205 U.S.P.Q. 1241 (1978; No. 77 Civ. 0008 (S.D.N.Y. Dec. 4, 1978)
“Day by Day”
Theme for N.B.C.’s “Today Show”
Comment by Charles Cronin
There seems to be little doubt that Ray Ellis had “Day by Day” in mind when he wrote the theme music for NBC’s “Today Show”. “Day by Day” had been performed on the “Today Show” and NBC had discussed using the by then fashionable song that obsesses on the word “day” for their weekday program. Perhaps defendant NBC thought their drawing upon the “Godspell” number would go unchallenged given that what they took could be reduced to a measure or two of music that they wrought into an arguably more artful arrangement than did the plaintiff.
The court found the instrumental arrangement and harmonization of defendant’s melody to be substantially similar to that of “Day by Day” but more important, that the differences between the melodies of the two works were “relatively minor”. Was the court correct? This website offers streaming audio snippets of both works and we leave it to the reader to decide. Note that two years earlier the same court (District Court of the Southern District of New York) albeit a different judge, found George Harrison liable for infringement of the copyright of “He’s so Fine” – a work with about as much melodic complexity as “Day by Day”. (See Bright Tunes v. Harrisongs Music)
The late Harold Barlow, a popular songwriter and compiler of several indexes of music themes, testified for the plaintiff. The transcript of his cross examination, a portion of which was spent sorting out misunderstandings as to what note he was referring to at a given moment, suggests a surreal seminar in modal analysis (complete with obligatory fustian references, e.g. “Tierces de Picardies”); in terms of illumination on the question of musical similarities, the rubber meets the road only after the court asks Barlow to demonstrate at the piano what he was talking about in terms of melodic parallels between the works.
The streaming video clip for the complaining work is from the closing moments of “Godspell”. The audio clip of the defending NBC theme music is from a tape recording of the music used at trial by Robert Osterberg, who represented Herald Square Music.
Opinion by Judge Goettel
The Court: The following are the Court’s findings of fact and conclusions of law:
Starting first with what is listed in the pre-trial order as the second issue, I find that This Is Today is substantially similar to Day By Day. While with some instruction and having heard the pieces consecutively, I can now distinguish one from another, I believe if I were to hear them a few minutes apart, without being advised that they were different pieces, I would have assumed that they were the same, identical piece.
The differences between the two, at least as to melody, are relatively minor. The rhythm of the first four measures is identical. There are some similarities of rhythm in the last four measures that we have under consideration. While the harmony differs, I think it apparent that in a song of this type the harmony is not as important as the melody and the rhythm.
I will find, as both sides have virtually agreed, that the key to each piece is in the first eight bars; so that the differences thereafter do not alleviate the substantial similarity that exists in the key portions of the two compositions. I find them particularly similar as written and as identified in the copyright registration.
The performances and the instrumentation, of course, can somewhat distinguish the two, but even there the pieces are substantially similar.
Turning to the first issue, whether Day By Day was copied in whole or in part by the author of This is Today, I credit the testimony of Mr. Schwartz that he had discussions with Mr. Sinsel about the usage of Day By Day as a theme on the Today Show. In addition to his own intrinsic credibility, his testimony was corroborated by the testimony of Nina Faso.
With respect to the testimony of Chris Brown, I do not view his involvement in the matter as being as representative of NBC, and I therefore do not take statements made by him as being admissions against interest of NBC.
His testimony, if accepted as bearing upon the state of mind of Mr. Schwartz, or perhaps as being a verbal act, would also further corroborate Mr. Schwartz’s version of whether his meeting with Mr. Sinsel was simply for the purpose of discussing the writing of some theme music or for the purpose of using Day By Day as a theme.
In light of the substantial similarity of the two works, the access to the infringed composition, both by virtue of it having been played on the Today Show and the discussions concerning its possible use as theme music, I conclude that Day By Day was copied in whole or in part by the author of This Is Today.
With respect to the last framed issue, I do not find a sufficient similarity between Day By Day and any prior works of prior art to nullify its copyright nor do I find that the similarities between the notes are simply chance employments of prior art.
It follows, therefore, since I have found substantial similarity and copying, that This Is Today infringes the copyright in Day By Day.
