MAURO MALANG SANTOS, plaintiff-appellant,vs.MCCULLOUGH PRINTING 3.

3. That said design was created by plaintiff in the latter part of 1959 for the personal
COMPANY, defendant-appellee. G.R. No. L-19439 October 31, 1964 use of former Ambassador Felino Neri; ...

This is an action for damages based on the provisions of Articles 721 and 722 of the Civil 4. That former Ambassador Neri had 800 such cards ... printed by the defendant
Code of the Philippines, allegedly on the unauthorized use, adoption and appropriation by the company in 1959, ... which he distributed to his friends in December, 1959;
defendant company of plaintiff's intellectual creation or artistic design for a Christmas Card.
The design depicts "a Philippine rural Christmas time scene consisting of a woman and a child 5. That defendant company utilized plaintiff's design in the year 1960 in its album of
in a nipa hut adorned with a star-shaped lantern and a man astride a carabao, beside a tree, Christmas card samples displayed to its customers ... .
underneath which appears the plaintiff's pen name, Malang."
6. That the Sampaguita Pictures, Inc., placed an order with defendant company for
The complaint alleges that plaintiff Mauro Malang Santos designed for former Ambassador 700 of said cards ... while Raul Urra & Co. ordered 200 ..., which cards were sent out
Felino Neri, for his personal Christmas Card greetings for the year 1959, the artistic motif in by them to their respective correspondent, clients and friends during the Christmas
question. The following year the defendant McCullough Printing Company, without the season of 1960;
knowledge and authority of plaintiff, displayed the very design in its album of Christmas
cards and offered it for sale, for a price. For such unauthorized act of defendant, plaintiff 7. That defendant company's use of plaintiff's design was without knowledge,
suffered moral damages to the tune of P16,000.00, because it has placed plaintiff's authority or consent of plaintiff;
professional integrity and ethics under serious question and caused him grave
embarrassment before Ambassador Neri. He further prayed for the additional sum of
8. That said design has not been copyrighted;
P3,000.00 by way of attorney's fee.
9. That plaintiff is an artist of established name, good-will and reputation. ... .
Defendant in answer to the complaint, after some denials and admissions, moved for a
dismissal of the action claiming that —
Upon the basis of the facts stipulated, the lower court rendered judgment on December 1,
1961, the pertinent portions of which are recited below:
(1) The design claimed does not contain a clear notice that it belonged to him and
that he prohibited its use by others;
As a general proposition, there can be no dispute that the artist acquires ownership
of the product of his art. At the time of its creation, he has the absolute dominion
(2) The design in question has been published but does not contain a notice of
over it. To help the author protect his rights the copyright law was enacted.
copyright, as in fact it had never been copyrighted by the plaintiff, for which reason
this action is barred by the Copyright Law;
In intellectual creations, a distinction must be made between two classes of property
rights; the fact of authorship and the right to publish and/or distribute copies of the
(3) The complaint does not state a cause of action.
creation. With regard to the first, i.e. the fact of authorship, the artist cannot be
divested of the same. In other words, he may sell the right to print hundred of his
The documentary evidence submitted were the Christmas cards, as originally designed by work yet the purchaser of said right can never be the author of the creation.
plaintiff, the design as printed for Ambassador Neri, and the subsequent reprints ordered by
other parties. The case was submitted an a "Stipulation of Fact" the pertinent portions of
It is the second right, i.e., the right to publish, republish, multiply and/or distribute
which are hereunder reproduced:
copies of the intellectual creation which the state, through the enactment of the
copyright law, seeks to protect. The author or his assigns or heirs may have the work
1. That the plaintiff was the artist who created the design shown in Exhibit A, ... copyrighted and once this is legally accomplished any infringement of the copyright
will render the infringer liable to the owner of the copyright. xxx xxx
2. That the design carries the pen name of plaintiff, MALANG, on its face ... and xxx
indicated in Exhibit A, ...
 The plaintiff in this case did not choose to protect his intellectual creation by a
copyright. The fact that the design was used in the Christmas card of Ambassador
Neri who distributed eight hundred copies thereof among his friends during the
Christmas season of 1959, shows that the, same was published.
Unless satisfactorily explained a delay in applying for a copyright, of more than thirty
days from the date of its publication, converts the property to one of public domain.
Since the name of the author appears in each of the alleged infringing copies of the
intellectual creation, the defendant may not be said to have pirated the work nor
guilty of plagiarism Consequently, the complaint does not state a cause of action
against the defendant.xxx xxx ;xxx
WHEREFORE, the Court dismisses the complaint without pronouncement as to costs.
