## Facts

- Emery Heim, a Hungarian composer, wrote the song “Ma Este Meg Boldog Vagyok” in Hungary around 1934–1935 and assigned rights to a Hungarian publisher.
- The publisher first published the song in Hungary on November 11, 1935; the publisher later obtained U.S. statutory copyright registration on September 14, 1936.
- Copies later circulated in the United States bearing a copyright notice with the year “1936,” although first publication occurred in 1935.
- The district court found that no printed copies of Heim’s song were distributed, offered for sale, sold, or otherwise disposed of in the United States.
- A letter enclosing a copy of the song, limited performances in the United States, and deposit/filing in the Copyright Office were treated as insufficient to constitute U.S. publication.
- Universal produced the film “Nice Girl,” which included the song “Perhaps,” composed by Aldo Franchetti (not served as a party).
- Heim alleged that a portion of “Perhaps” infringed a portion of his song and sought injunctive relief and an accounting.
- Defendants argued the similar melodic material derived from Dvořák’s “Humoresque,” a public-domain work, and contended Heim’s claimed material was not original.
- The district court entered judgment for defendants, reasoning the allegedly copied portion lacked protectable originality; Heim appealed.

## Issues

1. Whether a U.S. statutory copyright for a work first published abroad by a treaty-protected foreign proprietor remained valid under the 1909 Act despite objections based on notice and prior foreign publication.
2. Whether an incorrect year in the copyright notice on U.S.-circulated copies invalidated the copyright under the 1909 Act’s notice provisions.
3. Whether defendants infringed where plaintiff’s proof of defendants’ access was weak and the similarity could be explained by both works drawing from a public-domain source.
4. How protectability and infringement analysis apply when the allegedly copied musical phrase is traceable to public-domain material.

## Decision

- The Second Circuit affirmed judgment for the defendants.
- The court held the U.S. copyright was valid; the notice/date arguments did not invalidate the registration on the facts presented.
- The court nonetheless found no infringement, emphasizing plaintiff’s weak proof of access and the plausible explanation that the similar material came from Dvořák’s public-domain “Humoresque.”
- Judge Clark concurred in the result (no liability) but would have affirmed on the ground that plaintiff’s copyright was invalid for failure to satisfy statutory notice requirements.

## Legal Principles

- Under the 1909 Act’s foreign-publication framework, a work first published abroad by a treaty-protected foreign proprietor could obtain and maintain U.S. statutory copyright without treating foreign-published copies as subject to U.S. notice requirements as a condition of validity.
- An incorrect date in a notice does not necessarily void the copyright where the statutory notice obligation is not triggered by an authorized U.S. publication or offering for sale.
- In musical infringement claims, proof of access is central; when access is not adequately shown, similarity may be attributed to independent creation or common sources rather than copying.
- Where a claimed phrase is drawn from public-domain material, protectable scope is limited to any original contribution beyond the public-domain source; similarity consistent with shared public-domain derivation weighs against infringement.

## Conclusion

The Second Circuit upheld the validity of a foreign-origin musical work’s U.S. copyright despite notice-based challenges, but affirmed judgment for the film studio because plaintiff failed to show sufficient access and the alleged similarity was reasonably explained by both works’ reliance on a public-domain melody.


Heim v. Universal Pictures Co., 154 F.2d 480 (2d Cir. 1946)