With respect to the fourth issue, the statute of limitations, there was no explicit waiver or extension of the statute of limitations by defendants Living Music or Ellis. However, I find that with respect to Living Music, plaintiff’s predecessor, The New York Times, was misled by defendants into believing that there was no need for litigation and was lulled into inactivity with respect to the commencement of litigation against it.
I do not make such a finding as to Ellis. Living Music was a wholly owned subsidiary of NBC. Its house counsel were the same, its outside counsel was the same. Its interests overlapped, and when NBC pays royalties to Living Music, it is paying royalties to its own wholly owned subsidiary. While NBC’s house counsel have believed that they lacked authority to waive the statute of limitations with respect to Living Music, I do not concur in that legal conclusion. As a result of their belief, they apparently unintentionally caused plaintiff’s counsel to fail to commence litigation within the period of limitations. Consequently, I find them estopped to assert the statute of limitations on behalf of Living Music.
The statute of limitations bars at least all application of the composition more than three years before the commencement of litigation with respect to Mr. Ellis.
There has been only a cursory briefing of whether subsequent performances within the three year period can be the subject of an action.
The causes cited by the defendants seem to be distinguishable. I do not think plaintiff has cited any case which is directly on point, although I must confess I have not read Baxter vs. Curtis Industries, a Northern District of Ohio case.
I am surprised, however, that there are no better authorities on the point. But reasoning other matters from a basic standpoint, I view each playing on the radio or on television as being a separate infringement, and consequently, although I am willing to consider subsequent papers on the matter, if you think it advisable and can cite some convincing authority, I believe that the plaintiff is entitled to recover from Mr. Ellis for all infringing acts which occurred within three years of the commencement of the litigation.
With respect to the question of laches by plaintiff or its predecessors in interest, I do not find them guilty of laches. I believe that covers all the issues put to me.
Have I failed to make any findings of fact or conclusions of law that are necessary to the completion of the case?
Mr. Osterberg: I know of none, your Honor.
Mr. Eldridge: Judge, may I just take a moment?
The Court: Surely.
Mr. Eldridge: Your Honor, I do not think that you have failed to address yourself to any issue that was formulated by the parties for the purpose of trial. In view of the fact that the trial is bifurcated, I don’t know what your Honor intends to do at this point.
The Court: I was going to give you an alternative on how to proceed. Having previously been involved as a magistrate in the accounting proceedings on musical works, I know what a long, drawn out cumbersome, tiresome proceeding it is.
I do not consequently intend to go through it myself. I will either refer it to a magistrate or refer it to a special master, and I am willing to listen to both sides on that.
I am also willing to consider, if you can show me a good reason for it, deferring adjudication of damages pending appeal.
Mr. Eldridge: That is what I had in mind, was that particular issue, because all of us are familiar with the tremendous amount of work that can be involved in these cases, post the first portion of a bifurcated trial. It would be our desire to seek a review of the liability issues before we get involved in the questions of what plaintiff may or may not be entitled to have adjudicated in such a reference as your Honor speaks of.
Mr. Osterberg: May I be heard, your Honor?
The Court: Yes.
Mr. Osterberg: I believe in this particular case the accounting proceedings are going to be quite short and quite easy to conclude. It seems to me that the evidence is pretty clear that the only use of This Is Today were on the TV programs, that the available information is perhaps in the files of BMI and NBC alone, and the payments that were made would have come from both NBC and perhaps Living Music and BMI and that it would not take much do gather all the evidence and bring it before the Court.
The alternative to that would seem to be maybe that there are two appeals that would have the case up and use it where you have such a shortcutting proceeding that that is really necessary or desirable.
In the alternative, if you still feel that it is desirable to allow an immediate appeal, I would respectfully request the entrance of an injunction pending the appeal so that we are at least protected to that extent.
Mr. Eldridge: With respect to an injunction at this stage of the proceedings, even though the accounting may take some time, I don’t think that that is really warranted, when the review can be expeditiously moved forward.
The Court: I have had experience before with allowing appeals prior to the finding of damages, and my experience generally has been adverse. One case in particular, involving the collapse, the turnover of a large barge out in the Sound — a derrick, rather — it was two years before the Court of Appeals decided the appeal, so that it made a total of some six or seven years from the events until the hearing on the damages, and the evidence had just grown that much more difficult to obtain and that much more stale.
I don’t think that I am going to — in fact I have decided that I will not allow appeal without the completion of the hearing on damages, so we won’t have to consider whether injunctive relief is necessary at this time.