In his appeal to this Court, plaintiff-appellant pointed five (5) errors allegedly committed by
the trial court, all of which bring to the fore, the following propositions: (1) whether plaintiff
is entitled to protection, notwithstanding the, fact that he has not copyrighted his design; (2)
whether the publication is limited, so as to prohibit its use by others, or it is general
publication, and (3) whether the provisions of the Civil Code or the Copyright Law should
apply in the case. We will undertake a collective discussion of these propositions.
Under the established facts, We find that plaintiff is not entitled to a protection, the provision
of the Civil Code, notwithstanding. Paragraph 33 of Patent Office Administrative Order No. 3
(as amended dated September 18, 1947) entitled "Rules of Practice in the Philippines Patent
Office relating to the Registration of Copyright Claims" promulgated pursuant to Republic Act
165, provides, among others, that an intellectual creation should be copyrighted thirty (30)
days after its publication, if made in Manila, or within sixty (60) day's if made elsewhere,
failure of which renders such creation public property. In the case at bar, even as of this
moment, there is no copyright for the design in question. We are not also prepared to accept
the contention of appellant that the publication of the design was a limited one, or that there
was an understanding that only Ambassador Neri should, have absolute right to use the
same. In the first place, if such were the condition then Ambassador Neri would be the
aggrieved party, and not the appellant. In the second place, if there was such a limited
publication or prohibition, the same was not shown on the face of the design. When the
purpose is a limited publication, but the effect is general publication, irrevocable rights
thereupon become vested in the public, in consequence of which enforcement of the
restriction becomes impossible (Nutt vs. National Institute, 31 F [2d] 236). It has been held
that the effect of offering for sale a dress, for example manufactured in accordance with an
original design which is not protected by either a copyright or a patent, is to divest the owner
of his common law rights therein by virtue of the publication of a 'copy' and thereafter
anyone is free to copy the design or the dress (Fashion Originators Guild of America v.
Federal Trade Commission, 114 F [2d] 80). When Ambassador Neri distributed 800 copies of
the design in controversy, the plaintiff lost control of his design and the necessary implication
was that there had been a general publication, there having been no showing of a clear
indication that a limited publication was intended. The author of a literary composition has a
light to the first publication thereof. He has a right to determine whether it shall be published
at all, and if published, when, where, by whom, and in what form. This exclusive right is
confined to the first publication. When once published, it is dedicated to the public, and the
author loses the exclusive right to control subsequent publication by others, unless the work
is placed under the protection of the copyright law. (See II Tolentino's Comments on the Civil
Code, p. 433, citing Wright v. Eisle 83 N.Y. Supp. 887.)
CONFORMABLY WITH ALL THE FOREGOING, We find that the errors assigned have not been
committed by the lower court. The decision appealed from, therefore, should be, as it is
hereby affirmed. Costs taxed against plaintiff-appellant.
FILIPINO SOCIETY OF COMPOSERS, AUTHORS AND PUBLISHERS, INC., plaintiff-
appellant,vs.BENJAMIN TAN, defendant-appellee. G.R. No. L-36402 March 16, 1987
An appeal was made to the Court of Appeals docketed as CA-G.R. No. 46373-
R * entitled Filipino Society of Composers, Authors, Publishers, Inc., Plaintiff-Appellant v.
Benjamin Tan, Defendant-Appellee, from the decision of the Court of First Instance of Manila,
Branch VII in Civil Case No. 71222 ** "Filipino Society of Composers, Authors and Publishers,
Inc., Plaintiff v. Benjamin Tan, Defendant," which had dismissed plaintiffs' complaint without
special pronouncement as to costs.
The Court of Appeals, finding that the case involves pure questions of law, certified the same
to the Supreme Court for final determination (Resolution, CA-G.R. No. 46373-R, Rollo, p. 36;
Resolution of the Supreme Court of February 16, 1973 in L-36402, Rollo, p. 38).
The undisputed facts of this case are as follows:
Plaintiff-appellant is a non-profit association of authors, composers and publishers duly
organized under the Corporation Law of the Philippines and registered with the Securities and
Exchange Commission. Said association is the owner of certain musical compositions among
which are the songs entitled: "Dahil Sa Iyo", "Sapagkat Ikaw Ay Akin," "Sapagkat Kami Ay
Tao Lamang" and "The Nearness Of You."
On the other hand, defendant-appellee is the operator of a restaurant known as "Alex Soda
Foundation and Restaurant" where a combo with professional singers, hired to play and sing
musical compositions to entertain and amuse customers therein, were playing and singing
the above-mentioned compositions without any license or permission from the appellant to
play or sing the same. Accordingly, appellant demanded from the appellee payment of the
necessary license fee for the playing and singing of aforesaid compositions but the demand
was ignored.
