A Professional Victim: On Ira B. Arnstein | The Nation


A Professional Victim: On Ira B. Arnstein

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ASCAP figured prominently in Arnstein’s psychic decline, and Rosen is to a degree sympathetic. In those days, ASCAP sold only a “blanket license”—a flat fee for the right to perform for a year or a number of years all songs written by its members. Once a radio station had paid the fee, it was in the station’s economic interest to play only songs that belonged to ASCAP or were in the public domain, so the effect of the licensing society was rather like a cartel’s: you couldn’t join without a hit song, and no song of yours could become a hit unless you were a member. In March 1931, Arnstein applied to join. In 1935, the society got around to rejecting him, saying that his compositions earned too little. Arnstein was enraged, and in 1935 he wrote a musical drama about a starving composer whose music is stolen by a ring of racketeers, and who bludgeons one of his plagiarists to death with an inkstand. In 1937, he picketed ASCAP in a sandwich board. Shilkret recalled the sign as reading Unfair to Genius, though in historical fact it seems to have been a little more prolix.

Unfair to Genius
The Strange and Litigious Career of Ira B. Arnstein.
By Gary A. Rosen.
Buy this book

About the Author

Caleb Crain
Caleb Crain is the author of the novel Necessary Errors, recently published by Penguin Books.

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Later that year, Arnstein represented himself in a monstrous lawsuit against twenty-three composers and publishers simultaneously. He lost on all counts, even after the defense presented no evidence to rebut his charges. Broke and thrown out of one boardinghouse after another, Arnstein came to believe that the FBI was after him, and in January 1941 the police took him to Bellevue for observation. Doctors pronounced him insane and wanted to commit him to Pilgrim State Hospital. Against medical advice, he was released into the custody of his sister. He was under the mistaken impression that it was a condition of his release that he not sue ASCAP.

* * *

Instead, in February 1941, he sued Broadcast Music Inc. (BMI), a rival licensing society created by the radio industry. Like ASCAP, BMI had rejected him, and Arnstein alleged that the licensing society had stolen eight of the songs listed in his membership application. Rosen politely calls this “implausible,” noting that all the BMI songs in question had been published before Arnstein applied, but he adds that “The crazier Arnstein’s cases seemed to get, the more fissures in the law they illuminated.”

American courts were still uncertain how to judge musical similarity, Rosen explains. In Carew v. RKO Pictures (1942), for example, a judge wrote that what mattered was “the impression which the pirated song or phrase would carry to the average ear.” In Allen v. Walt Disney Productions (1941), however, a judge held that similarity could be demonstrated through charts that compared elements and details. Arnstein loved charts. Rosen writes that his late ones looked like Saul Steinberg cartoons. Arnstein argued that similarity proved by charts like his could serve two purposes in court: it could justify an inference of copying, and it could show the extent of the copying in question.

“Half right,” pronounces Rosen. Arnstein lost his case against BMI when the judge adopted the Carew standard, but Rosen thinks that Arnstein’s reasoning to some extent prefigures a celebrated appeals ruling still quoted in legal casebooks today: the Second Circuit’s 1946 decision to grant Arnstein’s appeal in a suit against Cole Porter. The ruling has been qualified and challenged, but it was “never superseded by a more authoritative Supreme Court pronouncement,” Rosen writes.

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It’s a fact of music history that Cole Porter believed that “the secret of writing hits” was, in his own words, to “write Jewish tunes.” Arnstein thought that it was his Jewish tunes in particular that Porter had written, and in 1945 he demanded a jury trial to prove it. Porter’s lawyers called for a summary judgment, arguing that there were no facts for a jury to settle. Because Arnstein rejected the Carew standard, they said, the disagreement was a matter of law only. The judge granted their motion, Arnstein appealed, and in 1946 the Second Circuit ruled—surprisingly—in his favor. The liberal jurist Jerome Frank, in concert with Learned Hand and over the protests of their colleague Charles Clark, accorded Arnstein a jury and wrote out instructions for the jurors to follow. To show plagiarism in music, Frank directed, there were indeed two lemmas that had to be proved. First, a plaintiff had to show that the defendant had copied him, and to do so, he could use an Arnstein-style dissection. Second, though, he had to show that the copying was so extensive that it counted as infringement, and here a chart was no help. The audience for popular music consisted of ordinary people, and unless a layperson heard the same pleasures in the defendant’s song that he heard in the plaintiff’s, nothing of value had been stolen. In his case against BMI, Arnstein had claimed that music thieves “always add two or three notes to cover up the identity.” According to Frank’s understanding, however, if a few added notes disguised the theft for the average listener, no harm had been done. 

After Arnstein got his jury, they voted against him. “Music isn’t written with scissors,” sneered ASCAP’s president, testifying for Porter. The judge, moreover, awarded Porter $2,500 in legal costs, a sum that, since Arnstein couldn’t pay it, kept him from any chance of prevailing in a federal court for the rest of his life. He attempted another omnibus lawsuit, this time in a New York State court, in 1948, but the charges against all fifty defendants were dismissed. Arnstein died alone in his armchair in September 1956, within hours of Elvis Presley’s first appearance on The Ed Sullivan Show—just as the Age of the Songwriter was giving way to the Age of the Recording Artist.

Caleb Crain recently reviewed James Lasdun’s account of being the victim of a stalker, Give Me Everything You Have.

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