Arnstein v. Porter

CLARK, Circuit Judge

(dissenting).

While the procedure followed below seems to me generally simple and appropriate, the defendant did make one fatal tactical error. In an endeavor to assist us, he caused to be prepared records of all the musical pieces here involved, and presented these transcriptions through the medium of the affidavit of his pianist. Though he himself did not stress these records and properly met plaintiff’s claims as to the written music with his own analysis, yet the tinny tintinnabulations of the music thus canned resounded through the United States Courthouse to the exclusion of all else, including the real issues in the case. Of course, sound is important in a case of this kind, but it is not so important as to falsify what the eye reports and the mind teaches. Otherwise plagiarism would be *476 suggested by the mere drumming of repetitious sound from our usual popular music, as it issues from a piano, orchestra, or hurdy-gurdy — particularly when ears may be dulled by long usage, possibly artistic repugnance or boredom, or mere distance which causes all sounds to merge. And the judicial eardrum may be peculiarly insensitive after long years of listening to the “beat, beat, beat” (I find myself plagiarizing from defendant and thus in danger of my brothers’ doom) of sound upon it, though perhaps no more so than the ordinary citizen juror — even if tone deafness is made a disqualification for jury service, as advocated.

Pointing to the adscititious fortuity inherent in the stated standard is, it seems to me, the fact that after repeated hearings of the records,' I could not find therein what my brothers found. The only thing definitely mentioned seemed to be the repetitive use of the note e2 in certain places by both plaintiff and defendant, surely too simple and ordinary a device of composition to be significant. In our former musical plagiarism cases we have, naturally, relied on what seemed the total sound effect; but we have also analyzed the music enough to make sure of an intelligible and intellectual decision. Thus in Arnstein v. Edward B. Marks Music Corp., 2 Cir., 82 F.2d 275, 277 , Judge L. Hand made quite an extended comparison of the songs, concluding, inter alia: “ * * * the seven notes available do not admit of so many agreeable permutations that we need be amazed at the re-appearance of old themes, even though the identity extend through a sequence of twelve notes.” See also the discussion in Marks v. Leo Feist, Inc., 2 Cir., 290 F. 959 , and Darrell v. Joe Morris Music Co., 2 Cir., 113 F.2d 80 , where the use of six similar bars and of an eight-note sequence frequently repeated were respectively held not to constitute infringement, and Wilkie v. Santly Bros., 2 Cir., 91 F.2d 978 , affirming D.C.S.D.N.Y., 13 F.Supp. 136 , certiorari denied Santly Bros. v. Wilkie, 302 U.S. 735 , 58 S.Ct. 120 , 82 L.Ed. 568 , where use of eight bars with other similarities amounting to over three-quarters of the significant parts was held infringement. 1

It is true that in Arnstein v. Broadcast Music, Inc., 2 Cir., 137 F.2d 410, 412 , we considered “dissection” or “technical analysis” not the proper approach to support a finding of plagiarism, and said that it must be “more ingenuous, more like that of a spectator, who would rely upon the complex of his impressions.” But in its context that seems to me clearly sound and in accord with what I have in mind. Thus one may look to the total impression to repulse the charge of plagiarism where a minute “dissection” might dredge up some points of similarity. Hence one cannot use a purely theoretical disquisition to supply a tonal resemblance which does not otherwise exist. Certainly, however, that does not suggest or compel the converse — that one must keep his brain in torpor for fear that otherwise it would make clear differences which do exist. Music is a matter of the intellect as well as the emotions; that is why eminent musical scholars insist upon the employment of the intellectual faculties for a just appreciation of music. 2

Consequently I do not think we should *477 abolish the use of the intellect here even if we could. When, however, we start with an examination of the written and printed material supplied by the plaintiff in his complaint and exhibits, we find at once that he does not and cannot claim extensive copying, measure by measure, of his compositions. He therefore has resorted to a comparative analysis — the “dissection” found unpersuasive in the earlier cases — to support his claim of plagiarism of small detached portions here and there, the musical fillers between the better known parts of the melody. And plaintiff’s compositions, as pointed out in the cases cited above, are of the simple and trite character where small repetitive sequences are not hard to discover. It is as though we found Shakespeare a plagiarist on the basis of his use of articles, pronouns, prepositions, and adjectives also used by others. The surprising thing, however, is to note the small amount of even this type of reproduction which plaintiff by dint of extreme dissection has been able to find.

