Our former DePaul roommate Mark Meyer sends along news that one of our favorite professors, Tom Brown, passed away last week. The “scholar and gentleman” epithet doesn’t begin to descibe Dr. Brown, who had the irrepressible enthusiasm of the true nerd and enough endearing quirks for at least a dozen other musicologists. Two facts that probably won’t make it into his obituary: he met and romanced his former wife, so the story goes, while she was still in a convent, the discovery of which gave us a whole new level of respect for the man; and every ten years or so, he’d put aside all other books and spend the year re-reading Proust. He was living proof that the field of music is so rich that one could happily spend an entire life thinking deep, idiosyncratic thoughts about it. (Post title is a direct petulantly indignant quote from Dr. Brown’s “Shakespeare and Music” seminar, when, after talking for weeks about the high D-flat at the end of the mad scene in Verdi’s Macbeth, the soprano on the video he showed the class chickened out and sang an A-flat instead.)

A composer of music has to be aware of, and to have a penetrating insight into, all the factors which converge to an ideology in the cultural make-up of his contemporaries. He has to come up with an idea, a musical idea, which just passes the accumulated past by not exactly belonging to it, by not conforming to its approved laws, by labeling its claim to eternal validity succinctly as a mere ideology.

That’s the pioneering electronic composer Herbert Brün, in a book I came across while brushing up on the op. 27 Variations of Webern: The Computer and Music, edited by Harry B. Lincoln (Cornell University Press, 1970). As you might expect from a 1970 survey of the topic, it’s not terribly practical, but it’s a fun snapshot of the state of the art at the time. The big advances in computer analysis are programming the machine to recognize basic relationships that would be obvious to a human observer, and computer composition is limited to fairly simple stochastic operations (no one’s yet quite sure what to make of Xenakis’s Musiques Formelles).

In the midst of all this, Brün’s contribution, “From Musical Ideas to Computers and Back,” bursts forth like a Roman candle. Ostensibly a proposal for a program of computer composition research, it’s also a philosophical tract and a historiographical analysis of musical style. Equating musical styles with compositional systems, he points out that any system is ultimately a way of limiting the vocabulary of available sounds. As such, any system contains only a finite number of possibilities, and as more and more information is extracted out of the system, the possibilities decrease. Brün characterizes the life-cycle of a given system/style as four stages:

Brün clearly thinks that Western music has reached the “administrative” crisis point:

Recent developments in the field of musical composition have shown that the limited and conditioned system of acoustical elements and events, considered musical material for several hundred years, has now entered the administrative stage, where all further permutations will no longer possess any new meaning. The degree to which contemporary composers are consciously aware of this fact may vary widely. But equally widely varied are the signs giving evident proof for the growth of at least an intuitive suspicion that the system of well-tempered pitches, harmonic spectrums, and harmonic time periodization has had its day, and has now become so thoroughly organized that nothing unheard and unthought of could possibly find, therein, its communicative equivalent.

At its core, this construct echoes the mythical musical march of progress a little too much for my taste, but it’s nothing if not provocative, and it’s a particularly intriguing framework to think about decadence, artistic stagnation, and the sprouting of various neo-this and that movements.

But really, like the rest of Brün’s work, it’s the tone and sheer scope that I love. The rest of the articles in The Computer and Music are academically careful and reasonable—when the authors do venture to make predictions or try to characterize the importance of their research, they’re appropriately modest and qualified. Not Brün. He can’t seem to get through more than a couple of paragraphs without putting the topic at hand into the widest possible philosophical and historical perspective. The quote at the beginning of this post is immediately expanded into a set of trenchant and broad verities that are worth quoting at length:

Whenever a man finally recognizes and understands the notions and laws that rule his behavior and standards, he will, usually, honor himself for his remarkable insight by claiming eternal validity for those notions and laws, though they be ever so spurious, ever so limited to but temporary relevance. Ideologies flourish on retroactively made-up beliefs which are complacently proclaiming to have found the truth, while skeptics are already busy looking for it again…. An idea, on the other hand, usually challenges the adequacy of using approved criteria as standards of measurement, and expressly demonstrates the irrelevance of the approved in questions of desirability concerning changes of state or law. It is for this that ideas come under attack; not for being good or bad, but rather for uncovering the impotence of persisting ideologies. To cover this shame, the ideologically possessed apostle finds himself frequently provoked to advocate indifference, complacency, corruption, or even murder. Often enough, unfortunately, such a defender of an expiring ideology, by proclaiming it to be nature’s own law, succeeds in contaminating the more gullible of his opponents, who, unaware of their defeat, then begin to retaliate in kind. The most contagious disease in our human society is the agony of dying ideologies.

