unconscious infringement

(Was: copyright under stress)

On Mon, 12 Jun 2000, Robert Cumbow <rcumbow[_at_]grahamdunn.com> wrote:
>
> I know the Harrison case. What was the Kern case?

Fred Fisher v. Dillingham, 298 F. 145 (S.D.N.Y. 1924) -- a Learned Hand case. Great precursor to the Harrison case. I'm astonished that it wasn't cited in the Harrisongs case. A sample excerpt:

     Whether [Kern] unconsciously copied the figure, he cannot say, 
     and does not try to.  Everything registers somewhere in our 
     memories, and no one can tell what may evoke it.  On the whole, 
     my belief is that, in composing the accompaniment to the refrain 
     of "Kalua," Mr. Kern must have followed, probably unconsciously, 
     what he had certainly often heard only a short time before.  I 
     cannot really see how else to account for a similarity, which 
     amounts to identity.

Compare to the excerpt from the Harrisongs case:

     What happened?  I conclude that the composer, in seeking musical
     materials to clothe his thoughts, was working with various
     possibilities.  As he tried this possibility and that, there 
     came to the surface of his mind a particular combination that 
     pleased him as being one he felt would be appealing to a 
     prospective listener; in other words, that this combination of 
     sounds would work.  Why?  Because his subconscious knew it 
     already had worked in a song his conscious mind did not remember. 
     Having arrived at this pleasing combination of sounds, the 
     recording was made, the lead sheet prepared for copyright
     and the song became an enormous success.  Did Harrison 
     deliberately use the music of He's So Fine?  I do not believe 
     he did so deliberately.  Nevertheless, it is clear that My Sweet 
     Lord is the very same song as He's So Fine with different words, 
     and Harrison had access to He's So Fine.  This is, under the 
     law, infringement of copyright, and is no less so even though 
     subconsciously accomplished.

-- 
Terry Carroll         |   "The United States is located in
Santa Clara, CA       |   the District of Columbia."
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