O'BRIEN v. Thall
| Decision Date | 01 November 1960 |
| Docket Number | No. 45,Docket 26184.,45 |
| Citation | 283 F.2d 741 |
| Parties | Edward Dunbar O'BRIEN, Plaintiff-Appellant, v. Peter THALL and Morris Thall, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Second Circuit |
Edward Dunbar O'Brien, Chicago, Ill., appellant, pro se.
Seymour L. Hendel, New London, Conn., for defendants-appellees.
Before HINCKS, WATERMAN and MOORE, Circuit Judges.
Plaintiff brought this action for copyright infringement and unfair competition, claiming that defendants had copied a musical composition, created and copyrighted by plaintiff, which set to music the Gettysburg address of President Abraham Lincoln. Such a musical conception was not original and several versions had been written prior to plaintiff's alleged copyright obtained in 1944. The questions for the court and the jury were whether another version created thereafter by defendant, Peter Thall, had been copied from the plaintiff's composition and if so amounted to an unlawful appropriation.
The issues were tried to court and jury for six court days. After plaintiff had rested, and again at the close of all the evidence, defendants moved for a directed verdict. The court reserved decision on both motions. The jury was unable to reach a verdict and the court granted defendants' motion for a verdict in their favor. From the judgment dismissing the action, plaintiff appeals.
The trial court had the privilege under the powers conferred by Rule 50(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A. to entertain the motions and to reserve decision thereon. After judgment and within the time permitted by Rule 50, plaintiff moved to set aside the judgment and for a new trial. In its opinion denying the motions, the trial court clearly shows that it was mindful of the determinative issues of law and of fact in stating, "The issue of copying may be shown by proof of access and a showing that on an analysis and dissection of the defendant's composition sufficient similarity in the use of chords, chord progression, devices used for tone color, key changes, rhythm, melody, etc., to those used in the plaintiff's composition in a phrase by phrase comparison as reasonably to support the inference that the defendant must have copied from the plaintiff." The court then concluded, "There is no evidence that the defendant's composition as written has, on dissection and analysis, any similarities whatever with the plaintiff's composition." The court was not unaware that motions for a verdict direction should not be lightly granted but it was "only where it is abundantly clear that there is a complete dissimilarity in the melody and accompaniment of the two pieces that a directed verdict on this issue would be warranted." Nevertheless, having had the benefit of all the evidence, he held, "As there was no competent evidence to support the plaintiff's claims, either on the issue of copying or unlawful appropriation, a directed verdict for the defendant sic was called for" and that "no other conclusion can be reached in the present case."
On appeal we had the benefit of hearing in open...
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