(1982) 38 O.R. (2d) 555
Complaining Work |
Defending Works |
|
Ivan Gondos “Variations” |
Hagood Hardy “The Homecoming” Rudy & Jerry Toth “Moment of Love” |
Comment by Charles Cronin
The plaintiff, Ivan Gondos, brought an action for copyright infringement against two defendants alleging that both had infringed a substantial part of his work.
However, the date of plaintiff’s original score could not be established with any certainty, and the sections that formed the subject matter of the case (the substantial part of the plaintiff’s work) was found to have been written by a different composer when compared to other sections of the same work. There was insufficient evidence to infer a causal connection as the defendants work as they had never come across the plaintiff or his work.
First alleged infringement by defendant Hardy: The Homecoming, composed for three commercials aired over 1973-1975 (The Birthday, The Taxi, The Church). alleged to contain 16 bars of the plaintiff’s work.
Second alleged infringement by defendant Toth: Moments of Love alleged to have eight bars of the plaintiff’s work.
The judge did find a remarkable similarity between the melodies of the plaintiff’s and defendant’s work, more so in Toth’s Moment of Love. Due to the remarkable similarity the plaintiff moved to infer unconscious copying. This failed, however, through a lack of any causal connection linking the defendant to the plaintiff’s work.
Opinion by Judge Carruthers
The above styled actions have been tried as one. They both involve claims based upon an alleged in-
fringement of copyright of a musical work.
The trial began on the 22nd of June, 1981, at a time when Ivan Gondos (“plaintiff”) was alive but, ob-
viously, very ill. It had been considered, by reason of the plaintiff’s condition, to have his evidence, for the
purpose of trial, taken de bene esse. An application was made and, on the return of which, it was determined
that the trial should then begin on the basis that I would become seized of the matter and, thereby, permit the
plaintiff’s evidence to be given vive voce, in the normal way. When the taking of the plaintiff’s evidence was
completed, after some three days had elapsed, the trial was adjourned sine die. The plaintiff died shortly
after this time. The actions, revived and carried on by his widow in her representative capacity, came on
again for trial on the 19th of April, 1982 and lasted for a further eleven days. My judgment was then re-
served to this date.
Generally speaking, the plaintiff alleges that portions of his original musical composition, which he
titled Variations on a Theme in A Minor (“Variations”), and sometimes referred to as “Variations on a
Theme” and “Theme and Variations”, were copied or performed by the defendants in contravention of the
provisions of The Copyright Act, R.S., c. 55, s. 1, (“the Act”).
In action number 60735/80 (“first action”), the plaintiff claims that a musical composition, ultimately
entitled “The Homecoming”, written and performed by Hagood Hardy (“Hardy”) and published by Hagood
Hardy Productions (“Productions”) in 1972, contains 16 bars or measures of Variations. In action number
60736/80 (“second action”), the plaintiff claims that a musical composition known as “Moment of Love”,
written and published by the defendants Rudy and Jerry Toth sometime after May of 1975, contains 8 bars
or measures of Variations. In his testimony at trial, the plaintiff described The Homecoming and Moment of
Love as being identical to Variations. I think it is clear from all of the evidence and the position taken by
counsel that, in fact, the position of the plaintiff is that those bars or measures in question do not constitute
the whole of the works of the defendants, but only the melodies or themes thereof. It is not maintained on behalf of the plaintiff that The Homecoming contains the bars or measures claimed to be found in Moment
of Love, or that those alleged to be in Moment of Love are found in The Homecoming.
In each of the actions, the defendants can be said to generally deny the position taken by the plaintiff
against them. Specifically, while admitting that The Homecoming was written in Toronto, Ontario in or
about the month of July, 1972, Hardy and Productions deny that any part of any work of the plaintiff was
copied in so doing. They also specifically deny that prior to his writing the music for The Homecoming,
Hardy had previously seen or heard Variations or met the plaintiff as alleged, or at all. They deny that Vari-
ations was written prior to 1972. Both Hardy and Productions allege that if the plaintiff is entitled to any re-
lief, it is either limited in scope or prescribed by virtue of the provisions of the Act. At trial, the Statement of
Defence of Hardy and Productions was amended to include an allegation that, in any event, the plaintiff has
no status to bring this action because of an assignment of copyright made on the 26th of July, 1965 to BMI
Canada Limited (“BMI”). The defendants Toth also raise this assignment in their Statement of Defence. As
well, they specifically deny that they had ever met, spoken to, or heard of the plaintiff or Variations prior to
the music for Moment of Love being written or first recorded in 1970. In the counterclaim brought on behalf
of the defendants Jerry and Rudy Toth, it is alleged that the plaintiff, in composing his work, copied from
Moment of Love, and that this constitutes an infringement of the copyright which they maintain subsists in
that work. None of the parties suggest that any of the musical works under consideration in this action are
not or cannot be that in which copyright may subsist in accordance with the provisions of the Act.
While the plaintiff in his evidence ultimately settled on 1956 as the year in which he first set pen to
paper in composing Variations, it is a version he claims was further developed by him in 1962 to which the
defendants have wrongfully resorted. I say “ultimately settled on 1956” because, in evidence at trial he first
said “originally in the ’50’s …..”, then, “well, in the ’60’s, just at 1960, I believe”, and then, “originally in
1956”. In answer to his counsel’s question as to what happened to the “1956 piece of that music”, the
plaintiff replied “It’s been lost”. He was then shown a four-page folio of sheet music which was entered as
Exhibit 1 at trial, and which I shall refer to as Exhibit 1 hereafter. There is no dispute that only pages 2, 3
and 4 contain the handwritten notations of music for Variations. With respect to Exhibit 1, the plaintiff said:
“This was written out in 1962, 10th day, 11th month, 1962”. In answer to a question from his counsel: “Why
did you write it out at that time again?”, he replied: “I was developing it, and it is also different arrange-
ments I had made of this theme”. The plaintiff said that Exhibit 1 was written from memory in 1962. From
his evidence, it appears that the plaintiff intended Variations to be part of another work of his, Children’s
Suite, which had, itself, been underway for many years and which was just completed at the time of trial in
June of 1981.
At this point, I should note that the plaintiff, apparently, used many names to describe himself. His
full name is Louis Julian Ivan Gondos. Although he was commonly known as Ivan Gondos, he said he also
referred to himself as “Louis Ivanfai Gondos”, “Louis Gallant Gondos”, and “Gallant Gondos”. Apparently,
he, as well, used “Ivanfai Gondos” as a name, for that is what is shown on Exhibit 1. There is no dispute that
the plaintiff did not register the copyright he claims in Variations until the 14th of March, 1979. The title
shown on the certificate of registration is “Variations on a Theme in A Minor”, and the name of the author is
described as “Ivan foi Gondos”. This last description is, apparently, the result of an error on the part of the
solicitor representing the plaintiff in his application for registration. I accept that the name should read “Ivan
Fai Gondos” and that, in any event, the name shown purports to be and is that of the plaintiff for the pur-
poses of the relevant provisions of the Act.
