​Complaining Work

​Defending Work

Silvio Hein

“Maria Cahill’s Arab Love Song”

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Joseph E. Howard

“I Think I Hear a Woodpecker”

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 View Superimposition of Melodies​

Comment by Charles Cronin

In their defense to charges of infringement, the music publisher Harris proffered several popular songs predating plaintiff’s claiming that the melody of the plaintiff’s number was as similar to those of the earlier songs as Harris’s tune was to the plaintiff’s. These included the chestnut “The Glow Worm” (coincidentally by Paul Linke, composer of “Wedding Dance Waltzes,” the complaining work in Marks v. Leo Feist of 1923) and other whimsically named numbers like “Bon-Bon Buddy, The Chocolate Drop” and “The Mobile Prance” (by Charles H. Brown – composer of “The Hottest Ever March”).

Learned Hand found otherwise, and from his painstaking bar-by-bar analysis of the plaintiff and defendant’s melodies concluded that the defendant must have copied the plaintiff’s work because thirteen of seventeen measures of the two melodies were “substantially the same.” The case docket (now housed in the National Archives in New York City) contains a page with the notation of both melodies with annotations by Hand identifying correspondences between them. (The New Technologies page references this annotation.)The similarities, Hand found, were so significant that he would deduce plagiarism from them regardless whether or not the defending composer Joseph Howard had heard the plaintiff’s song prior to writing “I Think I Hear a Woodpecker.” Thirteen years later, in Arnstein v. Edward Marks Hand recanted this position saying “…independent reproduction of a copyrighted musical work is not infringement; nothing short of plagiarism will serve.”

Hand’s opinion contains a number of savory expressions of his jaundiced opinion of popular music. For instance: “[t]he defendant urges with much truth that both his own and the complainant’s songs are in the lowest grades of the musical art…they each bear a strong resemblance to each other…a monotonous similarity, which only adds to the general degradation of the style of music which they represent.” Despite some fumbled terminology, Hand’s analysis of the songs is mostly accurate and useful on the question of their musical similarities. (His mention of the fact that both songs are in “the minor mode,” however, hardly adds ballast to his analysis, particularly as the disputed section of both songs — the chorus — is, in both works, in major mode!) His discussion of copyright principles as applied to music is typically incisive and eloquent.

Opinion by Judge Learned Hand

I have no difficulty in finding that the defendant’s song is an infringement of the complainant’s. They are written in the same measure, called “common time,” and each is in the minor mode. It is true that the keys are different; but this is a distinction which is of no consequence to the ears of all but those especially skilled in music, and, indeed, even among persons skilled in music the power to distinguish two keys when they are not played in immediate juxtaposition is by no means universal. If the melody of the defendant’s chorus be transposed into the key of three flats, it exhibits an almost exact reproduction of the complainant’s melody. Each consists of 17 bars, of which the first, second, third, fourth, and fifth are alike, almost note for note. The quantity of the notes is not precisely similar; but when they are played in succession it would take the ear of a person skilled in music to distinguish between them. The sixth bar of the defendant’s melody is unlike that of the complainant’s; but even this difference is not great, and justifies an inference that the change may have been colorable. The seventh bars are likewise unlike. The eighth and ninth, upon the other hand, have a striking similarity. The tenth, eleventh, and twelfth in each melody are repetitions of the second, third, and fourth, and are therefore duplicates. The fourteenth, fifteenth, sixteenth, and seventeenth are quite dissimilar. Therefore, out of a total of 17 bars, the first 13 are substantially the same in each song; and whether or not the defendant, as he alleges, had never heard the complainant’s song, when he wrote his chorus, the chorus certainly is an infringement, and the complainant under his copyright is entitled to protection.

The complainant’s own melody is not measurably like the songs “By the Sycamore Tree,” “The Glow Worm,” and the “Mobile Prance.” It is, however, in its opening bar very similar to the first two bars of the chorus of the song “Bon Bon Buddy.” The exact similarity, however, between these two, is limited to the first bar. The second bar of each chorus is not so similar as to justify the charge that it is an imitation, and the most that I can say is that the opening theme of the complainant’s chorus may in a measure have been suggested to him by the phrase in question from “Bon Bon Buddy.” The defendant urges with much truth that both his own and the complainant’s songs are in the lowest grades of the musical art. The vogue which for a number of years that style of composition has obtained, which is popularly known as “rag-time,” has resulted in the production of numberless songs, all of the same general character. It has been a fact that they each bear strong resemblance to each other, and to any expert ear they have a monotonous similarity, which only adds to the general degradation of the style of music which they represent.

But the right of the author of a musical composition is not affected by the fact that he has borrowed in general from the style of his predecessors. The collocation of notes, which constitutes the composition, becomes his own, even though strongly suggestive of what has preceded, and it ceases to be an invention, and becomes an infringement, only when the similarity is substantially a copy, so that to the ear of the average person the two melodies sound to be the same. Therefore the lack of originality and musical merit in both songs, upon which the defendant insists, is of no consequence in law. While the public taste continues to give pecuniary value to a composition of no artistic excellence, the court must continue to recognize the value so created. Certainly the qualifications of judges would have to be very different from what they are if they were to be constituted censors of the arts.

The complainant has undoubtedly delayed long. Had the defendant shown any prejudice resulting from that delay, I should not grant the temporary injunction; but I can see no damage which has been done, except to the complainant, by the continuance of the infringement, and therefore I do not think that the laches is significant.

In directing the writ to go, I am much fortified in the opinion of Mr. Justice Bischoff of the Supreme Court of the state, whose qualifications as a musician are so well known, and whose judgment is so excellent, not only upon this peculiar matter, but in general upon anything which concerns the administration of justice, that it gives me much assurance of the correctness of my own opinion when I find myself in accord with him.

Let a writ go pendente lite forbidding the defendant from publishing the chorus of his song, “I Think I Hear a Woodpecker Knocking on My Family Tree.”