Hence, on November 7, 1967, appellant filed a complaint with the lower court for
infringement of copyright against defendant-appellee for allowing the playing in defendant-
appellee's restaurant of said songs copyrighted in the name of the former.
Defendant-appellee, in his answer, countered that the complaint states no cause of action.
While not denying the playing of said copyrighted compositions in his establishment, appellee
maintains that the mere singing and playing of songs and popular tunes even if they are
copyrighted do not constitute an infringement (Record on Appeal, p. 11; Resolution, CA-G.R.
NO. 46373-R, Rollo, pp. 32-36) under the provisions of Section 3 of the Copyright Law (Act
3134 of the Philippine Legislature).
The lower court, finding for the defendant, dismissed the complaint (Record on Appeal, p.
25).
Plaintiff appealed to the Court of Appeals which as already stated certified the case to the
Supreme Court for adjudication on the legal question involved. (Resolution, Court of Appeals,
Rollo, p. 36; Resolution of the Supreme Court of February 18, 1973, Rollo, p. 38).
In its brief in the Court of Appeals, appellant raised the following Assignment of Errors:
I. THE LOWER COURT ERRED IN HOLDING THAT THE MUSICAL COMPOSITIONS
OF THE APPELLANT WERE IN THE NATURE OF PUBLIC PROPERTY WHEN THEY
WERE COPYRIGHTED OR REGISTERED.
II. THE LOWER COURT ERRED IN HOLDING THAT THE MUSICAL COMPOSITIONS
OF THE APPELLANT WERE PLAYED AND SUNG IN THE SODA FOUNTAIN AND
RESTAURANT OF THE APPELLEE BY INDEPENDENT CONTRACTORS AND ONLY
UPON THE REQUEST OF CUSTOMERS.
III. THE LOWER COURT ERRED IN HOLDING THAT THE PLAYING AND SINGING OF
COPYRIGHTED MUSICAL COMPOSITIONS IN THE SODA FOUNTAIN AND
RESTAURANT OF THE APPELLEE ARE NOT PUBLIC PERFORMANCES FOR PROFIT
OF THE SAID COMPOSITIONS WITHIN THE MEANING AND CONTEMPLATION OF
THE COPYRIGHT LAW.
IV. THE LOWER COURT ERRED IN NOT HOLDING THAT THE APPELLEE IS LIABLE
TO THE APPELLANT FOR FOUR (4) SEPARATE INFRINGEMENTS. (Brief for
Appellant, pp. A and B).
The petition is devoid of merit.
The principal issues in this case are whether or not the playing and signing of musical
compositions which have been copyrighted under the provisions of the Copyright Law (Act
3134) inside the establishment of the defendant-appellee constitute a public performance for
profit within the meaning and contemplation of the Copyright Law of the Philippines; and
assuming that there were indeed public performances for profit, whether or not appellee can
be held liable therefor.
Appellant anchors its claim on Section 3(c) of the Copyright Law which provides:
SEC. 3. The proprietor of a copyright or his heirs or assigns shall have the
exclusive right:xxx xxx xxx
(c) To exhibit, perform, represent, produce, or reproduce the copyrighted
work in any manner or by any method whatever for profit or otherwise; if
not reproduced in copies for sale, to sell any manuscripts or any record
whatsoever thereof;xxx xxx xxx
It maintains that playing or singing a musical composition is universally accepted as
performing the musical composition and that playing and singing of copyrighted music in the
soda fountain and restaurant of the appellee for the entertainment of the customers although
the latter do not pay for the music but only for the food and drink constitute performance for
profit under the Copyright Law (Brief for the Appellant, pp. 19-25).
We concede that indeed there were "public performances for profit. "
The word "perform" as used in the Act has been applied to "One who plays a musical
composition on a piano, thereby producing in the air sound waves which are heard as music
... and if the instrument he plays on is a piano plus a broadcasting apparatus, so that waves
are thrown out, not only upon the air, but upon the other, then also he is performing the
musical composition." (Buck, et al. v. Duncan, et al.; Same Jewell La Salle Realty Co., 32F.
2d. Series 367).
In relation thereto, it has been held that "The playing of music in dine and dance
establishment which was paid for by the public in purchases of food and drink constituted
"performance for profit" within a Copyright Law." (Buck, et al. v. Russon No. 4489 25 F.