As I have noted above, it is the claim of the plaintiff that the musical work portrayed by Exhibit 1 and,
specifically, pages 2, 3 and 4 thereof, exemplifies that in which subsists his copyright that has been in-
fringed by the defendants. Exhibit 1 is the only copy of that which he wrote in 1962 that remained in his
possession until sometime after this action was commenced in 1980. He produced at trial what he claimed was a Xerox copy of Exhibit 1 made by him on a date he could not remember, and given to a friend, a
former pupil and sometime musical associate, Roy Robson, “years ago, 1965 or so, I don’t know”. This doc-
ument was entered into the proceedings as Exhibit 13 and shows on it the name “Roy Robson”, and a date
“May 9, 1981”. I shall refer to it as Exhibit 13. Apart from one other, which it is suggested on behalf of the
plaintiff is also a copy of Exhibit 1 and which I shall deal with further, there are no others which are indic-
ated to be in existence and which have not always been in the possession of the plaintiff. The plaintiff does
not suggest that copies of Exhibit 1, and in particular, pages 2, 3 and 4, were ever printed or reproduced in
any form intended for distribution to the public on any basis. Other versions of Variations were written by
the plaintiff after 1962, which were a part of the further developments of what he called his “Children’s
Suite” or “Children’s Songs”. Although some reference was made to them, I think it can be properly said that
the parties do not consider them relevant to the matters in issue in this action.
Roy Robson, an elementary school principal, testified at trial on behalf of the plaintiff. He said they
first met in 1965, and that he received Exhibit 13 “shortly after he became a student of the plaintiff in 1966”.
He had no idea who made the copy. He said he found it in a drawer in his home in 1981, shortly after which
he dated it “May 9, 1981” and returned it to the plaintiff, presumably, for use in this action.
Another former pupil of the plaintiff, and also a teacher of music, Sharon Pagliuso, was also called
to testify on his behalf. They first met in 1963 at the place where the plaintiff was then giving piano lessons
in Toronto. On being shown Exhibit 1, she said that the plaintiff had given her a copy of pages 2, 3 and 4
“shortly after she started”, suggesting this to be 1964. She said that she didn’t know where the copy was at
the time of trial, and her last use of it was made in 1968. She described the paper of the copy she received as
“narrower and larger” than that of Exhibit 1, with the pages “put together in accordion fashion with masking
tape”. She testified that a date, which she believed was 1962, was on the copy she had. She said that the
plaintiff told her that the copy she received had been made just before she received it, and represented what
he had written a year before.
Marcello Febbo, an artist, who first met the plaintiff in 1959 while he was playing piano at La Coter-
ie Cafe in Toronto, also testified for the plaintiff. On being asked if he had seen Exhibit 1 before, he replied:
“Yes …. in 1962 …. I sat with him while he wrote it …. he wrote it from another rough copy.”
Undoubtedly, the object of the evidence of the witnesses Robson, Pagliuso and Febbo is to support
the plaintiff’s position that he composed all which he claims as his original work and to be found in Exhibit
1, pages 2, 3 and 4, in 1962, long before that claimed by the defendants as their own came into being.
The evidence of another witness called on behalf of the plaintiff, Robert Mobbs, when considered
along with that of two witnesses called on behalf of the defendants, Peter Schopfer and Ernie Sniedzins, re-
quires me to doubt that Roy Robson received a Xerox copy of Exhibit 1 in 1966 as he claims. Mobbs testi-
fied in cross-examination that Exhibit 13 showed reproduction signs, which he referred to as “track marks”,
not consistent with it being made by Xerox equipment available in 1966. The evidence of Schopfer and
Sniedzins is that the size of the paper used for Exhibit 13 suggests that it is more likely 1974 or 1975 when it
was made. I cannot accept the evidence of the witness Febbo that he saw Exhibit 1 being produced by the
plaintiff. The event he described, if it occurred, was 20 years ago; and Febbo gives no explanation as to how
he is able to relate what he was shown at trial, Exhibit 1, to the other, apart from the date shown on Exhibit
1, “10/11/62”. Although I accept that the witness Pagliuso received a Xerox copy of the music from the
plaintiff in 1963, I am not prepared to find that such was what is shown on pages 2, 3 and 4 of Exhibit 1, as
she claimed at trial. I should note here that her evidence about receiving a Xerox copy in 1963 is not subject
to the same criticism as that of Robson because it is of different size paper which was linked by masking
tape.
I think it is appropriate for me to say here that in concluding as I have about the evidence of Robson,
Febbo and Pagliuso, I do not intend to suggest that any of them have consciously departed from the truth as
they look upon it. Nor do I reject all of their evidence. I think they have been caught up with the cause of the
plaintiff to such an extent that they are not able to be objective in their approach to the recollection of
events, some of which occurred many years ago.
Whether other copies existed when it was thought they did, or, whether, in fact, they did represent
what is shown on pages 2, 3 and 4 of Exhibit 1 may not appear to be significant from the plaintiff’s point-
of-view. He himself testified that pages 2, 3, and 4 of Exhibit 1 represent a reproduction of his work origin-
ally composed in 1956, and this evidence itself, if accepted, is sufficient to permit the finding the plaintiff
seeks. This basic but essential position of the plaintiff must be viewed in the light of that taken on behalf of
the defendants against it. This includes a consideration of several matters which relate specifically to Exhibit
1 and, as well, others of a more general nature which have a direct bearing on the plaintiff’s credibility.
As I have already said, it is pages 2, 3 and 4 of Exhibit 1 which are relevant. At the top of page 2, the
plaintiff has written “Variations on a Theme in A Minor” and the date, “10/11/62”. On page 2 of Exhibit 1,
after a one-bar introduction, the theme, in A Minor, begins. This continues to bar 10, after which there is a
Roman numeral I. Following a pick-up note in bar 11, there are seven bars before a Roman numeral II is
noted at the top of page 3 and over bar 18. Following a comma at that point, there are seven more bars until
a Roman numeral III is noted above bar 24. Thereafter, there are 16 bars ending in the third “system” of the
four systems on page 4. There are six more bars to the conclusion at the end of the fourth system on page 4.
With respect to Exhibit 1, there does not appear to be any dispute but that bars 2 to 10 inclusive represent
the first statement of the theme or melody. Likewise, there is no dispute that bars 11 to 17 inclusive are in-
tended to represent the first variation, but there is a dispute as to whether, in fact, it is a variation of the ori-
ginal theme. It is these bars, 11 to 17, which the plaintiff claims form the melody of Moment of Love. At
bar 18, over which is Roman numeral II, the seven bars which follow express another variation of the theme
found on page 2. The 16 bars following Roman numeral III, starting midway on page 3, are intended to rep-
resent another variation of the theme found on page 2. I think it is understood by all parties that the
plaintiff’s use of the Roman numerals was intended to note or mark what he claims are three variations of the
melody or theme found in bars 2 to 10 on page 2 of Exhibit 1. (I note here that the words “theme” and ”
melody” have been used interchangeably throughout the trial — I will use “melody” hereinafter)
The plaintiff, in his examination-in-chief, said that the music of Hardy, which he first heard, and ul-
timately became known as The Homecoming, represented all that which he wrote in Exhibit 1 with the ex-
ception of bars 11 to 17 inclusive, and a short introduction and conclusion. On cross-examination, he spe-
cifically referred to the 16 bars following Roman numeral III as being that which he heard in the Hardy mu-
sic. This part of Exhibit 1 was identified throughout the course of the trial by all parties as “variation three”.
