CITE:  154 F.2d 464
CMON:  February 1946
PLAIN: Arnstein
DEFND: Porter
COURT: Circuit Court of Appeals, Second Circuit
DATE:  11 February 1946


Plaintiff, a citizen and resident of New York, brought this suit, charging
infringement by defendant, a citizen and resident of New York, of plaintiff's
copyrights to several musical compositions, infringement of his rights to
other uncopyrighted musical compositions, and wrongful use of the titles
of others.  Plaintiff, when filing his complaint, demanded a jury trial.
Plaintiff took the deposition of defendant, and defendant, the deposition
of plaintiff. Defendant then moved for an order striking out plaintiff's
jury demand, and for summary judgment. Attached to defendant's motion papers
were the depositions, phonograph records of piano renditions of the
plaintiff's compositions and defendant's alleged infringing compositions,
and the court records of five previous copyright infringement suits brought
by plaintiff in the court below against other persons, in which judgments
had been entered, after trials, against plaintiff.  Defendant also moved
for dismissal of the action on the ground of 'vexatiousness'.

Plaintiff alleged that defendant's 'Begin the Beguine' is a plagiarism from
plaintiff's 'The Lord Is My Shepherd' and 'A Mother's Prayer'.  Plaintiff
testified, on deposition, that 'The Lord Is My Shepherd' had been published
and about 2,000 copies sold, that 'A Mother's Prayer' had been published,
over a million copies having been sold. In his depositions, he gave no
direct evidence that defendant saw or heard these compositions. He also
alleged that defendant's 'My Heart Belongs to Daddy' had been plagiarized
from plaintiff's 'A Mother's Prayer'.

Plaintiff also alleged that defendant's 'I Love You' is a plagiarism from
plaintiff's composition 'La Priere,' stating in his deposition that the
latter composition had been sold. He gave no direct proof that plaintiff
knew of this composition.

He also alleged that defendant's song 'Night and Day' is a plagiarism of
plaintiff's song 'I Love You Madly,' which he testified had not been
published but had once been publicly performed over the radio, copies
having been sent to divers radio stations but none to defendant; a copy
of this song, plaintiff testified, had been stolen from his room. He also
alleged that 'I Love You Madly' was in part plagiarized from 'La Priere'.
He further alleged that defendant's 'You'd Be So Nice To Come Home To' is
plagiarized from plaintiff's 'Sadness Overwhelms My Soul'.  He testified
that this song had never been published or publicly performed but that
copies had been sent to a movie producer and to several publishers.  He
also alleged that defendant's 'Don't Fence Me In' is a plagiarism of
plaintiff's song 'A Modern Messiah' which has not been published or
publicly performed; in his deposition he said that about a hundred copies
had been sent to divers radio stations and band leaders but that he sent
no copy to defendant. Plaintiff said that defendant 'had stooges right
along to follow me, watch me, and live in the same apartment with me',
and that plaintiff's room had been ransacked on several occasions. Asked
how he knew that defendant had anything to do with any of these 'burglaries',
plaintiff said, 'I don't know that he had to do with it, but I only know
that he could have.' He also said '* * * many of my compositions had been
published. No one had to break in to steal them. They were sung publicly.'

Defendant in his deposition categorically denied that he had ever seen or
heard any of plaintiff's compositions or had had any acquaintance with any
persons said to have stolen any of them.

The prayer of plaintiff's original complaint asked 'at least one million
dollars out of the millions the defendant has earned and is earning out
of all the plagiarism'. In his amended complaint the prayer is 'for judgment
against the defendant in the sum of $ 1,000,000 as damages sustained by the
plagiarism of all the compositions named in the complaint.' Plaintiff, not
a lawyer, appeared pro se below and on this appeal.

Comparing similarities of two works of art, analysis / dissection, is a
issue of facts.  DISSENT - Comparison should include overall look-and-feel.

JUDGE: FRANK, Circuit Judge
Before L. HAND, CLARK, and FRANK, Circuit Judges.