Though it is most instructive, it will serve no good purpose for me to restate here this showing as to each of the pieces in issue. As an example of the rest, we may take plaintiff’s first cause of action. This involves his “A Modern Messiah” with defendant’s “Don’t Fence Me In.” The first is written in 6/8 time, the second in common or 4/4 time; and there is only one place where there is a common sequence of as many as five consecutive notes, and these without the same values. Thus it goes. The usual claim seems to be rested upon a sequence of three, of four, or of five — never more than five- — identical notes, usually of different rhythmical values. Nowhere is there anything approaching the twelve-note sequence of the Marks case, supra. Interesting is the fact that the closest tonal resemblance is to be found between a piece by defendant written, back in 1930 and an uncopyrighted waltz by plaintiff (rejected here by my brothers because it is uncopyrighted) which was never published, but, according to his statement, was publicly performed as early as 1923, 1924, and 1925.

In the light of these utmost claims of the plaintiff, I do not see a legal basis for the claim of plagiarism. So far as I have been able to discover, no earlier case approaches the holding that a simple and trite sequence of this type, even if copying may seem indicated, constitutes proof either of access or of plagiarism. In addition to the cases already cited, see the fine statements of Bright, J., in Arnstein v. Broadcast Music, Inc., D.C.S.D.N.Y., 46 F.Supp. 379, 381 , affirmed 2 Cir., 137 F.2d 410 , supra, and of Yankwich, J., in Carew v. R. K. O. Radio Pictures, D.C.S.D.Cal., 43 F.Supp. 199 . That -being so, the procedure whereby the demonstration is made does not seem to me overimportant. A court is a court whether sitting at motion or day calendar; and when an issue of law is decisively framed, it is its judicial duty to pass judg *478 ment. Hence on the precedents I should feel dismissal required on the face of the complaint and exhibits.

But of course as the record now stands, the case is still stronger, for it appears that access must rest only upon a showing of similarities in the compositions. Under the procedure employed, the parties were entitled to require discovery of the case relied »on by the other. Madeirense Do Brasil S/A v. Stulman-Emrick Lumber ‘Co., 2 Cir., 147 F.2d 399, 405 , certiorari denied 325 U.S. 861 , 65 S.Ct. 1201 ; Rotberg v. Dodwell & Co., 2 Cir., 152 F.2d 100 ; Wilkinson v. Powell, 5 Cir., 149 F.2d 335 ; Piantadosi v. Loew’s, Inc., 9 Cir., 137 F.2d 534 ; Fox v. Johnson & Wimsatt, Inc., 75 U.S.App.D.C. 211 , 127 F.2d 729 ; 45 Col.L.Rev. 964, 967. This they did by each taking the deposition of the other, resulting in a categorical denial by defendant of having ever seen or heard plaintiff’s compositions and no showing by plaintiff of any evidence of access worthy of submission to any trier of fact. 3 And I take it as conceded that these trifling bits of similarities will not permit of the inference of copying. My brothers, in a trusting belief in the virtues of cross-examination, rely upon a trial to develop more. But cross-examination can hardly construct a whole case without some factual basis on which to start. And they overlook, too, the operation of F.R. 26(d) (3) 2, as to the use of depositions, under which the defendant, if elsewhere on business, need not return for trial, but may rely upon his already clear deposition, and the plaintiff may not have the luxury of another futile cross-examination. 4 Further, my brothers reject as “utterly immaterial” the help of musical experts as to the music-itself (as distinguished from what lay auditors may think of it, where, for my part, I should think their competence least), contrary to what I had supposed was universal practice, cf., e.g., Wilkie v. Santly Bros., Arnstein v. American Soc. of' Composers, Authors and Publishers, and Carew v. R. K. O. Radio Pictures, all supra — thereby adding a final proof of the anti-intellectual and book-burning nature of their decision. Thus it seems quite likely that the record at trial will be the one now before us.

