FRANK, Circuit Judge.
1. Plaintiff with his complaint filed a jury demand which defendant moved to strike out. Defendant urges that the relief prayed in the complaint renders a jury trial inappropriate. We do not agree. Plaintiff did not ask for an injunction but solely for damages. Such a suit is an action at "law."
2. The principal question on this appeal is whether the lower court, under Rule 56,
As to the first — copying — the evidence may consist (a) of defendant's admission that he copied or (b) of circumstantial evidence — usually evidence of access — from which the trier of the facts may reasonably infer copying. Of course, if there are no similarities, no amount of evidence of access will suffice to prove copying. If there is evidence of access and similarities exist, then the trier of the facts must determine whether the similarities are sufficient to prove copying. On this issue, analysis ("dissection") is relevant, and the testimony of experts may be received to aid the trier of the facts. If evidence of access is absent, the similarities must be so striking as to preclude the possibility that plaintiff and defendant independently arrived at the same result.
If copying is established, then only does there arise the second issue, that of illicit copying (unlawful appropriation.).
In some cases, the similarities between
Each of these two issues — copying and improper appropriation — is an issue of fact. If there is a trial, the conclusions on those issues of the trier, of the facts — of the judge if he sat without a jury, or of the jury if there was a jury trial — bind this court on appeal, provided the evidence supports those findings, regardless of whether we would ourselves have reached the same conclusions.
3. We turn first to the issue of copying. After listening to the compositions as played in the phonograph recordings submitted by defendant, we find similarities; but we hold that unquestionably, standing alone, they do not compel the conclusion, or permit the inference, that defendant copied. The similarities, however, are sufficient so that, if there is enough evidence of access to permit the case to go to the jury, the jury may properly infer that the similarities did not result from coincidence.
Summary judgment was, then, proper if indubitably defendant did not have access to plaintiff's compositions. Plainly that presents an issue of fact. On that issue, the district judge, who heard no oral testimony, had before him the depositions of plaintiff and defendant. The judge characterized plaintiff's story as "fantastic"; and, in the light of the references in his opinion to defendant's deposition, the judge obviously accepted defendant's denial of access and copying. Although part of plaintiff's testimony on deposition (as to "stooges" and the like) does seem "fantastic," yet plaintiff's credibility, even as to those improbabilities, should be left to the jury. If evidence is "of a kind that greatly taxes the credulity of the judge, he can say so, or, if he totally disbelieves it, he may announce that fact, leaving the jury free to believe it or not."
But even if we were to disregard the improbable aspects of plaintiff's story, there remain parts by no means "fantastic." On the record now before us, more than a million copies of one of his compositions were sold; copies of others were sold in smaller quantities or distributed to radio stations or band leaders or publishers, or the pieces were publicly performed.
To be sure, plaintiff examined defendant on deposition. But the right to use depositions for discovery, or for limited purposes at a trial,
With all that in mind, we cannot now say — as we think we must say to sustain a summary judgment — that at the close of a trial the judge could properly direct a verdict.
We agree that there are cases in which a trial would be farcical. If, in a
We do not believe that, in a case in which the decision must turn on the reliability of witnesses, the Supreme Court, by authorizing summary judgments, intended to permit a "trial by affidavits," if either party objects. That procedure which, so the historians tell us, began to be outmoded at common law in the 16th century, would, if now revived, often favor unduly the party with the more ingenious and better paid lawyer. Grave injustice might easily result.
In the equity practice in the federal courts before 1912, extensive use had been made of deposition testimony. But Rules 46 and 47 of the Equity Rules of 1912, 28 U.S.C.A. § 723 Appendix, expressly provided that in "all trials in equity the testimony of witnesses shall be taken orally in open court" unless there was a "good and exceptional cause for departing from the general rule." The purpose was to ensure that the trial judge should have "the opportunity to see, hear and observe the actions of the witnesses."
Moore discusses in detail the provision of Clause 5 of Rule 26(d) (3), that, where a witness, including a party, is alive, does not reside more than a hundred miles from the place of trial, is not unable to attend the trial — because of age, sickness, infirmity or imprisonment — and there is no inability to subpoena him, then it is only upon a showing "that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court"
If defendant, who resides in the district and within a few miles of the place of trial,
4. Assuming that adequate proof is made of copying, that is not enough; for there can be "permissible copying,"
Surely, then, we have an issue of fact which a jury is peculiarly fitted to determine.
We should not be taken as saying that a plagiarism case can never arise in which absence of similarities is so patent that a summary judgment for defendant would be correct. Thus suppose that Ravel's "Bolero" or Shostakovitch's "Fifth Symphony" were alleged to infringe "When Irish Eyes Are Smiling."
At the trial, plaintiff may play, or cause to be played, the pieces in such manner that they may seem to a jury to be inexcusably alike, in terms of the way in which lay listeners of such music would be likely to react. The plaintiff may call witnesses whose testimony may aid the jury in reaching its conclusion as to the responses of such audiences. Expert testimony of musicians may also be received, but it will in no way be controlling on the issue of illicit copying, and should be utilized only to assist in determining the reactions of lay auditors. The impression made on the refined ears of musical experts or their views as to the musical excellence of plaintiff's or defendant's works are utterly immaterial on the issue of misappropriation;
5. In copyright infringement cases cited by defendant,
6. Plaintiff has not copyrighted two of his compositions, "Twilight Waltz" and "Duet" from "Song of David." Accordingly, the judgment to that extent should be changed to one of dismissal for lack of jurisdiction. The same is true of the judgment concerning the alleged copying of the titles of plaintiff's songs, "What Is Love" and "Night and Day." A title cannot be copyrighted.
