Yablokoff et al. v. Edwin Morris, Eden Ahbez, et al.

Civ. 46-42 (D.C. S.D. N.Y. 1948)

Commentary by Charles Cronin

This dispute from the 1940s was brought to my attention by Jon Pennington, who is now researching a book about Eden Ahbez, author of the defending song in this case. I’ve posted the Complaint below, but Pennington has also  obtained from the case docket at the National Archives, many other filings for this case, including interrogatories, depositions, and procedural records. As nearly always, the dispute would be more interesting had it gone to trial, but the parties settled shortly before the trial date with Ahbez paying Yablokoff $25,000 (according to a Variety article, and the text accompanying the YouTube posting by “Cabaret Warsaw” of a — breathtakingly embarrassing  — performance of the Yablokoff work). This amount would be roughly equivalent to $325,000 in 2025.

It’s curious that the Court didn’t discard this dispute at the summary judgment stage. Ahbez’s exposure to an obscure number from a Yiddish musical Papirosn (1935) is so extravagantly unlikely that the Court could have presumed that the Plaintiffs would be unable to establish access to their work — a prerequisite for determining infringement, particularly in the pre-internet era. The Plaintiffs’ work — sheet music and performances of it — was marketed to a niche audience in New York, 2000 miles from Southern California, where Ahbez was living at the time. As with so many defendants in music infringement disputes, Ahbez’s troubles stemmed from his success. Because “Nature Boy” became so popular, it was widely distributed and performed (most notably by Nat King Cole, in the audio clip above) and thereby undoubtedly heard by Yablokoff. In other words, while Plaintiff undoubtedly had access to Defendant’s work, the reverse was far less likely.

It’s also curious, and disconcerting, that a surprising number of comments submitted in the “Cabaret Warsaw” YouTube posting, by those who would be considered members of the “lay public” in litigating a case like this (and who ultimately determine at trial whether a work is infringing), believe that the Ahbez work is similar enough to Yablokoff’s to be infringing. The only musical similarity between the songs occurs in the melody of a few measures at the start of the “chorus” of the “Shweig mein Hartz” and those that begin “Nature Boy”.  But the melodies have entirely different scansions, with “Shweig” opening with downbeat and a plodding descending phrase in duple meter, whereas “Nature” starts with an upbeat octave jump and proceeds with a syncopated melody in triple meter.

“Shweig” may be musically insignificant, but I don’t doubt that Yablokoff was a literate musician. Opening with a declamatory, quasi recitative, portion that segues into a more lyrical “chorus” the phrases are predictable and balanced, with adept harmonizations. “Nature” on the other hand, is less musically sophisticated, having a wandering melody with little overall shape, that sounds like something Ahbez improvised and then attempted to shoehorn into a more structured framework, and documented in standard music notation. From defending responses to interrogatories and depositions in the case docket, it appears Ahbez sought assistance of literate musicians with this effort, most likely particularly with the harmonizations. Tellingly, in his recorded performance (see audio file above) — no doubt largely responsible for much of the song’s subsequent popularity — Nat King Cole deviates far from Ahbez’s published score, rhythmically, melodically, and harmonically. Arguably, Cole’s inventive musical gloss, along with those of the ensemble accompanying him, are more musically significant than Ahbez’s underlying work.

Complaint: PDF