Since the legal issue seems thus clear to me, I am loath to believe that my colleagues will uphold a final judgment of *479 plagiarism on a record such as this. The present holding is therefore one of those procedural mountains which develop where it is thought that justice must be temporarily sacrificed, lest a mistaken precedent be set at large. The conclusion that the precedent would be mistaken appears to rest on two premises: a belief, in the efficacy of the jury to settle issues of plagiarism, and a dislike of the rule established by the Supreme Court as to summary judgments. Now, as to the first, I am not one to condemn jury trials (cf. Keller v. Brooklyn Bus Corp., 2 Cir., 128 F.2d 510, 517 ; Frank, If Men Were Angels, 1942, 80-101; Frank, Law and the Modern Mind, 1930, 170-185, 302-309, 344 — 348), since I think it has a place among other quite finite methods of fact-finding. But I should not have thought it pre-eminently fitted to decide questions of musical values, certainly not so much so that an advisory jury should be brought in if no other is available. And I should myself hesitate to utter so clear an invitation to exploitation of slight musical analogies by clever musical tricks in the hope of getting juries hereafter in this circuit to divide the wealth of Tin Pan Alley. This holding seems to me an invitation to the strike suit par excellence. But be that as it may, discussion as to the use of the jury in this case must surely be a premature obiter dictum which forgets that we are a court of review, not an- administrative or judicial director of the trial courts. We are not even in a position to decide whether the case is properly on the jury list — a point not raised on this appeal or clarified in either records or briefs. Compare, as to the possible problems, Rifkind, J., in Bercovici v. Chaplin, D.C.S.D.N.Y., 3 F.R.D. 409 . And surely we cannot now say that a verdict should not be directed, or an advisory jury or special verdict should be had. The first is a matter of law at the end of the case, to be decided in the light of the precedents above cited; the others are matters primarily within the discretion of the trial court. F.R. 39(c), 49(a).

The second premise — dislike of the summary-judgment rule — I find difficult to appraise or understand. Seemingly the procedure is not to be generally favored, but with certain exceptions, the extent of which is unclear, e.g., United States v. Associated Press, D.C.S.D.N.Y., 52 F.Supp. 362 , affirmed Associated Press v. United States, 326 U.S. 1 , 65 S.Ct. 1416 , a plaintiffs judgment, and Milcor Steel Co. v. George A. Fuller Co., 2 Cir., 122 F.2d 292 , affirmed 316 U.S. 143 , 62 S.Ct. 969 , 86 L.Ed. 1332 , a defendant’s judgment in a patent case. And perhaps it is not to be employed at all in plagiarism cases. Since, however, the clear-cut provisions of F.R. 56 conspicuously do not contain either a restriction on the kinds of actions to which it is applicable (unlike most state summary procedures) or any presumption against its use, it is necessary to refashion the rule. This was announced by way of a dictum in Doehler Metal Furniture Co. v. United States, 2 Cir., 149 F.2d 130, 135 , which was specifically directed as a criticism of another decision of this court, Madeirense Do Brasil S/A v. Stulman-Emrick Lumber Co., supra (cf., however, 45 Col.L.Rev. 964). Now that dictum is definitely accepted as the “standard here,” without reference to the rule itself. That is a novel method of amending rules of procedure. It subverts the plans and hopes of the profession for careful, informed study leading to the adoption and to the amendment of simple rules which shall be uniform throughout the country. Worse still, it is ad hoc legislation, dangerous in the particular case where first applied and disturbing to the general procedure. 5