Brün, who fled Nazi Germany in 1936, studied with Stefan Wolpe in pre-independence Israel, spent a summer at Tanglewood, then bounced around Europe before settling at the University of Illinois in the 1960s, always believed that composers had an almost moral obligation to work outside their comfort zone, to constantly demonstrate the bankruptcy of any sort of dogma, to prod those of us in society to reach beyond what we already know or think we know. “If a composer takes a political view of his role in society, he may see that a certain lack of new orders is not only threatening his own system, his ego, his biological existence, but the biological existence of his contemporaries and neighbors,” he once said. “He may say that this society, as it sees itself, will now not give any more new answers to repeated questions. It needs an input which will change it just that much that the next time a certain set of questions is asked, it will give new answers.” That’s awfully close to my ideal of composition, regardless of style or vocabulary.

Brün is compulsively quotable; you can start with a sample of writings and interviews posted on the Brün website (which also contains many of his graphical scores, including Mutatis Mutandis #12, above). Not much of his music seems to be online, but you can hear a quartet of works, including the seminal electronic piece Futility 1964, on this archived program from Brown University’s BSR radio (it’s in the midst of a lot of college-radio musique concrète hijinks; Futility 1964 starts at the 7:26 mark). And here’s a YouTube snippet of an undated but characteristic Brün lecture; he starts from a pregnant, unexpected linguistic observation, then, when you finally think you know where he’s going, he takes off in another, even more provocative direction.



Seven years after his death, Brün is mostly known only to electronic-music specialists, which, given the breadth of his ideas, is a shame. My sense is that the current new-music ethos is in retreat from Brün’s tough, wildly ambitious idealism; the most common goal seems to be to carve out a little space of order and beauty in the midst of a chaotic world. Brün would insist that you could change that entire world with every single note you put down.

Remember this week’s election? The votes are in, and so is the fix—WCRB has announced Boston’s Top 100 Classical Pieces, and surprise, surprise: nary a living composer to be found. Here’s the first 40:


I’ll be charitable on the quaint Victorian transliteration of “Rimsky-Korsakov”, but “Musorgsky”? “Copeland”? Really? And including both Appalachian Spring and “Variations on a Shaker Theme” is rather gilding the lily, isn’t it? They even screwed up my name:


Even auf Deutsch it’s two T’s. On the other hand, there’s some interesting musicology going on at the WCRB compound:

Tchaikovsky’s 35th Symphony, eh? I’d send both that and the Mozart to Pristine Audio and see what they think.

This thing stinks to high heaven, though. No vote counts, no list of nominees, just a corporate fiat with a bunch of very suspiciously familiar characters on it. Thanks to everyone who threw away a vote, if only to prove a point. Pride goeth before a fall, WCRB—you just lost this music lover. Nice work.

Update (3/5): Either accidentally or purposefully, WCRB did use a proper transliterated version of what’s usually seen in the U.S. as “Mussorgsky.” See comments.

Update (3/6): Nope, it was a typo. Now that they’ve fixed most of them, “Mussorgsky” it is.

How long before this story and this story intersect?

The other night, over pre-concert burgers and fries, my lovely wife and I were doing a post-mortem on the Hatto shenanigans, and critiquing confidence games in general. (She, with her keen judgement of character, was deeply skeptical of any of Barrington-Coupe’s motivations, even in confessing; I, with my ADHD demand for diversion and somewhat more depraved sensibilities, was disappointed that the old guy hadn’t tried to keep the game going longer.) And then she came up with a great philosophical entertainment. Barrington-Coupe claimed that he had chosen his plagiarism targets based on their similarities to Hatto’s artistic temperament, which begged two questions, one easy, one pretty hard:

1. Whose recordings would you like, as a performer, to pass off as your own?
2. Whose recordings would you actually be able to pass off as your own?

Me? This is the best I could come up with:

1. Glenn Gould. Idiosyncratic technique, pinpoint accuracy, eccentric interpretations.
2. Alfred Cortot. Eccentric technique, casual accuracy, idiosyncratic interpretations.

The more Cortot I hear, the more I recognize my own habits: a focus on touch and line, a wayward tempo, and an aural emphasis (maybe over-emphasis) on the the architecture of the piece, all value-adding features to make up for a technical apparatus that, let’s face it, isn’t going to land me a Leventritt award anytime soon.