Hardy was retained in August of 1972 by an advertising agency (“gency”) to produce a musical score
for a television commercial it was then in the process of creating. After reviewing what is known as the
“story board”, which demonstrates the subject matter of the commercial, Hardy was asked to create a suit-
able piece of music. The product being promoted was tea. Hardy testified that he was, at this time, heavily
engaged in the writing of music for television commercials and “jingles”, and that all of his work was done
at his home where he had a piano and a tape recorder. He said that over the next few days he composed the
music and immediately recorded the result. The tape was taken to the agency for approval, which was re-
ceived shortly thereafter. The final arrangement of the music to be included in the commercials was made in
November or December of 1972.
According to Peter Lighthall (“Lighthall”), who, in 1972, was the assistant producer of communica-
tions for the agency and involved in the making of the commercials, there were, in fact, three commercials in which the music which Hardy provided to the agency was used. The first, described at trial as “The Birth-
day”, was aired from the 7th of January, 1973 through to March, 1975. The second, described at trial as “The
Taxi”, was also aired on television on the 7th of January, 1973 but ended in June, 1975. The third, described
at trial as “The Church”, was first broadcast on the 27th of April, 1973 and was last played in July of 1974.
Lighthall said that all three commercials received “considerable air time”, and that the public response was
such that the sponsor received many requests for a recording of the music. Hardy was asked to expand his
music which, for the purpose of the commercials, was 16 bars in length, in order to permit a 45 r.p.m. record
to be produced. This was done and, eventually, the name The Homecoming was given to the music in the
spring of 1974. According to Hardy, the name was chosen by his wife who, it appears from the evidence,
was the first person to have heard the music written by Hardy for the commercials. He said, and she agreed,
that almost as soon as it was written it was played for her. Hardy said it was his custom to have his wife
listen to all his music as it was being written in order to obtain her reaction. The music which Hardy wrote
for the commercials was not entered as an exhibit at trial, except for being included in all three commercials
which were shown on several occasions throughout the trial. Sheet music for The Homecoming was entered
as Exhibit 39 and used, along with cassettes and recordings, for the purpose of comparison by a number of
witnesses who testified. The sheet music for The Homecoming indicates that that music is written in the key
of C Major. There is no dispute amongst the parties or their witnesses that Exhibit 1 demonstrates a variety
of keys, with the original statement of the melody being in the key of A Minor, and that which is known as
variation three being, in part, in G Major and, in part, in C Major.
By the conclusion of the trial, there seemed to be no disagreement that the music for Moment of
Love had been written by the defendant Rudy Toth in late 1970. He had been asked by his brother, the de-
fendant Jerry Toth, to compose two musical numbers for an album which Jerry Toth was then in the process
of producing for the Canadian Broadcasting Corporation. Also, there appeared to be no dispute that Rudy
Toth composed the “thematic material” while a passenger on an airplane travelling from Toronto to Win-
nipeg. He finished the composition very close to the time of its recording, which was later in 1970, and for
which it was entitled Moment of Love. As has been mentioned above, the plaintiff maintains that the
melody of Moment of Love was copied from bars 11 to 17 inclusive of Variations. These are found on pages
2 and 3 of Exhibit 1 and were referred to by all parties, during the course of the trial, as “variation one”.
The plaintiff moved to Huntsville, Ontario in December, 1972 to take up employment as a pianist at
Deerhurst Inn. He continued in that role thereafter until sometime shortly before testifying at this trial. In
August of 1974, a recording of one of his “live” performances was made. The record, an album entitled
“Ivan Plays Favourites”, was entered at trial as Exhibit 7, and I shall refer to it as such hereinafter. One of
the several pieces included in the album is titled “Theme and Variations” which was understood by all of the
parties to be a performance of Variations. The plaintiff said that it was the day after Exhibit 7 was made that
he first saw and heard a commercial which showed a church and involved music which he recognized as his.
Exhibit 7 is the only recording made of Variations and, according to the plaintiff, was available for purchase
only at Deerhurst Inn. Although no evidence was adduced as to how many copies have, in fact, been sold,
the evidence does not suggest that there were many.
Gustav Ciamaga, Dean of the Faculty of Music, University of Toronto, testified on behalf of the de-
fendants. He said that his reaction to a reading of Exhibit 1 and hearing the plaintiff play Variations on Ex-
hibit 7 is that variation three did not seem to be arranged or composed by the same person who composed
the remainder of the music in Exhibit 1. Specifically, he considered that the accompanying left hand in vari-
ation three does not seem to be the work of the same composer who wrote what he described as the “bland
block chords” on page 2 of Exhibit 1. He described the notational practice involving the three eighth notes
found in the first expression of the melody to be inconsistent with that in variation three where they are tied.
Although he said either practice was acceptable, he found it unusual for a composer to make this change within one piece of music. He said he was extremely puzzled by what he described as anomalies which
“leaped off the page”, and went on to describe some, including the fact that the piece is set in A Minor and
variation one is in C Minor. He said he found variation one to be a different piece entirely, not a variation
according to his understanding of that term as it applies to music. There was no doubt in Dr. Ciamaga’s
mind that when the plaintiff made his only recording of Variations in 1974, that which is shown as variation
three of Exhibit 1 was not included. His overall impression of Exhibit 1 is that it is a “scissors and patch
job”, and “amateurish”.
James Dale was also called on behalf of the defendants. He is a musician, well-schooled formally
and practically, who has also composed and conducted. His interest is primarily with modern and popular
music. He shares Dr. Ciamaga’s opinion that variation three as found in Exhibit 1 demonstrates a higher de-
gree of musicianship than the remainder of the exhibit and “appears to be the work of another person”.
Another musician called on behalf of the defendants is Douglas Riley. He has a similar background
and involvement in music to that of Dale. He also expressed the opinion that “it doesn’t sound like the same
person wrote it to me”, when asked to compare variation three with the balance of that which is written on
pages 2, 3 and 4 of Exhibit 1. He said it is “suddenly more sophisticated writing that has been written in any
previous statements of the theme”. He finds that which is noted on page 2, being the first statement of the
melody, “virtually unplayable”, and that the person who wrote that would not write variation three. He said
there is “too great a contrast in too short a time”. He went on to state that he doubted the authenticity of Ex-
hibit 1, saying: “I believe it has been tampered with”. He suggests that variation three was written at a differ-
ent time than the first expression of the melody. He said that he “didn’t believe” the plaintiff was the author
of variation three.