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.' {n1}
That it is founded solely on a statute does not deprive either party of
a right to a trial by jury; {n2}  an action for treble damages under the
Sherman Act is likewise purely statutory, {n3}  but it is triable at 'law'
and by a jury as of right. {n4}

2. The principal question on this appeal is whether the lower court, under
Rule 56, {n4a}  properly deprived plaintiff of a trial of his copyright
infringement action. The answer depends on whether 'there is the slightest
doubt as to the facts'.  Doehler Metal Furniture Co. v. United States,
2 Cir., 149 F.2d 130, 135; Sartor v. Arkansas Natural Gas Corp., 321 U.S.
620, 64 S.Ct. 724, 88 L.Ed. 967; Arenas v. United States, 322 U.S. 419,
434, 64 S.Ct. 1090, 88 L.Ed. 1363; Associated Press v. United States,
326 U.S. 1, 6, 7, 65 S.Ct. 1416; see discussion below, note 16. In applying
that standard here, it is important to avoid confusing two separate
elements essential to a plaintiff's case in such a suit: (a) that defendant
copied from plaintiff's copyrighted work and (b) that the copying (assuming
it to be proved) went to far as to constitute improper appropriation.

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). {n4b}  On that issue (as
noted more in detail below) the test is the response of the ordinary lay
hearer; accordingly, on that issue, 'dissection' and expert testimony are

In some cases, the similarities between the plaintiff's and defendant's
work are so extensive and striking as, without more, both to justify an
inference of copying and to prove improper appropriation. But such
double-purpose evidence is not required; that is, if copying is otherwise
shown, proof of improper appropriation need not consist of similarities
which, standing alone, would support an inference of copying.

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. {n4c}  But a case could occur
in which the similarities were so striking that we would reverse a finding
of no access, despite weak evidence of access (or no evidence thereof
other than the similarities); and similarly as to a finding of no illicit

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

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'. {n5}
If, said Winslow, J., 'evidence is to be always disbelieved because the
story told seems remarkable or impossible, then a party whose rights depend
on the proof of some facts out of the usual course of events will always
be denied justice simply because his story is improbable.' {n6}  We should
not overlook the shrewd proverbial admonition that sometimes truth is
stranger than fiction.

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. {n6a}  If, after hearing both parties testify, the
jury disbelieves defendant's denials, it can, from such facts, reasonably
infer access. It follows that, as credibility is unavoidably involved, a
genuine issue of material fact presents itself. With credibility a vital
factor, plaintiff is entitled to a trial where the jury can observe the
witnesses while testifying. Plaintiff must not be deprived of the invaluable
privilege of cross-examining the defendant {n7} - the 'crucial test of
credibility' - in the presence of the jury. {n8}  Plaintiff, or a lawyer
on his behalf, on such examination may elicit damaging admissions from
defendant; more important, plaintiff may persuade the jury, observing
defendant's manner when testifying, that defendant is unworthy of belief.

To be sure, plaintiff examined defendant on deposition. But the right to use
depositions for discovery, or for limited purposes at a trial, {n10}  of
course does not mean that they are to supplant the right to call and examine
the adverse party, if he is available, before the jury. For the demeanor of
witnesses is recognized as a highly useful, even if not an infallible,
method of ascertaining the truth and accuracy of their narratives. As we
have said, 'a deposition has always been, and still is, treated as a
substitute, a second-best, not to be used when the original is at hand'
for it deprives 'of the advantage of having the witness before the jury'.
{n11}  It has been said that as 'the appearance and manner of the witness'
is often 'a complete antidote' to what he testifies, 'we cannot very well
overestimate the importance of having the witness examined and cross-examined
in presence of the court and jury.' {n11a}  Judge Lumpkin remarked that
'the oral testimony of the witness, in the presence of the Court and Jury,
is much better evidence than his deposition can be * * *' {n12}  Coxe, J.,
noted that 'a witness may convince all who hear him testify that he is
disingenuous and untruthful, and yet his testimony, when read, may convey
a most favorable impression.' {n13}  As a deposition 'cannot give the look
or manner of the witness: his hesitation, his doubts, his variations of
language, his confidence or precipitancy, his calmness or consideration;'
it 'is * * * or it may be, the dead body of the evidence, without its
spirit * * *'  {n14}  'It is sometimes difficult and impossible to get
so full, explicit, and perspicuous a statement of facts from the witness
through a deposition as it is by his examination before court and jury.'
{n15}  'The right of a party, therefore, to have a witness subjected to the
personal view of the jury, is a valuable right, of which he should not be
deprived * * * except by necessity. And that necessity ceases whenever
the witness is within the power of the court, and may be produced upon
the trial.'  {n15a}