One thing I noticed is how hard this question is for me now: I hadn’t actually compared myself to other pianists for years. Back in college, I would have answered these questions, particularly the first one, with GPS accuracy: I want Gilels’s fingers and Gould’s brain, I want Argerich’s energy with Brendel’s rhetoric, I want Van Cliburn’s sound and Pollini’s repertoire. But no more. Maybe it’s the wonderfully mundane daily work of music—I’m much more likely to think things like, “I want this phrase to sound like this, and I have to figure out how to do it.” Maybe it’s smaller ambitions, realizing I’m probably much happier noodling around behind singers than I ever would have been on display in front of an orchestra. Or maybe that kind of comparative self-analysis is sufficiently ingrained that it’s become subconscious.

But there’s another reason, too: the knowledge that the image of the fully-formed artist is a myth. I used to imagine how much fun it would be to be up on stage, running a masterclass, having all the answers and a distinguished patina of experience—in other words, being the performer that others hoped to imitate. Years later, I instead find myself still sneaking in to masterclasses, hoping to pick up pointers, trying to figure out just what the hell I’m doing. I was going to say it’s probably more fun this way, but I’m not sure that’s true; being able to sail through the Prokofiev second concerto in front of a world-class orchestra has got to be a blast. Having all the answers, though, is more poignant and melancholy than we likely imagine. So I’ll say this: even when performing is workaday and frustrating, it’s at least never boring. I could do a lot worse.

Addendum (3/1): A.C. Douglas touches on this issue:

I do question [why the Hatto plagiarisms weren’t noticed by] professional concert pianists, a routine part of whose job is to keep tabs on the competition — most especially the competition who’ve released recordings of works also recorded by them (the professional concert pianists), and which competition’s recordings have not only received critical raves in the music press, but raves accompanied by a sensational if tragic back-story.

My own sense is that concert pianists actually don’t spend a whole lot of energy keeping up with the competition via recordings. If there’s a new pianist getting rave reviews, they’ll make the effort to see them live if the opportunity presents itself, but unless it’s a particularly noteworthy performance or choice of repertoire, they’re not all that interested in hearing them on CD. For them, recordings are foremost a window into the past, a library of performance practice by the greats of yesteryear. If you’re going to tackle the Beethoven sonatas, you’re far more likely to listen to Schnabel than any of your contemporaries.

The Hatto scandal may have stumbled to a premature close (Geoff Edgers has a nice summary in today’s Globe), but the thievery bug seems to be spreading: according to a report in the El Paso Times, someone absconded with percussionist David Cossin’s notes after a performance of Tan Dun’s Concerto for Water Percussion with the El Paso Symphony on Saturday. (That’s Cossin there, getting his hands wet in Germany last year.) The article isn’t clear, but it sure sounds like the pilfered loot was Cossin’s marked-up score, which would be a pretty egregious loss indeed: I’ve hung on to piano music that’s barely readable and being held together with three kinds of tape solely because they’ve got fingerings and markings from Professor Paperno (including the dreaded green marker for when I missed something more than two weeks in a row). It may look like chicken scratches to you—it’s autobiography to us.

The silver lining? According to the Times, Saturday’s concert was sold out.

PHILADELPHIA, February 26, 2008—Saying that “nobody conducts the music of dead white males like a dead white male,” Philadelphia Orchestra Association President James Undercofler today announced that the late Fritz Reiner has been appointed as Music Director of the Philadelphia Orchestra, starting this fall. Reiner replaces Chief Conductor Charles Dutoit, who abruptly resigned last November after accusing orchestra members of trying to kill him with a poison-laced soft pretzel.

The move ends months of speculation over the post, during which several other candidates, including Riccardo Muti, Simon Rattle, and Terry Bradshaw, were rumored to be finalists. “Muti was a strong candidate,” Undercofler admitted, “but, seeing as how he was still walking and talking, we simply couldn’t absolutely assure our subscribers that he wouldn’t start programming a lot of contemporary music or unfamiliar repertoire. The corpse of Fritz Reiner brings an unbeatable combination of experience and predictability.”

Some in the orchestra were upset by the announcement, which was made after only limited consultation with the Players’ Committee. In addition, the musicians were skeptical of Mr. Reiner’s ability to establish a “rapport” with the orchestra, having not conducted professionally since 1963. Reiner’s sole audition was in December, when he was propped up in front of the ensemble for a rehearsal of Strauss’s “Death and Transfiguration.” Several players, who wished to remain anonymous, characterized his podium technique as “stiff” and “lacking vitality,” although one member saw occasional flashes of the Reiner of old. “If anything, his beat’s gotten bigger,” he said.

