[Dixielandjazz] Rum & Coca Cola

[Stephen G Barbone]

 >Another irony. Morey Amsterdam lost the case as
 >composer of "Rum And Coca Cola" based on one diminished chord.


There was more to it than that. For the complete story, see "My Life  
In Court" by Louis Nizer who was the attorney for the plaintiff in the  
case. Below is the crux of Judge Simon Rifkind's opinion in the case.  
Bottom line is that the melody notes were almost identical. Although  
it wasn't a part of this case, suppose the defense said, well there  
are only 12 notes so there must always be some repetition. Actually  
the odds of playing 12 notes in the exact same sequence, each one only  
once, are a staggering 479,001,600 to one. (12 x 11 x 10 x 9 x 8 x 7 x  
6 x 5 x4 x 3 x 2 x 1)

Then if you introduce possibilities that a note may be played more  
than once in that 12 note sequence, the odds rise much higher, and if  
you add degrees of loudness, much higher again, then add the different  
note values into the equation and add 88 note so the piano and you see  
just how small the chances of a random repetition of melody notes are.

Also, the lyrics which Amsterdam said he wrote were clearly copied in  
part from those  on L'Annee Passee.

L'Annee lyrics:

Since the Yankees came to Trinidad
They have the young girls going mad
The Young girls say they treat them nice
And they give them a better price

Amsterdam's Lyrics:

Since the Yankees come to Trinidad
They got the young girls all goin' mad
Young girls say they treat 'em nice
Make Trinidad like Paradise.

Excerpt of Judge Simon Rifkind's Opinion on R & CC music as a Copy of  
L'Annee Passee
"Popular music is a field where professional reputation is of utmost  
importance, and the practice is to split royalties equally between  
composer of music and author of lyric. The first copyright  
application, in September, 1944, listed Amsterdam as sole author of  
words and music; the first contract between Feist, Amsterdam and  
Baron, dated October 18, 1944, provided that Amsterdam receive two- 
thirds of the royalties, and that Baron receive no credit as composer.  
The first 200,000 recordings of "Rum and Coca Cola" made by the  
Andrews Sisters carried labels identifying Amsterdam as composer of  
both words and music, making no mention of Baron. After Sullavan and  
Paul Baron consulted a lawyer, the nature of which consultation Baron  
cannot recall, a new contract dated December 14, 1944, split the  
royalties three ways, among the three individual defendants, and  
thereafter Miss Sullavan and Baron were credited and listed as co- 
authors of the music, Amsterdam as author of lyric."

"Five copies of plaintiff's "Calypso Songs of the West Indies" were in  
the library of the Columbia Broadcasting System's New York office  
during the time Baron allegedly wrote the music of "Rum and Coca  
Cola"; Baron was at the time employed by that company and frequently  
made use of the library." (MY NOTE L'ANNEE PASSEE WAS IN THAT SONG BOOK)

The accused song bears the kind of similarity to plaintiff's song  
which, by standards set up by the Court of Appeals of this Circuit  
indicates internal evidence of copying even in the absence of proof of  
access. Heim v. Universal Pictures Co., 2 Cir., 1946, 154 F.2d 480;  
Hein v. Harris, D.C.S.D.N.Y., 1910, 175 F. 875, Affirmed, 2 Cir., 183  
F. 107. (MY NOTE: THERE WAS AMPLE EVIDENCE OF PROOF OF ACCESS IN THIS  
CASE) The uninterrupted sequence of identical notes is too great to  
admit of any other inference but copying. The rhythm, construction and  
the harmony of both songs are little short of identical. To the lay  
ear substantial identity is the only inference.2 See Arnstein v.  
Porter, 2 Cir., 1946, 154 F.2d 464. As further evidence of copying,  
the first copyrighted version of defendant's song (which is not the  
accused song), bears even greater correspondence to "L'Annee Passee",  
the chief difference being in the final phrase of the verse, which is  
the phrase Grant said he changed. (MY NOTE: RUM AND COCA COLA WAS  
WRITTEN SHORTLY AFTER MOREY AMSTERDAM VISITED TRINIDAD WHERE L'ANNEE  
PASSEE WAS OFTEN PLAYED.)

Further exploration of the evidence is unnecessary. There is no doubt  
in my mind that Amsterdam brought both the words and the music with  
him from Trinidad, and it was in substantially that form that  
defendants' song was published. Baron's claim to authorship of the  
composition is a fabrication.

Mohamed Khan, holder of the copyright on Grant's lyrics has already  
prosecuted a successful infringement action against Leo Feist, Inc.,  
for plagiarism of the lyric of "Rum and Coca Cola." Kahn v. Leo Feist,  
Inc., S.D.N.Y., 1947, 70 F.Supp. 450, affirmed 2 Cir., 165 F.2d  
188. . . . . .

The evidence clearly establishes infringement of plaintiff's  
copyright, and judgment must go for plaintiff. Reference will be had  
to a master on the issue of damages.



Ain't the Law fun?



Cheers,

Steve Barbone

www.myspace.com/barbonestreetjazzband