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. {n16}

We agree that there are cases in which a trial would be farcical. If, in
a suit on a promissory note, the defendant, pleading payment, sets forth
in an affidavit his cancelled check to the order of the plaintiff for the full
amount due on the note and a written receipt in full signed by the plaintiff,
while plaintiff in a reply affidavit merely states that he did not receive
payment and suggests no other proof, then to require a trial would be absurd;
for cross-examination of the defendant in such circumstances clearly would
be futile. {n17}  But where, as here, credibility, including that of the
defendant, is crucial, summary judgment becomes improper and a trial
indispensable. It will not do, in such a case, to say that, since the
plaintiff, in the matter presented by his affidavits, has offered nothing
which discredits the honesty of the defendant, the latter's deposition
must be accepted as true. We think that Rule 56 was not designed thus to
foreclose plaintiff's privilege of examining defendant at a trial,
especially as to matters peculiarly within defendant's knowledge.
Illustrative of the dangers, in this respect, of summary judgments, if not
cautiously employed, is a recent case in the court below. There the judge
refused to grant summary judgment for defendants, despite a mass of
impressive affidavits, containing copies of corporate records, the accuracy
of which plaintiffs did not deny in their affidavits, and which on their
face made plaintiffs' case seem nothing but a sham; at the trial, however,
cross-examination of the defendants revealed facts, theretofore unknown by
plaintiffs, that so riddled the defendants' case as it had previously
appeared on the summary judgment motion that the judge entered judgment
against them for several million dollars, from which they did not appeal.

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.'  {n17a}  Surely the aim
of present Rule 56 was not to restore in equity and introduce at 'law' the old
practices abolished in equity in 1912. That such was not the purpose appears
from Rule 43(a) which provides that 'the testimony of witnesses shall be
taken orally in open court' except in unusual circumstances. Moore reports
that this rule 'has the obvious advantage of permitting the judge or jury to
observe the appearance and demeanor of witnesses so as to determine more
readily their veracity (or lack thereof) and the weight to be given their
testimony'; and states that 'in the interest of oral testimony in open court,
the use of depositions has been confined to situations that warrant departure
from oral testimony.' {n17b}  He writes that where it appears that 'the
moving party [if he be a plaintiff] has exclusive knowledge of the facts'
the judge may deny a motion for summary judgment so that 'the adverse
party may be able to establish a defense if afforded the opportunity to
cross-examine the moving party in court.'  {n17c}

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' {n17d}  that his deposition may be used.
Moore says that the words we have italicized 'are a warning that this
provision is not to be used as authority for trying cases generally upon
depositions in the manner in which all equity cases were tried prior to
the adoption of the Equity Rules of 1912. In the Advisory Committee's
Preliminary Draft there was a provision that a deposition could be used
for any purpose at the trial 'if the parties affected thereby consent
thereto with the approval of the court.' This provision was dropped and
the present provision was substituted therefor apparently because it was
feared that the court would grant its approval whenever the parties
consented to the use of depositions, and thereby to that extent nullify
the salutary rule that testimony of witnesses shall be taken orally in
open court.' {n17e}

If defendant, who resides in the district and within a few miles of the
place of trial, {n17f}  should seek to substitute his own deposition for
his testimony on the stand at the trial, he could not do so under clause
2 of Rule 26(d)(3), {n17g} but would be obliged to show 'exceptional
circumstances' under clause 5. Consequently, mere business convenience
prompting his absence would be insufficient; the use of his deposition
would have to be justified as desirable 'with due regard to the importance
of presenting the testimony * * * orally in open court.' But no such
question is now before us. As no one has suggested that defendant is likely
to be absent, we cannot, on the record in this appeal, assume that
'exceptional circumstances' will exist when this case comes to trial; no
facts appeared to the court below which made it proper for it to proceed
on that assumption and to shut off the plaintiff from open-court
examination of defendant.

