This is an action for alleged infringement of a copyrighted, unpublished song. Infringement is charged both as to lyrics and with respect to the music.

The evidence establishes without contradiction that plaintiff has composed approximately fifty to seventy-five songs, many of which she submitted to publishers, but none was published. Her musical education consisted of studying singing while .a university student and subsequently under an instructor. Later she conducted a •class in harmony at Oklahoma University and she has also sung in Glee Clubs. Plaintiff has had no training in musical composition. For some years past she has been •earning her livelihood as a clerical worker.

In the summer of 1941, she composed the -words and music of the song entitled, “There’ll Never Be Another You,” alleged to have been infringed by the defendants. She made several copies of this song, including the one filed with the copyright office on September S, 1941. One copy was forwarded to a music publishing house in New York City. Another was submitted to a publishing concern in the City of Los Angeles known as “Melody Lane,” still another copy was sent to an organization called “B. M. I.” It is her recollection that she made about five copies of this song in all. She further testified that, she played the same sometime in 1941, in the presence of the Oklahoma W. P. A. State Supervisor of Music, and on another occasion played her composition for some friends, and that in addition she sent a recording thereof to a sister and another to a Miss Church-well. However, her testimony fails to disclose when she submitted 'any of these copies or recordings.

Plaintiff admitted that prior to the trial she had never met either the 'defendant Gordon, writer of the lyrics of the alleged infringing song, or the defendant Warren, composer of the music thereof. Likewise, she acknowledged that sh'e never submitted her song to any of the defendants.

The music of plaintiff’s composition consists of the melody only. The alleged infringing song is entitled: “There Will Never Be Another You”. The music thereof includes both the melody and the accompaniment or harmony.

Defendant Gordon is a nationally known figure in the field of popular song writing. In the course of his testimony he stated that over a period of approximately the past sixteen years he had written the lyrics for many hundreds of songs, also that at least several hundred of these had been published, and that many of these had been among the most popular songs throughout the nation.

He further testified that he did not know plaintiff and that prior to the commencement of this suit he had not heard or read either the music or the words of plaintiff’s song. Likewise, he stated'he had written the lyrics of the alleged infringing song without assistance from any individual or any other source and after the co-defendant Warren had composed the music for the same. These lyrics, he said, were original with himself and had been written by him about November or December of 1941, while he was employed by the co-defendant, Twentieth Century-Fox Film Corporation, hereinafter referred to as the Film Company.

In addition, he testified that about 1936 he wrote the lyrics for another song en titled: “Never Tn A Million Years.” This song was published and copyrighted in 1937, and became featured in a motion picture produced by the Film Company and entitled : “Wake Up and Live”. The first two lines of the chorus of the last mentioned song read:

Defendant Warren is likewise a nationally known personality in the field of popular music. Among other matters, he testified that he had been engaged in composing music for approximately the past twenty-eight years; that he had composed the music for hundreds of popular songs, also for many stage productions and for at least fifty motion pictures; that at least five hundred of his songs had been published and that many of these had been among the most popular throughout the nation.

He likewise stated that he did not know plaintiff, and that prior to the filing of this litigation he had not heard or read either the music or the words of plaintiff’s composition. He further testified that he had composed the music of the alleged infringing song without assistance from anyone else or from any other source, and that he submitted his work prior to the writing of the lyrics for the same by the co-defendant Gordon.

In addition, this witness said that while he could not recall the exact date or period when he composed the music in question, he was certain that this work was performed sometime between September 1, 1941, and May 1, 1942, while he was in the employ of the Film Company. At present, he stated, he was in the employ of Metro Goldwyn Mayer Studios.

This defendant further testified that the rhythmic pattern of one full note followed by two short notes, which appears frequently in the alleged infringing song, has been employed by him in at least fifty other songs. lie also asserted that there was a clear difference between the melodic structure of plaintiff’s composition and that employed in his song, and, further, that there was no appreciable similarity between the two works from a musical standpoint.

Testifying on behalf of the co-defendants, Mayfair Music Company and Decca Records, Inc., Edwin II. Morris, President of the former, stated that throughout the summer and latter part of the year 1941, he personally examined all songs submitted to his company and selected therefrom those which his company published. He also asserted that his company published the alleged infringing song, and that the first time lie heard anything concerning plaintiff’s song was somewhere between six months and one year after publishing Gordon and Warren’s composition. However, he said that he had never seen her song until this trial, and added that he was unacquainted with her.

