Schultz v. Holmes
| Decision Date | 30 March 1959 |
| Docket Number | No. 15973.,15973. |
| Citation | 264 F.2d 942 |
| Parties | Mildred Becker SCHULTZ, Appellant, v. Jack HOLMES, Charles Douglas Hone, Lindley A. Jones, Carl Hoefle and Delmar S. Porter, copartners, individually and as copartners doing business under the fictitious firm name and style of Tune Towne Tunes; Hill and Range Songs, Inc., a corporation; Capitol Records, Inc., a corporation; Capitol Records Distributing Corporation, a corporation; Rumbalero Music, Inc., a corporation; Broadcast Music, Inc., a corporation; Columbia Records, Inc., a corporation; Decca Records, Inc., a corporation; Radio Corporation of America, a corporation: Loew's Inc., a corporation, Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Carl Hoppe, James F. Mitchell, San Francisco, Cal., Thomas P. Mahoney, Los Angeles, Cal., for appellant.
Manuel Ruiz, Jr., Los Angeles, Cal., for Carl Hoefle and Delmar S. Porter, individually and as co-partners d/b/a Tune Towne Tunes, Capitol Records, Inc., Capitol Records Distributing Corp.
Gang, Kopp & Tyre, Milton A. Rudin, Payson Wolff, Los Angeles, Cal., for appellees Hill & Range Songs, Inc., Rumbalero Music, Inc., Broadcast Music, Inc., Decca Records, Inc., Loew's Incorporated, Radio Corporation of America, and Columbia Records, Inc.
Before BARNES, HAMLEY, and HAMLIN, Circuit Judges.
This is a copyright infringement suit involving musical compositions, brought under 17 U.S.C.A. § 1 et seq. Plaintiff seeks to enjoin the publishing and selling of two pieces of popular music and to recover damages for infringement.
After a trial without a jury, judgment was entered for defendants and plaintiff appeals. The only question presented on this appeal is whether the findings of fact to the effect that plaintiff's music was not copied are clearly erroneous.
In 1941 Mrs. Mildred Becker Schultz, the plaintiff and appellant herein, wrote the words and music for a composition which she entitled "Good Old Army." She copyrighted this composition on April 7, 1941. While the composition was not accepted by a music publishing house, Mrs. Schultz had five hundred copies of the piece printed. Many were distributed to orchestra leaders, piano players, and singers in the San Francisco area where Mrs. Schultz lived. The piece was publicly played in several night clubs and other places of entertainment, but it did not prove to be marketable.
In 1949 Mrs. Schultz rewrote the words and made some changes in the music, and gave the piece a new title — "Waitin' For My Baby." She copyrighted this song on July 7, 1949. Twenty copies of "Waitin' For My Baby" were distributed as before, some of these going to Hollywood music publishers and singers. Again Mrs. Schultz was unsuccessful in developing a demand for her music.
In 1950 Jack Holmes, also known as Charles Douglas Hone, wrote a song which he entitled "Happy Pay Off Day." Holmes, a singer who resided in the Los Angeles area, transferred his rights in this music to a Hollywood music publishing company known as Tune Towne Tunes. This company, which is one of the appellees, copyrighted the unpublished music on January 25, 1950. Printed copies of "Happy Pay Off Day" were placed on sale on April 11, 1950. Tune Towne Tunes copyrighted the published work on April 17, 1950, and later assigned it to Hill and Range Songs, Inc., of New York City. The latter company is also one of the appellees.
Sometime during the next two years Holmes rewrote the words and music under the title "The Blacksmith Blues." Hill and Range Songs, Inc., published and copyrighted this new version of the Jack Holmes music in January, 1952. Since then this company and, through licensing arrangements, some of the other appellees have marketed "Happy Pay Off Day" and "The Blacksmith Blues" in the form of sheet music and records. While Holmes was named a defendant in this action, he was not served with a copy of the complaint, and it was later learned that he had died before the suit was instituted.
Mrs. Schultz heard a televised rendition of "The Blacksmith Blues" on March 1, 1952. She concluded that the music but not the lyrics of "The Blacksmith Blues" infringed her "Good Old Army" and "Waitin' For My Baby." This action resulted. In the remainder of this opinion we will refer to the music of "The Blacksmith Blues" as comprehending both pieces written by Holmes.
In order to establish her case Mrs. Schultz had the burden of proving that the challenged composition is similar in substantial respects to her composition, and that this similarity is due to copying. Wihtol v. Wells, 7 Cir., 231 F.2d 550, 553, citing Chicago Record-Herald Co. v. Tribune Association, 7 Cir., 275 F. 797; Fred Fisher, Inc. v. Dillingham, D.C.S.D.N.Y., 298 F. 145, 147. Substantial similarity which is the product of independent work is not actionable as copyright infringement. Mazer v. Stein, 347 U.S. 201, 218, 74 S.Ct. 460, 98 L.Ed. 630.
At the trial appellant sought to prove similarity by comparing a particular six-note thematic bar with variations, as used throughout her compositions, with variations of a particular bar used throughout "The Blacksmith Blues." Expert witnesses described this bar as a do-mi-sol triad with a passing note.
Appellant was unable to produce any direct evidence of copying, but endeavored to establish this circumstantially. She produced evidence which in her view shows that Holmes had access to her music. She then sought to demonstrate that the musical similarity is so striking that it could only have resulted from copying. In the latter effort appellant invoked the principle of copyright infringement law that proof of common peculiarities may warrant an inference of copying.1
Appellees produced no evidence bearing upon Holmes' access to appellant's music, but took the position that appellant's evidence did not prove access. Appellees did produce evidence which in their view showed "The Blacksmith Blues" to be so dissimilar from appellant's music that no inference of copying could arise. They also put in evidence tending to show that the thematic bar on which appellant relies is in the public domain.
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