Hein v. Harris
District Court, S.D. New York
In Equity. Suit by Silvio Hein and Marie Cahill against Charles K. Harris. On motion for preliminary injunction. This is a molion for an injunction pendente lite to restrain the infringement of a copyright upon a song called “The Arab i'.ove gong.” The defendant is a publisher of a song entitled “I Think I Hear a Woodpecker Knocking at My Family Tree.”
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In Equity. Suit by Silvio Hein and Marie Cahill against Charles K. Harris. On motion for preliminary injunction. This is a molion for an injunction pendente lite to restrain the infringement of a copyright upon a song called “The Arab i'.ove gong.” The defendant is a publisher of a song entitled “I Think I Hear a Woodpecker Knocking at My Family Tree.” The complainant does not assert that his song is infringed in the words, or in any part of the melody except the chorus; but he does assert that in the chorus the defendant so closely imitates the mehjdy of his own chorus that it constitutes an…
1Opinion of the Court
HAND, District Judge.
I have no difficulty in finding that the defendant’s song is an infringement of the complainant’s. They are written in the same measure, called “common time,” and each is in the minor mode. It is true that the keys are different; but this is a distinction which is of no consequence to the ears of all but those especially skilled in music, and, indeed, even among persons skilled in music the power to distinguish two keys when they are not played in immediate juxtaposition is by no means universal. If the melody of the defendant’s chorus be transposed into the key of three…
2Cited by13 opinions
- Buck v. Jewell-LaSalle Realty Co.Supreme Court of the United States · 1931
- Heim v. Universal Pictures Co.Court of Appeals for the Second Circuit · 1946
- Harms v. CohenDistrict Court, E.D. Pennsylvania · 1922
- Northern Music Corp. v. King Record Distributing Co.District Court, S.D. New York · 1952
- Cal Williams, Doing Business as Trophy Center v. Kaag Manufacturers, Inc.Court of Appeals for the Ninth Circuit · 1964
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