MCA, Inc. v. Wilson

Citation425 F. Supp. 443
Decision Date21 October 1976
Docket NumberNo. 74 Civ. 3034.,74 Civ. 3034.
PartiesMCA, INC. d/b/a MCA Music, a division thereof, Plaintiff, v. Earl WILSON, Jr., et al., Defendants.
CourtU.S. District Court — Southern District of New York

COPYRIGHT MATERIAL OMITTED

Abeles, Clark & Osterberg, New York City, for plaintiff; Robert C. Osterberg, John S. Clark, Raymond Brody, of counsel.

Zissu, Stein, Couture & Mosher, New York City, for defendants; James W. Mosher, New York City, of counsel.

OPINION

IRVING BEN COOPER, District Judge.

Plaintiff MCA, Inc. brings this action under the Federal Copyright Laws, Title 17 U.S.C., for copyright infringement and wrongful appropriation of its copyrighted song, "Boogie Woogie Bugle Boy" (hereinafter "Bugle Boy") by the unauthorized copying of the song by defendants who made it a part of the musical piece entitled "The Cunnilingus Champion of Co. C" (hereinafter "Champion"). Champion is one of several songs performed in defendants' play, "Let My People Come—A Sexual Musical" (hereinafter MUSICAL), which closed at The Village Gate earlier this year. Jurisdiction is predicated upon Title 28, U.S.C. § 1338(a) and (b).

We presided over this non-jury trial May 25-27, 1976. Upon agreement of the parties, Pre-trial order (PTO) p. 23 the principal issue to be tried to the court was defendants' liability to plaintiff for copyright infringement.1 For the reasons stated below, we find all defendants liable to plaintiff for the infringement of plaintiff's statutory copyrights in its song, Bugle Boy; also that plaintiff has not sustained its common law copyright claim.

I

Plaintiff MCA is a music publisher and the proprietor of the statutory copyrights in the song Bugle Boy, written by Don Raye and Hughie Prince. PTO 3Jr. (Wilson) is a composer, lyricist, n-a-13, 3-a-1 Defendant Earl Wilson, Jr. (Wilson) is a composer, lyricist, night club and television singer; he is the co-author of Champion. PTO 3-a-3 Defendant Phil Oesterman (Oesterman) is a producer-director of MUSICAL. PTO 3-a-4 Defendant Billy Cunningham (Cunningham) is the musical arranger of Champion and the musical arranger, conductor and piano player for stage presentations of MUSICAL. PTO 3-a-5 Defendant Gnostic Music Co., formerly named and sued herein as LMPC Music Co., is a partnership of defendants Wilson and Oesterman controlling the rights and copyrights in the musical works used in MUSICAL, including Champion. PTO 3-a-6 Defendant Libra Company, (Libra) is a limited partnership engaged in the production of MUSICAL, the defendant Oesterman being its sole general partner. PTO 3-a-7 Defendant LMPC Recording Co., Inc. (LMPC) is a New York corporation originally sued herein under its trade name Libra Records. LMPC produced, and is engaged in the exploitation of, a cast album recording of MUSICAL which mechanically reproduces a rendition of Champion; defendants Wilson and Oesterman are the principals controlling the corporation. PTO 3-a-8 Defendant Art D'Lugoff (D'Lugoff) is the chief operating officer and a co-owner of Village Rathskeller, Inc., a corporation which owns Village Gate, a New York cabaret, where MUSICAL was performed pursuant to a written license agreement. PTO 3-a-9

II

This litigation concerns two songs: "Boogie Woogie Bugle Boy" and "The Cunnilingus Champion of Co. C." We are called upon to determine whether the latter is so similar to the former as to infringe on plaintiff's copyright of Bugle Boy. At the outset, we examine both "objects" of this case.

Bugle Boy was written sometime prior to December 4, 1940 by Don Raye and Hughie Prince. The song first appeared in printed copies on February 18, 1941 PTO 3-a-10 with the statutory copyrights in the published and unpublished musical work duly obtained and renewed by plaintiff's predecessors in interest, Leeds Music Corp., a music publisher. PTO 3-a-11

In 1968, the original term of the copyright expired and Don Raye and Michael Prince, son of co-writer Hughie Prince, secured the exclusive rights and privileges in the copyright, duly renewing same. PTO 3-a-11 Three years later, Don Raye and Michael Prince duly assigned to plaintiff MCA all of their rights, title and interest in the copyrighted song. PTO 3-a-11

It is uncontradicted that Bugle Boy achieved substantial commercial success in the 1940's as a result of a rendition by the Andrews Sisters. The song was recorded for use in the manufacture and sale of phonograph records and in "Buck Privates," an Abbott and Costello motion picture. PTO 3-a-14 This movie has been shown on television late night, early morning and weekend since its initial release in the 1940's. PTO 3-a-172