The plaintiff and likewise the defense each offered expert testimony. The witness who appeared as plaintiff’s expert stated that he was a pianist, composer and teacher of music; that he had been teaching about forty years, including six years at the Northwestern Conservatory of Music in Minneapolis; also that he had served as an advisor to teachers of music, had written articles on music for magazines and conducted a column on the subject in a newspaper. He further acknowledged that, while he either had composed or had assisted in the composing of popular music to the extent of about one hundred pieces, he had had exceedingly limited experience with popular music during the past thirty years.

Plaintiff’s' expert conceded that the alleged infringing composition when played bears very little, if any, resemblance to' plaintiff’s song, at least so far as the average person or ordinary listener is concerned. He also acknowledged that in the former there are four measures to each-musical phrase, whereas in plaintiff’s song the entire chorus and most of the verse consisted of phrases having three measures each. Likewise he admitted that although the key signature at the beginning of plaintiffs song purported to denote that it was written in the key of “F,” also that whereas the rules for composing music require that the concluding note shall conform in key to the opening note, nevertheless, in plaintiff’s composition the closing note does not conform to the beginning note. At the request of defense counsel, this witness undertook to compose and play the harmony for the concluding phrase of the chorus in plaintiff’s work, upon the assumption that the latter had been written in the key of “F,” and he thereupon admitted that correct harmonizing could not be accomplished in that key. He further conceded that no difficulty would be experienced if plaintiff’s work were treated as being written in. the key of “C.” However, -he explained that, if he were undertaking to write the harmony for plaintiff’s song, he would compose the harmony for the verse in the key of “F,” and the harmony for the chorus in the key of “C.” In addition, he acknowledged that plaintiff’s work might be construed as having been written in any one of three different keys, towit: “B” flat, also “C” and “A” minor. He pointed out that he had made a comparative study of the two songs involved herein, particularly with respect to the music thereof,' also that such study had been conducted upon the assumption that plaintiff’s song was written in the key of “B” flat, and accordingly he had prepared certain comparative charts showing the melody of these songs in parallel lines, except that plaintiff’s composition had been re-written so as to conform to the key in which defendant’s song was written, namely, the key of “E” flat. However, it appeared that if in preparing these charts the witness had assumed plaintiff’s composition as being originally written in the key of “C,” then the transposition thereof to the key of “E” flat would have required different notes from those shown in said charts.

Likewise he stated that the chorus in the alleged infringing work had been composed in conformity with orthodox pattern, namely, that it comprised thirty-two measures, whereas the chorus in plaintiff’s song consisted of fifty-two and a half measures and followed no recognized pattern. Furthermore, he asserted that the most striking similarity between the two works from a musical standpoint was to be found in the first phrase or first four measures of the chorus of the two songs, and also that the most characteristic melody of each composition was to be found in such first phrase. However, it should be noted that the four notes comprising the first measure and the first note of the second measure of the chorus in defendant’s song constitute the first five notes of the scale. In spite of these differences between the two songs, as heretofore noted, plaintiff’s expert claimed that he found many similarities between these two works,' more particularly with respect to the repetition of the first phrase of the chorus, also with respect to rhythmic pattern, melodic pattern and cadences, and accordingly because of such similarities it was his opinion that the composer of the alleged infringing work had copied the music of plaintiff’s song.

Defendant’s expert witness, Arthur Lange, is a composer, conductor and arranger of national repute. He testified that his musical experience extended over a period of about thirty-five years; also that he had composed more than five hundred musical works, which included symphonic poems and other works, many popular songs, nearly all of which had been published. His experience also included arranging dance orchestrations, writing books dealing with the same, and also conducting musical shows, dance bands, motion picture studio orchestras and symphony orchestras. He also stated that at the present time he was a “free lance” composer and conductor, although recently he had composed a ballet for defendant Film Company.

According to his testimony, although the signature on plaintiff’s song purported to indicate the same to be written in the key of “B” flat, a correct reading thereof disclosed that it was actually written in the key of “C.” He likewise had made a comparative study of the two works involved herein, and asserted that from a musical standpoint there was no appreciable similarity between them.