Dale and Riley, like Dr. Ciamaga, couldn’t understand why the plaintiff, while recording Variations,
did not play that which is shown in variation three. The fact that he did not underlies the position taken by
counsel for Hardy and Productions that an inference can be made that variation three was not written at the
time the recording was made in 1974 but, rather, at sometime after the plaintiff had heard Hardy’s music.
As evidence that casts further doubt on the plaintiff’s contention that all that is shown in Exhibit 1
was written at one time, in 1962, counsel for Hardy refers to part of the testimony of Riley. Riley stated that
while he was at Deerhurst Inn in 1977, he was approached by the plaintiff who then suggested that the de-
fendants had “borrowed” his music. The plaintiff played his piece for Riley in order to demonstrate what
had been borrowed by the defendants. Riley said that “on that occasion the plaintiff played what is recorded
….. he never went to major when he played for me”. I take his statement “what is recorded” to mean Exhibit
7, and “never went to major” to refer to the fact that variation three is, in part, in G Major and, in part, in C
Major, while the recording of Variations on Exhibit 7 is, as I have said before, in C Minor only. Of equal, if
not greater, significance to the position of the defendants, as to the genuineness of Exhibit 1 and its coming
into being when the plaintiff maintains it did, is the absence of there being any note or record of its existence
at any time prior to this trial. Specifically, in 1965, when applying to BMI, the plaintiff listed many songs
which he claims to have written, but Variations was not included. At trial, he attempted to explain its ab-
sence by the fact that it was not finished at that time. However, he was not able to explain why “Merry-
Go-Round”, another of his musical works which, according to him, at the time of trial, was not finished
either, was included.
Counsel for Hardy also asks that the plaintiff’s claim to have first seen the commercial after having
made Exhibit 7, his record, be rejected. In this respect, he points to the evidence of the witness Lighthall that
the commercial in which a church was prominent (the one the plaintiff claimed to have seen), was not aired
after July, 1974. The plaintiff claims to have made his record in August of that year. In addition, as further
support for this position, counsel for Hardy refers to the evidence of the witness Alan Lowry. He had known the plaintiff since 1965 or 1966 when he took music lessons from him. Lowry testified that in 1973 he had
told the plaintiff about the commercial and the similarity of the music to that which he had heard the
plaintiff play on many occasions following their first meeting.
In their final analyses of why all claims and contentions of the plaintiff in this action should be rejec-
ted, counsel for all the defendants submit that little, if any, credibility be attached to the evidence of the
plaintiff as it bears on the issues raised in this action. There were cited to me a number of instances wherein
the plaintiff either changed his evidence from that which he had given previously, either in the proceedings
leading to trial or at trial, or, which were demonstrated to be not true, or, were so improbable as to be worthy
of no weight. An example of the latter was the position taken by the plaintiff in an effort to explain why
Variations did not appear as an opening or closing theme in his recording Exhibit 7 when he had maintained
that he always used it as such in all live performances. His statements made on various occasions as to the
extent of his formal education generally and, specifically, with respect to music were shown, at trial, to not
be true and with no explanation being given whatsoever for there having been made.
I am inclined to agree with the position of the defendants concerning the credibility of the plaintiff.
To my mind, the overall effect of his evidence at trial is that it leaves a great deal to be desired. I find that
the plaintiff was inclined to say things which he thought would promote his best interest without regard for
actuality, factuality, or, on some occasions, the truth. There were many involved in giving evidence on his
behalf, and some I have indicated above, who were caught up in the promotion of the plaintiff’s case to such
an extent that they lost much of any objectivity they might otherwise have about the matters in issue. The
plaintiff himself was the worst offender, in my opinion. In making my findings of credibility with respect to
the plaintiff, I am conscious of his condition, both physical and mental, at the time of giving his evidence.
His condition may have had some adverse effect on his ability to recall accurately at times, but did not, in
my opinion, cause him to go to the length he did in an effort to promote his position.
While I am prepared to accept the position of the defendants that I should doubt that variation three
was written at the same time as the balance of Exhibit 1, I do not find it necessary, for the purposes of de-
termining the issues raised in this action, to express any opinion as to whether someone other than the
plaintiff was its composer. I say this mindful of the fact that insofar as the Hardy music is concerned, the
plaintiff ultimately isolated his complaint to the 16 bars of variation three. I am not at all certain that he in-
tended this restriction to be placed on his case by making this statement in cross-examination. It is not diffi-
cult, from my point-of-view, to look upon this statement as another example of the plaintiff saying
something for the express purpose of advancing his case without realizing what it is that he, in fact, has said
having regard to the totality of the evidence. Notwithstanding this statement, I think it is only fair to look
upon the plaintiff’s case as being a complaint that the melody of The Homecoming and that of Moment of
Love were copied from his work Variations, whether it be as stated in Exhibit 1 or otherwise. Furthermore,
and as the case unfolded at trial, the position of the plaintiff is not that the copying occurred as a result of
that which is written in Exhibit 1 being seen by either Hardy or Rudy Toth. As I have noted above, there is
no suggestion that at any time, apart from those copies about which specific evidence was led, there was any
publication of the plaintiff’s written work in any form that could be or, in fact, did come into the possession
of any of the defendants. The allegation of copying then, as I understand it from what was said on behalf of
the plaintiff and, in particular, in argument by his counsel, is that the work of the plaintiff was heard on oc-
casion or occasions by the defendants and, thereafter, copied. To my mind, it is for this reason that much
time was spent at trial considering a comparison between the principal melody of Variations with that of
The Homecoming and the melody contained in variation one with that of Moment of Love.
Because the plaintiff’s cause of action was founded upon the provisions of the Act, I think it appro-
priate that here I outline the sections which I consider relevant. Section 2, in part, read In this Act …..
‘every original literary, dramatic, musical and artistic work’ includes every original production in the lit-
erary, scientific or artistic domain, whatever may be the mode or form of its expression, such as books,
pamphlets, and other writings, lectures, dramatic or dramatico-musical “works, musical works or com-
positions with or without words, illustrations, sketches, and plastic works relative to geography, topo-
graphy, architecture or science; ….. ‘infringing’, when applied to a copy of a work in which copyright
subsists, means any copy, including any colourable imitation, made, or imported in contravention of this
Act; …..
‘musical work’ means any combination of melody and harmony, or either of them, printed, reduced to
writing, or otherwise graphically produced or reproduced;
‘performance’ means any acoustic representation of a work or any visual representation made by means
of any mechanical instrument or by radio communication;
Section 3 (1):
For the purposes of this Act, ‘copyright’ means the sole right to produce or reproduce the work or any
substantial part thereof in any material form whatever, to perform, or in the case of a lecture to deliver,
the work or any substantial part thereof in public; if the work is unpublished, to publish the work or
any substantial part thereof; and includes the sole right ….
