Tempo Music, Inc. v. Famous Music Corp.
838 F. Supp. 162, 1993 WL 531561 (1994)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
A harmony added to an earlier musical work can, as a matter of law, be the subject of copyright protection, provided it constitutes a non-trivial, original contribution demonstrating independent creation, a 'distinguishable variation,' and a 'minimal element of creativity.'
Facts:
- An instrumental version of "Satin Doll" (IW1) containing only the unpublished melody was copyrighted on June 19, 1953.
- A second instrumental version of "Satin Doll" (IW2), including harmony and a revised melody, was embodied in a sound recording released on phonorecord around June 1953, performed by Duke Ellington and His Famous Orchestra.
- A derivative work of "Satin Doll" (DW1) containing harmony, a revised melody, and lyrics was copyrighted on November 4, 1958, as represented by a handwritten piano-vocal score.
- A published edition of the derivative work (DW2), including an introduction, harmony, revised melody, and lyrics, was copyrighted on May 20, 1960, as represented by a piano-vocal score.
- A 1954 contract signed by Duke Ellington, Billy Strayhorn, and Johnny Mercer specified that each of the three musicians was entitled to a one-third share of royalties accruing to "Satin Doll," "including the title, words and music thereof."
- Copyright registration certificates for DW1 and DW2 contain conflicting information regarding the authorship of the music; DW1 lists only Duke Ellington, while DW2 lists both Duke Ellington and Billy Strayhorn as authors of the music.
- The Ellington Estate alleges sole proprietorship of IW1, and disputes the Strayhorn Estate's claim to an interest in the harmony and revised melody of DW1 and DW2 when used or performed without the lyrics.
- It is undisputed that the Strayhorn Estate's heirs have an interest in "Satin Doll" when used or performed with the lyrics.
Procedural Posture:
- Tempo Music, Inc. (original plaintiff) initiated an action against Famous Music Corporation and Mercer Ellington (original defendants/third-party plaintiffs) based on federal copyright laws.
- Famous Music Corporation and Mercer Ellington (the Ellington Estate) filed a third-party complaint against Gregory A. Morris, executor of the Billy Strayhorn estate (the Strayhorn Estate), claiming copyright ownership and entitlement to royalties from certain versions of "Satin Doll."
- Many of the original claims in the litigation, including those between Tempo Music and the Ellington Estate, reached a settlement.
- The Strayhorn Estate moved for partial summary judgment, seeking a declaration that its heirs are entitled to one-third of royalties related to the harmony and revised melody.
- The Ellington Estate cross-moved for summary judgment, seeking a declaration that the Strayhorn Estate has no interest in any version of "Satin Doll" when used or performed without the lyrics.
- The Strayhorn Estate also moved to strike portions of an expert affidavit submitted by the Ellington Estate.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Can a harmony added to an earlier musical work, particularly a derivative work, be subject to copyright protection as a matter of law, and are there genuine issues of material fact regarding the scope and validity of such a copyright?
Opinions:
Majority - Sand, District Judge
No, the court cannot grant summary judgment because genuine issues of material fact exist regarding the scope and validity of the copyright in the harmony and revised melody of "Satin Doll"; however, the court establishes that harmony can be copyrightable subject matter as a matter of law. The court first addressed the scope of the copyrights in the derivative works (DW1 and DW2). It found that conflicting information in the copyright registration certificates, renewal certificates, and other evidence such as the 1954 contract, Tempo Music's amended complaint, and various published scores, created a genuine issue of material fact regarding whether the harmony and revised melody are within the scope of the copyrighted derivative material, and if Billy Strayhorn collaborated in their creation. These inconsistencies preclude summary judgment on this ground, requiring further evidence at trial to ascertain the parties' intent and past practices. Second, the court resolved the question of first impression: whether a harmony added to an earlier work can, as a matter of law, be the subject of copyright. The court rejected the Ellington Estate's argument that harmony is unprotectable because it's formulaic and part of common musical vocabulary. While melody often suggests a limited range of chords, a composer exercises creativity in selecting among these options, influencing the "mood, feel and sound of a piece," particularly in contemporary and jazz music where traditional rules are often transcended. The court emphasized that copyright originality looks to the creative process, not necessarily novel outcomes. Therefore, harmony can be the subject of copyright. The court further applied the originality standard for derivative works, as articulated in L. Batlin & Son, Inc. v. Snyder, which requires "some substantial, not merely trivial originality," a "distinguishable variation," and a "minimal element of creativity." It clarified that a prior uncopyrighted sound recording (IW2) with similar harmony does not preclude originality in the derivative work because, under the 1909 Copyright Act, sound recordings did not enter the public domain by distribution and remained eligible for common law copyright. The court concluded that it could not determine, as a matter of law, that the harmony in question was too simple or lacked sufficient creativity to be protectable, leaving the issue of originality for the fact-finder at trial. Thus, both motions for summary judgment were denied.
Analysis:
This case is significant for clarifying the copyrightability of musical harmony under the 1909 Copyright Act, rejecting a blanket prohibition on its protection. The court affirmed that creative choices in selecting chords can meet the originality requirement for copyright, especially in genres like jazz. By applying the 'distinguishable variation' and 'minimal element of creativity' standard for derivative works, the decision provides guidance for future cases involving musical compositions that build upon existing material. It also highlights the importance of precise copyright registrations and the treatment of sound recordings under older copyright statutes, preventing parties from prematurely dismissing claims based on the inherent nature of musical elements alone and emphasizing the need for factual inquiry into creative contributions.