4. Assuming that adequate proof is made of copying, that is not enough; for
there can be 'permissible copying', {n18} copying which is not illicit.
Whether (if he copied) defendant unlawfully appropriated presents, too, an
issue of fact. The proper criterion on that issue is not an analytic or other
comparison of the respective musical compositions as they appear on paper or
in the judgment of trained musicians. {n19} The plaintiff's legally protected
interest is not, as such, his reputation as a musician but his interest in the
potential financial returns from his compositions which derive from the lay
public's approbation of his efforts. {n20} The question, therefore, is whether
defendant took from plaintiff's works so much of what is pleasing to the ears
of lay listeners, who comprise the audience for whom such popular music is
composed, that defendant wrongfully appropriated something which belongs
to the plaintiff. {n21}

Surely, then, we have an issue of fact which a jury is peculiarly fitted to
determine. {n22}  Indeed, even if there were to be a trial before a judge,
it would be desirable (although not necessary) for him to summon an advisory
jury on this question.

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.' {n23}  But this is not such a case. For, after listening to
the playing of the respective compositions, we are, at this time, unable to
conclude that the likenesses are so trifling that, on the issue of
misappropriation, a trial judge could legitimately direct a verdict
for defendant.

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; {n24}  for the views of such persons are
caviar to the general - and plaintiff's and defendant's compositions are
not caviar. {n25}

5. In copyright infringement cases cited by defendant, {n26} we have
sustained judgments in favor of defendants based on findings of fact made
by trial judges after trials, findings we held not to be 'clearly erroneous'.
There we did not attempt to pass on the veracity or credibility of
witnesses.  To do so here would be to convert an appellate court into a
trial court. The avowed purpose of those who sponsored the summary judgment
practice was to eliminate needless trials where by affidavits it could be
shown beyond possible question that the facts were not actually in dispute.
In the attempt to apply that reform - to avoid what is alleged to be a
needless trial in a trial court - we should not conduct a trial in this
court. Where the facts are thus in real dispute, it is our function, after
a trial in the lower court, to review its legal conclusions and, with
reference to its findings of fact, to determine not whether we would
ourselves have made them, but merely whether they rest on sufficient
evidence in the record. {n27}  When the trial occurs before a judge without
a jury, we have his findings of fact separated from his legal conclusions;
when it occurs before a jury, our task is somewhat different, especially
when the jury returns a general (i.e., composite) verdict. {n28}  But in
reviewing a judgment after either type of trial, ours must be a limited
function. This is not, and must not be, a trial court. Such a court has a
duty more difficult and important than ours. We begin our task where it
leaves off.  Until the Supreme Court tells us that we err, we shall
therefore adhere to the views stated in Doehler Metal Furniture Co. v.
United States, supra, {n29} and to our belief, expressed in Dellar v.
Samuel Goldwyn, Inc., 2 Cir., 104 F.2d 661, 662 and MacDonald v.
Du Maurier, 2 Cir., 144 F.2d 696, that generally there should be trials
in plagiarism suits.

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. {n30}  The facts do not permit the joinder of these non-federal
causes of action with the action for infringement of copyrights. {n31}

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.

Defendant, in his brief in this court says, 'This is perhaps the most
significant' argument in 'this case', and presses us to hold that affirmance
of the dismissal should be based thereon. Coupled with this request is an
implied suggestion that, with respect to the summary judgment, we should
not so concern ourselves with fear of creating a 'bad' precedent for the
future that we reach an unjust decision in this particular case. With that
suggestion we are in thorough accord. {n32} We decide against summary judgment
here because we consider it improper in this case. Our decision to that
effect will have precedential significance only to the extent that, in any
future case, summary judgment is sought when the facts are not beyond
the range of actual dispute.

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. {n33}
If so, he erred. Absent the factors which make up res judicata (not present
here), each case must stand on its own bottom, subject, of course, to the
doctrine of stare decisis. Succumbing to the temptation to consider other
defeats suffered by a party may lead a court astray; see, e.g., Southern
Pacific Co. v. Bogert, 250 U.S. 483, 489, 39 S.Ct. 533, 63 L.Ed. 1099,
note 1. When a particular suit is vexations, sometimes at its conclusion
the court can give some redress to the victorious party. Perhaps the
Legislature can and should meet this problem more effectively. But we
surely must not do so, as defendant here would have us do, by prejudging
the merits of the case before us. {n34}

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 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 e 2 in certain places
by both plaintiff and defendant, surely too simple and ordinary 2 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. {nn1}

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. {nn2}

Consequently I do not think we should 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 judgment. 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. n3 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.
{nn4}  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 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 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. {nn5}

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 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; {nn6}  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.