(d) in the case of a literary, dramatic, or musical work, to make any record, perforated roll, cinemato-
graph film, or other contrivance by means of which the work may be mechanically performed or de-
livered;
(e) in the case of any literary, dramatic, musical or artistic work, to reproduce, adapt and publicly
present such work by cinematograph, if the author has given such work an original character; but if such
original character is absent the cinematographic production shall be protected as a photograph;
(f) in case of any literary, dramatic, musical or artistic work, to communicate such work by radio com-
munication; and to authorize any such acts as aforesaid.
Section 4 (1):
Subject to this Act, copyright shall subsist in Canada for the term hereinafter mentioned, in every ori-
ginal literary, dramatic, musical and artistic work, if the author was at the date of the making of the
work a British subject, a citizen or subject of a foreign country that has adhered to the Convention and
the Additional Protocol thereto set out in Schedule II, or resident within Her Majesty’s Realms and Ter-
ritories; and if, in the case of a published work, the work was first published within Her Majesty’s
Realms and Territories or in such foreign country; but in no other works, except so far as the protection
conferred by this Act is extended as hereinafter provided to foreign countries to which this Act does not
extend.
Section 5:
The term for which copyright shall subsist shall, except as otherwise expressly provided by this Act, be
the life of the author and a period of fifty years after his death. R.S., c. 55, s. 5.
Section 12 (1):
Subject to this Act, the author of a work shall be the first owner of the copyright therein. …..
(4) The owner of the copyright in any work may assign the right, either wholly or partially, and either
generally or subject to territorial limitations, and either for the whole term of the copyright or for any
other part thereof, and may grant any interest in the right by licence, but no such assignment or grant is
valid unless it is in writing signed by the owner of the right in respect of which the assignment or grant
is made, or by his duly authorized agent …..
(6) Where, under any partial assignment of copyright, the assignee becomes entitled to any right com-
prised in copyright, the assignee, as respects the rights so assigned, and the assignor, as respects the
rights not assigned, shall be treated for the purposes of this Act as the owner of the copyright, and this
Act has effect accordingly.
Section 17 (1):
Copyright in a work shall be deemed to be infringed by any person who, without the consent of the
owner of the copyright, does anything that, by this Act, only the owner of the copyright has the right to
do.
Section 20 (1):
Where copyright in any work has been infringed, the owner of the copyright is, except as otherwise
provided by this Act, entitled to all such remedies by way of injunction, damages, accounts, and other-
wise, as are or may be conferred by law for the infringement of a right. …..
(3) In any action for infringement of copyright in any work, in which the defendant puts in issue either
the existence of the copyright, or the title of the plaintiff thereto, then, in any such case,
(a) the work shall, unless the contrary is proved, be presumed to be a work in which copyright subsists;
and
(b) the author of the work shall, unless the contrary is proved, be presumed to be the owner of the copy-
right; and where any such question is at issue, and no grant of the copyright or of an interest in the
copyright, either by assignment or licence, has been registered under this Act, then, in any such case,
(c) if a name purporting to be that of the author of the work is printed or otherwise indicated thereon in
the usual manner, the person whose name is so printed or indicated “shall, unless the contrary is proved,
be presumed to be the author of the work;.
And Section 22:
Where proceedings are taken in respect of the infringement of the copyright in any work and the de-
fendant in his defence alleges that he was not aware of the existence of the copyright in the work, the
plaintiff is not entitled to any remedy other than an injunction in respect of the infringement if the de-
fendant proves that at the date of the infringement he was not aware, and had no reasonable ground for
suspecting that copyright subsisted in the work; but if at the date of the infringement the copyright in
the work was duly registered under this Act, the defendant shall be deemed to have had reasonable ground for suspecting that copyright subsisted in the work. R.S., c. 55, s. 22.
I have also considered a number of the reported authorities British, American and Canadian, includ-
ing opinions of text writers, to which I was referred by counsel. From these, I have drawn a number of legal
principles which I adopt and apply in reaching my decision in this case. One, of great persuasive authority,
is a decision of the English Court of Appeal, Francis, Day & Hunter Ltd. et al v. Bron et al, [1963] 2 All
E.R. 17. At p. 27, Diplock, L.J. states:
First, as to the law; ….. it is well established that to constitute infringement of copyright in any literary,
dramatic or musical work there must be present two elements: First, there must be sufficient objective
similarity between the infringing work and the copyright work, or a substantial part thereof, for the
former to be properly described, not necessarily as identical with, but as a reproduction or adaptation of
the latter; secondly, the copyright work must be the source from which the infringing work is derived.
….. But, while the copyright work must be the source from which the infringing work is derived, it need
not be the direct source; ….. there must be a causal connexion between the copyright work and the in-
fringing work. To borrow an expression once fashionable in the law of negligence, the copyright work
must be shown to be a causa sine qua non of the infringing work.
Some of the authorities, and particularly the American, in discussing copying, refer to it as being
either conscious or unconscious. Whether it be found to be one or the other, none of the authorities suggest
that there can be an infringement without a causal connection between the work in which copyright is
claimed to subsist and the alleged infringing work or works. At page 28 of the Francis Day case, Diplock,
L.J. says:
If the existence of the copyright work has no causal connexion with the production of the alleged in-
fringing work, even though the latter be identical with the former, there is no infringement of copyright
.
If there is found to be no causal connection and, therefore, no copying, either conscious or uncon-
scious, then, any similarities, however strong, which are found to exist between the works must be deemed
a coincidence. The word “copying”, in its ordinary usage, connotes a conscious, intended, or deliberate act.
Unconscious copying occurs, then, in the absence of any of these elements, but, of necessity, with the re-
quired evidence of de facto familiarity with the work alleged to be copied. As is stated by Diplock, L.J. on p.
27, after referring to subconscious copying:
We know not whether it is rare or common, general or idiosyncratic, nor indeed whether it is possible to
remember, not a mere isolated phrase, but a ‘substantial part of’ the remembered work without remem-
bering that one is rememberi
The most recent case in which a finding of infringement of copyright was made on the basis of “un-
conscious copying” is an American one, Bright Tunes Music Corp. v. Harrisongs Music Ltd., 420 F. Supp.
177 (1976). In that case, it was claimed that the song “My Sweet Lord” was plagiarized from an earlier one
“He’s So Fine”. District Judge Owen, of the United States District Court, S. D. New York, found both works
“virtually identical except for one phrase”. The use of an identical grace note in the same place was con-
sidered significant. George Harrison, the composer of My Sweet Lord, denied consciously copying He’s So
Fine, and his position was accepted by Judge Owen. However, he found that Harrison was aware of He’s So
Fine because of the extent of its popularity in both the United States and England at a time when other
songs, either written by Harrison or played by the group of which he was a member, the Beatles, were also
popular in both those countries. Owen, J. says, at p. 180:
What happened? I conclude that the composer, in seeking musical materials to clothe his thoughts, was
working with various possibilities. As he tried this possibility and that, there came to the surface of his
mind a particular combination that pleased him as being one he felt would be appealing to a prospective
listener; in other words, that this combination of sounds would work. Why? Because his subconscious
knew it already had worked in a song his conscious mind did not remember. Having arrived at this
pleasing combination of sounds, the recording was made, the lead sheet prepared for copyright and the
song became an enormous success. Did Harrison deliberately use the music of He’s So Fine? I do not
believe he did so deliberately. Nevertheless, it is clear that My Sweet Lord is the very same song as He’s
So Fine with different words, and Harrison had access to He’s So Fine. This is, under the law, infringe-
ment of copyright, and is no less so even though subconsciously accomplished.
