Arnstein v. Edward B. Marks Music Corporation
28 U.S.P.Q. (BNA) 426, 82 F. 2d 275, 1936 U.S. App. LEXIS 2965 (1936)
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Rule of Law:
Independent reproduction of a copyrighted work does not constitute copyright infringement. To prove infringement, a plaintiff must demonstrate that the defendant actually copied the work, as copyright protects the author's specific expression, not the underlying ideas or content which others may independently create.
Facts:
- Ira B. Arnstein composed a song titled 'The Russian Gypsy Valse.'
- Arnstein presented his song to a man named Gilbert, an employee of the defendant music corporation, and left a copy with him after making some suggested changes.
- The song did not achieve popularity, but Arnstein distributed about thirty copies to various performers, allegedly including a composer named Deutsch.
- Deutsch denied ever receiving a copy of Arnstein's song.
- Two young composers, Altman and Lawrence, created a song for the defendant that contained a chorus with some melodic similarities to Arnstein's song.
- Altman and Lawrence testified that they composed their song independently in early 1931, before Arnstein's song was copyrighted, and later presented it to Deutsch.
- The primary similarity between the two songs was a four-note sequence in the opening phrase, a sequence that had appeared in several earlier musical pieces.
Procedural Posture:
- Ira B. Arnstein (plaintiff) filed a suit for musical copyright infringement in a federal trial court.
- The trial court judge heard the evidence and found in favor of the defendant, holding there was no infringement.
- Arnstein (appellant) appealed the trial court's decision to the U.S. Court of Appeals for the Second Circuit.
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Issue:
Does the creation of a musical work that shares some similarities with a pre-existing copyrighted work constitute copyright infringement if there is no proof of copying?
Opinions:
Majority - L. Hand
No. The independent creation of a similar work is not copyright infringement; nothing short of plagiarism will suffice. Copyright provides the sole liberty of printing and vending 'the work' itself, meaning the corporeal object of expression, not a monopoly over the ideas or content within it that would prevent others from creating identical works independently. In this case, the plaintiff's evidence of access is extremely weak and his theory of how the defendants copied his song is 'very unlikely.' The defendants' witnesses provided a credible narrative of independent creation. The musical similarities are not compelling; the shared four-note phrase is common, and other alleged resemblances require distorting the music to become apparent. Given the limited permutations of notes in popular music, the reappearance of simple themes is not surprising and does not prove copying over the more plausible explanation of coincidence and independent creation.
Analysis:
This decision is a foundational case in copyright law that clarifies the distinction between copyright and patent protection. It firmly establishes that independent creation is a complete defense to a claim of copyright infringement, correcting the court's own prior, broader interpretation of copyright exclusivity in Hein v. Harris. The ruling emphasizes that infringement analysis is a factual inquiry focused on proving actual copying through evidence of access and probative similarity. This sets a crucial precedent that prevents copyright from stifling creativity by granting a monopoly over common themes or ideas, thereby ensuring that copyright protects only an author's particular expression.
