234 F. 105 (S.D.N.Y. 1916)
“You Will Never Know …”
“I Didn’t Raise My Boy to be a Solider”
Comment by Charles Cronin
On the plaintiff’s exhibit of a note-by-note comparison of the melodies in question, Judge Learned Hand drew lines connecting identical pitches occurring at the same points in the two tunes. A few years earlier, for his opinion in Hein v. Harris (1910), Hand used a similar “comparative method” when he found for the plaintiff because thirteen of seventeen bars were “substantially the same” between the complaining and defending works. In the case at hand he also favored the plaintiff because of “…parallelism which seemed to [his] ear to pass the bounds of mere accident…”
In fact, there are relatively few exact matches among the notes of these two melodies, and they occur mostly at the beginnings and ends of phrases which, in predictable music like this, are strongly influenced by harmonic considerations. In other words, its not surprising that, as here, two songs in E-flat would have a number of melodic phrases beginning and ending in B-flat (E-flat’s dominant) and F (the dominant of B-flat).
The defendant’s chorus does resemble the plaintiff’s not because they share a few pitches but rather because they have a common melodic scansion. Both choruses open with phrases that have two measures of running eighth notes followed by two measures of longer notes. Both have syllabic text settings and chromatically tinged melodies that begin and end on the dominant, and that decline and pause on the supertonic halfway through the first eight measures.
While Judge Learned Hand admits that he is merely “relying upon such musical sense as I have,” he can’t resist showing off a bit when, in denigrating the originality of both of the songs, he claims that “the leading theme of the plaintiff’s song is repeated literally from a chorus of Pinafore though there is not the slightest reason to suppose that the plaintiff ever heard the opera[!]” What was he thinking? No number of Pinafore, chorus or otherwise, resembles Haas’s “You Will Never Know How Much I Really Cared,” and — to verge on sophistry — Pinafore is an operetta, not an opera.
Mentioning the “appositeness [of defendant’s song] to a certain strain of popular feeling at the time,” Hand alludes to the fact that “I Didn’t Raise My Boy to be a Soldier” enjoyed widespread popularity just about the time the U.S. declared war on Germany (1916). The commercial element of this popularity undoubtedly fueled the plaintiff’s pursuit of their case, and the number is specifically identified in a discussion of the impact of recorded music at that time.
” However, the popularity of this sensational new music [jazz] could not compare with the dance craze that had possessed the country since 1913. In thousands of front parlors across the nation, Saturday night meant rolling away the carpet in front of the Victrola for a family dance session to the sounds of the turkey trot, the one-step, the hesitation waltz and the exotic tango…Sentiment was also commercially viable. ‘I Didn’t Raise My Boy to Be a Soldier,’ ‘Poor Butterfly’ and ‘There’s a Long, Long Trail A ‘Winding’ sold hundreds of thousands of records. By the time World War I ended, the major record companies were registering undreamed-of profits.”
(Charles Schicke, Revolution in Sound; A Biography of the Recording Industry (Boston: Little, Brown, 1974), p.77.)
Piantadosi’s piracy of the chorus seems to me sufficiently established for a finding. That Cahalin gave a copy to Smith and that Smith had access to Piantadosi I believe upon the weight of evidence. Cahalin was a better witness than Piantadosi, who did not impress me, and who was not only contradicted in one matter by Woods and Dully, but was proved untruthful as to his borrowing of themes upon other occasions. The opportunity I therefore find to have existed at about the proper time. For the remaining part of the inference, I rely upon such musical sense as I have. I am aware that in such simple and trivial themes as these it is dangerous to go too far upon suggestions of similarity. For example, nearly the whole of the leading theme of the plaintiff’s song is repeated literally from a chorus of Pinafore, though there is not the slightest reason to suppose that the plaintiff ever heard the opera. Nevertheless, between the two choruses in question there is a parallelism which seems to my ear to pass the bounds of mere accident. If the choruses be transposed into the same key and played in the same time, their similarities become at once apparent. In certain of the bars, only a trained ear can distinguish them, and their form and rhythm is quite the same. It is said that such similarities are of constant occurrence in music, and that little inference is permissible. Perhaps I should not take them as enough without the opportunity proved, the habits of Piantadosi shown in other instances, and the serious question of his credibility; but it would be absurd not to regard them as evidence of the most impressive character in combination with the rest. The case is not of the mere suggestion of a bar common to each, but of a continuously suggestive melodic parallelism, except at the end. Identity was not to be expected, but derivation seems to me proved.