Judge Owen, in concluding as he did, was following earlier American decisions which had been outstanding
for many years. One was particularly applicable, namely: Fred Fisher Inc. v. Dillingham, 298 F. 145, a de-
cision of Judge Learned Hand of the same court, made in 1924. Judge Hand accepted the position of the
famous composer Jerome Kern that he was quite unconscious of any plagiarism in composing the accom-
paniment to the refrain of “Kalua”. It was claimed, and found, by Judge Hand that his work contained a mu-
sical figure identical to that of the other work “Dardanella” which could not be the result of coincidence. The
work in which copyright was claimed there had attained popularity prior to Kern’s composition being writ-
ten. Judge Hand said, at p. 147:
Whether he unconsciously copied the figure, he cannot say, and does not try to. Everything registers
somewhere in our memories, and no one can tell what may evoke it. On the whole, my belief is that, in
composing the accompaniment to the refrain of ‘Kalua,’ Mr. Kern must have followed, probably uncon-
sciously, what he had certainly often heard only a short time before.
In the present case, several witnesses, with varying degrees of interest, knowledge, or training in
music, were called on behalf of the plaintiff to express their opinions as to the composer or author of certain
work or works and the similarities existing between them. In this respect, and I might say it applies to both
the plaintiff’s case and that of the defendants, resort was made to a visual examination of sheets of music, in
some instances enlarged for demonstration purposes, the playing of records and cassette tapes, and a piano.
Where necessary, a tape of what witnesses played on the piano and their comments while doing so was made
for the record of the trial proceedings. Nearly a dozen people, including the previously mentioned witnesses
Robson, Pagliuso, and Febbo, were called to give evidence on behalf of the plaintiff to the effect that the
melody which they heard upon the playing of Exhibit 7, the plaintiff’s record, while they were in the witness
box, was first heard by all of them before 1973, and by at least one of them, as early as 1962. Furthermore,
and without being told beforehand whose work was being played or by whom, all of these witnesses recog-
nized it as a melody which they had heard the plaintiff play from as early as 1962 but, in the main, in the
mid-1960’s. Their opinions in this respect were obtained only after a playing of Exhibit 7, although some at-
tempted, upon hearing the record, to equate it with the music which appears in Exhibit 1. All of them were
able to discern a similarity between the melody played by the plaintiff on Exhibit 7 and that of The Home-
coming, and between variation one and that of Moment of Love.
The position taken on behalf of the plaintiff is that the similarity between the works is so striking
that the only conclusion to be reached is that the works of the defendants were copied from that of the
plaintiff. I am prepared to accept that all of these witnesses, and as I have said, with one going back as far as
1962, heard the plaintiff play, on a variety of occasions and times thereafter, a melody similar to that heard on the playing of Exhibit 7. I am also prepared to find, and I don’t think there is any disagreement between
the parties on this fact, that the melodies which the plaintiff purports to be his are similar to those claimed
by the defendants to be theirs. This is particularly so with the comparison between the principal melody of
Variations and that of The Homecoming. For the purpose of this judgment, I am even prepared to say that
they are strikingly similar, to my ear, whereas, the similarity between variation one and Moment of Love,
again, to my ear, and I think, to those of others testifying at trial, is less. I arrive at this conclusion mindful
of statements which have been made on several prior occasions that the question of infringement involves a
determination of whether the substance of the original work is taken or not by the ear as well as by the eye.
Dr. Paul McIntyre, Director of the School of Music, University of Windsor, was called to testify on
behalf of the plaintiff. He was frank to admit that he was engaged on behalf of the plaintiff as an expert wit-
ness “in a case which was put to me as a plagiarism case ….. I took as my assignment to look for identical or
closely resembling passages.” In fulfilling his assignment, Dr. McIntyre compared Exhibit 1, pages 2, 3 and
4 with the music shown in Exhibit 39, the sheet music for The Homecoming, and Exhibit 58, the sheet mu-
sic for Moment of Love. He also looked at other exhibits entered on behalf of the plaintiff which included
other versions of Variations, but found them such as to not assist him in his assignment. He resorted to Ex-
hibit 1 for his comparison. He also listened to Exhibit 7 and recordings of The Homecoming and Moment of
Love. His primary purpose was to compare the melodies and determine if, in his opinion, there was plagiar-
ism on the basis of what he saw and heard. It was Dr. McIntyre’s opinion and the basis of his presentation at
trial that the passage of Exhibit 1 which he used for comparison purposes with The Homecoming “do not re-
semble each other. They are virtually identical.”
He prepared two charts to assist in his presentation, one with respect to The Homecoming and the
other with respect to Moment of Love. With respect to The Homecoming, he concluded that it was a piano
piece in which the melody is presented several times in a slightly varied form. He found the first nine bars to
be an introduction in which reflections of the melody occur but not the melody. Of the remaining 55 bars, in
32 he found the melody present and in 23 where the melody as a full statement is not present. For his com-
parison purposes, Dr. McIntyre used variation three as contained in Exhibit 1 as the plaintiff’s original
melody. He then transposed this melody into the key of C Major from G Major, down a fifth. The Hardy
melody, already written in C Major, he wrote down an octave. Having done that, he compared the notes
found in the first seven bars of variation three to the melodic passage beginning at bar 10 of The Homecom-
ing. He concluded that the notes so examined as common to both melodies, in his opinion, have not only the
same pitch but the same duration or rhythmic structure. In the bars examined, he concluded that of a total of
26 notes the first 25 are identical. It is his opinion that the chances of this happening without one work hav-
ing influenced the other is “infinitesimal, virtually zero, in the order of one in 100 million.” With respect to
Moment of Love, he indicated that following the first note, which he found is not common, he concluded
that the notes of the next three bars, and the first note of bar 5, and all the notes in bars 6, 7, and 8 are com-
mon as to pitch and duration. It is his opinion that the chances of this happening, again, are “infinitesimal,
next to zero, one in the order of 100 million.”
Dr. McIntyre admits that the portion of Exhibit 1 which he used for comparison with The Homecom-
ing does not appear on Exhibit 7, the record “Ivan Plays Favourites”. He further admits that the part used
for comparison is in a major key whereas Exhibit 7 is in C Minor. He also notes that Variations begins in A
Minor. Dr. McIntyre admits, having regard to the object of his involvement in this matter, that his comparis-
on charts represent the result of his effort to find and demonstrate identical passages in the two works. He
cannot find any others. To the ear, his comparisons produce a similar sound, that is, melodies which are
common, and visually, they are similar as well. To that extent, Dr. McIntyre has succeeded in carrying out
his assignment.
