A Professional Victim: On Ira B. Arnstein
Suppose you want to write a brand-new popular tune. A piano has only eighty-eight keys, and the span of the human voice is even narrower. Only a few rhythms and chord progressions reliably please the palate of the masses, and myriad tunes have already been written under these constraints and are protected by copyright. Is it possible to write a new one that doesn’t echo an old one?
Is plagiarism inevitable in pop music? Thanks to combinatorics, the answer is certainly no for a song at full length. And the answer is probably still no if one focuses on just the heart of a song—whatever, legally speaking, that is. But even a genius would probably be unable to write a new pop song that doesn’t resemble some old one for at least a bar or two. When music plagiarism cases go to trial, lawyers and judges must somehow distinguish inevitable echoes from willful theft. “If a song writer is ethical,” A.J. Liebling once quipped, in a book he ghost-wrote for an unscrupulous music publisher, “he will not cop a tune within three years of its publication.” The law aspires to something a bit longer-lasting and maybe even less cynical. But to formulate a rule for distinguishing accidental from larcenous parallels is a fiendish challenge, and in attempting to rise to it, a mind could easily lose its way. As the lawyer Gary Rosen recounts in Unfair to Genius, an entertaining if somewhat pointillist new biography-cum-legal-history, the minor early-twentieth-century composer Ira B. Arnstein not only ruined his musical career through the chronic litigation of music plagiarism cases; he literally went mad.
“A crank, a noodnik, and a loser” is how Rosen describes his hero. He didn’t start out that way. Born in Ukraine sometime between 1876 and 1883 to a Jewish family, Itzig Arenstein emigrated in 1891 to New York City, where he lived on the Lower East Side. In 1893, he sang as a boy soprano at the World’s Fair in Chicago, part of a choir led by a woman who collected folk songs and corresponded with Marx and Engels. As a young man, he toured with the opera singer Nellie Melba as a pianist, and in 1899 he launched his composing career with a solo piano work, “A Mother’s Prayer.” He sold the rights to the saccharine piece for $75, and it was to remain in print for decades.
“Itzig” was altered to “Isaac,” then to “Ira,” while “Arenstein” was shortened to “Arnstein.” As the family grew more respectable, they moved to Harlem and later to the Upper West Side, where Ira opened a music school. So industriously did he compose that by 1914 he was up to opus 80. During World War I, he was inspired to reclaim his Jewish roots by the success of Josef Rosenblatt, known as the Jewish Caruso, a cantor who performed on the vaudeville circuit and at Carnegie Hall without compromising his Orthodox convictions. (Rosenblatt even had a cameo in the movie The Jazz Singer.) Arnstein wrote a Jewish national anthem that Rosenblatt recorded for Columbia Gramophone in 1918. Victor and Columbia published recordings of another Jewish-themed song by Arnstein in 1922, and in 1925 his biblical opera, The Song of David, was staged in New York as a work in progress.
To make a living as an artist in any era is an achievement, but Arnstein’s gifts were modest and his career wouldn’t have been memorable if he hadn’t run off the rails and crashed into the law. A reader of Rosen’s book may therefore feel a little uncertain how to allocate his attention: Arnstein, the ostensible foreground, is quite often less interesting than the background, the changes in copyright law and the music business in the early twentieth century.
Those changes were epochal, after all, and they invite comparisons with the radical shifts we’re living through today. As early as 1845, a Supreme Court justice determined that a popular song could have enough musical originality to merit copyright protection. But the modern American music business really got started in 1891, when Congress for the first time granted American copyright protection to works originally published abroad. American tunes began to be bought in large numbers by American publishers, who had until then preferred to reprint the tunes of foreign composers without paying for them. Tin Pan Alley was born. Its publishers, many of whom were Jewish and all of whom understood themselves to be primarily salesmen, were aggressive about giving away free public performances of the songs. The commodity they sold, after all, was sheet music. Their target consumer was the amateur musician—a home pianist or a member of a barbershop quartet—so the songs had simple rhythms and plain harmonies that wouldn’t tax an average talent. In fact, Rosen suggests, the songs weren’t much good. The only ones from the period that anyone alive today is likely to have heard, he writes, are those bought up by Warner Brothers in the late 1920s as the industry was dying and then immortalized as ditties in animated cartoons.
What killed Tin Pan Alley was new technology. With the advent of the player piano, the phonograph and the radio, fewer people went to the trouble of making music themselves. People still liked to listen, but not many had a need for sheet music anymore. (Those little tumuli of compact discs that nowadays appear curbside on Saturday mornings during the season of spring cleaning? Evidence of similar obsolescence in our time.) In 1909, in acknowledgment of the shift, Congress introduced a copyright in mechanical reproductions: that is, in player-piano rolls and phonographs, which were replacing sheet music as commodities. Another new revenue stream was born in 1914 with the founding of the American Society of Composers, Authors and Publishers (ASCAP), a licensing association that set about demanding payment from hotels, restaurants, movie theaters and eventually radio stations for public performances. Because Tin Pan Alley had taught consumers to expect to be able to listen for free, ASCAP faced howls of protest for years—howls amplified by the radio industry, which grew faster than it otherwise might have if it had been obliged to pay in its early years for the musical content it distributed. (The howls and the freeloading, too, have their parallels today.)
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