This witness pointed out in considerable detail important rhythmic and metric differences between the two songs. He also demonstrated that in the chorus of defendant’s composition the musical pattern comprises, firstly, a section of eight bars, followed by eight bars which may be described as new material or a development of the preceding theme, next eight bars which may be designated as a restatement of the music found in the first eight bars with a slight alteration at the end thereof, and then the final eight bars which are a virtual repetition of the music in the second eight bars, with the exception of a slight change at the end in order to bring the song to a close. On the other hand, he called attention to the fact that in the chorus of plaintiff’s song we first have a section of twelve bars, followed by twelve other bars, the latter containing no new material or any development of the music comprising the first twelve bars, but consisting of a repetition of the identical notes thereof; these, in turn, are followed by what is called a release, comprising a minimum of fourteen bars, and which release may be regarded as containing sixteen bars, provided certain of the notes be treated as up-beats or preludes to the phrases constituting such release; next there are ten bars which constitute a repetition of the identical notes found in the first ten bars of the chorus, and, finally, we have the two concluding bars of the melody.

According to the testimony of this expert, while it is true that there can be found in defendant’s work the mirroring of certain measures of plaintiff’s song, these situations are not melodically the same, and, furthermore, they represent note combinations which are quite common. Again, he asserted that the instances wherein there are similarities between the two compositions with respect to cadences, metric sequences and melodic sequences, such resemblances are comparatively few in number, and reflect situations which are very common in the field of popular song writing. In addition, he pointed out at considerable length important differences between the two works, particularly with respect to rhythmic pattern, melodic pattern, stress and cadences. In the opinion of defendant’s expert, the music of the alleged infringing song did not constitute a copy of plaintiff’s work, either in whole or in part.

In addition to the foregoing evidence, documentary proof was introduced to the effect that prior to 1941 twelve songs bearing the same title as plaintiff’s composition had been copyrighted, and also that between November 21, 1941, and June 22, 1942, three additional songs similarly entitled had been copyrighted.

Following the conclusion of the trial, plaintiff’s counsel submitted a brief in which the latter’s theory of the instant suit was epitomized as follows:

In the same brief it is further argued that:

As an abstract legal proposition, the statement quoted by counsel from 34 Am.Jur. is, of course, sound. Likewise, where the circumstantial evidence relied upon is substantial and convincing, this rule may readily be applied. However, where the claimed similarities in the music of the two works are almost entirely so highly technical in nature that, on the one hand, the average listener is unable to recognize any appreciable similarity between the two compositions and, on the other hand, expert musical composers disagree radically as to whether there is any real resemblance between the two songs, there is little, if any, basis for applying the rule quoted. At the close of plaintiff’s case in chief, plaintiff’s counsel, during the course of the oral argument presented at that time, asserted: “We have pointed out that it is not the plaintiff’s position in this case that there has been an actionable plagiarism of the musical composition. It is our position, your Honor, that the actionable plagarism or the copying or piracy has been with respect to the lyrics.”

Accordingly, we turn to an examination of the alleged similarities in the lyrics of the two works. In plaintiff’s composition the verse describes a romantic incident in the following words:

The verse of the defendant’s song also pertains to a romantic tale, and is worded thus:

A mere reading of the two verses just quoted should suffice to demonstrate that they are so dissimilar as to furnish no basis for claiming that the one is a plagiarism of th'e other. In defendants’ song, the verse describes two lovers parting. The romantic story involved in plaintiff’s work is one where the lovers remain together. Neither as to theme, nor in the words chosen to express the same, is there any warrant for holding that the verse of the alleged infringing song bears any substantial likeness to the corresponding portion of plaintiff’s work. Indeed, her counsel virtually conceded as much during the aforementioned oral argument. Upon that occasion the latter acknowledged:

Let us next compare the lyrics of the respective choruses. The words of plaintiff’s chorus read as follows:

In the alleged infringing song the chorus is thus expressed:

Admittedly, the words found in the fourth and also in the last line of defendants’ chorus are practically identical with those employed by plaintiff in the fourth, eighth and the last lines of her chorus. Here, though, it should be noted that in each instance the language referred to consists of a mere repetition of the words comprising the title of each song, which plaintiff concedes were not original with herself. Hence,.this element of similarity between the two works has no significance. Again, where the title of a song deals with a romatic subject, it would be most unusual not to find the lyrics thereof including such words as “nights,” “moons,” “lips,” “kisses,” “caresses” and the like.

On the other hand, it is a fact that the words comprising the opening line of each of the two choruses differ but little from each other. However, save in this one particular, we are unable to follow counsel’s contentions respecting the claimed similarities between the lyrics of the two choruses.