Variations or The Homecoming. He replied: “My attempt was to find melodies that might have influenced
either of these composers to put down the melodies they put down. My primary source for that was a pair of
books edited by Mr. Barlow, I think it is Harold Barlow. One is called ‘Dictionary of Musical Themes’ and
the other is called ‘Dictionary of Opera and Vocal Themes’. Each contain about 10,000 themes or tunes or
melodies. They are cross-indexed by pitch. I could find nothing that could reasonably be interpreted as, may
I say, a common source”. In cross-examination counsel for the defendants played a cassette tape entitled
“Generic Nature of Tunes” which was put together by the witnesses Riley and Dale. It consisted of passages
from eleven musical works played on a piano. The first passage was not recognized by Dr. McIntyre, but he
found it strikingly similar to the melodies of Variations and The Homecoming. The second he also found
strikingly similar but did not recognize the music. The third he recognized as the theme from “The Fox”
written in the late 1960’s by Lilo Schifrin. In his opinion, the similarities he found with that music were less
pronounced than with the first two. The fourth he did not recognize and did not find strikingly similar or
similar. The chord progression, however, he found to be the same as the compositions under consideration.
He preferred to call it a variation. He agreed that if someone heard the fourth selection they might well pro-
gress to write something such as Variations. The fifth selection Dr. McIntyre found similar to both Vari-
ations and The Homecoming, but not strikingly similar. It also was identical in chord progression to both. In
the balance of the selections put to him, apart from finding some similarity in certain of them in chord pro-
gression or sequential repetition, Dr. McIntyre could not find any comparison to the three melodies under
consideration. Dr. McIntyre was not asked nor did he volunteer any explanation for his not being able to find
these similar works himself in the efforts which he made in this respect.
Dr. Ciamaga and the witnesses Dale and Riley were not able to conclude that there was any similar-
ity between the three musical works under consideration. Their approach in this respect, however, was on
the basis of a comparison which was much broader, an in-depth examination, looking at the whole of all of
the pieces as opposed to isolated passages, and from the point-of-view of composition, structure, harmony
and melody. Dr. Ciamaga; particularly, discussed the use of “cliches” and “common place” in the composi-
tion of modern western music. He found these to exist in the works under consideration. That there are sim-
ilarities in modern music does not, in his opinion, suggest influence of one work or more on others. Further-
more, in light of the fact that the first 50 years of the twentieth century have produced approximately half a
million popular songs with copyright, he finds it hard to believe, as a composer of music, that all of them
were original. In his opinion, the popular song tradition is an aspect of tonal tradition which, very early, set
out its own rules and delimited the amount of material available to a composer and the number of harmonic
progressions. He specifically disagrees with Dr. McIntyre’s statistics concerning those passages of the works
which he considered as being composed without one influencing the other. He believes that two people
could have written Variations and The Homecoming without reference to one another. He said: “It is pos-
sible for two composers in two different places to deal with compositional materials in a similar way in
which the melodies between the two works are similar, the harmonies between the two works are similar.”
As I have noted above, it is the plaintiff’s position that the melody of Moment of Love was copied
from variation one of Exhibit 1. It was also the position of the plaintiff, at least, at the commencement of tri-
al, that the defendants Toth were all involved in the scheme by which this copying was made, and that, cent-
ral to it, was the recording Exhibit 7. The plaintiff alleged that Chris Toth, son of Rudy Toth, and a fellow
employee of the plaintiff at Deerhurst Inn in the summer of 1975, obtained a copy of Exhibit 7 for his father.
In addition, the plaintiff maintained that Chris Toth had heard him play Variations on a number of occasions
at Deerhurst Inn and that, through his hearing of Variations being performed and the playing of the record,
was able to assist the defendant Rudy Toth, who also heard the record, compose Moment of Love. Chris
Toth denies ever purchasing or obtaining or having in his possession a copy of Exhibit 7, or to seeing it at
any time in his home or cottage, which is close to Deerhurst Inn. Chris Toth also denies ever recalling hear-
ing the plaintiff play Variations at any time or anywhere, and maintains he is not possessed of the ability to translate into musical notes that which he hears or has heard. In any event, the specific theory of the plaintiff
insofar as all the Toths are concerned was significantly weakened, if not destroyed when the plaintiff adop-
ted as part of his own case the evidence of Rudy Toth that he wrote Moment of Love some four years or
more prior to the plaintiff making the record from which he claims it was copied. In any event, I accept all
of the evidence of the defendants Toth, and in particular, wherever it conflicts with any of that given by or
on behalf of the plaintiff.
During the course of the trial, it became apparent to all that the action as against Chris Toth could
not succeed. I had anticipated that he would have been removed from the action prior to the conclusion of
the trial, but he was not. Counsel for the plaintiff agrees that the action as against the defendant Jerry Toth
can only succeed on the basis of his having performed the work of the plaintiff. In July of 1965, the plaintiff
agreed to assign to BMI all of his rights with respect to the public performance and right to adapt, arrange
and record for a term which, I find, was still outstanding at all relevant times to the issues in this action. The
effect of this agreement is that the plaintiff has no cause of action against Jerry Toth, in any event, by reason
of any public performance, arrangement, or recording of any work of the plaintiff. The result, then, appears
to be that the plaintiff’s claim against Jerry Toth remains based upon an alleged copying of the plaintiff’s
work, which must be unconscious. The allegation of conscious copying, which involved Exhibit 7, I have
now disposed of against the plaintiff.
Insofar as the defendants Hardy and Productions are concerned, the plaintiff does not make any al-
legation of conscious copying on their part. At this point, I raise the question of why Productions is a de-
fendant in this action. There appears to be no evidence to involve it in any infringement of any copyright
which the plaintiff has in Variations. Insofar as Hardy is concerned, the plaintiff’s cause of action against
him rests upon an allegation of unconscious copying. The plaintiff’s position in this respect is that Hardy
heard the plaintiff perform Variations on one occasion, as a result of which the alleged plagiarism occurred.
The plaintiff testified that on Friday evening September 25, 1970, while performing as a pianist at Sutton
Place Hotel, he played Variations as his “second last piece” of the evening. When he finished his perform-
ance, and in the process of leaving the room where he was playing, he stopped at a table where two men and
a girl were seated. One of the men asked him: “What was the second last piece played?” The plaintiff testi-
fied that his response was: “It’s one of my own. It’s a classic”. The conversation ended with the other man
saying: “It’s very nice”. About a year later, while the plaintiff and his wife were attending another cocktail
bar in the City of Toronto to hear a long time acquaintance play piano, the plaintiff testified he recognized
the man he spoke to on that occasion in September, 1970 as the defendant Hagood Hardy, who was playing
at the cocktail bar with his musical group then known as The Montage. Hardy, apart from denying in evid-
ence generally that he had ever seen or met the plaintiff or heard or seen any of the plaintiff’s music, spe-
cifically denied that he met the plaintiff or heard him play at the Sutton Place Hotel, either as the plaintiff
claims or otherwise. Hardy called evidence as to his activities on that date in September. He was involved in
a recording session that would have kept him in a studio until close to 9:00 p.m. Without the evidence of the
defendant Hardy in this respect, I would not be prepared to accept that of the plaintiff. The plaintiff’s evid-
ence on this point, like the rest, is highly improbable, not credible, and I specifically reject it. I accept the
evidence of the defendant Hardy, in any event, wherever it conflicts with that of the plaintiff.
