomes whether New York and Pennsylvania would apply the doctrine of adverse possession to choses in action. New York explicitly has. See Lightfoot v. Davis, 198 N.Y. 261, 91 N.E. 582 (1910). While we can find no case in which a Pennsylvania court has had occasion to consider this question, we find nothing in the case law, as exemplified by Priester v. Milleman, supra, which requires limiting the doctrine to tangible chattels. If faced with our case, we think a Pennsylvania court would extend the doctrine to choses in action, based on the weight of authority from sister states. See, e. g., Manna v. Pirozzi, 44 N.J.Super. 227, 130 A.2d 55, 59 (App.Div.1957) (questioned doctrine's application only because of existence of Uniform Stock Transfer Act, an arguably pre-emptive doctrine in that case, not applicable in *655 this case); Commercial Union Insurance Co. v. Connolly, 183 Minn. 1, 235 N.W. 634, 636 (1931); Lightfoot v. Davis,supra. Our view that a Pennsylvania court would apply the doctrine to the specific chose in action involved in This claim (I. e. Bessie Smith's artistic performance) is further supported by the Pennsylvania Supreme Court's statement that "At common law, rights in a literary or artistic work were recognized on substantially the same basis as title to other property." Waring v. WDAS Broadcasting Station,  327 Pa. 433, 439, 194 A. 631, 634 (1937).

 [79] It is also important to determine which statute of limitations will apply. We find that where events which transpired in 1951 are at issue, New York would apply the three year statute of limitations which was then in effect for this kind of property action. N.Y.Civ.Prac.Law s 49(7) (McKinney). Pennsylvania would probably apply the six year statute of limitations in 12 Pa.Stat.Ann. s 31 (Purdon).[FN27]

* * *

 The next question is whether under both New York and Pennsylvania law, the elements of adverse possession appear on this record. In Pennsylvania, it is required that there be "the peaceable, undisturbed, open possession of personal property, with an assertion of . . . ownership, for the period which bars an action for its recovery by the true owner." Priester v. Milleman, supra, 161 Pa.Super. at 513, 55 A.2d at 543-44. Priester apparently considers this formulation to be the functional equivalent of the familiar adverse possession litany: "actual, open, notorious, exclusive, hostile, uninterrupted, and always under a claim of right or title." Id. at 513, 55 A.2d at 544. The New York counterpart opinion, Lightfoot v. Davis, adopts the identical test of "peaceable, undisturbed, open possession . . . with an assertion of ownership." 91 N.E. at 583.

 [80][81][82][83] III American Law of Property s 15.1 Et seq. at 755-838 (1952) expands on these concepts. "Open" and "notorious" means such possession as will permit the true owner to have notice in order that "he may act to recover his property and protect his title from the adverse possessor." Id. at 768. There must be actual possession of the property, and not merely the Assertion of possession without possession in fact. Id. at 765. But along with possession in fact is the concomitant requirement that the adverse possessor Claim that he is legally entitled to ownership. In other words, there must be " nothing more or less than the existence of actual possession evidenced by acts of legal ownership." Id. at 835. This must exist continuously or uninterruptedly throughout the statutory period, in order that the true owner have actual or constructive notice during the whole time. Id. at 771. As to " hostility," this means simply that the true owner has not consented to the possession. Id. at 835.

 [84][85] We now apply these concepts to the evidence of this case. From 1925 (when "At the Christmas Ball" was recorded) to 1951 (when it was first issued), Columbia took no action to serve notice that it considered itself the sole owner of the recording. Whether we style its control during the 1925-51 period as that of "bailee" or otherwise, defendant can in no sense be *656 considered an adverse possessor. However, there is no dispute that in November 1951, Columbia issued a four-volume album of all Bessie Smith's recordings, including, on Volume 3, "At the Christmas Ball." On the record jacket to Volume 1, Columbia stated: "She (Bessie Smith) left behind her 160 recordings (Every one of them, incidentally, the property of Columbia Records )." (emphasis supplied). Assuming, as we have for present purposes, that title to the recording style of "At the Christmas Ball" had in fact by 1951 descended to Bessie Smith's estate, we can think of no more "open" or "notorious" assertion of ownership than the one Columbia made. Indeed, plaintiffs have Emphasized this fact:

Columbia has misrepresented to the world that Columbia is the exclusive property owner of all rights, title and interest to Bessie's recordings. In 1951, when Columbia re-recorded and re-issued a four long-playing record album series of Bessie Smith's stories, (sic) the liner notes for Volume I, . . . prominently state "She (Bessie) left behind her 160 recordings (every one of them, incidentally, the property of Columbia Records)."

