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.
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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.)
* * *
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.
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.
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.
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.