Reviewed by Victoria A. Redd, The Journal Offices, University of Florida Levin College of Law, Email: firstname.lastname@example.org.
Recently Japan has started prosecuting anyone who is in possession of illegally obtained music or movies (fines and jail time range from $26,000 to $128,000 in fees and 2-10 years in jail), especially violators with illegally obtained country music, the industry backing these strict laws. The public has been infuriated by this and asking the question: “Isn’t music supposed to represent freedom of expression?”
Copyright infringement via Internet is considered a hot button in the music industry. Some argue that file-sharing is good for the industry stating that for every illegal download you get five additional sales (Hammond, 2012) and others argue that it decreases sales, ignoring other factors such as a weakened economy that takes away from entertainment expenditures (Lasar, 2011). High-priced lawyers defend clients with deep pockets hoping to claim unpaid royalties. Of course, “copyright infringement” should be against the law, but the general public favors this only when the artist who created the work is hurt by the big company who they believe obtained the copyright through ulterior motives without any thought for the artist’s benefit. So, why should it matter if it is an artist or a huge corporation defending their rights?
“The Age of the Songwriter” (p.xiii) is a term used to describe the era in the music industry that existed from the 1930s to just after World War II. This era is where we have the beginnings of radio broadcasting and talking pictures. It was during this time that Ira B. Arnstein, an intellectual property litigant who never won a case, turned the copyright law and the music industry on its ear – causing an evolution in not only the music industry and copyright law, but also in how artists looked at their music.
When the U.S. copyright law started in 1790 (mirroring the Statute of Anne, England’s copyright law) (Gellis), the law basically covered literary works as a way to control the printing of books: Congress added music in 1831, public performance in 1897, and mechanical sound reproductions in 1912. Arnstein began his career in 1893 as a boy soprano at age 11 in the “White City” exhibition at Chicago’s World Fair (p.31). By the 1920s, he was broke and bitter believing that there was a conspiracy against him. Arnstein’s delusional illness progressed, and finally, led him to claim that everyone was stealing his music. From 1935 until his death in 1949, his sickness led him to sue anyone that was well-known in the music industry (Irving Berlin, Alberto Dominguez, Cole Porter, and the American Society of Composers, Authors and Publishers to name a few), [*587] but “the copyright infringement principles of Arnstein have endured” (p.257). Alan Hartnick, a legal commentator, has even said although “Arnstein is dead, [he is] not buried” (p.257) because somewhere there is a judge being influenced by Arnstein’s view of copyright infringement. At the very least, we can agree that copyright infringement cases have shifted and today many artists are awarded royalties in lawsuits. What exactly are “the copyright infringement principles of Arnstein” according to legal scholars? And, what do these principles say about how a case should be judged in the courts? What kind of direction do these principles give to intellectual property lawyers who are dealing with all kinds of copyright infringement, most notably the challenge of digital copyright infringement?
People who are interested in these questions and copyright litigation will enjoy reading Gary A Rosen’s lively book Unfair to Genius: The Strange and Litigious Career of Ira B. Arnstein. The book title is appropriate, but the book is also referred to as “The Long and Tortured Career of Ira B. Arnstein,” which does the book a disservice because it is all but boring or dry. Rosen, an intellectual property lawyer for more than 25 years who currently has a private practice in Pennsylvania, gives a detailed and well-researched historical account (including numerous photos, Notes referencing pages and chapters, Bibliography, and Index) of Arnstein’s tragic experience with the music industry of his time in addition to his “day-in-court” which lasted for over 30 years. More importantly, Rosen’s book includes the changes that have been made by the courts regarding copyright law.
Rosen begins his book by describing the atmosphere of “Tin Pan Alley” (a nickname given to the song publishing industry in New York City) while carefully weaving the history of copyright law from the 1890s to 1932. He concludes the first chapter by introducing the reader to Arnstein through a threatening letter written to Emory Deutsch, the music director for CBS (a flagship network belonging to William Paley). Arnstein’s letter begins: “Dear Sir. By taking my song ‘Where Are You Now’ and turning it into ‘Play Fiddle Play’ you made a great mistake. . . .” Nearly three years later this attack culminates in a courtroom.
Although this book is definitely not a biography of Ira Arnstein (whose name was originally Isaac. Arenstein and changed to de-Russianize it), as the book progresses, we learn many things about Arnstein () and are enlightened by Rosen’s knowledge about the history of the music business. Arnstein made his living as a music teacher for nearly 20 years. His association with Theodore Arison (a fellow Russian immigrant) who owned Arison’s Music House, a music store and dealership for the Victor Talking Machine, allowed him to meet other musicians, see new publications, and listen to new recordings in the industry (p.66). Because of World War I, Arnstein was forced to find other pursuits to make a living such as working in the silent movie house industry and as a sewing machine operator (pp.71-72). In 1919, his mother passed away and with the decline of his Yiddish community, he soon moved on to his most productive years of writing music. It was during this time that [*588] Arnstein wrote a song called “Alone,” which later was incredibly similar to Irving Berlin’s “A Russian Lullaby,” a 1927 hit. This led to Arnstein’s starter lawsuit which he quickly lost (pp.81-82).
