Italian Book Company v. Rossi

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Comment by Charles Cronin

In finding for the plaintiff the Court placed greater value on the plaintiff’s effort to bring to light forgotten public domain material than on the original material that the plaintiff added to the preexisting song. Like “My Own Sweet Darling” in Blume v. Spear (1887), the plaintiff’s work is entirely derivative of a folk song. The defense produced evidence of melodically similar works whose words share the conceit of a Cassandra-like mother enumerating for her daughter the defects of husbands drawn from a variety of blue-collar professions — gardener, cobbler, etc. For unstated reasons, the Court was “satisfied that [the defendant] did not go back to the original, but simply appropriated the [plaintiff’s] song, making colorable changes in a clumsy effort to conceal their infringement.”

The plaintiff and defendant’s songs are brisk tarantella-flavored 6/8 numbers. The phrase structure of both features highly predictable call-and-response four-bar units. The simple harmonic alternation in the accompaniment between tonic and dominant harmony is implied by the melody and so obvious that it is not even notated in either score. While the little opening refrain is nearly identical between the two songs, the vocal melodies that follow share structural and rhythmic elements but have different contours.

The principal audience for both songs was immigrants — Italians from southern Italy who had recently arrived in New York. The lyrics of both songs are in Neapolitan dialect. The one bit of English is the copyright notice: “Copyright Americano” has, somehow, a more intimidating ring than “diritti d’autore.”

Opinion by Judge Thacher

When Paolo Citorello, a Sicilian sailor, sang and played his guitar on a long ocean voyage, Sicilian folk songs he had heard and forgotten came back to his memory. He did not know how to read music, and such parts of the words and music as he could remember he sang and played by ear. What he could not remember he improvised. In this way he learned a song which he claimed as his own composition. At the end of the voyage he sang and played it to the representative of a company manufacturing phonograph records. The score was arranged for him by another, and upon his application a copyright was obtained, which he assigned to the plaintiff. The defendants have copied the copyrighted song, claiming that it is an old Sicilian folk song, the words of which were published as early as 1871.

How much of Citorello’s composition was subconscious repetition of this old song, as he had heard it sung, and how much of it was original with him, no one can say. No doubt he had heard some variation of the old song and was trying to remember it, but the product differed in words and music from any version of it that has been proved, although the theme was the same and the music quite similar. To the extent of such differences he was the author of the new arrangement of the words and music of an old song. That these differences were of some importance may be inferred from the plaintiff’s commercial success in selling it and the defendants’ desire to appropriate it. There must have been something which Citorello added which brought the old song back into popularity with his own people in this country, and sufficient, I think, to support his claim of copyright. Gerlach-Barklow Co. v. Morris & Bendien, 23 F.(2d) 159 (C.C.A. 2d). Of course, the defendants could make their own improvisation of the old song, or could copy it without change. They were free to copy the original, but not to copy Citorello’s variation. I am satisfied that they did not go back to the original, but simply appropriated the Citorello song, making colorable changes in a clumsy effort to conceal their infringement.

Decree for plaintiff in usual form.