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Berlin v. E.C. Publications, Inc.

December 15, 2023

Berlin v. E.C. Publications, Inc., 329 F.2d 541 (2d Cir. 1964),[1] was an important United States copyright law case decided by the United States Court of Appeals for the Second Circuit in 1964 involving the right to parody a well-known melody.

Berlin v. E.C. Publications, Inc.
CourtUnited States Court of Appeals for the Second Circuit
Full case nameIrving Berlin, et al v. E.C. Publications, Inc., et al
ArguedJanuary 10, 1964
DecidedMarch 23, 1964
Citation(s)329 F.2d 541 (2d Cir. 1964).
Court membership
Judge(s) sittingJoseph Edward Lumbard, Irving Kaufman, Thurgood Marshall
Case opinions
MajorityKaufman, joined by Lumbard, Marshall

Mad magazine had published a special edition in 1961 titled More Trash from Mad No. 4, which featured a songbook containing 57 parody lyrics to existing popular songs, such as Irving Berlin's "A Pretty Girl is Like a Melody" (Mad's version was the hypochondriac "Louella Schwartz Describes Her Malady"[2]). In each case, readers were advised that the magazine's lyrics could be sung "to the tune of" the original compositions' titles. Following the magazine's publication, several music corporations sued E.C. Publications, Inc. (the publisher of Mad magazine) over 25 of the 57 parodies. The suit asked for one dollar per song for each issue of More Trash from Mad No. 4 that had been published, totaling $25 million in alleged damages. The cover of the special had borne the inadvertently prescient blurb, "For Solo or Group Participation (Followed by Arrest)."

Berlin was the named plaintiff, but the suit was brought not just by Irving Berlin Inc., but also by the music publishers Chappell, T.B. Harms, and Leo Feist. Several of Berlin's compositions were at the heart of the dispute, but the complaint also cited songs by Jerome Kern, Cole Porter, Richard Rodgers, Lorenz Hart, and Oscar Hammerstein II.

The trial court found for Mad publisher E.C., establishing a legal precedent (the so-called "Mad magazine exception") protecting parody (but not, at that time, satire). The court ruled in E.C.'s favor on all but two of the parodies—"There's No Business Like No Business" and "Always"—whose lyrics were considered to revolve around the key words "business" and "always," and thus hewed too closely to the originals. For those two songs, the court denied summary relief to both parties. The other 23 parodies, such as "Louella Schwartz...", "The First Time I Saw Maris" and "The Horse That I'm Betting," were judged sufficiently distinct to qualify under "fair use."

The plaintiffs appealed to the Second Circuit, which ruled in Mad's favor for all 25 songs, not just the 23 that had been cleared by the trial court. In his decision, Circuit Court Judge Irving Kaufman wrote:

While the plaintiffs have resolutely insisted that the defendants' use of the original songs as a vehicle for the parodies was wrongful, and have alleged, in general terms, that the claimed infringements "caused substantial and irreparable damage," they have not indicated with any degree of particularity the manner in which injury might have been inflicted. There is no allegation akin to "passing-off"; with considerable reason, the plaintiffs have not asserted that the music-buying public could have had any difficulty in differentiating between the works of plaintiffs and defendants. Neither is there a claim that defendants' parodies might satisfy or even partially fulfill the demand for plaintiffs' originals; quite soundly, it is not suggested that "Louella Schwartz Describes Her Malady" might be an acceptable substitute for a potential patron of "A Pretty Girl Is Like a Melody." ...We believe in any event that the parody lyrics involved in this appeal would be permissible under the most rigorous application of the "substantiality" requirement. The disparities in theme, content and style between the original lyrics and the alleged infringements could hardly be greater. In the vast majority of cases, the rhyme scheme of the parodies bears no relationship whatsoever to that of the originals. While brief phrases of the original lyrics were occasionally injected into the parodies, this practice would seem necessary if the defendants' efforts were to "recall or conjure up" the originals; the humorous effect achieved when a familiar line is interposed in a totally incongruous setting, traditionally a tool of parodists, scarcely amounts to a "substantial" taking, if that standard is not to be woodenly applied. Similarly, the fact that defendants' parodies were written in the same meter as plaintiffs' compositions would seem inevitable if the original was to be recognized, but such a justification is not even necessary; we doubt that even so eminent a composer as plaintiff Irving Berlin should be permitted to claim a property interest in iambic pentameter.[3]

The music companies sought review by the U.S. Supreme Court, which declined to grant certiorari and so sustained the circuit court's ruling.[4][5]

Following the ruling, Mad went on to publish many hundreds of song parodies over the decades, including paperback collections. In 2009, the magazine's most prolific rhyming parodist, Frank Jacobs, appeared in the sixth chapter of the PBS documentary Make 'em Laugh: The Funny Business of America singing "Blue Cross," his parody of Berlin's "Blue Skies" (and health insurance) that had appeared in the original 1961 collection.