Comparing the words of the third line of plaintiffs chorus, which are repeated in the next to the last line thereof, with the words found in the third line of the chorus of the alleged infringing song, plaintiff’s counsel insist that there is such a close similarity between them as to demonstrate the latter must have been copied from the former. The line referred to in defendant’s composition reads: “There will be other songs to sing.” Here, however, it should be noted that the second word in the lines referred to in plaintiff’s work is not free from doubt. In their pre-trial memorandum and in their closing brief, plaintiff’s counsel have based their argument upon the assumption that these lines read: “Other nights of dance and song.” (Emphasis added) On the other hand, an examination of the document which plaintiff identified as the original copyrighted work (Plaintiff’s Exhibit 1) discloses that the lines mentioned read: “Other hours of dance and song.” (Emphasis added)

A like contention by plaintiff is based upon a comparison of the fifth, sixth and seventh lines in her chorus with the second and sixth lines of defendant’s chorus. The three lines first referred to read:

In the alleged infringing work the lines in question read:

The same conclusion is advanced based upon a comparison of the hereinafter quoted excerpts found, respectively, in the chorus of plaintiff’s song, and in the verse of defendants’ composition. In plaintiff’s work the portion referred to is as follows:

In defendants’ composition, the lines claimed to be pirated read:

Again, it is asserted that the third line of the verse in defendants’ song, reading:

The foregoing comparisons are typical illustrations of what plaintiff’s counsel describe as “the numerous similarities in the lyrics of the two songs in and of themselves * * * sufficient to prove plaintiff’s case.” We see no occasion to set forth any additional examples, for in the light of our analysis and appraisal of the evidence, a comparison of the two songs with respect to those features which copyright protects, such as theme, story, unique arrangement of words and phrases, we are unable to find any similarities between these compositions, save as to the one phrase heretofore noted. The situation here is somewhat analogous to that described by the Court in Frankel v. Irwin, D.C., 34 F.2d 142 , at page 144, where it was said:

Discussing the subject of similarities between two literary works, our Ninth Circuit Court of Appeals in the case of Harold Lloyd Corporation v. Witwer, 65 F.2d 1 , at page 4, declared:

Further along in the same opinion ( 65 F.2d at page 17 ), the Ninth Circuit Court of Appeals quoted the following from 13 C.J. Section 278:

Again, 65 F.2d at pages 18 and 19 of the same opinion, the court said :

Quoting from Roe Lawton v. Hal E. Roach Studios, D.C., 18 F.2d 126, 128 , the opinion of the Ninth Circuit Court of Appeals concludes with the following language :

To the same effect are the decisions rendered in Darrell v. Joe Morris Music Co., 2 Cir., 113 F.2d 80 , and Arnstein v. Edward B. Marks Music Corporation, 2 Cir., 82 F.2d 275 . Each of these two cases involved an alleged infringement of a copyrighted song. In the former, the Second Circuit Court of Appeals declared:

Counsel for plaintiff have quoted extensively from 13 C.J., Copyright & Literary Property, with particular emphasis upon Sec. 320 (b) thereof, which, so far as pertinent, reads:

The record before us is a far cry from that which must be established in order to meet the requirements of the rule last quoted. We have heretofore pointed out that, when played by a competent musician, the two songs involved here admittedly bear no recognizable resemblance to each other; at least as far as the average listener is concerned, except in the one particular, namely: the opening phrase of each chorus. Certain observations made by the Court in Arnstein v. Broadcast Music, D.C., 46 F.Supp. 379 , would appear to be quite pertinent. That case was also a suit for alleged infringement of songs. At page 381, of 46 F.Supp., the Court there said:

In Marks v. Leo Feist, Inc., 290 F. 959 , at page 960, which also was a suit for alleged infringement of a musical copyright, the Second Circuit Court of Appeals said:

Again, in Newcomb v. Young, D.C., 43 F.Supp. 744 , at page 746, which was also an action for alleged infringement of a copyrighted song, the Court used language which is pertinent here. It was there stated :

Applying to the record before us the principles discussed in the decisions hereinbefore cited, we are convinced that the evidence fails to establish that any of the defendants had access to plaintiff’s song, or that any of them copied or appropriated any portion of the music or the lyrics thereof, or that there is any substantial similarity between the music or between the lyrics of the respective compositions. Accordingly, we conclude that defendants are entitled to judgment with costs and attorneys’ fees, the amount of the latter to be hereafter fixed.