NOTES

1.           Selle v. Gibb, 567 F. Supp. 1173 (N.D. Ill. 1983), aff'd, 741 F.2d 896 (7th Cir. 1984).

2.           The judge sits as trier of fact when there is no jury. Parties will often demand juries in plagiarism cases, as was done                in Selle, and for simplicity, this discussion will assume the trier of fact is a jury.

3.           17 U.S.C. § 102(b).

4.           17 U.S.C. § 107.

5.           17 U.S.C. § 501(a).

6.           See Arnstein v. Porter, 154 F.2d 464 (2d Cir. 1946).

7.           Selle v. Gibb, 741 F.2d 896 (7th Cir. 1984). See generally, Sherman, Musical Copyright Infringement: The                Requirement of Substantial Similarity, 22 Copyright L. Symp. (ASCAP) 81 (1977).

8.           154 F.2d 464, 473 (2d Cir. 1946).

9.           Record at 6-7.

10.         Record at 8.

11.         Record at 9.

12.         Record at 11.

13.         Record at 10.

14.         Record at 12.

15.         Record at 21-36.

16.         Record at 109-12.

17.         Record at 116-17.

18.         Record at 187-89.

19.         Record at 198.

20.         Record at 199.

21.         Record at 202.

22.         Record at 222-23.

23.         Record at 224-30.

24.         Record at 232.

25.         Record at 232-37.

26.         Record at 243-48.

27.         Record at 249.

28.         Record at 249.

29.         Record at 249-50.

30.         Record at 254-62.

31.         Record at 266.

32.         Record at 267-70.

33.         Record at 266-67.

34.         Record at 278.

35.         Record at 279. Parsons sought cover with this answer again when asked why he didn't check to see if the similar                rhythm might be duplicated by other songs. Without that knowledge, how could he know if the rhythmic similarities                were significant? Parsons replied, "My assignment was to compare these two songs in question and that is what I                did." Record at 309. The tendency to defend oneself during cross-examination is understandable, but the effect of                this answer is to transfer blame to the party on whose behalf the witness is testifying.

36.         Record at 355.

37.         Record at 286-88.

38.         Record at 818.

39.         Stipulations are agreements between counsel concerning facts incidental to the proceedings or not controverted,                such as, here, the identity of the taped excerpt. Lawyers are not supposed to waste the court's time by requiring                proof of uncontroverted facts. A stipulation read into the record comprises part of the evidence.

40.         See, e.g., "Lawyers Play `Name That Tune' in the Bee Gees Case," Variety, 23 February 1983, 2; United Press                International (Domestic News), 17 February 1983. The excerpt was taken from Theme B of "Let It End."

41.         Record at 410.

42.         Record at 414ff.

43.         Record at 571.

44.         Record at 573.

45.         "Cross-examination should be limited to the subject matter of the direct examination and matters affecting the                credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on                direct examination." Fed. R. Evid. 611(b).

46.         Record at 620.

47.         Record at 621-22.

48.         Record at 621-23.

49.         Robert C. Osterberg, interview by author, 26 October 1990, New York.

50.         The judge may direct a verdict, rather than submitting the issue to the jury, where there is no material issue of fact                and one party is entitled to judgment as a matter of law.

51.         Record at 637-39.

52.         Record at 959-60.

53.         Record at 960-62.

54.         Record at 963 and 966.

55.         Record at 977.

56.         See Record at 973.

57.         See Record at 1039-47.

58.         Selle v. Gibb, 567 F. Supp. 1173, 1179 (N.D. Ill. 1983), aff'd, 741 F.2d 896, (7th Cir. 1984).

59.         567 F. Supp. at 1179.

60.         Id.

61.         Id. at 1182-83.

62.         Selle v. Gibb, 741 F.2d 896, 900 (7th Cir. 1984).

63.         Id. at 901.

64.         Id.

65.         Id. at 902.

66.         See Ferguson v. National Broadcasting Co., 584 F.2d 111, 113 (5th Cir. 1978) (Access must be more than a                bare possibility and may not be inferred through speculation or conjecture).

67.         741 F.2d at 905.

68.         Id.

69.         Id.

70.         See Fed. R. Evid. 403.

71.         Alfred M. Shafter, Musical Copyright, 2d ed. (Chicago: Callaghan, 1939).

72.         Shafter, supra note 70, at 193-99 (emphasis in original). See also, Orth, The Use of Expert Witnesses in Musical                Infringement Cases, 16 U. Pitt. L. Rev. 232 (1955). "The propensity has existed for a long time to steal the tunes                of other composers. Liszt made free use of gypsy melodies and Handel was a notorious plagiarizer. Upon listening                to Brahms' First Symphony, for instance, one might well recognize that the broad chorale of the fourth movement                has been transplanted from the `Ode to Joy' motif in Beethoven's Ninth Symphony, which, in turn, had its origin in                the minuetto of Mozart's Haffner Symphony, which came from Sandrina's aria `Una voce vento al core.'" Id. (citing                Shafter, supra note 70, and Fox, Evidence of Plagiarism in the Law of Copyright, 6 U. of Toronto L.J. 414,                415 (1946)).