Parodies from Sing Along with MAD edit

Written by Irving Berlin:

Written by Jerome Kern:

Written by Cole Porter:

Written by Richard Rodgers, with Lorenz Hart or Oscar Hammerstein II:

The plaintiffs held the publishing rights to 30 of the 57 songs that had been parodied by Mad. Other than the six parodies specifically cited in the two judges' rulings -- "The First Time I Saw Maris", "Louella Schwartz Describes Her Malady", "I Swat You Hard on the Skin", "Blue Cross", "Always", and "There's No Business Like Show Business"—it is unclear which 19 of the plaintiffs' remaining 24 songs were in dispute.

Frank Jacobs wrote 23 of the parodies, whose topics ranged from nuclear physics to automation to the Philadelphia Phillies. Larry Siegel wrote another 23, on subjects from overcrowded classrooms to the 1960 Nixon-Kennedy debate to books about Hitler. The remaining 11 song parodies were credited to "The Editors." All of Jacobs' contested parodies were later included in the 2015 book collection MAD's Greatest Writers: Frank Jacobs.

See also edit

References edit

  1. ^ Berlin v. E.C. Publications, Inc., 329 F.2d 541 (2d Cir. 1964).
  2. ^ . Archived from the original on July 6, 2010. Retrieved March 16, 2011.{{cite web}}: CS1 maint: bot: original URL status unknown (link)
  3. ^ . Music Copyright Infringement Resource. USC Gould School of Law. Archived from the original on January 7, 2014. Retrieved January 7, 2014.
  4. ^ Jacobs, Frank; The MAD World of William M. Gaines; 1972
  5. ^ Federal Supplement, West's Federal Reporter; Second Series