From that moment, the book leads us through many complaints that Arnstein makes against numerous people and companies in the music business, some of whom the U.S. Attorney indicted on criminal copyright infringement on Arnstein’s opinion alone. However, the dismissal of one indictment for Nat Shilkret seemed to be the kindle that led Arnstein to aggressively go after Shilkret and begin his career of court litigant (p.97). Arnstein must have been a sight to behold in court, because he had a knack for belittling defendants using terms such as “faker or . . . moron.” (p.118) and his dramatic demeanor and unorthodox methods seemed to keep him from winning his cases. In one case, he even had two violinists come into the courtroom and play passages from two separate songs to show the similarity between the two (p.127).
Rosen’s portrayal of Arnstein and his cases is very detailed, but more importantly, Rosen has shown that the six cases brought by Arnstein have reformed copyright law and defined copyright infringement. With the Copyright Act of 1976, there are “six exclusive rights granted to the owner of a copyrighted work” (Braune and Schechter p.195). In most cases, trial is based on copyright infringement alone which is commonly defined “to reproduce or make copies of someone’s work.” But in Arnstein’s cases the words “copyright infringement” were equivalent to “plagiarism.” He brought cases because of the similarity to his work (p.81)
“Striking or substantial similarity” is a term used today in copyright infringement cases (Brauneis and Schechter 2012). When striking similarity is found in a work, some judges feel this sometimes proves access, which in turn proves copying. The Arnstein cases first proved copying which in turn proved access to Arnstein’s work. In his own words, Arnstein would say “they were sung publicly” referring to radio. So access does not really prove anything. Because of the Arnstein cases, we have attorneys who are simply hired to help companies not be sued for infringement. They are hired to minimize their risk. In courts today we hear the words “substantial similarity,” “non-literal copying,” “ordinary or discerning observers,” and “protectable or unprotectable elements.” We can even go one step further and think about all the various kinds of works out there now with the internet age, book scans, downloads, videos, photoshopped images, file sharing, youtube, and shared software and ask: How can you analyze two items to determine infringement? What is Fair Use?
Therein is the difficulty. But as Judge Jerome Frank wrote about Arnstein, “I don’t think we should jeer this fellow out of court merely because we think he is a little touched” (p.229). Rosen’s book is humorous, direct, at times crass, but most definitely entertaining. Those studying copyright law or considering entering into the intellectual property legal world should pull up a chair and read Rosen’s book. [*589]
Braune, Robert and Roger E. Schechter. 2012. Copyright: A Contemporary Approach (The Interactive Casebook Series). Thomson Reuters Westlaw. Ch. 4.
Couto, Alexandra. 2008. “Copyright and Freedom of Expression: A Philosophical Map,” in Intellectual Property and Theories of Justice. Alex Gosseries, Alain Marciano and Alain Strowel eds. Palgrave Macmillan.
Gellis, Cathy, “The Statute of Anne,” Statements of Interest: Looking at Life Through a Lawyer’s Lens (Blog), Jan. 3, 2009, http://www.cathygellis.com/soi/2009/01/the-statute-of-anne.html.
Hammond, Robert G. 2012. “Profit Leak? Pre-Release File Sharing and the Music Industry,” SSRN Working Paper Series No. 2059356.
Japan Introduces Piracy Penalties for Illegal Downloads, BBC News Technology, Sept. 30, 2012, http://www.bbc.co.uk/news/technology-19767970.
Lasar, Matthew. Did File-Sharing Cause Recording Industry Collapse? Economists Say No, ARS TECHNICA, Mar. 23, 2011, http://arstechnica.com/tech-policy/2011/03/is-file-sharing-the-global-future/.
U.S. Copyright Office, Copyright Law of the United States and Related Laws Contained in Title 17 of the United States Code, Circular 92 (Dec. 2011), http://www.copyright.gov/title17/.
U.S. Copyright Office – Information Circular 1a, http://www.copyright.gov/circs/circ1a.html.
Arnstein v. ASCAP, 29 F. Supp. 388 (S.D.N.Y. 1939).
Arnstein v. Broadcast Music, 137 F.2d 410 (2d Cir. 1943).
Arnstein v. Broadcast Music, 46 F.Supp. 379 (1942).
Arnstein v. Edward B. Marks Music Corp., 82 F.2d 275 (2d Cir. 1936).
Arnstein v. Irving Berlin, Inc., N.Y. Sup. Ct. No.7758 (1928).
Arnstein v. Porter, 154 F.2d 464 (2d Cir. 1946).
Copyright 2012 by the Author, Victoria A. Redd.