7. Defendant's motion papers showed that plaintiff had assigned his copyright to his composition "A Mother's Prayer" to another person. Plaintiff alleged that, by an oral agreement with the assignee, the copyright was to revert to plaintiff on the assignee's death, and that the assignee was dead. Defendant contended that the parol evidence rule barred proof of such an oral agreement, and that, therefore, plaintiff, not being able to show his ownership of the copyright, could not maintain suit for its infringement. Defendant asked the judge to take judicial notice of the record of another infringement suit in the same court, Arnstein v. American Soc. of Composers, D.C., 29 F.Supp. 388, involving the same issue as to the same composition, brought by plaintiff against another person, not in privity with the defendant here, in which decision on that issue had been adverse to plaintiff. On that ground, the judge held that the present action, so far as based on "A Mother's Prayer," must be dismissed. In so holding, the judge erred. As no one in the assignee's chain of title is a party to this suit, the parol evidence rule does not apply. The adjudication in the previous suit is entirely irrelevant.
8. Defendant disregarded that sort of irrelevance in moving in the court below not only for summary judgment but also for dismissal of plaintiff's action as "vexatious." For in aid of that latter motion, defendant asked the judge to take judicial notice of five previous copyright infringement actions, including the one just mentioned above, brought by the plaintiff in the same court against other persons, in which plaintiff had advanced some legal arguments like those he advances here, and in which he had been defeated. The judge in his opinion referred to but one of those suits, Arnstein v. American Soc. of Composers, and purported not to pass on the motion to dismiss for vexatiousness. But in his order for final judgment he specifically referred to the "records" of the court in the five cases, naming them, as constituting in part the basis of the judgment.
But, in the spirit of that suggestion, we regard it as entirely improper to give any weight to other actions lost by plaintiff. Although, as stated above, the judge in his opinion, except as to one of the previous actions, did not say that he rested his decision on those other suits, the language of his final judgment order indicates that he was probably affected by them.
Modified in part; otherwise reversed and remanded.
1. In the following cases, after a trial before a judge without a jury, the decision was for defendant because there was no copying, so that the issue of illicit copying was not reached. The judge found no access. On appeal the decision was affirmed for the following reasons: (a) The finding of no copying was supported by sufficient evidence so that it was not clearly erroneous. (b) The similarities were not sufficient to preclude coincidence since (1) there was no resemblance to the ear of the lay listener and/or (2) the plaintiff's contribution was too banal. Arnstein v. Edward B. Marks Music Corp., 2 Cir., 82 F.2d 275; Darrell v. Joe Morris Music Co., Inc., 2 Cir., 113 F.2d 80; Arnstein v. Broadcast Music, Inc., 2 Cir., 137 F.2d 410, affirming, D.C., 46 F.Supp. 379.
2. In Wilkie v. Santly Bros., 2 Cir., 91 F.2d 978, affirming, D.C., 13 F.Supp. 136, after a trial before a judge without a jury, the decision was for plaintiff. On appeal, this decision was affirmed for the following reasons: Although there was no proof of access, the similarities, both to the ear and on analysis, were striking, and plaintiff's contribution was so unique that the trial judge's conclusion of absence of coincidence could not be reversed. Copying having been thus established, the trial judge's conclusion as to illicit copying was supported by enough evidence.
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
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 e
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.
Consequently I do not think we should
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 judgment.
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.
Since the legal issue seems thus clear to me, I am loath to believe that my colleagues will uphold a final judgment of
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 plaintiff's 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.
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 motion practice. But that stressed pleading forms, rather than
Rule 1 of the Rules for Practice under § 25, adopted in 1909, see 17 U.S.C.A. following section 25 provided that the "rules of equity practice, so far as they may be applicable, shall be enforced * * *." This did not eliminate a jury trial where plaintiff sought no equitable relief. See Journal of Commerce & Commercial Bulletin v. Boston Transcript, D. C., 292 F. 311, 312; note that Mail & Express Co. v. Life Pub. Co., supra, and Turner & Dahnken v. Crowley, supra, were decided after 1909.
That the comment in the Sartor case is not to be restricted to the issue of damages is shown by Associated Press v. United States, 326 U.S. 1, 6, 65 S.Ct. 1416, 1418, where the court said, "We agree that Rule 56 should be cautiously invoked to the end that the parties may always be afforded a trial where there is a bona fide dispute of facts between them. Sartor v. Arkansas Natural Gas Co., 321 U.S. 620, 64 S.Ct. 724, 88 L.Ed. 967."
The Supreme Court in the Associated Press case also noted (326 U.S. at page 6, 65 S.Ct. at page 1418): "The court below in making findings and entering judgment carefully abstained from the consideration of any evidence which might possibly be in dispute," adding 326 U.S. at page 7, 65 S.Ct. at page 1418) that it would "consider the validity of the By-Laws and the contract exclusively on the basis of their terms and the background of facts which the appellants admitted." The Court also pointed out (326 U.S. at page 5, 65 S.Ct. at page 1417) how half-heartedly the appellants had objected to the use of a summary judgment, for they themselves asserted that such a judgment should have been entered in their favor.
Thus summary judgment would have been proper in the instant case if plaintiff on his deposition had admitted that defendant had no access to plaintiff's compositions or had not copied any substantial and material part of them. Then the case would have been like Associated Press v. United States, 326 U.S. 1, 6, 65 S.Ct. 1416, 1418, i.e., the judgment would have been based solely upon the consideration of no evidence "which might possibly be in dispute."
"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."