In fact, however, cases, texts, and articles without dissent accept and approve the summary judgment as an integral and useful part of the procedural system envisaged by the rules. And as the Advisory Committee’s two drafts of proposed amendments show, the demand is not for limitation, but for at least a small extension, of the rule. It is, indeed, more necessary in the system of simple pleading now enforced in the federal courts; for under older procedures, useless and unnecessary trials could be avoided, in theory at least, by the then existing demurrer and motioii' practice. But that stressed pleading forms, rather than *480 the merits, while summary judgment and its popular correlative, pre-trial procedure, F.R. 16, go directly to the merits. One unfortunate consequence of eliminating summary procedure is that it affords support for the plea of return to the old demurrer, which, however clumsily, did get rid of some of the cases which did not deserve a protracted and expensive trial. Of course it is error to deny trial when there is a genuine dispute of facts ; 6 but it is just as much error — perhaps more in cases of hardship, or where impetus is given to strike suits — to deny or postpone judgment where the ultimate legal result is clearly indicated. Plagiarism suits are not excepted from F.R. 56; and often that seems the most useful and • direct procedure, since the cases so overwhelmingly turn ultimately and at long length upon an examination and a comparison of the challenged and the challenging compositions. Cf. MacDonald v. Du Maurier, 2 Cir., 144 F.2d 696, 701-703 . Here I think we ought to assume the responsibility of decision now. If, however, we are going to the other extreme of having all decisions of musical plagiarism made by ear, the more unsophisticated and musically naive the better, then it seems to me we are reversing our own precedents to substitute chaos, judicial as well as musical.

In accord is Shatter, Musical Copyright, 2d Ed.1939, c. 6, particularly p. 205, where the author speaks of “the ‘comparative method,' worked out by Judge Learned Hand with great success,” and “his successful method of analysis,” citing Hein v. Harris, C.C.S.D.N.Y., 175 F. 875 , affirmed 2 Cir., 183 F. 107 , and Haas v. Leo Feist, Inc., D.C.S.D.N.Y., 234 F. 105 ; and p. 194, where he approves of Judge Yankwich’s course in attaching an exhibit of analysis to his opinion in Hirsch v. Paramount Pictures, Inc., D.C.S.D.Cal., 17 F.Supp. 816 — “this sensible procedure,” “a splendid model for future copyright decisions.” I find nowhere any suggestion of two steps in adjudication of this issue, one of finding copying which may be approached with musical intelligence and assistance of experts, and another that of. illicit copying which must be approached with complete ignorance; nor do I see how rationally there can be any such difference, even if a jury — the now chosen instrument of musical detection — could be expected to separate those issues and the evidence accordingly. If there is actual copying, it is actionable, and there are no degrees; what we are dealing with is the claim of similarities sufficient to justify the inference of copying. This is a single deduction to be made intelligently, not two with the dominating one to be made blindly.

Thus Stewart Macpherson, Professor of Harmony and Composition in the Royal Academy of Music, says in his standard text, Form in Music, Rev.E'd.1930, 1, 2: “Music appeals to us in a threefold way, which may be described under the *477 headings of (i) Physical Sensation; (ii) Emotion, or feeling; (iii) Intellect (i.e. critical judgment, based upon certain reasoning powers within us). The first of these agencies, that of physical sensation, is without doubt the lowest of the three, and is one we share with the rest of the animal creation, upon whom — as we all know — certain sounds seem to have a distinct and immediate effect — often that of pain. * * * [The second) lies on a much higher plane than mere physical sensation. It is more subjective, and is the response of something in our own consciousness to some (often indescribable) quality in the music to which we are listening. * * * But, in judging of the emotional effect of a work, the factor of association has to be taken into account, and it is a truism to say that we are often tempted to estimate a poem or a musical work quite out of all proportion to its real value as a work of art, simply because it is associated, perhaps, in our thoughts with certain events or crisis in our own lives, or is the expression — probably the very imperfect expression — of some sentiment with which we are -in sympathy and accord.