{n1}  Pathe Exchange, Inc. v. Dalke, 4 Cir., 49 F.2d 161. [**5]

{n2}  Frazier v. New England Newspaper Pub. Co., D.C.Mass., 1 F.R.D. 734;
Arnstein v. Twentieth Century Fox Film Corp., D.C.N.Y., 3 F.R.D. 58;
Metro-Goldwyn-Mayer Distributing Corp. v. Fisher, D.C., 10 F.Supp. 745, 747;
Universal Pictures Corp. v. Marsh, D.C., 36 F.Supp. 241, 242; cf.  Mail &
Express Co. v. Life Pub. Co., 2 Cir., 192 F. 899, 900-901; Brady v. Daly,
175 U.S. 148, 151, 160-161, 20 S.Ct. 62, 44 L.Ed. 109; Turner & Dahnken v.
Crowley, 9 Cir., 252 F. 749, 753; Bleistein v. Donaldson Lithographing Co.,
188 U.S. 239, 249, 23 S.Ct. 298, 47 L.Ed. 460.

Rule 1 of the Rules for Practice under Section 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.

{n3}  United States v. Cooper Corp., 312 U.S. 600, 604, 61 S.Ct. 742, 85 L.Ed.

{n4}  Fleitmann v. Welsbach Co., 240 U.S. 27, 36 S.Ct. 233, 60 L.Ed. 505;
Meeker v. Lehigh Valley R. Co., C.C.N.Y., 162 F. 354, 357.

{n4a}  The Federal Rules of Civil Procedure, 28 U.S.C.A. following section
723c, are applicable to copyright actions; see amendment, adopted June 5,
1939, to Rule 1 of Rules of Practice under Section 25 of the Copyright Act.

{n4b} See cases cited in note 18.

{n4c} See point 5 below and the Appendix to this opinion.

{n5}  Post v. United States, 5 Cir., 135 F. 1, 11, 70 L.R.A. 989; cf.
Hastings v. Brooklyn Ins. Co., 138 N.Y. 473, 34 N.E. 289; Hemmens v.
Nelson, 138 N.Y. 517, 34 N.E. 342, 20 L.R.A. 440; Walters v. Syracuse
Rapid Transit R. Co., 178 N.Y. 50, 52, 70 N.E. 98; Heist v. Blaisdell,
198 Pa. 377, 48 A. 259, 262; Blumenthal v. Boston, etc., R. Co., 97 Me.
255, 260, 54 A. 747; Moore, Facts (1898) Sections 146, 147, 152, 170, 171,
173, 175.

{n6}  Marston v. Dresen, 85 Wis. 530, 535, 55 N.W. 896, 899.

{n6a}  Even if it turned out that in part plaintiff falsified, that fact
would not necessarily discredit his entire testimony, United States v.
Greenstein, 2 Cir., 153 F.2d 550; Shecil v. United States, 7 Cir.,
226 F. 184, 187.

{n7}  See, e.g., Wigmore, Evidence, 2d Ed., 1936, Section 1367; Moore,
Facts (1898), Section 1274; The Ottawa, 3 Wall. 268, 271, 18 L.Ed. 165;
Sanborn, J., in Resurrection Gold Min. Co. v. Fortune Gold Min. Co.,
8 Cir., 129 F. 668, 675, 676; Lee Sing Far v. United States, 9 Cir.,
94 F. 834, 837.

{n8}  He would be so entitled if the trial were before a judge without a jury.

{n9}  'Sometimes a witness may be unimpeached as to general character, and
may be uncontradicted either by others, or be perfectly consistent in his
statement; and yet, from his deportment on the witness' stand, render
himself unworthy of credit. A hesitating or confused manner, or a studied
narrative of which a jury may judge from all that accompanies the delivery
of the testimony, will justly cast a shade of doubt upon it all.' United
States v. Darton, 25 Fed.Cas.14,919, at page 770; Moore, Facts (1898)
Section 994.

