A Professional Victim: On Ira B. Arnstein
Rosen calls the new dispensation the “Age of the Songwriter,” and he calculates that it lasted from the 1920s to the 1950s. No longer limited by the musical talents of the average home pianist, songwriters ventured into “more complex, instrumentally conceived melodies,” he writes. He speculates that the sophistication may also have been abetted by Prohibition, which ensured that audiences were less drunk and perhaps more discriminating. What probably made the most aesthetic difference, though, was money. Composers made more of it from the panoply of new rights, including for music played along with a film, than they ever had from a percentage of sheet music sales. For the first time, publishers started to treat composers politely. Some composers, like Irving Berlin and Cole Porter, became stars whose names still resonate today.
This is the transition that Ira B. Arnstein had the luck to live through. In his case, it seems to have been bad luck, and though it is hard to say why for certain, the impression I get from Rosen’s account is that Arnstein had enough talent to get by as a hack on Tin Pan Alley, where success depended on aping last year’s hit, but not enough to stand out, or even keep afloat, in the Age of the Songwriter, which rewarded creativity and musicianship. Arnstein knew that he hadn’t changed and he couldn’t fathom how the world had, so he explained his floundering to himself in the simplest way possible: The schmucks must be ripping me off.
In 1928, Arnstein sued Irving Berlin for plagiarizing a song of his that had never been published, sold or copyrighted. Arnstein couldn’t come up with a plausible story of how Berlin might have heard the tune, and the judge dismissed the case before it went to trial.
In 1929, a federal district attorney brought criminal charges on Arnstein’s behalf against Nathaniel Shilkret, a composer and conductor for Victor. A good deed was being punished: it was thanks to Shilkret that Victor had recorded an Arnstein song in 1922. Arnstein claimed that when he had tried to pitch Shilkret another song, Shilkret had insulted him by offering to buy rights to just the last eight bars. Arnstein refused, according to his version of events, and seven years later, he was shocked to hear the same eight bars—and sixteen more—recycled in a Shilkret tune that accompanied a silent movie.
It was unusual for a dispute over copyright to take the form of a criminal case rather than a civil one, and Rosen notes that the district attorney in question, ambitious to become governor, had previously won favorable publicity by going after ticket scalpers. He may have thought he could win more by targeting another part of the entertainment business that extracted money from the public: composers, in the form of their licensing society, ASCAP. After all, a few years prior, while working for a lobbying group for the radio industry, the prosecutor had labeled ASCAP a “trust octopus.”
The press didn’t cheer this campaign on, however, and the district attorney soon lost interest. In June 1931, his successor dropped the charges, saying that on closer scrutiny, Arnstein’s and Shilkret’s songs weren’t actually that similar.
Arnstein filed a civil suit in the criminal one’s stead, and his cause was briefly taken up by a glamorous lawyer who had previously represented Scopes, Sacco and Vanzetti, and the Scottsboro Boys, thereby bestowing upon Arnstein an “aura of self-righteousness” that, in Rosen’s opinion, doomed him. Arnstein had hoped that the Metropolitan Opera would produce his Song of David, but in February 1932, the opera company rejected him, and Rosen writes that “Arnstein the accomplished music professional disappeared that day, subsumed from then on by Arnstein the batty litigant.” The glamorous lawyer decamped, and the outcome proved humiliating. “There was not sufficient originality in the plaintiff’s eight measures,” the judge ruled in December 1933, “to make it worthwhile for anyone to steal them.”
Undeterred, Arnstein became a professional victim. Two days after the verdict, witnesses were already being deposed in his next suit, against Edward B. Marks, a music publisher who, like Arnstein, was a survivor of and throwback to Tin Pan Alley. Arnstein had lent a song manuscript to one of Marks’s lyricists, and he thought he heard passages from it repeated in “Play, Fiddle, Play,” a song published by Marks in 1932 and credited to the music director of the CBS Radio Network. “I have nothing to eat and my music is played all over,” Arnstein testified. “I was so desperate, if I had a gun at that time I would have committed murder.” He tried to prove the resemblance by having two violinists play snippets. When the judge asked to hear the songs all the way through, Arnstein yelled, “I want to prove what he stole and I don’t want this,” and was thrown out of the courtroom. It wasn’t his temper that lost him the case, though. It turned out that the CBS music director had been given the songwriting credit as a reward for plugging the song on CBS, and that the two men who actually did write it had never had access to Arnstein’s manuscript. Hearing the case on appeal, the distinguished jurist Learned Hand took the opportunity to overturn a precedent. Accidental resemblance between independently created tunes, he wrote, didn’t amount to an infringement of music copyright—one of Arnstein’s inadvertent legacies to jurisprudence.