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Arnstein v. Edward B. Marks Music Corporation, 82 F.2d 275, 28 U.S.P.Q. 426

Facts

Ira Arnstein claimed to have composed a song titled 'The Russian Gypsy Valse' and left a copy with Gilbert, an employee of the defendant, for potential publication. After distributing copies to performers, the song did not gain popularity. The defendant, Edward B. Marks Music Corporation, produced evidence that the infringing song was independently created by Altman and Lawrence, who had no access to Arnstein's work. The court noted discrepancies in Arnstein's testimony regarding access and the distribution of his song.

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.

Issue

The main legal issue was whether Arnstein's song was infringed upon by the defendant's song, considering the elements of access and similarity.

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.

Rule

The court applied the principle that independent reproduction of a copyrighted work does not constitute infringement unless it amounts to plagiarism. The burden of proof lies with the plaintiff to demonstrate access and substantial similarity.

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.

Analysis

The court analyzed the evidence presented by both parties, noting that Arnstein's claims of access were weak and contradicted by the defendant's testimony. The similarities between the two songs were found to be common musical phrases that could occur independently. The court emphasized that the mere presence of similar notes does not imply infringement, especially when the defendant's song was created without access to Arnstein's work.

On the weight of the testimony the case is therefore very heavily with the defendant. The plaintiff recognizes this handicap, and attempts to meet it by the similarity of the two songs, about the only recourse indeed usually open to a copyright owner.

Conclusion

The court affirmed the dismissal of Arnstein's complaint, concluding that he did not meet the burden of proof required to establish copyright infringement.

Decree affirmed, without allowance of an attorney's fee in this court.

Who won?

Edward B. Marks Music Corporation prevailed in the case because the court found that Arnstein failed to prove access to his song and that the similarities were not indicative of infringement.

The court noted discrepancies in Arnstein's testimony regarding access and the distribution of his song.

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