{n10}  Rule 26(d).

{n11}  Napier v. Bossard, 2 Cir., 102 F.2d 467, 468-469. Of course, under
the Rules, the deposition of-an adverse party may be used 'for any purpose',
but it is not a compulsory substitute for his examination in open court.

{n11a}  Barron v. People, 1 N.Y. 386, 391.

{n12}  Hammock v. McBride and McBride, 6 Ga. 178, 183.

{n13}  Untermeyer v. Freund, C.C.N.Y., 37 F. 342, 343.

{n14}  Sir John Coleridge, in Atty. General v. Bertrand, 4 Moo.P.C.N.S. 460,

{n15}  Pinson v. Atchison, T. & S. F. R. Co., C.C.Mo., 54 F. 464, 465. See
also, Moore, Facts (1898), Sections 963, 967, 991-995; Osborn, The Mind of
the Juror (1937) 96-98.

{n15a}  Brewer v. Beckwith, 35 Miss. 467, 472.

{n16}  See Sartor v. Arkansas Natural Gas Corporation, 321 U.S. 620, 624, 627,
64 S.Ct. 724, 88 L.Ed. 967; Arenas v. United States, 322 U.S. 419, 434,
64 S.Ct. 1090, 88 L.Ed. 1363; Doehler Metal Furniture Co. v. United States,
supra; cf. Firemen's Mut. Ins. Co. v. Aponaug Mfg. Co., 5 Cir., 149 F.2d 359,
363; Griffith v. William Penn Broadcasting Co., D.C., 4 F.R.D. 475.

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.

{n17}  We do not mean by this illustration that Rule 56 is limited to
suits for liquidated claims.

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'.

{n17a}  Lane, The Federal Equity Rules, 46 Harv.L.Rev. (1933) 638, 651.

{n17b}  Moore, Federal Practice (1938) 3064, 3066.

{n17c}  Moore, ibid., 3189. Here Moore is referring to Rule 56(f). If there
is impropriety in entering judgment on the grounds he mentions, it is surely
not necessary that the adverse party set them forth in an affidavit, and
certainly not here where he is a layman.

{n17d}  Emphasis added.

{n17e}  Moore, ibid., 2492, 2493; emphasis added.

{n17f}  The record shows that he resides in a hotel in New York City.

{n17g}  Clause 2 provides that a deposition may be used at the trial if 'the
witness is at a greater distance than 100 miles from the place of trial or
hearing, or is out of the United States, unless it appears that the absence of
the witness was procured by the party offering the deposition.' Moore suggests
that the 'unless' clause refers, not to absence from the trial, but to absence
from the territory within a radius of 100 miles from the place of trial. On
that basis, he says that 'a party who resides [italics his] more than 100
miles' distant has not 'procured his own absence', and may therefore offer
his own deposition. Whether that interpretation is correct we need not here
consider. His discussion of this question (2460, 2461, 2492) nowhere
intimates that the same would be true if, a party, a resident of the
district and within the 100-mile zone, absented himself for business

{n18}  Dymow v. Bolton, 2 Cir., 11 F.2d 690, 692; Oxford Book Co. v. College
Entrance Book Co., 2 Cir., 98 F.2d 688, 692; Eggers v. Sun Sales Co., 2 Cir.,
263 F. 373, 375; Mathews Conveyer Co. v. Palmer-Bee Co., 6 Cir., 135 F.2d 73,
84-85; cf. Folsom v. Marsh, 9 Fed.Cas.No.4901, at pages 344, 345; Chatterton
v. Cave, 3 A.C. 483; Macmillan Co. v. King, D.C., 223 F. 862, 863; 13 C.J.
1127-1128, 1132; 18 C.J.S., Copyright and Literary Property, 105, 109.

{n19}  Where plaintiff relies on similarities to prove copying (as
distinguished from improper appropriation) paper comparisons and the
opinions of experts may aid the court.

