420 F.Supp. 177 (S.D.N.Y. 1976), 71 Civ. 602, Bright Tunes Music Corp. v. Harrisongs Music, Ltd.

Docket Nº:71 Civ. 602.
Citation:420 F.Supp. 177
Party Name:BRIGHT TUNES MUSIC CORP., Plaintiff, v. HARRISONGS MUSIC, LTD., et al., Defendants.
Case Date:August 31, 1976
Court:United States District Courts, 2nd Circuit

Page 177

420 F.Supp. 177 (S.D.N.Y. 1976)

BRIGHT TUNES MUSIC CORP., Plaintiff,

v.

HARRISONGS MUSIC, LTD., et al., Defendants.

No. 71 Civ. 602.

United States District Court, D. New York

Aug. 31, 1976

As Amended Sept. 1, 1976.

Page 178

Pryor, Cashman & Sherman, by Gideon Cashman, James A. Janowitz, New York City, for plaintiff.

Hardee, Barovick, Konecky & Braun, by Joseph J. Santora, Robert B. McKay, Michael Perlstein, New York City, for defendants Harrisongs Music, Ltd., George Harrison, Apple Records, Inc. and Apple Records, Ltd.

Leibman & Schreier, by Leonard S. Leibman, New York City, for defendant Broadcast Music, Inc.

Netter, Dowd, Ness, Alfieri & Stern, by Edward Berman, New York City, for defendant Hansen Publications, Inc.

OPINION AND ORDER

OWEN, District Judge.

This is an action in which it is claimed that a successful song, My Sweet Lord, listing George Harrison as the composer, is plagiarized from an earlier successful song, He's So Fine, composed by Ronald Mack, recorded by a singing group called the "Chiffons," the copyright of which is owned by plaintiff, Bright Tunes Music Corp.

He's So Fine, recorded in 1962, is a catchy tune consisting essentially of four repetitions of a very short basic musical phrase, "sol-mi-re," (hereinafter motif A), 1 altered as necessary to fit the words, followed by four repetitions of another short basic musical phrase, "sol-la-do-la-do," (hereinafter motif B). 2 While neither motif is novel, the four repetitions of A, followed by four repetitions of B, is a highly unique pattern. 3 In addition, in the second use of the motif B series, there is a grace note inserted making the phrase go "sol-la-do-la-re-do." 4

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My Sweet Lord, recorded first in 1970, also uses the same motif A (modified to suit the words) four times, followed by motif B, repeated three times, not four. In place of He's So Fine's fourth repetition of motif B, My Sweet Lord has a transitional passage of musical attractiveness of the same approximate length, with the identical grace note in the identical second repetition. 5 The harmonies of both songs are identical. 6

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George Harrison, a former member of The Beatles, was aware of He's So Fine. In the United States, it was No. 1 on the billboard charts for five weeks; in England, Harrison's home country, it was No. 12 on the charts on June 1, 1963, a date upon which one of the Beatle songs was, in fact, in first position. For seven weeks in 1963, He's So Fine was one of the top hits in England.

According to Harrison, the circumstances of the composition of My Sweet Lord were as follows. Harrison and his group, which include an American black gospel singer named Billy Preston, 7 were in Copenhagen, Denmark, on a singing engagement. There was a press conference involving the group going on backstage. Harrison slipped away from the press conference and went to a room upstairs and began "vamping" some guitar chords, fitting on to the chords he was playing the words, "Hallelujah" and "Hare Krishna" in various ways. 8 During the course of this vamping, he was alternating between what musicians call a Minor II chord and a Major V chord.

At some point, germinating started and he went down to meet with others of the group, asking them to listen, which they did, and everyone began to join in, taking first "Hallelujah" and then "Hare Krishna" and putting them into four part harmony. Harrison obviously started using the "Hallelujah," etc., as repeated sounds, and from there developed the lyrics, to wit, "My Sweet Lord," "Dear, Dear Lord," etc. In any event, from this very free-flowing exchange of ideas, with Harrison playing his two chords and everybody singing "Hallelujah" and "Hare Krishna," there began to emerge the My Sweet Lord text idea, which Harrison sought to develop a little bit further during the following week as he was playing it on his guitar. Thus developed motif A and its words interspersed with "Hallelujah" and "Hare Krishna."

Approximately one week after the idea first began to germinate, the entire group flew back to London because they had earlier booked time to go to a recording studio with Billy Preston to make an album. In the studio, Preston was the principal musician. Harrison did not play in the session. He had given Preston his basic motif A with the idea that it be turned into a song, and was back and forth from the studio to the engineer's recording booth, supervising the recording "takes." Under circumstances that Harrison was utterly unable to recall, while everybody was working toward a finished song, in the recording studio, somehow or other the essential three notes of motif A reached polished form.

"Q. (By the Court): . . . you feel that those three notes . . . the motif A in the record, those three notes developed somewhere in that recording session?

"Mr. Harrison: I'd say those three there were finalized as beginning there."

"Q. (By the Court): Is it possible that Billy Preston hit on those (notes comprising motif A)?

"Mr. Harrison: Yes, but it's possible also that I hit on that, too, as far back as the dressing room, just scat singing."

Similarly, it appears that motif B emerged in some fashion at the recording session as did motif A. This is also true of the unique grace note in the second repetition of motif B.

"Q. (By the Court): All I am trying to get at, Mr. Harrison, is if you have a recollection when that (grace) note popped into existence as it

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ends up in the Billy Preston recording.

"Mr. Harrison: . . . (Billy Preston) might have put that there on every take, but it just might have been on one take, or he might have varied it on different takes at different places."

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