The plaintiff’s right to damages against the defendant Feist, regardless of its innocence, is unquestionable. Gross v. Van Dyk Gravure Co., 230 Fed. 412,– C.C.A.–. And in spite of some language in that opinion looking to the possibility of a different rule for profits, I think the same should apply to them as to damages. When, as in copyright, the law provides a form of notice, it imposes upon every one at his peril the duty to learn the facts conveyed by the notice. Without some such rule it could not be a tort innocently to copy a copyrighted work, because it could not be said that among the reasonable result of the defendant’s acts was comprised an infringement. It becomes a tort only when the statute imposes a duty on every one to advise himself of the copyright. I cannot see why there should be any difference between damages and profits in this respect. Hence a decree for an accounting of profits will go against both defendants.
It does not necessarily follow, however, that the accounting shall be exempt from the usual principles of equity. Indeed, the conduct of the plaintiff may have a controlling effect upon it. West Pub. Co. v. Edward Thompson Co., 176 Fed. 833, 100 C.C.A. 303. The plaintiff’s assumption that the statute always rigidly requires an accounting is shown by that case to be without warrant. The delay was of 16 years in that case, but the infringing publication took that long to appear, and the principle is as well illustrated in the case at bar as it was there. Equity will control its peculiar remedy of an account of profits according to its own sense of justice. It must be obvious to every one familiar with equitable principles that it is inequitable for the owner of a copyright, with full notice of an intended infringement, to stand inactive while the proposed infringer spends large sums of money in its exploitation, and to intervene only when his speculation has proved a success. Delay under such circumstances allows the owner to speculate without risk with the other’s money; he cannot possibly lose, and he may win. If the defendant be a deliberate pirate, this consideration might be irrelevant, and I think it such as to Piantadosi; but it is no answer to such inequitable conduct, if the defendant Feist is innocent, to say that its innocence alone will not protect it. It is not its innocence, but the plaintiff’s availing himself of that innocence to build up a success at no risk of his own, which a court of equity should regard. A few weeks’ delay in the case of a song so ephemeral as this may have the same effect as 16 years, when the publication is a legal encyclopedia in 30 volumes.
This rule cannot be effectively applied until there is a reference. Cahalin had a beneficial interest in the song to the extent of one-third. His knowledge of the proposed infringement went back to December, and debars him from any profits whatever, since the defendant did most of its exploitation after that time. To the extent, therefore, of one-third of the profits, the plaintiff cannot recover. Haas learned of the infringement from Cahalin about the middle of January, and he cannot recover, to the extent of his interest of one-third, after that date, provided the defendant spent substantial sums in exploiting the song thereafter. It would be impossible to say how much of its subsequent success may have been due to its subsequent exploitation. Deutsch, who was the legal copyright owner, does not appear to have had personal notice of the song, and his interest may be affected by no estoppel. The relations of Haas, Cahalin, and Deutsch will be the subject of inquiry upon the reference. It may very well develop that the three stood in such relation that notice to one was notice to all; the master will exercise a reasonable degree of latitude in inference upon that subject. It is impossible, before such facts are ascertained, more precisely to fix the rights of the parties.
It may perhaps be impossible for the defendant Feist, under the rule in Dam v. Kirk La Shelle, 175 Fed. 902, 99 C.C.A. 392, 20 Ann. Cas. 1173, 41 L.R.A. (N.S.) 1002, to avoid a recovery of all the net profits subject to these limitations, although it is perfectly apparent to unsophisticated common-sense that the song’s success was due to its sentiment and its appositeness to a certain strain of popular feeling at the time. This makes it all the more pressing that, if Haas and Cahalin allowed the matter to go on without protest, they should be defeated in such a speculative enterprise as far as the rules of law allow.
There must be costs, since the statute requires it; but there will be no attorney’s allowance, for that rests in discretion. There were no damages (for there was nothing of value to injure), unless the accounting turns out wholly in favor of the defendants, in which case the damages against Feist will be $250.
A decree may therefore pass for an injunction and an accounting. The defendant Piantadosi must account without condition; but, upon the defendant Feist’s accounting, the master, after first stating the account in full, with proper credits for all the exploitation of the song, and ascertaining the net profits, will consider whether Haas’ one-third shall be allowed after January 15, 1915, or whenever he finds Haas learned of the song, and report the proper figures upon the several hypotheses open. He will then consider whether Deutsch’s one-third while he had title was not affected by notice of the proposed infringement, and, if so, to what extent.