Re: copyright under stress

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

In Fred Fisher v. Dillingham (298 F. 145 S.D.N.Y., 1924), Judge Learned Hand found the Jerome Kern's "Kalua" infringed the composition "Dardanella" by means of an eight-note figure in the accompaniment. Judge Hand wrote:

    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 to account for a similarity, which amounts     to an identity. So to hold I need not reject     his testimony that he was unaware of such a     borrowing. --Id. at 147.

I accept the need for a doctrine of unconscious infringement as part of a well-balanced copyright system, but our modern absurdly long copyright terms make the doctrine a burden which the public receives no compensation for bearing.

In this particular case, I think the decision was wrong. In my opinion, a very simple ostinato accompaniment should be considered to be a sub-copyrightable public-domain building block of music, which anyone should be permitted to copy from anyone else.

Tim Phillips
<hrothgar[_at_]telepath.com> Received on Wed Jun 14 2000 - 04:11:11 GMT