
    ARNSTEIN v. EDWARD B. MARKS MUSIC CORPORATION.
    No. 253.
    Circuit Court of Appeals, Second Circuit.
    Feb. 10, 1936.
    Krause, Ilirsch & Levin, of New York City (Sydney Krause and Sidney Gross, both of New York City, of counsel), for appellant.
    Gladstone, Richter, Cohen & Kirsh, of New York City (Theodore B. Richter, of New York City, of counsel), for appellee.
    Before L. HAND, SWAN, and CFIASE, Circuit Judges.
   L. HAND, Circuit Judge.

This is the usual bill in equity upon the infringement of a musical copyright; the plaintiff’s right is admitted and the sole issue is as to the infringement. The plaintiff’s case depends upon access and similarity; the defendant answers by showing that the common parts of the two pieces have occurred elsewhere and by the denials of the persons charged with the piracy. The issue being one of fact, the plaintiff starts with the finding against him of a trial judge, who saw all but one of the witnesses, and whose decision we should accept unless it is plainly wrong. Although we once held otherwise in Hein v. Harris (1910) 183 F. 107, independent reproduction of a copyrighted musical work is not infringement; nothing short of plagiarism will serve. Section 4952 of the Revised Statutes, it is true, gave to “the author of a work the sole liberty of printing, reprinting, publishing * * * and vending the same,” and the act of 1909 has not changed the law [section 1 (a), title 17, U.S.Code, 17 U.S.C.A. § 1 (a)], though it did somewhat enlarge the definition. Our reasoning in Hein v. Harris, supra, cannot therefore be confined to musical copyrights, for the same language covers all copyrighted productions; it can be defended only in case copyrights, like patents, are monopolies of the contents of the work, as well as of the right to manifold the work itself. That is contrary to the very foundation of copyright law, and was plainly an inadvertence which we now take this occasion to correct. Baker v. Selden, 101 U.S. 99, 25 L.Ed. 841. Verbally our error arose from not reading the words, “the same,” in Rev. St. § 4952, as referring back to the words, “the work.” The “sole liberty of printing, publishing and vending” the “work” means the liberty to make use of the corporeal object by means of which the author has expressed himself; it does not mean “the sole liberty” to create other “works,” even though they are identical. Were it not so the man who first made and copyrighted a photograph under section 5 (j) of title 17, U.S.Code, 17 U.S.C.A. § 5 (j), could prevent every one else from publishing photographs of the same object.

The plaintiff Arnstein’s story is that he originally composed a song called “The Russian Gypsy Valse,” which he took to one Gilbert, then in the defendant’s employ; that after he had played it, Gilbert suggested some changes, which he made, so producing a song, which before its copyright in May, 1931, he brought back to Gilbert and left with him. In September, having had no word about it, he went again to Gilbert, who returned the copy. Gilbert could remember no talk about the first song, but in substance he confirmed the testimony as to the copyrighted one. After the copyright Arnstein had thirty copies made, which he distributed to well-known performers, but the song never achieved any popularity by this or any other means. According to his first testimony, among those to whom he gave copies were Deutsch and Altman, song composers; later he retracted as to Altman, after having identified the wrong man in court, and Deutsch denied that he had ever received a copy. This is the only evidence of access.

The defendant proved the origin of the infringing song in the following way: Altman and Lawrence were very young men, who from time to time had composed the words and music of some popular songs without success; Lawrence was accustomed to write the words and to help fill in the harmony for Altman, Vlio composed the melodies. They testified that Altman composed the chorus of the infringing song early in 1931 to be used in a Russian play. Lawrence wrote some words for it, beginning, “What Can I Do?” which in fact do fit the notes. They produced a scrap of paper, Exhibit I, containing these words in pencil and another, Exhibit H-l, also in pencil, a copy of the bare melody of the chorus. On the other side of Exhibit I are the words of a song, “While Canoeing Along With You,” which Lawrence wrote, for which Altman composed the music, and which they together copyrighted on April 30, 1931. It is probable that the song, “What Can I Do?” was in fact written for the music of the chorus; at least it is not likely that it should have _ been written except for a popular love song, and therefore whatever dates the words probably also dates the music. But the fact goes a very short way to confirm Lawrence and Altman that the words of the two songs were written on opposite sides of the same sheet. Of documentary corrob-' oration there is therefore very little, though Altman’s wife confirmed their story in detail.