In 1973, the early commercial success of Bugle Boy was revived with an up-dated rendition of the song by Miss Bette Midler, a popular music entertainer. Her version of Bugle Boy, substantially similar to the original but done in the singer's own characteristic style, achieved widespread commercial success. PTO 3-a-18, 18a Throughout 1973, the Bette Midler long-playing recording entitled "The Divine Miss M" Pltf. Exh. 18 which includes Bugle Boy among its songs, was listed among the top 200 best-selling, long-playing recordings in the United States; by November 1973, "The Divine Miss M" album was listed among the top 75 albums in the country. PTO 3-a-19 Contributing to the commercial success in 1973 of Bugle Boy was its extensive inclusion on radio stations offering current popular music. Miss Midler, reputedly a dynamic performer, included Bugle Boy as part of her nation-wide personal appearance concerts. PTO 3-a-203

Due in large part no doubt to Miss Midler's successful revival of interest in Bugle Boy, two Andrews Sisters long-playing recordings, each reproducing their rendition of Bugle Boy, appeared in November 1973; both were listed among the top 200 list referred to above. PTO 3-a-21; the albums are Pltf. Exhs. 20, 21

"Cunnilingus Champion of Co. C" was created as part of a play entitled "Let My People Come—A Sexual Musical." MUSICAL was initially conceived in August 1973 by defendants Wilson and Oesterman; it made its public debut on January 8, 1974. PTO 3-a-22 Champion was first written by defendant Wilson in November 1973 PTO 3-a-23 After various changes in the song, Champion became part of the music performed in MUSICAL. In addition to its rendition in the public performances of MUSICAL, Champion appears in the cast album. Pltf. Exh. 13 Excerpts of the song are printed in MUSICAL'S program. Pltf. Exh. 25

III

Nine issues were tried to the Court: 1) Whether Bugle Boy was copied in whole or in part by the writers of Champion; 2) Whether Champion is substantially similar to Bugle Boy; 3) Whether any of the similarities between Champion and Bugle Boy are attributable to the use of common musical forms and elements in the writing of Champion and are, therefore, non-infringing similarities; 4) Whether Champion is a parody or burlesque of Bugle Boy; 5) Whether any of the similarities between Champion and Bugle Boy result from a copying permissible pursuant to principles of fair use applicable to parody and burlesque; 6) Whether Champion infringes the statutory copyrights in Bugle Boy; 7) Whether plaintiff has any common law copyright interest in the material used in the recordings of Bugle Boy, but not made the subject of copyright protection; 8) Whether the acts of defendants Cunningham and D'Lugoff are sufficient to render them individually liable for copyright infringements; 9) Whether each of defendants is liable for copyright infringement. PTO, ¶ 9, 1-9 We now undertake a discussion of these issues.

IV

We hold that the evidence clearly and unmistakably establishes that Champion was copied, in substantial part, from Bugle Boy.

Defendants Wilson and Oesterman, authors of Champion, readily admit that they "were acquainted with Bugle Boy," having heard Miss Midler's version of the song. PTO 3-a-24)4 Further, both men were familiar with the Andrews Sisters recording, from the long-playing album or during the viewing of "Buck Privates." These facts standing alone are not surprising since, as we indicated earlier, Bugle Boy enjoyed widespread commercial success, first in the 1940's and more recently in 1973. In fact, Miss Midler's rendition of Bugle Boy was played so frequently in 1973 on popular radio shows that it would have been difficult for one living in this media-dominated city (especially people like Wilson and Oesterman whose profession is music) to avoid hearing "Boogie Woogie Bugle Boy." This fact of familiarity, coupled with other persuasive evidence, amply supports the inference that Wilson and Oesterman copied Bugle Boy in writing Champion.

First, Wilson admits that he, along with the cast members of MUSICAL, played Bugle Boy several times at a rehearsal in early November 1973. At that point in time, Wilson had the first version of the lyrics of Champion but its music was not set or finalized. PTO 3-a-26 Oesterman had also heard Bugle Boy shortly before he commenced the writing of a musical arrangement for Champion. PTO 3-a-24

Testimony at trial provided further insight into the creation of Champion. Wilson admitted, on cross-examination, that he copied the "eight to the bar rhythm" from Bugle Boy for Champion; that the alliteration of both titles suggests similarity. Tr. 256, 1. 18-215 Further, Wilson testified that "the first part of the chord progression which I changed was the same jazz chord progression used in both numbers." Tr. 256, 1. 23-25

There is further evidence of copying in the "similarity in the movement of the musical line . . . ." Tr. 258, 1. 8-9 The line in question appears on the second page of Wilson's lead sheet (marked Deposition Exhibit 1 for Identification). Quite persuasive evidence of copying is the similarity in the title of both songs. see Tr. 246, 1.18-20

Other impressive evidence on the issue of copying comes from the trial testimony of two of the original cast members of MUSICAL. Tobie Columbus testified...

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