July 2007
The High and the Mighty goes to court

by Warren M. Sherk

In 1955, after winning an Academy Award for the score from The High and the Mighty, Dimitri Tiomkin was named in a lawsuit by composer Leon Navara. Navara claimed that the film’s title song was based on a composition of his own, and was seeking $5 million in damages for copyright infringement.

Navara (1899-1975) is perhaps best known for his appearance in the 1938 Vitaphone musical short “Leon Navara and His Orchestra.” Billed as the “Aristocrat of Jazz,” he was familiar to New York vaudeville audiences as a bandleader and master of ceremonies from the late 1920s through the 1930s. By 1939 he had taken up residence in Hollywood, where his career apparently stalled. His orchestra’s West Coast debut took place at the Paramount Theatre in Los Angeles in 1940, where they played before screenings of Geronimo! After that, however, the orchestra’s appearances were few and far between. Around 1949 Navara wrote a tune, and the following year Ned Washington supplied lyrics. The song, “Enchanted Cello,” failed to sell, and Washington released his rights to Navara in 1951.

Fast-forward a few years. Tiomkin and Washington collaborated on “The High and the Mighty,” each receiving an Academy Award nomination for their effort. Navara, having heard the work, filed suit, naming as defendants M. Witmark & Sons (publisher of the sheet music), Wayne Fellows Productions (now known as Batjac Productions), Tiomkin, and Washington.

The affected parties gathered in Manhattan in late 1958, as the case came before the Supreme Court of New York. (The Supreme Court of New York, unlike most other states and the U.S. Supreme Court, is a general jurisdiction trial court, not the highest court in that state.) During the trial Navara, representing himself, claimed that he, Tiomkin, and Washington had been collaborating on songs at around the same time Tiomkin was working on The High and the Mighty. Navara asserted that Washington, who knew the melody for “Enchanted Cello,” somehow communicated it to Tiomkin. Thus, Navara concluded, Tiomkin either consciously or unconsciously copied his melody. As orchestrator Patrick Russ points out, Tiomkin never collaborated with other composers when he wrote songs, only lyricists.

Tiomkin contended that the melody originated with him, that he did not have access to “Enchanted Cello,” and that he and Washington never discussed Navara’s song. The case, heard by Judge Thomas A. Aurelio and argued before a jury, lasted three weeks. The defense called Sigmund Spaeth, known as the “Tune Detective,” and Deems Taylor, the noted music critic and composer, as expert witnesses. (In Tiomkin’s autobiography, he recalls how Spaeth demonstrated that the popular song “Yes, We Have No Bananas” shares melodic similarities with both Handel’s Hallelujah chorus and the folk song “My Bonnie.”) Spaeth, who was familiar with both Tiomkin and his compositional oeuvre, was in the twilight of his lengthy career as a music critic and reviewer. His books on music enjoyment and appreciation were widely read, and some of his many articles focused on the importance of motion picture music. Spaeth exhibited two dozen classical works, as well as two of Tiomkin’s previous works, and explained that they shared the same melodic characteristics with the first six notes of “High and the Mighty.” After the trial he commented to Newsweek, “It’s impossible to get ‘The High and the Mighty’ out of ‘Enchanted Cello.’ Only one note, a B-flat, appears in the same place in both songs.” Spaeth’s testimony undoubtedly helped Tiomkin in the eyes (and ears) of the jury; however, it was not the deciding factor in the case.

Under New York state law, Navara had to prove that Tiomkin had access to and intentionally copied the song. Not only did Navara fail on both counts, but he also was unable to prove that “Enchanted Cello” was written prior to “High and the Mighty.” The sole copyright record attributed to Navara in the U.S. Copyright Catalog is for a 1952 song, “I Hope, I Hope, I Hope,” written with Stanley Adams. Navara was in fact suing Tiomkin for “common-law copyright infringement,” meaning he claimed copyright on his work even though he had not registered it.

When playing the songs for the jury, the two sides made use of a piano, a record player, and a tape recorder. The jurors also watched at least part—if not all—of the film. During deliberations the jury asked to hear recordings of the two musical compositions again. The foreman twice sent written requests to the judge for clarifications of the law. One involved the definition of “unconscious copying” and the other “conscious substantial copying.” The judge instructed the jurors that they must find “conscious substantial copying” and that the substantial portion must include a “considerable, large, important, essential and material part” of the melody. In the end, the jury returned a unanimous verdict in favor of Tiomkin and his co-defendants on December 18, 1958. (In an interesting aside, the court maintained that if Tiomkin and Washington were found guilty of copyright infringement, the other co-defendants, Witmark & Sons and Wayne Fellows, would also be found liable. Both Witmark and Wayne claimed during the trial that even if there had been infringement, they were innocent because they would have had no knowledge of it.) On January 8, 1959, Judge Aurelio entered a judgment in favor of Tiomkin et al.

Navara immediately filed a motion for re-argument, citing errors on the judge’s part in his responses to the jury’s inquiries during deliberations. Judge Aurelio granted the motion, but on March 26, 1959, he upheld the jury verdict. Ultimately, Judge Aurelio ruled that Navara’s argument of “unconscious copying” did not satisfy the criteria of intentional copying under New York law. In September 1960 the case came to a close when three judges in the Appellate Division of the Supreme Court of New York denied Navara’s motion for an appeal to the Court of Appeals. Because Navara failed to establish that Tiomkin had access to “Enchanted Cello,” he would not be entitled to a reversal on appeal even if the judge had erred in his instructions to the jury.

Spaeth, Taylor, and Tiomkin agreed that lay juries are not qualified to pass judgment on the similarity between songs, and that in the future a musical referee of some sort should be consulted prior to trial. Though vindicated, the trial cost Tiomkin perhaps as much as $100,000 in legal fees. He felt plaintiffs in plagiarism suits often sought only a quick settlement from publishers wishing to avoid court costs. “I hope that my experience will…help some other composer when his reputation is challenged,” Tiomkin said.

© 2007 Volta Music

UPDATE: Read pianist Ronald Simone’s experience with the court case.

Sources

  • The Dimitri Tiomkin Collection at the University of Southern California (thanks to Ned Comstock)
  • Box Office (January 5, 1959)
  • The Los Angeles Times and New York Times, accessed through ProQuest
  • Newsweek (January 5, 1959)
  • Variety (December 24, 1958)
  • Leon Navara, Plaintiff, v. M. Witmark & Sons et al., Defendants, accessed via LexisNexis (web.lexis.com), online July 28, 2007
  • http://en.wikipedia.org/wiki/New_York_Supreme_Court
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