December 15, 2023
berlin, publications, 1964, important, united, states, copyright, case, decided, united, states, court, appeals, second, circuit, 1964, involving, right, parody, well, known, melody, courtunited, states, court, appeals, second, circuitfull, case, nameirving, b. Berlin v E C Publications Inc 329 F 2d 541 2d Cir 1964 1 was an important United States copyright law case decided by the United States Court of Appeals for the Second Circuit in 1964 involving the right to parody a well known melody Berlin v E C Publications Inc CourtUnited States Court of Appeals for the Second CircuitFull case nameIrving Berlin et al v E C Publications Inc et alArguedJanuary 10 1964DecidedMarch 23 1964Citation s 329 F 2d 541 2d Cir 1964 Court membershipJudge s sittingJoseph Edward Lumbard Irving Kaufman Thurgood MarshallCase opinionsMajorityKaufman joined by Lumbard MarshallMad magazine had published a special edition in 1961 titled More Trash from Mad No 4 which featured a songbook containing 57 parody lyrics to existing popular songs such as Irving Berlin s A Pretty Girl is Like a Melody Mad s version was the hypochondriac Louella Schwartz Describes Her Malady 2 In each case readers were advised that the magazine s lyrics could be sung to the tune of the original compositions titles Following the magazine s publication several music corporations sued E C Publications Inc the publisher of Mad magazine over 25 of the 57 parodies The suit asked for one dollar per song for each issue of More Trash from Mad No 4 that had been published totaling 25 million in alleged damages The cover of the special had borne the inadvertently prescient blurb For Solo or Group Participation Followed by Arrest Berlin was the named plaintiff but the suit was brought not just by Irving Berlin Inc but also by the music publishers Chappell T B Harms and Leo Feist Several of Berlin s compositions were at the heart of the dispute but the complaint also cited songs by Jerome Kern Cole Porter Richard Rodgers Lorenz Hart and Oscar Hammerstein II The trial court found for Mad publisher E C establishing a legal precedent the so called Mad magazine exception protecting parody but not at that time satire The court ruled in E C s favor on all but two of the parodies There s No Business Like No Business and Always whose lyrics were considered to revolve around the key words business and always and thus hewed too closely to the originals For those two songs the court denied summary relief to both parties The other 23 parodies such as Louella Schwartz The First Time I Saw Maris and The Horse That I m Betting were judged sufficiently distinct to qualify under fair use The plaintiffs appealed to the Second Circuit which ruled in Mad s favor for all 25 songs not just the 23 that had been cleared by the trial court In his decision Circuit Court Judge Irving Kaufman wrote While the plaintiffs have resolutely insisted that the defendants use of the original songs as a vehicle for the parodies was wrongful and have alleged in general terms that the claimed infringements caused substantial and irreparable damage they have not indicated with any degree of particularity the manner in which injury might have been inflicted There is no allegation akin to passing off with considerable reason the plaintiffs have not asserted that the music buying public could have had any difficulty in differentiating between the works of plaintiffs and defendants Neither is there a claim that defendants parodies might satisfy or even partially fulfill the demand for plaintiffs originals quite soundly it is not suggested that Louella Schwartz Describes Her Malady might be an acceptable substitute for a potential patron of A Pretty Girl Is Like a Melody We believe in any event that the parody lyrics involved in this appeal would be permissible under the most rigorous application of the substantiality requirement The disparities in theme content and style between the original lyrics and the alleged infringements could hardly be greater In the vast majority of cases the rhyme scheme of the parodies bears no relationship whatsoever to that of the originals While brief phrases of the original lyrics were occasionally injected into the parodies this practice would seem necessary if the defendants efforts were to recall or conjure up the originals the humorous effect achieved when a familiar line is interposed in a totally incongruous setting traditionally a tool of parodists scarcely amounts to a substantial taking if that standard is not to be woodenly applied Similarly the fact that defendants parodies were written in the same meter as plaintiffs compositions would seem inevitable if the original was to be recognized but such a justification is not even necessary we doubt that even so eminent a composer as plaintiff Irving Berlin should be permitted to claim a property interest in iambic pentameter 3 The music companies sought review by the U S Supreme Court which declined to grant certiorari and so sustained the circuit court s ruling 4 5 Following the ruling Mad went on to publish many hundreds of song parodies over the decades including paperback collections In 2009 the magazine s most prolific rhyming parodist Frank Jacobs appeared in the sixth chapter of the PBS documentary Make em Laugh The Funny Business of America singing Blue Cross his parody of Berlin s Blue Skies and health insurance that had appeared in the original 1961 collection Parodies from Sing Along with MAD editWritten by Irving Berlin You re Just in Love parodied as That s the Way Payola Goes Easter Parade Beauty Parade There s No Business Like Show Business There s No Business Like No Business Blue Skies Blue Cross Always Always A Pretty Girl is Like a Melody Louella Schwartz Describes Her Malady The Girl That I Marry The Horse That I m Betting Cheek to Cheek Sheik to Sheik Written by Jerome Kern Who parodied as Luce The Last Time I Saw Paris The First Time I Saw Maris Smoke Gets in Your Eyes Castro Told Us Lies Written by Cole Porter I ve Got You Under My Skin parodied as I Swat You Hard on the Skin Begin the Beguine When They Bring In the Machine Anything Goes Anything Goes You re the Top You re the Top Let s Do It Let s Do It I Get a Kick Out of You I Get a Kick Back From You It s All Right with Me To Get More Salary Written by Richard Rodgers with Lorenz Hart or Oscar Hammerstein II Where Or When parodied as Where Or When It Might As Well Be Spring I m Glad That You Can t Sing A Cockeyed Optimist A Nuclear Physicist There s a Small Hotel There s a Small Canal Oklahoma Albert Einstein My Funny Valentine My Padded Overtime Shall We Dance Shall We Strike Hello Young Lovers Hello Young Doctors I Whistle a Happy Tune I Tell Em They ve Got a Bug My Heart Stood Still My Dreams Were Killed Manhattan I ll Have Nairobi Oh What a Beautiful Morning Oh What a Beautiful Beefsteak The plaintiffs held the publishing rights to 30 of the 57 songs that had been parodied by Mad Other than the six parodies specifically cited in the two judges rulings The First Time I Saw Maris Louella Schwartz Describes Her Malady I Swat You Hard on the Skin Blue Cross Always and There s No Business Like Show Business it is unclear which 19 of the plaintiffs remaining 24 songs were in dispute Frank Jacobs wrote 23 of the parodies whose topics ranged from nuclear physics to automation to the Philadelphia Phillies Larry Siegel wrote another 23 on subjects from overcrowded classrooms to the 1960 Nixon Kennedy debate to books about Hitler The remaining 11 song parodies were credited to The Editors All of Jacobs contested parodies were later included in the 2015 book collection MAD s Greatest Writers Frank Jacobs See also editCampbell v Acuff Rose Music Inc Mad magazine Controversy and lawsuitReferences edit Berlin v E C Publications Inc 329 F 2d 541 2d Cir 1964 Louella Schwartz Describes her Malady Archived from the original on July 6 2010 Retrieved March 16 2011 a href Template Cite web html title Template Cite web cite web a CS1 maint bot original URL status unknown link Irving Berlin et al v E C Publications Inc 329 F 2d 541 2d Cir 1964 Music Copyright Infringement Resource USC Gould School of Law Archived from the original on January 7 2014 Retrieved January 7 2014 Jacobs Frank The MAD World of William M Gaines 1972 Federal Supplement West s Federal Reporter Second Series Retrieved from https en wikipedia org w index php title Berlin v E C Publications Inc amp oldid 1177718582, wikipedia, wiki, book, books, library,

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