{n20}  Cf. King Features Syndicate v. Fleischer, 2 Cir., 299 F. 533, 536;
Falk v. Donaldson, C.C.N.Y., 57 F. 32, 37; Herbert v. Shanley, 242 U.S. 591,
594-595, 37 S.Ct. 232, 61 L.Ed. 511; Gross v. Van Dyk Gravure Co., 2 Cir.,
230 F. 412, 413; Pellegrini v. Allegrini, D.C., 2 F.2d 611; Mathews Conveyer
Co. v. Palmer Bee Co., 6 Cir., 135 F.2d 73, 85; Hanfstaengl v. W. H. Smith
& Sons, [1905] 1 Ch. 519, 525, 528; Ernest Turner Electrical Instruments,
Ltd. v. Performing Right Society, Ltd., [1943] Ch. 167, at pages 172, 174,
176. See 17 U.S.C.A. 1(e) and 28 as to performance for 'profit.'

{n21}  See Arnstein v. Broadcast Music, Inc., 2 Cir., 137 F.2d 410, 411-412;
Nichols v. Universal Pictures Corp., 2 Cir., 45 F.2d 119, 123; Dymow v.
Bolton, 2 Cir., 11 F.2d 690, 692; Gorham Co. v. White, 14 Wall. 511, 528,
20 L.Ed. 731; Harold Lloyd Co. v. Witwer, 9 Cir., 65 F.2d 1, 18, 28;
Kustoff v. Chaplin, 9 Cir., 120 F.2d 551, 559-560; Chatterton v. Cave,
3 A.C. 483, 492.

{n22}  It would, accordingly, be proper to exclude tone-deaf persons from
the jury, cf. Chatterton v. Cave, 3 A.C. 483, 499-501, 502-504.

{n23}  In such a case, the complete absence of similarity would negate both
copying and improper appropriation.

{n24}  Our comments in this paragraph would be pertinent if the trial were
before a judge alone. Of course, a judge trying a case without a jury does
not direct himself to enter a verdict; but the applicable standards are
virtually the same, for he is then, in part, a one-man jury.

{n25}  Nor need plaintiff's be. See, e.g., Baker v. Selden, 101 U.S. 99,
102, 25 L.Ed. 841; see also cases cited in notes 20 and 21, supra.

{n26}  See, e.g., Arnstein v. Edward B. Marks Music Corporation, 2 Cir., 82
F.2d 275, 277; Arnstein v. Broadcast Music, Inc., 2 Cir., 137 F.2d 410, 412.
See also the Appendix to this opinion.

{n27}  Even in admiralty, we give the usual weight to the findings of the
trial court.  Petterson Lighterage & T. Corp. v. New York Central R. Co.,
2 Cir., 126 F.2d 992.

{n28}  We must then assume any possible finding of fact which would support
the verdict. A special verdict in the case at bar might well be desirable.

{n29}  Cf.  Drittel v. Friedman, D.C., 60 F.Supp. 999, 1004.

{n30}  Warner Bros. Pictures v. Majestic Pictures Corp., 2 Cir., 70 F.2d 310,

{n31}  Zalkind v. Scheinman, 2 Cir., 139 F.2d 895.

{n32}  Cf.  Aero Spark Plug Co. v. B. G. Corporation, 2 Cir., 130 F.2d 290,

{n33}  Cf.  MacDonald v. Du Maurier, 2 Cir., 144 F.2d 696, 701, as to the
manner in which 'a judge unconsciously' is affected by extraneous factors
in 'an infringement suit coming up in this way' i.e., on the pleadings
and before trial.

{n34}  'That one reasonably may surmise that the plaintiff is unlikely to
prevail upon a trial, is not a sufficient basis for refusing him his day in
court with respect to issues which are not showing to be sham, frivolous,
or so unsubstantial that it would obviously be futile to try them.'
Sprague v. Vogt; 8 Cir., 150 F.2d 795, 799, 801.

{nn1}  In accord is Shafter, 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.

{nn2}  Thus Stewart Macpherson, Professor of Harmony and Composition in
the Royal Academy of Music, says in his standard text. Form in Music,
Rev.Ed. 1930, 1, 2: 'Music appeals to us in a threefold way, which may be
described under the 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.'

{nn3}  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.

{nn4}  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

{nn5}  I suggest that a case is not made out for such 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(c), and to some anonymous case where seemingly the trial judge,
being pressed to commit error, inconsiderately refused to do so. Had he
committed error, the appellate courts and the Supreme Court would have
been available for its correction; cf. note 6, infra.

{nn6}  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.