Carew v. RKO Radio Pictures, Inc., 824-Y-Civ.

• Decision Date: 06 January 1942
• Docket Number: No. 824-Y-Civ.,824-Y-Civ.
• Citation: 43 F. Supp. 199
• Court: U.S. District Court — Southern District of California
• Parties: CAREW v. R. K. O. RADIO PICTURES, Inc., et al.

43 F. Supp. 199

CAREW v. R. K. O. RADIO PICTURES, Inc., et al.

No. 824-Y-Civ.

District Court, S. D. California, Central Division.

January 6, 1942.

Charles B. Taylor, of Los Angeles, Cal., for plaintiff.

Mitchell, Silberberg, Roth & Knupp and Ross R. Hastings, all of Los Angeles, Cal., for defendant R. K. O. Radio Pictures.

Freston & Files, of Los Angeles, Cal., for defendants Decca Distributing Corporation & Columbia Recording Corporation of California.

Samuel M. Roeder, of San Francisco, Cal., and Schwartz & Frohlich and L. D. Frohlich, all of New York City, for defendants Columbia Broadcasting System, Inc., and National Broadcasting Co., Inc., and Gene Buck, as President of American Soc. of Composers, Authors and Publishers.

Samuel M. Roeder, of San Francisco, Cal., for defendant American Society of Composers, Authors and Publishers.

YANKWICH, District Judge.

On the basis of accepted principles, the plaintiff has failed to show a prima facie case. We have never, in the federal courts, adhered to the doctrine of the State courts which is carried to the extreme in California, that a scintilla of evidence is sufficient against a motion to dismiss (or a motion for a nonsuit). Courts of California have gone to the romantic length of saying that even if the testimony is such that the court would disbelieve it if it were passing upon the case on the merits, nevertheless, it must believe it and give it full credence on a motion for a nonsuit. With the result that if a judge believes that the sole witness for the plaintiff, because of his contradictory testimony, is not entitled to credence, he cannot grant a nonsuit at the conclusion of his testimony; but if the defendant rests without any evidence, the court can give judgment for him. See Estate of Ivey, 1928, 94 Cal. App. 576, 271 P. 559; Estate of Finkler, 1935, 3 Cal.2d 584, 46 P.2d 149. With us the rule is that there must be substantial evidence before the defendant is required to undertake the defense.

Cases involving musical compositions are not many, but the principles are very well established in the few decisions published. The plaintiff must prove access and identity. If there is no identity, access is, in itself, of no importance whatsoever. If there is identity, then access becomes an important matter, which may determine the claim. In determining access, one element is helpful, the element of time.

Ordinarily a composer, or a writer, for that matter, who has presented his composition, or who has played it or made it possible for someone else to hear it played, finds that, a short time after such occurrence, the song or the writing is being claimed by another.

Here the testimony is of a different character. We find a composer who copyrighted a song in 1926, and, thereafter, tried to dispose of it, peddle it, as it were, to various persons without any success whatsoever. The song was never published. And eleven years after, over the air, she hears a song, the words and ideas of which are totally dissimilar, but which carries the title she had given to her composition eleven years before.

There is no claim that she is entitled to the use of the word "Chatterbox" exclusively, because we have evidence in the record that a song with the same name was copyrighted at least sixteen years before. And courts are very reluctant to give to anyone a monopoly on ordinary words of the English language. Often that is a source of litigation.

I remember trying in the Superior Court, a plagiarism case involving the last silent picture in which Jean Hersholt appeared. It arose under the common law of piracy. The play was called "The Symphony". They used the Hollywood Bowl as the locale for the story of a man who was restored to reason by hearing his own composition played, a theme used in an opera years before. I am quite certain that the writer really thought that, because she had conceived the idea of using the Bowl as the locale, she was entitled in saecula saeculorum, as the catechism says, to the exclusive use of that idea. See my opinion in Echevarria v. Warner Bros. Pictures, Inc., D.C.Cal. 1935, 12 F.Supp. 632.

Here, the evidence of access is not convincing. I cannot conceive how a man like Jerome Brainan, the author of the alleged pirated song, who had played, at one time, a composition, and who, according to plaintiff's own testimony, was a successful composer, well known in the music world, would, deliberately, eleven years afterwards, borrow a phrase from it. The most that even the first expert of the plaintiff charges is that, in his opinion, the particular motive, as he called it, remained with the alleged plagiarist. A phrase from Beethoven, or from any other great composer, might linger in the mind of a student of music for many years. But I do not see how the trite phrasing of an ordinary popular song, with its limitations, could linger so continuously in the mind of a person, or so impress itself upon it, that, years afterwards, when he composes a song of his own, entitled "Chatterbox", the idea of which is entirely different from that expressed in the words of the other song, he would use a phrase from the first composition.

On the question of infringement, I think that the plaintiff's case must fall because of the admission of both of her experts that the two melodies, if played on the piano, or the two songs, if sung by any person, would not convey identity to the average listener. The courts have said that, ultimately, it is not the dissection to which a musical composition might be submitted under the microscopic eye of a musician which is the criterion of similarity, but the impression which the pirated song or phrase would carry to the average ear.

Back in 1887, we find Blume v. Spear, C. C., 30 F. 629. In that case, infringement was found to exist. Speaking of the test of similarity, and in showing that the particular composition was not similar to another composition which preceded it, Judge Wheeler laid down this rule: "The defendant has put in evidence a prior composition, entitled `Sweet Spirit, Hear My Prayer,' to show that some parts of the music copyrighted were taken from that. There does not appear to be sufficient similarity between these two, however, to warrant this conclusion. There are some short parts of them which appear to be alike; but these parts are not continuous enough, nor sufficiently...