Arnstein v. Edward B. Marks Music Corporation

Decision Date10 February 1936
Docket NumberNo. 253.,253.
PartiesARNSTEIN v. EDWARD B. MARKS MUSIC CORPORATION.
CourtU.S. Court of Appeals — Second Circuit

Krause, Hirsch & 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 CHASE, 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, who 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-1, 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...

To continue reading

Request your trial
34 cases
  • Arnstein v. Porter
    • United States
    • U.S. Court of Appeals — Second Circuit
    • February 11, 1946
    ...there was no resemblance to the ear of the lay listener and/or (2) the plaintiff's contribution was too banal. Arnstein v. Edward B. Marks Music Corp., 2 Cir., 82 F. 2d 275; Darrell v. Joe Morris Music Co., Inc., 2 Cir., 113 F.2d 80; Arnstein v. Broadcast Music, Inc., 2 Cir., 137 F.2d 410, ......
  • Remick Music Corp. v. Interstate Hotel Co. of Nebraska
    • United States
    • U.S. District Court — District of Nebraska
    • December 9, 1944
    ...Inc., D.C.Cal., 43 F. Supp. 199; Arnstein v. Twentieth Century Fox Film Corporation, D.C.N.Y., 52 F. Supp. 114; Arnstein v. Edward B. Marks Music Corporation, 2 Cir., 82 F.2d 275; Arnstein v. Broadcast Music, Inc., 2 Cir., 137 F.2d 410; Darrell v. Joe Morris Music Co., 2 Cir., 113 F.2d 80. ......
  • Williams v. Gaye
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • March 21, 2018
    ...compositions, especially in popular music." Gaste v. Kaiserman , 863 F.2d 1061, 1068 (2d Cir. 1988) (citing Arn stein v. Edward B. Marks Music Corp. , 82 F.2d 275, 277 (2d Cir. 1936) ). Substantial similarity "must extend beyond themes that could have been derived from a common source or th......
  • Williams v. Gaye
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • March 21, 2018
    ...compositions, especially in popular music." Gaste v. Kaiserman , 863 F.2d 1061, 1068 (2d Cir. 1988) (citing Arnstein v. Edward B. Marks Music Corp. , 82 F.2d 275, 277 (2d Cir. 1936) ). Substantial similarity "must extend beyond themes that could have been derived from a common source or the......
  • Request a trial to view additional results
2 books & journal articles
  • A Field Guide to Intellectual Property
    • United States
    • Colorado Bar Association Colorado Lawyer No. 9-1, January 1980
    • Invalid date
    ...F.2d 565, 151 U.S.P.Q. 666 (CA 2 1966). 142. § 201(d); § 106. 143. § 107; supra, note 137. 144. Arnstein v. Edward B. Marks Music Corp., 82 F.2d 275, 28 U.S.P.Q. 426 (2d Cir. 1936). 145. Musto v. Meyer, 434 F. Supp. 32, 196 U.S.P.Q. 820 (S.D.N.Y. 1977). 146. Couleur International, Ltd. v. O......
  • Intellectual Property Law
    • United States
    • Colorado Bar Association Colorado Lawyer No. 52-7, September 2023
    • Invalid date
    ...113 F.2d 80 (2d Cir. 1940) ("Recurrence is not therefore an inevitable badge of plagiarism."); Arnstein v. Edward B. Marks Music Corp., 82 F.2d 275 (2d Cir. 1936). [64] Skidmore, 952 F.3d at 1064 (citing Rentmeester v. Nike, Inc., 883 F.3d 1111, 1116-17 (9th Cir. 2018)). See also Autoskill,......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT