In the 20 May 2013 issue of The Nation, I have a review of Unfair to Genius, a biography by Gary A. Rosen of the early-20th-century musician and litigant Ira B. Arnstein. Arnstein started out as a moderately successful composer and music teacher, but as the music business changed, he lost his footing and in desperation turned to the courts, where he made rather wild claims of plagiarism against his colleagues.
In his end notes, Rosen points the reader to recordings of Arnstein’s songs available on the internet. For example, you can hear “A Mother’s Prayer,” a schmaltzy song that was Arnstein’s first big success, at the Library of Congress. It’s part of a 1913 recording of a medley by the Victor Military Band; Arnstein’s is the first tune in the medley. At Florida Atlantic University’s Judaica Sound Archives, you can hear a 1918 Columbia Gramophone recording of Arnstein’s “Soldiers of Zion,” a Jewish national anthem, as sung by Josef Rosenblatt, a celebrity of the day known as the Jewish Caruso. The Judaica Sound Archives also hosts a 1922 Victor recording of another Jewish tune of Arnstein’s, “V’Shomru.” The conductor at Victor who arranged for the recording, Nathaniel Shilkret, was to become an early victim of Arnstein’s legal attacks.
If you want to judge Arnstein’s cases yourself, head over to the Music Copyright Infringement Resource, hosted by Columbia University and the USC Gould School of Law. There you can listen to the songs on both sides and make up your own mind as to whether, say, Shilkret plagiarized Arnstein, as Arnstein alleged he did (the judge’s 1933 verdict: “there was not sufficient originality in the plaintiff’s eight measures to make it worthwhile for anyone to steal them”). In a case decided in 1936, Arnstein claimed that a CBS music director had taken the gypsy-themed tune “Play, Fiddle, Play” from him; you can listen for yourself to that tune, too, as well as to Arnstein’s supposed original. In Unfair to Genius, Rosen points out that judges of the day applied conflicting rules about how to determine plagiarism in music: there was one standard in Allen v. Walt Disney Productions (1941), and a different one in Carew v. RKO Pictures (1942). The songs fought over in both cases are in the Music Copyright Infringement Resource. As are the songs at issue in Arnstein’s lawsuits against Broadcast Music, Inc. and against Cole Porter. The Cole Porter case is the show-stopper of Rosen’s book; it led to a Second Circuit ruling still used by the courts to determine whether there’s been a copyright infringement. Was a pious song of Arnstein’s degraded into, as Arnstein put it, “a song to a cow,” namely, Porter’s “Don’t Fence Me In”?
UPDATE, 6:40pm: At Oxford University Press’s blog, Rosen has compiled a Spotify playlist of fifteen classic American songs that Arnstein claimed had been stolen from him. (Probably better listening than the songs that are indisputably his.)