  Plaintiffs' Second Amended Complaint P 29. (emphasis added).

 This assertion of ownership, followed by issuance of "At the Christmas Ball" as one of the 160 recordings referred to, was also clearly "hostile" in the sense that the issuance of the record was not consented to by Bessie Smith's estate. Moreover, not only did Columbia assert a claim of ownership, but it took actual possession of the recording in the only meaningful sense it could: by distributing the record and retaining for itself all monies received therefrom. Indeed our only real question is whether defendants' actions were "continuous" and "uninterrupted" during the entire statutory period three years in New York, six in Pennsylvania. While that concept has a readily ascertainable meaning in the case of land or tangible personalty like chattels, it is not obvious what constitutes "continuous" and "uninterrupted" use in the case of a singing performance embodied in a record. One criterion would be how long defendants continued to receive money from the sale of the record. Another criterion would be how long the record was listed in the record company's catalogue as available for distribution. Another possibility would be to focus on whether the 1951 four volume album became part of the permanent collection of libraries, including the Library of Congress. In that event, the duration of its listing in library catalogues might be dispositive.

 [86] In interrogatory # 25 of plaintiffs' second set of interrogatories, defendants are asked to identify "all Columbia record albums containing songs by Bessie Smith exclusively, which are currently available from or offered for sale by Columbia to members of the public throughout the United States." Defendants' answer shows that as of September 9, 1977, both Volume 1 of the 1951 album series, containing Columbia's claim to ownership of all 160 songs, and Volume 3 of that series, containing the song "At the Christmas Ball," were "currently available or offered for sale by Columbia to members of the public throughout the United States." Plaintiffs have not challenged the fact that Volumes 1 and 3 were available as of September 1977. Moreover, we take judicial notice of the fact that a current Schwann record catalogue (regarded as authoritative in the industry) lists both Volume 1 and Volume 3 of 1951 series as still available to the record buying public.[FN28] While the above does not explicitly confirm that the records in question have been Continuously available from 1951 to the present, given the fact there has been no "Re - issuance" of Volumes 1 and 3 at any time (which one would expect if their original "issuance" had been discontinued or interrupted at some point during the interim), that is the only reasonable inference we can draw.

 [87][88] We think the fact that defendants have made Volumes 1 and 3 of the 1951 album series available between 1951 *657 and 1978 satisfies the "continuous" requirement for purposes of adverse possession. Since the volumes have been continuously available from 1951 to August 1978, they were A fortiori available to the public throughout the respective New York and Pennsylvania statutory periods of three and six years. Hence, under New York law, Columbia's arguably wrongful possession of exclusive rights to "At the Christmas Ball" ripened into complete and perfect ownership, good against Bessie Smith's estate, by 1954. Under Pennsylvania law, complete rights vested in Columbia in 1957. This vesting extinguished any possibility plaintiffs could sue on this claim with respect to the 1970's re-recordings or otherwise long before suit was brought in 1975. Hence we will grant defendants' motion for summary judgment [FN29] with respect to any claims related to "At the Christmas Ball."

FN29. Though our inference of Continuous availability of the albums appears to us the only one reasonable in these circumstances, if plaintiffs can make some showing that either Volume 1 or Volume 3 was not continuously available to the public from 1951 to 1957 (the longer of the two statutory periods at issue) within twenty days of the entry of the accompanying order, we will vacate our grant of summary judgment on this claim, and proceed to trial on the question of the availability of the records.

* * *

 We have now considered all of the allegations of plaintiff's complaint and conclude that they all fail and that they must either be dismissed or summary judgment must be granted for Columbia with respect thereto.