Supp. 317). Thus, it has been explained that while it is possible in such establishments for
the patrons to purchase their food and drinks and at the same time dance to the music of the
orchestra, the music is furnished and used by the orchestra for the purpose of inducing the
public to patronize the establishment and pay for the entertainment in the purchase of food
and drinks. The defendant conducts his place of business for profit, and it is public; and the
music is performed for profit (Ibid, p. 319). In a similar case, the Court ruled that "The
Performance in a restaurant or hotel dining room, by persons employed by the proprietor, of
a copyrighted musical composition, for the entertainment of patrons, without charge for
admission to hear it, infringes the exclusive right of the owner of the copyright." (Herbert v.
Shanley Co.; John Church Co. v. Hillard Hotel Co., et al., 242 U.S. 590-591). In delivering the
opinion of the Court in said two cases, Justice Holmes elaborated thus:
 If the rights under the copyright are infringed only by a performance where the object to have been donated to the public domain and the same can no longer be
money is taken at the door, they are very imperfectly protected. copyrighted.
Performances not different in kind from those of the defendants could be
given that might compete with and even destroy the success of the A careful study of the records reveals that the song "Dahil Sa Iyo" which was registered on
monopoly that the law intends the plaintiffs to have. It is enough to say that April 20, 1956 (Brief for Appellant, p. 10) became popular in radios, juke boxes, etc. long
there is no need to construe the statute so narrowly. The defendants' before registration (TSN, May 28, 1968, pp. 3-5; 25) while the song "The Nearness Of You"
performances are not eleemosynary. They are part of a total for which the registered on January 14, 1955 (Brief for Appellant, p. 10) had become popular twenty five
public pays, and the fact that the price of the whole is attributed to a (25) years prior to 1968, (the year of the hearing) or from 1943 (TSN, May 28, 1968, p. 27)
particular item which those present are expected to order is not important. It and the songs "Sapagkat Ikaw Ay Akin" and "Sapagkat Kami Ay Tao Lamang" both registered
is true that the music is not the sole object, but neither is the food, which on July 10, 1966, appear to have been known and sang by the witnesses as early as 1965 or
probably could be got cheaper elsewhere. The object is a repast in three years before the hearing in 1968. The testimonies of the witnesses at the hearing of
surroundings that to people having limited power of conversation or disliking this case on this subject were unrebutted by the appellant. (Ibid, pp. 28; 29 and 30).
the rival noise, give a luxurious pleasure not to be had from eating a silent
meal. If music did not pay, it would be given up. If it pays, it pays out of the Under the circumstances, it is clear that the musical compositions in question had long
public's pocket. Whether it pays or not, the purpose of employing it is profit, become public property, and are therefore beyond the protection of the Copyright Law.
and that is enough. (Ibid., p. 594).
PREMISES CONSIDERED, the appealed decision of the Court of First Instance of Manila in
In the case at bar, it is admitted that the patrons of the restaurant in question pay only for Civil Case No. 71222 is hereby AFFIRMED.SO ORDERED.
the food and drinks and apparently not for listening to the music. As found by the trial court,
the music provided is for the purpose of entertaining and amusing the customers in order to
make the establishment more attractive and desirable (Record on Appeal, p. 21). It will be
noted that for the playing and singing the musical compositions involved, the combo was
paid as independent contractors by the appellant (Record on Appeal, p. 24). It is therefore
obvious that the expenses entailed thereby are added to the overhead of the restaurant
which are either eventually charged in the price of the food and drinks or to the overall total
of additional income produced by the bigger volume of business which the entertainment was
programmed to attract. Consequently, it is beyond question that the playing and singing of
the combo in defendant-appellee's restaurant constituted performance for profit
contemplated by the Copyright Law. (Act 3134 amended by P.D. No. 49, as amended).

Nevertheless, appellee cannot be said to have infringed upon the Copyright Law. Appellee's
allegation that the composers of the contested musical compositions waived their right in
favor of the general public when they allowed their intellectual creations to become property
of the public domain before applying for the corresponding copyrights for the same (Brief for
Defendant-Appellee, pp. 14-15) is correct.

The Supreme Court has ruled that "Paragraph 33 of Patent Office Administrative Order No. 3
(as amended, dated September 18, 1947) entitled 'Rules of Practice in the Philippines Patent
Office relating to the Registration of Copyright Claims' promulgated pursuant to Republic Act
165, provides among other things that an intellectual creation should be copyrighted thirty
(30) days after its publication, if made in Manila, or within the (60) days if made elsewhere,
failure of which renders such creation public property." (Santos v. McCullough Printing
Company, 12 SCRA 324-325 [1964]. Indeed, if the general public has made use of the object
sought to be copyrighted for thirty (30) days prior to the copyright application the law deems