Boosey v. Empire Music Co., Inc.
| Decision Date | 11 February 1915 |
| Citation | 224 F. 646 |
| Parties | BOOSEY et al. v. EMPIRE MUSIC CO., Inc. |
| Court | U.S. District Court — Southern District of New York |
Max D Josephson, of New York City, for plaintiffs.
Nathan Burkan, of New York City, for defendant.
Plaintiffs claim that a musical composition entitled 'I Hear You Calling Me' is infringed by defendant, which is selling another musical composition, entitled 'Tennessee, I I Hear You Calling Me. ' I think the plaintiffs, for the purposes of this motion, have met the objections raised by defendant as to the necessary showing of jurisdictional facts. The question, therefore, is whether, on the merits, a preliminary injunction should issue because of the alleged infringement.
The composition which plaintiffs own is of a dignified character has been sung by a distinguished singer, and has as its basic theme a living person standing on the grave of his dead loved one and hearing her voice. The composition owned by defendant is in syncopated time (familiarly known as ragtime), has been sung by a master of that art, and expresses the desire of a negro to go back to his old home in Tennessee. The two compositions are considerably different, both in theme and execution, except as to this phrase, 'I hear you calling me,' and, as to that, there is a marked similarity.
The words 'I hear you calling me,' and the music accompanying those words, are practically identical in both compositions, and the real controversy in the case is whether the use of this similar phraseology and the similar bars of music is sufficient to warrant the charge of piracy and infringement of copyright. I have had some one, indifferent to the controversy, play both songs for me, and the sentiment of one song is about the same as the other. Sitting for the moment as the uninformed and technically untutored public the main thing that impressed me was the plaintive 'I hear you calling me' in both songs. I (the public) really was not much concerned as to the details of the solemn song said to have been sung by John McCormack, or the details of the syncopated interpretation of Al. Jolson. The 'I hear you calling me' has the kind of sentiment in both cases that causes the audiences to listen, applaud, and buy copies in the corridor on the way out of the theater.
However these cases must be viewed and dealt with from a practical standpoint. Songs of this character usually have a temporary vogue, and,...
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