Arnstein v. Broadcast Music, 247.
| Decision Date | 28 July 1943 |
| Docket Number | No. 247.,247. |
| Citation | 137 F.2d 410 |
| Parties | ARNSTEIN v. BROADCAST MUSIC, Inc., et al. |
| Court | U.S. Court of Appeals — Second Circuit |
Before AUGUSTUS N. HAND, CHASE and CLARK, Circuit Judges.
Ira B. Arnstein, plaintiff-appellant in person.
Goldmark, Colin & Kaye, of New York City (Robert J. Burton, of New York City, of counsel), for Broadcast Music Inc., defendant-appellee.
Julian T. Abeles, of New York City, for vouchee, Edward B. Marks Music Corporation.
The plaintiff sues for infringement of nine copyrighted songs alleged to have been composed by the plaintiff and infringed by the defendants. The complaint was dismissed as to the three songs embraced in the Fifth, Seventh and Eighth causes of action on the ground that the plaintiff failed to prove that they were copyrighted and as to the song "The White Cliffs of Dover," embraced in the Ninth cause of action, because the plaintiff had failed to prove that it was ever published, broadcast, recorded or publicized by the defendants. The plaintiff has abandoned his appeal from the disposition of these four claims. (See p. 2 of his brief.) This leaves only the First, Second, Third, Fourth and Sixth causes of action to be dealt with.
First Cause of Action.
The song in this cause of action was copyrighted in February, 1937, under the name of "Sadness Overwhelms My Soul." It is claimed to have been infringed by the copyrighted song "I Hear a Rhapsody," belonging to Broadcast Music Inc. (hereinafter called B. M. I.). The District Court found that one Fragos composed the accused song in 1935 and 1936 with the assistance of the defendant Baker, that Fragos and Baker had never seen "Sadness Overwhelms My Soul," or heard it played, prior to composing "I Hear A Rhapsody," and that there was no proof of access on the part of B. M. I., or the composers before the plaintiff submitted his composition to B. M. I. for examination on August 21 or 22, 1940. There is also a finding that the melodies of the two songs when played are not similar to the layman's ear and that they are substantially dissimilar in musical notation, accent and rhythm. Even the plaintiff's expert is found to have admitted "that if the two songs were played, they would not sound alike, nor if compared measure by measure; that only by dissecting them could you get similarity."
While the appellant in his brief gives a different version of the composition "I Hear A Rhapsody" from the one in the findings of the District Court, these findings negative his cause of action. Moreover, he did not include in his record on appeal the testimony of the witnesses and has presented nothing to us which disturbs the disposition of the District Court. "We must therefore take the facts to be as the trial court has found them." Pratt v. Stout, 8 Cir., 85 F.2d 172, 176; Fletcher v. Laws, 62 App.D.C. 40, 64 F.2d 163, 165.
Second Cause of Action.
According to the findings the plaintiff copyrighted the song in the second cause of action on September 12, 1929, which is now known as "My Gypsy Love." He never had it recorded on phonograph records or published, but submitted it to E. B. Marks Music Corporation in February or March, 1931. The accused composition "Yours" was found to have been composed in 1921 by Gonzalo Roig, a resident of Cuba, and copyrighted in Cuba where a witness heard it played in 1926. On March 24, 1931, the E. B. Marks Music Corporation contracted with Roig for the publication of "Yours" in the United States and it was copyrighted here on November 30, 1931. It was found by the District Court, and is indeed obvious, that there was no access of the composer of "Yours" to the music of "My Gypsy Love." It was also found that the compositions are not similar to the layman's ear and that they are dissimilar in musical notation, accent and rhythm. As in case of the First count there is no testimony in the record to contradict the findings which, accordingly, are binding on us.
Third Cause of Action.
Plaintiff's song "V'Shomru," a Hebrew prayer copyrighted in 1922, is claimed to have been infringed by defendant's song "Perfidia." "Perfidia" was found to have been composed by Albert Dominguez, a Mexican composer, who had been living in that country since 1932. The District Court found that "Perfidia" was copyrighted in the United States in 1939, that the plaintiff submitted "V'Shomru" to B. M. I. on August 21 or 22, 1940, and that the two compositions are substantially dissimilar in musical notation, accent and rhythm. It also found that plaintiff's expert said that they did not sound alike but...
To continue reading
Request your trial
-
Arnstein v. Porter
...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, affirming, D.C., 46 F.Supp. 2. In Wilkie v. Santly Bros., 2 Cir., 91 F.2d 978, affirming, D.C., 13 F.Supp. 136, after a ......
-
Remick Music Corp. v. Interstate Hotel Co. of Nebraska
...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. There is not present in this instance such measure of identity,......
-
Bradbury v. Columbia Broadcasting System
...in a substantial sense there can be no finding of infringement. Marks v. Leo Feist, Inc., 2 Cir., 290 F. 959." Arnstein v. Broadcast Music, Inc., 2 Cir., 1943, 137 F.2d 410, 412. And see, Universal Pictures Co., Inc., v. Harold Lloyd Corp., 9 Cir., 1947, 162 F.2d 354, And our own Court of A......
-
Gordon v. Weir, 8176.
...ownership of the patented domain, copyright law gives the copyright owner no right other than to prevent copying. Arnstein v. Broadcast Music, Inc., 2 Cir., 137 F.2d 410. 5. Upon the death of his father, Edwin I. Gordon, plaintiff acquired all the right, title and interest in and to Copyrig......