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.