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Arnstein v. Porter


    Citation. Arnstein v. Porter, 154 F.2d 464, 1946 U.S. App. LEXIS 3889, 68 U.S.P.Q. (BNA) 288 (2d Cir. N.Y. Feb. 11, 1946)

    Brief Fact Summary. Cole Porter (Defendant) defended an infringement suit by denying having access to the songs or copying them.

    Synopsis of Rule of Law. In a copyright infringement dispute, if there is evidence of access and similarities exist, then the trier of the facts must decide whether the similarities are enough to prove copying.


    Facts. Arnstein (Plaintiff) claimed that Porter (Defendant) had plagiarized some songs and sued for infringement of copyright.  The district court considered Arnstein’s (Plaintiff) allegations that Porter (Defendant) or his “stooges” had burglarized his room to gain access to his songs “fantastic,” and accepted Defendant’s denial of access and copying.  When Defendant’s motion for summary judgment was granted, Plaintiff appealed.

    Issue.In a copyright infringement dispute, if there is evidence of access and similarities exist, then must the trier of the facts decide whether the similarities are enough to prove copying?

    Held.(Frank, J.)  Yes.  In a copyright infringement dispute, if there is evidence of access and similarities exist, then the trier of the facts must decide whether the similarities are enough to prove copying.  If no similarities exist, no amount of evidence of access will do to prove copying.  There are enough similarities here between Arnstein’s (Plaintiff) and Porter’s (Defendant) compositions so that, if there is enough evidence of access to permit the case to go to the jury, the jury may properly infer that the similarities were not a result of coincidence. No oral testimony on the issue of access was presented to the district court and Plaintiff’s credibility, even as to the “fantastic” improbabilities, should be left to the jury.  Since it is not “indubitable” that Defendant did not have access to Plaintiff’s compositions, summary judgment was not proper.  Reversed.

    Dissent.(Clark, J.)  Since the musical compositions are of the simple and trite character where small repetitive sequences are not hard to discover, there is no legal basis for the claim of plagiarism.

    Discussion.This case points out the two elements required to establish infringement.  First, copying must be shown, either directly or circumstantially.  Then, it must be shown that the copying went so far as to constitute improper or unlawful appropriation.


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