Counsel for the plaintiff urges me to conclude that the similarity between the work of the plaintiff
and Hardy and the plaintiff and Toth is so similar that I should conclude copying from that fact, even in the
absence of evidence from which I can find or infer copying, whether conscious or unconscious. Having dis-
posed of the allegation of conscious copying against Toth, and in light of the fact that no such allegation was
made against Hardy, I am, therefore, left, as I have said before, to deal with unconscious copying in respect
of both Hardy and Toth.
The law is clear that in order to substantiate a finding of infringement on the basis of unconscious copying, there must be evidence of access or a causal connection between the works. Counsel for the
plaintiff asked me to consider that this is not the law, and maintained that it is that a strong or striking simil-
arity, as in the present case, alone, is sufficient to support a conclusion of infringement. In this respect, he is
able to refer me to one authority only, and that is a 1972 paper prepared by Jeffrey G. Sherman entitled: “Mu-
sical Copyright Infringement: The Requirement of Substantial Similarity”. From my reading of that paper,
I must conclude that the learned author, although making this suggestion, does not refer to any authority in
support. Counsel for the plaintiff referred me to one case; but a reading of it discloses it to be a judgment
reached on default of a defence and, consequently, not of much persuasive authority, in any event, to offset
what otherwise appears to be a well-entrenched principle of law. To support unconscious copying on the
part of the defendants Hardy and Toth, plaintiff’s counsel referred me to the fact that they, like the plaintiff,
worked extensively in and about Toronto and that, accordingly, I should infer that at some time, at some
place, they heard the plaintiff’s work. This I will not do in this case.
I accept the evidence of Rudy Toth that he had never heard of the plaintiff’s work prior to his writing
Moment of Love in 1970. I have already said I accept Hardy’s evidence that he had no opportunity to be in-
fluenced by the plaintiff’s work in composing The Homecoming. Having rejected, then, that the defendant
Hardy and the defendant Rudy Toth copied any part of the work of the plaintiff, the similarity which I have
found to exist between them must, of necessity, be the result of coincidence. As I have noted above, Dr.
McIntyre had expressed the opinion that the similarities which existed between the works of the defendants
and that of the plaintiff were such that the one had to have influenced the writing of the others. In saying
this, he made no mention that the similarities could be due to coincidence To my mind, the effective result
of Dr. McIntyre’s testimony is that a striking similarity exists between the works, and that, his exercise
shows this to exist in the passages which he has isolated for consideration. As I have said before, I accept
that similarity does exist, but I do not agree that this means that the one has to have influenced the other. I
accept the evidence of Dr. Ciamaga that the similarities in the melodies of the works under consideration do
not, without something more, permit a conclusion that the one influenced the others. I was impressed by Dr.
Ciamaga’s testimony concerning musical cliches or common place, and the support of his position in this re-
spect given by two, obviously, talented and knowledgeable musicians, Dale and Riley. They had put togeth-
er the cassette upon which the eleven pieces, which Dr. McIntyre was asked to comment upon, are con-
tained. Dr. McIntyre’s reaction to the playing of those pieces I have noted above. The first, which he de-
scribed as “strikingly similar”to the melodies of the plaintiff and Hardy, was a piece “Je ne Songeais pas a
Rose”, composed in 1969 by a Belgian. The second, which Dr. McIntyre described as being “strikingly sim-
ilar”, was a passage from the song “What Was Good Enough for Me”, composed in 1967. The third I have
already noted he recognized as being the theme from”The Fox”. The fourth, which Dr. McIntyre did not re-
cognize or find similar in any way, was a passage from Vivaldi, who lived between 1675 and 1741. To my
ear, the passage from Vivaldi alone would be sufficient to support the opinions of the witnesses Ciamaga,
Dale and Riley. I found it to be very similar to the melodies of the works of the plaintiff and Hardy. I don’t
need to comment on the balance of the passages found on that cassette except to say that those which are in-
tended to relate to the melody of Moment of Love are not very similar, to my ear. The playing of those pas-
sages that are similar is relevant, not to support any defence of public domain, which was not raised in this
action, but rather, the issue of coincidence. In this respect, for the purposes of this judgment, I am prepared
to find that all of the works have the required degree of originality necessary to give rise to a claim for copy-
right. That the defendant Rudy Toth wrote Moment of Love in 1970 as he did, in the complete absence of
the work of the plaintiff, in itself, provides an example of coincidence for he was not in any way involved
with or connected to Hardy. I think that a general statement, well applied to the circumstances of these ac-
tions, is that which was made by Judge Learned Hand in Darrell v. Joe Morris Music Co., Inc., et al, 113
Federal Reporter, 2d Series, p. 80:
It must be remembered that, while there are an enormous number of possible permutations of the music-
al notes of the scale, only a few are pleasing; and much fewer still suit the infantile demands of the pop-
ular ear. Recurrence is not therefore an inevitable badge of plagiarism.
The counterclaim, which was brought on behalf of Jerry and Rudy Toth, in the second action must be
dismissed. There is no evidence that the plaintiff, in composing Variations, had any access to the work of
Rudy Toth. For this reason alone, the counterclaim cannot succeed.
The first action will, therefore, be dismissed with costs. The second action will also be dismissed
with costs, and the counterclaim therein dismissed without costs. From all of the evidence, I conclude that
had the plaintiff been entitled to any relief in either of the actions, by virtue of the provisions of Section 22
of the Act, it would have been limited to an injunction. I do not find it necessary to deal with the issue which
was raised on behalf of the defendant Hardy concerning the provisions of Section 24 of the Act.
Footnotes
1 Appellee contends that appellant has no standing to bring this case since he had assigned his ownership of the copyright on at least two occasions prior to suit. Given the dearth of the evidence on proof of copying, we find it unnecessary to reach the issue of ownership.
2 Appellant cannot escape the access requirement by arguing “striking similarity” of the songs in issue. Such similarity obviates a showing of access only where the similarity is so great it precludes the possibility of coincidence, independent creation or common source. See Selle v. Gibb, 741 F.2d 896 (7th Cir. 1984). Appellant’s music expert testified only that the works were so similar the average listener would believe them the same. This opinion does not address the crucial element of “striking similarity”: that the only possible explanation is copying. An opinion establishing striking similarity should address the uniqueness or complexity of the protected work as it bears on the likelihood of copying. See id. This is particularly important with respect to popular music, “in which all songs are relatively short and tend to build on or repeat a basic theme.” Id. at 905.