In the spring of 1932, their testimony proceeds, Altman and Lawrence came to Deutsch with a medley of their songs and he told them that they had nothing of value. They came again, this time bringing him the chorus of the infringing song with its present words. He looked at it and said that it was more like what he dealt in, i. e., gypsy songs, and that he thought it would make a hit. He gave them a notion of how the music should go, “inspired” them as they say, and they went away and composed the verse of the infringing soijg, which' they wrote on the back of Exhibit H-l. Deutsch bore out their story, but it must be confessed that his contribution remains very vague indeed, as well as any reason for the use of his name as a joint composer. The most probable explanation is that Altman and Lawrence thought that to join him would help launch the piece with the public, to whom he was better known than they. Although we should have to hold all four of these witnesses deliberate perjurers, willing to forge documents to back up their testimony, that is sometimes the only possible conclusion when the piracy is^ close enough. Before considering the likenesses between the two pieces with this in mind, we wish, however, to advert to another consideration which seems to us extremely persuasive. As we have said, Arnstein at the beginning of his testimony tried to fasten possession of a copy of his song upon Altman, and retracted later. Altman might of course have got hold of one of the supposed thirty copies from some one else, but there has been no suggestion of this, and it is not very likely, since the song fell flat. Besides, the plaintiff’s theory, as we understand it, is that Altman got access to the song from Deutsch, whose disclaimer that he ever received a copy we are to reject; or, if not, we are to suppose that Deutsch saw Gilbert’s copy. On either supposition, we should have to find that Deutsch, seeing possibilities in the song and being willing to pirate it, took it to Lawrence and Altman either to do the whole job, or to tinker over a sketch which he (Deutsch) had already prepared; only so can we suppose that Deutsch would have allowed Altman’s name to appear as joint composer. Almost anything is possible; so is such a theory, but it is very unlikely. Altman was an entirely unknown person, a one-finger composer who had no reputation; the most he could do was to contribute the simple themes which by this hypothesis Deutsch intended to lift from the copyrighted song; that is to say, his only part could be just what Deutsch did not need, the melody. Lawrence could apparently write the kind of treacle which passes in a popular love song, but such mawkish verses are reeled off by hundreds of poetasters all over the country. Deutsch needed no help from either of these men, certainly not from Altman, even supposing that he saw opportunities for successful piracy in the copyrighted song. Really the only tenable theory for the plaintiff is therefore that Altman himself pirated the song and brought it to Deutsch, and that theory depends upon the wholly unproven assumption that Altman got a copy of the song from some undisclosed third person.

On the weight of the testimony the case is therefore very heavily with the defendant. The plaintiff recognizes this handicap, and attempts to meet it by the similarity of the two songs, about the only recourse indeed usuauy open to a copyright owner. The first phrase of the infringing chorus consists of the same four notes as the first phrase of the copyrighted song; that particular sequence can be found in several earlier musical pieces and its spontaneous reproduction should be no cause for suspicion. The second phrase of the chorus has no resemblance whatever to the next phrase of the song, but if one takes some notes of the treble in the accompaniment, moves them to the melody, raises them an octave, and cuts short the resulting melodic phrase, an identity can be made to appear. When the two songs are played the phrases show no resemblance, at least to the untrained ear. To a mind already set to find piracy, this of course seems proof strong as Holy Writ, hut it is really of no significance. A plagiarist might of course work in that way, seizing a sequence from the middle of a phrase in an accompaniment as a happy theme; but Altman was scarcely the man for that; his gifts were very limited, and to attribute to him the ingenuity and penetration so to truncate and modify, and thus really to create a melody out of other elements, is harder than to suppose that the extremely simple theme should have occurred to him out of his own mind. Trae, it is the themes which catch the popular fancy, but their invention is not where musical genius lies, as is apparent in the work of all the great masters. Success in such music as this is by no means a test of rarity or merit; it is a commonplace that the most experienced are usually unable to tell in advance what will hit the public fancy and what will not. Were it otherwise much waste could be avoided. These songs were both written in the key of B-flat; the seven notes available do not admit of so many agreeable permutations that we need be amazed at the re-appearance of old themes, even though the identity extend through a sequence of twelve notes. The rest of the chorus follows a very simple and well-known pattern, and is derived for the most part from the two phrases we have just discussed, which account for the first four measures. The first sixteen measures, all substantially alike, are followed by eight measures, concededly original, and the chorus concludes with a repetition of the first eight. The verse follows the chorus closely enough not to require any separate discussion; indeed, there are larger differences than between the song and the chorus. Given the spontaneous appearance of the original two phrases of the chorus, such likenesses as there are in the remainder are not surprising.

Decree affirmed, without allowance of an attorney’s fee in this court.  