​Complaining Work

​Defending Work

 Ira Arnstein

"Light My Life With Love"

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Nathaniel Shilkret

"Lady Divine"

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Arnstein brought this claim against Nathaniel Shilkret after unsuccessfully suing Irving Berlin several years earlier.  Shilkret was the sort of musician Ira Arnstein wished he were: talented, versatile, prolific, and financially and artistically successful. 
This dispute was brought to our attention by Gary Rosen, an intellectual property lawyer in Philadelphia who has written an excellent monograph on Ira Arnstein that will be published by Oxford in 2012.  The court did not publish its opinion in this case, but Rosen notes that defense lawyers in later disputes instigated by this touched and tenacious plaintiff would proffer the transcript of this disparaging opinion in order to alert judges to the “live one” they were dealing with. 
Shilkret once worked as a rehearsal pianist for Walter Damrosch, the prominent orchestra and opera conductor in New York at the turn of the 20th Century (the area immediately south of the Metropolitan Opera in Lincoln Center – where the Big Apple Circus pitches its tent each winter – is named in his honor).  No doubt this early association led to Damrosch’s testifying on Shilkret’s behalf at the trial for this case.
Judge Coleman quibbles with Damrosch's testimony that brief musical introductions in songs like those in question here contain the most memorable musical material.  The introduction to Shilkret's song comprises the final measures of the song's chorus -- the effect is like that of a church organist playing the final line of a hymn in order to plant the hymn's key in the ears of a drowsy congregation.  Judge Coleman is correct: while these measures may evoke the ensuing tune, they typically contain some of the most formulaic musical material in a piece in order to accommodate the harmonic demands of cadencing firmly in the home key.                 


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Opinion by District Judge Frank J. Coleman

Memorandum Opinion

THE COURT: (Orally)  I make these finding of fact and conclusions of law:

The plaintiff in 1915 composed a piece entitled, “Light My Life with Love” and had it copyright at that time.  It was presented on numerous occasions in New York City in Lorber’s Restaurant and other similar restaurants within a period from 1915 to 1922. 

In 1928, the defendant composed the piece “Lady Divine,” as the theme song of the moving picture, “Divine Lady,” and it was presented in New York City, Southern District of New York, in 1929.

The ultimate question presented is whether the defendant appropriated any part of the plaintiff’s composition in the writing of “Lady Divine”.  That divides itself into two parts, first, as to the internal evidence of similarity, that is the similarities of the two pieces, and second, as to the opportunities which the defendant may have had of knowing of the plaintiff’s composition. 

Upon the first question I find that both pieces are of a low order of originality and imagination, not only from the point of view of a critic of classical music, but also from the point of view of a critic of popular songs.  There is very little that strikes the mind in either song, and it is not surprising to me that neither one of them was a success commercially.  In fact, it would be a matter of great surprise to me if there was a popular vogue for either song, because there is nothing in either one of them which strikes the mind as particularly pleasant or worthwhile. 

The only parts of the two compositions which are alleged to be similar are portions of the music of the chorus.  There was some mention at the trial of a similarity at one point in the music of the two verses, but I was unable to see any similarity, and my understanding is that the plaintiff does not urge that there was any in the verses.  As to the choruses, the parts alleged to be similar are the least important parts of the chorus; these two songs follow the usual form of popular songs in that the first eight measures in the chorus of each contains the tune or jingle or principal theme, which is the most important part of the musical composition.  These tunes in the two pieces are very dissimilar and the plaintiff makes no contention that there is any similarity between them.  In the ordinary popular chorus, the jungle is repeated at some other place in the chorus and at some place there is a part of about eight measures, which forms a contrast to the jingle, and finally in the ordinary form, there is an ending of eight measures, which has no particular importance except to carry out the cadence to the end of the piece.  In the last eight measures ordinarily the melody is completely subordinated to the melody in the rest of the chorus and the harmony and rhythm are the more important factors.  I find that is true in each of these two songs and that the ending of eight measures, the “going home” as Dr. Damrosch called them, are of a very ordinary conventional form.  It is only in these endings that there is any similarity that I can see.  The plaintiff alleges that there is a similarity in the parts which form a contrast to the jingle or tune.  I have been unable to note any similarity there.  As to the ending, there is a similarity, but it is such similarity as I think is inevitable in the following of the conventional form of ending.  The parts are not identical, which circumstance, of course, is not important, but it is my belief that any song-writer and even any person without a musical education who was seeking to end the chorus, would have supplied some such measures as were supplied by both the plaintiff and defendant here.  It is my belief that if in humming or whistling a chorus I had remembered the first twenty-four measures and did not remember the last eight, that even I would approximate what both these men did in their last eight measures, and I believe that it would be the normal thing for anyone to supply.  I can see no originality or importance to those measures except as a means of supplying cadences to bring the song “home”. 

The defendant uses those eight measures of his song as an introduction.  Dr. Damrosch testified that that introduction was the principal theme which the composition was intended to leave in the minds of the hearers.  With the greatest deference, I reject that conclusion and find that while in some cases such introduction is used to accomplish that purpose, it is not uncommon to supply the sort of introduction that was supplied here, by using the last eight measures of the chorus which are entirely colorless and without any striking effect upon the minds of the hearers.  The hearers would never remember the melody of these eight measures, and the use of them as an introduction was in this case, not for the purpose of having them remembered, nor do they perform any such function. 

The plaintiff stresses two rather minute similarities in the use of the breathing sign and the double note in these eight measures.  I find that both these notations are in common use, and that the coincidence of their use in these two pieces is not of sufficient evidentiary value to overcome my strong conviction that there was not sufficient originality in the plaintiff’s eight measures to make it worthwhile for anyone to steal them. 

On the second aspect of the question, namely, the defendant’s opportunity to appropriate the plaintiff’s composition, I make the general finding that the plaintiff’s credibility as a witness is of a low order, that is, without too much reflection upon his moral nature, but he is the type of mind that would never prompt me to place reliance upon his statements of fact.  His statements of conversations and contacts I find entirely unreliable, more specifically I find his testimony that the defendant offered to buy those eight bars, to be false.  The thing is so improbable as to be fantastic.  Had it been the first eight bars of the chorus, the improbability would not have been so great, but it just cannot be the fact that anyone would offer to buy the last eight bars which constituted so colorless and formal and conventional a series of cadences. 

Due to the lack of faith in the plaintiff’s statement of facts, I find that the defendant never did see the plaintiff’s composition prior to the publication of the defendant’s work, and that the defendant never used plaintiff’s composition as a source from which he derived his own. 

I therefore direct judgment for the defendant with costs.  As to awarding counsel fees, I am disinclined to do it in this case, because while I have the strongest feeling that the plaintiff ought not to continue to make a nuisance of himself, I do believe that he is convinced of the merit of his own contention.  It is probably an academic question as to whether counsel fees ought to be awarded or not, because I doubt if it can be collected.  I therefore do not award it because of the defendant’s superior financial condition.  I would warn the plaintiff, however, who seems rather prone to instigate these controversies, that it will be a matter for the Court to consider in the future whether he can be allowed to do so upon the mere payment of costs.  

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