“Here then, in order that we may the better arrive at a just and critical appreciation of that to which we may be directing our attention, comes the necessity for the employment of the intellectual faculties of our nature. ‘To judge a composition simply from the manner in which it works upon our feelings, is no better than judging a picture or a poem merely from our sympathy with its subject.’ Sir Henry Hadow, Studies in Modern Music, Vol. II. We here are called upon to exercise our judgment, to decide upon such questions as style, symmetry, and balance of design — to say, in fact, whether the composer has put his thoughts into the most convincing shape, into that form which will best convey their meaning.”

Even his vague and reckless charge of burglary of his various rooming places — a repeated feature of his plagiarism cases, see, e.g., Arnstein v. American Soc. of Composers, Authors and Publishers, D.C.S.D.N.Y., 29 F.Supp. 388, 391, 392 ; Arnstein v. Twentieth Century Fox Film Corp., D. C.S.D.N.Y., 52 F.Supp. 114 -upon cross-examination dissolved into nothing so far as this defendant is concerned.

The opinion attempts to foreclose use of the depositions at the trial, even though we cannot now Know or guess what circumstances will then develop; and in so doing, it indulges in a wholly strained and hampering construction of F.R. 26(d) (3). Centering attention on subpar. 5, the catchall provision giving general discretion to the district court, it stresses the reference there to “exceptional circumstances” and attempts to make that controlling. But obviously the more immediately pertinent provision is subpar. 2, under which a deposition may be used when the witness, including a party, “is” —not resides — “at a greater distance than 100 miles from the place of trial * * * unless it appears that the absence of the witness Was procured by the party offering the deposition.” Professor Moore shows that a party may properly take advantage of this provision without necessarily being charged with procuring his own absence. 2 Moore’s Federal Practice 2460-2462, 2492. He gives as an example — and of course it is a natural one, suggested by the earlier decisions — the case of a party residing more than 100 miles from the place of trial; but it is a great injustice to his cogent argument to offer it as limiting the rule beyond its words to the one situation only. In view of the clear intent and purpose of the rule there would be no particular reason or sense in substituting a purely arbitrary restriction for the discretionary finding as to the purpose of the absence, required by the rule itself as a condition of exclusion. If a party is in the business of making motion pictures in California and is going about his normal business there when the trial occurs, it is quite clear that the exception limiting use of his deposition does not apply. That would probably have been the conclusion under the old statute, 28 U.S.C.A. §§ 639 , 641, where the word “lives” was held to mean where the witness “can be found, and is sojourning, residing, or abiding for any lawful purpose,” thus including going “to Asheville for his health.” Mutual Ben. Life Ins. Co. v. Robison, 8 Cir., 58 F. 723, 732 , 22 L.R.A. 325 . But it is placed beyond dispute by the substitution in the rule of “is” for “lives.” Forced construction of uniform rules to meet particular argumentative exigencies ought to be avoided.

I suggest that a ease is not made out for sutíh a departure from tried and approved rule-making procedure. It seems to rest upon somewhat vague references to “trial by affidavits,” though this is precluded by the rule itself whenever there is a “genuine issue as to any material fact,” F.R. 56(e), and to some anonymous case where seemingly tho trial judge, being pressed to commit error, inconsiderately refused to do so. Had he committed error, tho appellate courts and the Supreme Court would have been available for its correction; ef. note 6, infra.

Except in one detail, not altogether the fault of the district judges, their use of summary judgment has been generally discriminating, not deserving the criticism in Doehler Metal Furniture Co. v. United States, 2 Cir, 149 F.2d 130, 135 . Many of the cases there cited represent real and inevitable differences of legal view. That some other cases require reversal is not a disturbing experience in the shaking down into practice of a new rule, particularly when we note the detail above referred to, which has caused difficulty. That was the unfortunate and unperceived emphasis upon failure to state a claim for relief found in the grounds for the motion to dismiss, F.R. 12(b), which led some courts to place an undue emphasis upon pleading formalities. But this has already been corrected in the decisions, even without the amendment proposed by the Advisory Committee. Second Preliminary Draft of Proposed Amendments to Rules of Civil Procedure, May, 1945, Rule 12(b), and cases cited at pp. 14, 15.