73.         The attorney Louis Nizer, in his book My Life in Court (Garden City, N.Y.: Doubleday, 1961), describes his                cross-examination of Spaeth in the plagiarism trial involving "Rum and Coco-Cola," Baron v. Leo Feist, Inc., 78 F.                Supp. 686 (S.D.N.Y. 1948), aff'd, 173 F.2d 288 (2d Cir. 1949).

74.         Shafter, supra note 70, at 189.

75.         "If it were not for the fact that juries are almost never called in [popular music cases], the average ear test would be                somewhat ineffective in holding copiers for infringement, because infringing tunes are usually written--probably with                success--to deceive this very class of listener. Thus the infringer, who had cleverly disguised the tune by rhythmic                and/or harmonic tricks, would be given great leeway, amounting in the case of a skillful and careful job of plagiarism                to virtual immunity." Orth, supra note 71, at 236.

76.         Heinrich Schenker, Free Composition, trans. and ed. Ernst Oster (New York: Longman, 1979), 105.

77.         Keyt, An Improved Framework for Music Plagiarism Litigation, 76 Calif. L. Rev. 421, 424 n.17 (1988). "We                are dealing, of course, with a romantic concept still widely shared by laymen: the composer creates in an intoxicated                daze, at `white heat,' and if he uses material of earlier creation, he is a plagiarist, a swindler, and a thief. One                wonders why the other romantic conception of the artist as an irresponsible individual who must not be measured by                the standards of bourgeois ethics is not applied in this instance. . . . Only those who do not understand the process                of musical composition, who cannot see and feel the subtlety of transfiguration that can be created by a changed                melody, even a single note, rhythm, or accent, have made a moral issue of something that is a purely esthetic                matter." Id. at 425 (quoting Paul Henry Lang, George Frederic Handel (1966), at 559-69).

78.         M. Fletcher Reynolds, Music Analysis for Expert Testimony in Copyright Infringement Litigation (Ph.D.                Dissertation: University of Kansas, 1991).

79.         This runs counter to Orth's proposition: "While the rule is that numerous similarities will create an inference of                copying sufficient to show infringement if this circumstantial evidence is convincing, it has been held that this rule is                not applicable where the claimed similarities in the two works are so technical or complex that the average person is                unable to hear any substantial similarity. . . ." Orth, supra note 71, at 238 (citing Gingg v. Twentieth Century Fox                Film Corp., 56 F. Supp. 701 (S.D. Cal. 1944)). In fact Gingg refers only to similarities that are "highly technical in                nature." Orth apparently added the term "complexity." Where similarities share a greater complexity of relationships,                they should be more apparent to the average listener, not less.

80.         Although the author disagrees with many of Orth's premises, Orth reaches a similar conclusion regarding the                combination of ear and intellect. "Expert testimony would be used to guide the jury, to point out significant                similarities and possibly to explain and clarify psychological reactions to the two compositions. . . . Such testimony                would be heard along with the impression made on the jury's ears by several careful playings, and, taking the                whole testimony and complex of impressions together, the decision would be left to the jurymen, under                appropriate summary and instructions by the judge. Included should be an instruction to the effect that the jury must,                in whatever state of enlightenment the experts have developed in it, now hear substantial similarities between the                works before holding defendant liable.

81.         Judge Clark's dissent in Arnstein v. Porter points out the potential problem. "I find nowhere any suggestion of two                steps in the adjudication of this issue, one of finding copying which may be approached with musical intelligence and                the assistance of experts, and another that of illicit copying which must be approached with complete ignorance; nor                do I see how rationally there can be any such difference, even if a jury--the now chosen instrument of musical                detection--could be expected to separate those issues and the evidence accordingly. 154 F.2d 464, 476 (2d Cir.                1946).

82.         The bifurcation was intended to limit expert testimony, but Fed. R. Evid. 704, abolishing the ultimate issue rule,                provides an adequate basis for allowing expert testimony on all infringement tests. Der Manuelian, The Role of the                Expert Witness in Music Copyright Infringement Cases, 57 Fordham L. Rev. 127, 147-48 (1988).

83.         Preservation of context must be a crucial element of copying. It is not enough to compare only strings of                acoustical events. The comparison must include the structures that the sounds articulate." Keyt, supra note 76, at                437 (emphasis in original).