Davilla v. Harms

Comment by Charles Cronin

The plaintiff, Joseph Davilla, received in 1918 a copyright registration for his musically excellent, if topically creepy, “If I Were a Spider and You Were My Fly.” Defendant, the music publisher Harms, registered Sigmund Romberg’s equally beguiling number “Desert Song” in 1926. The court gave short shrift to plaintiff’s claim of musical identity between the works stating (without the analysis that usually prefaces such conclusions in these cases) that the claimed similarity was no more than “the slight resemblance in the progression of a few bars” which was hardly noticeable to the layman’s (i.e. the judge’s) ear.

The court agreed with the defendant that under the doctrine of laches (the equitable equivalent of a statute of limitations) plaintiff slumbered too long on whatever claims he may have had against defendant, and that it would have been unfair to allow plaintiff assert them over ten years after defendant’s work first appeared. Furthermore, in an ad hominem jab at a hubristic plaintiff, the court implied that if Davilla waited to bring suit because he rarely listened to the music of others and was unaware of the alleged misappropriation, he was at fault because composers should make it their business “to keep abreast and informed of current popular music.”

The video clip is from Warner Brothers’ 1953 movie “Desert Song,” the title number sung by Gordon MacRae and Kathryn Grayson. Romberg was an expert witness for the defendant in Hirsh v. Paramount Pictures (1937) — just three years before this suit was brought involving his work.

Opinion by Judge Mandelbaum

Plaintiff sues defendants for copyright infringement of a song entitled “If I Were A Spider And You Were My Fly,” which was copyrighted in 1918. The defendants Romberg, Harbach and Hammerstein are the composers and lyric writers of a song entitled “The Desert Song,” copyrighted in 1926. The other defendants may be grouped into publishers, producers, motion picture companies, and broadcasting companies, those that broadcast the defendants’ song.

After hearing the testimony, as well as the songs played in open court, I am of the opinion that the plaintiff cannot prevail for the following reasons:

First, the test of infringement has not been met. Having heard both the plaintiff’s song and the alleged infringing one of the defendants, the claimed similarity appears to be lacking to the layman’s ear. The slight resemblance in the progression of a few bars in both compositions is something which occurs frequently but which is not enough to make out a case of piracy.

Second, on a question of laches, the plaintiff completely denies ever having heard “The Desert Song” played in any manner before sometime in 1937. To my mind, it is highly improbable in view of the plaintiff’s residing in a large city like New Orleans and engaging in the music publishing business, that he did not between 1926 and 1937 have some knowledge or acquaintance with the defendants’ alleged composition. I think under the circumstances that the defendants’ claim of laches is well taken. In this connection, I might add that the plaintiff’s testimony of his apparent indifference to listening in to any other form of music but his own does not impress the Court. It seems to me strange for a music composer not to seek to keep abreast and informed of current popular music.

Now on the question of access, the plaintiff’s only proof of access is his claim of having left copies of his song in 1919 with the defendants Harms, Inc., and Witmark, Inc., and which were never returned to him. No proof was offered that he ever demanded in writing or otherwise the return of the song. It may also be noted that the complaint fails to allege such access, and it first appeared in answer to interrogatories. In view of the slight resemblance between the two songs, I am of the opinion that the proof of access is too meager upon which a suit such as this can be predicated.

The complaint is dismissed as to all the defendants.