Edward A. Conger

“ I do not place much reliance on the first two claimed similarities. As a matter of fact, the first (the key signature) respondents argue is not quite correct. Complainant's composition was originally written in the key of A, respondents' in the key of F; both were afterwards changed to various keys by publishers who commercialized them.
The same applies to the second, that is, the tempo. Complainant's composition was originally written in march time, while respondents' in waltz time.
The third alleged similarity, the pattern of each, does not add much to complainant's contention. ”

“ Where similarities or identities are relied upon, they must do more than engender a suspicion of piracy; they must establish piracy with reasonable certainty." In connection with the above, independent reproduction of a copyrighted musical work is not infringement. Nothing short of plagiarism will serve. Arnstein v. Marks Music Corp., 2 Cir., 82 F.2d 275. With these decisions in mind, I shall now take up the question of the alleged piracy of complainant's work. ”

“ Complainant's song was not published in printed copies until 1936; it was not popular and had very little vogue before that. Respondents' song was written in November, 1934, and a copy of the manuscript deposited in the Copyright Office in January, 1935. Mr. Churchill was a professional writer of undoubted ability. He composed music directly on paper and not by playing a piano. ”

“ You find the elements of it in the exercises in harmony books." Later, when he dissected the measures, this same witness made an analysis of the harmonies and found, as he said, many substantial differences which he illustrated by charts and by use of the piano. ”