It is up to you whether you wish to continue performing the theme in the interim. So the only thing remaining to be decided is whether you want a reference to a magistrate or to a special master.
Mr. Eldridge: May we have a few days to communicate our preference in that matter?
The Court: Yes. If you opt in favor of a special mater, you also have to consider how he will be selected.
Do you have any present feelings on that, Mr. Osterberg?
Mr. Osterberg: No, I am perfectly prepared to have it determined by either and if the Court desires to have a proposed interlocutory judgment, I would be prepared to submit that on notice.
And it would just require the insertion of to whom the reference goes.
The Court: All right. I will wait to hear from you on the question of how damages should be determined.
Mr. Eldridge: At this stage, are you just going to enter an order in terms of the liability and make a reference consistent with a hearing for the parties?
The Court: Yes.
Mr. Eldridge: There will be no judgment entered?
The Court: No, judgment will await the damages.
Mr. Eldridge: So I won’t have to make a motion for a judgment NOV —
The Court: If you want to pursue the issue of whether the failure to sue Ellis is barred by the statute of limitations, I would suggest you do that in the interim because that affects the damages.
I ruled against you, but I am not happy with the extent of briefing. You have one or two pages worth of cases from different settings, books, advertisements, etc.
Mr. Eldridge: That is a problem that to my knowledge has not been the subject of much litigation. It gets back to, I think Judge Feinberg said in the Davis case, every time a copyright case comes up here, it is a new issue. Even though that has been litigated since 1909.
The Court: Have you made an attempt to research the case submitted by Mr. Osterberg from the Ohio court?
Mr. Eldridge: Not yet, your Honor. I will look at it.
Mr. Osterberg: I cited that case alone because I think it is so clearly on point. There are subsequent decisions which reach the same result. However they don’t speak as clearly in terms of the statute. One of the cases in this court in Rainbow Records, decided by Judge Gurfein in this court.
The Court: I have been involved in a number of copyright cases, and in one the issue arose with respect to a movie that was made from an infringing book. The argument was made that the statute having run on the movie infringed, it was too late to claim infringement on a book that was based admittedly on an infringing book, and I found that to be an inaccurate, inapplicable interpretation of the copyright laws.
My feeling without great study of it, is that every new performance on a radio or television is a new infringement. If records had been put out and records were merely sitting in somebody’s store for a long period of time, I don’t know that the sale by the retailer would constitute a new infringement by the original recording artist. But I think that is not what we are dealing with here.
In this instance NBC, Ellis, and Living Music had a continuing control over their work product. So my conclusion is that it is a separate infringement and the statute doesn’t run until the act occurs.
But I have offered to them if they can show me strong authority to the contrary, that I will reconsider.
Mr. Osterberg: If they do submit a brief, may I respond to it in two days?
The Court: Surely.
Mr. Eldridge: What is the time frame for our briefing this subject additionally to the extent it is possible?
The Court: I’d like you to do it within a week. It isn’t the first time you have looked at the issue. You have done some work on it and it is really something that I think you have already somewhat cautioned yourself on.
Mr. Eldridge: If I may so, you don’t have this kind of a case. That’s why when you get into analogous fields such as a Broadway show that plays every night and let’s just assume for the sake of discussion there is a libel published, you do not get a new cause of action just because the show is now published and presented every night.
This type of thing where it is a continuous repetition is much more analogous to the results that relate to the single publication rule than it is to a situation before somebody performs a piece here and under new auspices, new people, performs it over here, and that type of thing.
That isn’t what this case is about.
The Court: Maybe not. This case is unique in one sense. I think most of the other musical copyright infringements have related to productions more or less done broadly and publicly, whereas here we are dealing with a theme which from what Mr. Osterberg has said, has never gained public acceptance and is not played except as the music, theme music for the television program.
And that may make this situation —
Mr. Eldridge: That is the only use we have. That’s why I said it is played every day.
The Court: That may make this sui generis. But as to Ray Ellis, he gets the royalties not based on the original work he did, but upon each playing. And it would seem to be incongruous that once the statute has slipped away as to him, you could be enjoined, you having waived the statute of limitations, can be liable for all, what in your instance are probably statutory damages, whereas Ellis goes on collecting royalties indefinitely. It just doesn’t seem like an equitable result.
Thank you very much, gentlemen.