The announcement is seen as a blow to the Chicago Symphony Orchestra, who were said to be themselves courting Reiner for another term as their director. CSO president Deborah Card played down the rumors, saying, “We’ve long seen the need for our new director to be not just a superb musician, but an exceptional advocate for music in the community. Mr. Reiner’s remains aren’t going to be doing a whole lot of outreach.” Card, however, had no comment when asked about local news reports that the orchestra had been in talks, through a medium, with the disembodied spirit of Leonard Bernstein.

All right, I think it’s time to get organized. One of our local classical stations, WCRB, is having an online poll to find Boston’s “Top 100 Classical Pieces of all time.” If you aren’t familiar with WCRB’s programming, I can sum it up by saying that the overwhelming favorites are probably “Eine Kleine Nachtmusik” and something by Albinoni. Not that there’s anything wrong with that, but said poll might be a way to get some more interesting fare in through the back door—they’re going to broadcast the 100 top vote-getters next weekend. Time for some ballot-stuffing! In the interests of efficiency and not diluting the electoral voice of a generation, I propose drawing selections from the following list (which, apart from being limited to living American composers, has no real rhyme or reason, just stuff I would be tickled to hear as “Classics for Relaxation” programming):

You’ll need to enter a name, e-mail, and phone number, but considering how many actual dead people have cast ballots over the years in my home town of Chicago, that hardly seems an impediment to, well, gaming the system. Vote early, vote often!

Hey, if you tune into WGBH right now (89.7 FM in Boston, streaming on the Web here), you can catch today’s live Boston Symphony concert, which this week includes the world premiere performances of Kaija Saariaho’s cello concerto, “Notes on Light.” If you’re keeping score at home, that’s two BSO premieres in two weeks. Enjoy it while it lasts. (You can also hear tomorrow night’s concert at 8 PM on WCRB.)

Critic-at-large Moe and I got ourselves good and lost in the Sherborn Town Forest this morning, and when we got back to the car, WGBH was rebroadcasting a portion of Garrick Ohlsson’s Jordan Hall recital from a couple of weeks back. They were playing the Beethoven op. 22 Sonata, which was my favorite one on the program. It’s Ludwig at his most relaxed and human, especially the last movement, which takes the traditional Classical opera buffa-style finale and turns it inside out; a cute number for the lovers that you’re hearing from backstage, so you also get stagehands running around, scenery creaking into place, and quarrels among the extras. It’s enough to make me wish he hadn’t gone all Romantic-heroic on us.

WGBH sent around an e-mail the other day to announce that next Monday, Tuesday, and Wednesday at 9 AM (EST), Cathy Fuller will be broadcasting (and streaming) the 1975 Houston Grand Opera recording of Scott Joplin’s Treemonisha. Joplin’s a hero around Soho the Dog HQ, so that’s information we’re happy to pass along.

What with all the plagiarism this month, it seemed like a good time to revisit one of the most plagiarized composers of all time—at least in his own mind, that is. The perennially litigous Ira Arnstein, born in 1879, would only be remembered today, if at all, for a few not-unpleasant Tin Pan Alley and religious numbers from the 1920s, except for the fact that he was convinced that other, more successful songwriters were constantly ripping him off. Arnstein brought no less than five lawsuits between 1936 and 1946, against the likes of Harry Warren, Joe Burke, Cole Porter, and others; and in the process, he indirectly paved the way for a refined legal definition of music plagiarism, one that, for better or for worse, persists today.

Arnstein was born in Kiev, and emigrated to the United States when he was eleven. A sometime pianist, music teacher, and composer, by the 1930s, he had become something of a full-time plaintiff. His first effort, Arnstein v. Edward B. Marks Music Corp. (82 F. 2d 275 [2d Cir. 1936]), set the pattern: Arnstein would take a song of his own and another, more popular song, and, by highlighting selected pitches, altering rhythms, changing octaves, and elevating accompanying notes to melodic status, conjure similarities between them. Jack Lawrence had co-written one of the songs named in Arnstein’s suit, “Play, Fiddle, Play.” Lawrence recalls:

Arnstein’s lawyer had a piano and fiddle player in court plus huge music charts, an intriguing presentation. The melody line of a song consists of single notes in the clef treble. Arnstein’s chart highlighted notes in both the clef and bass and when the fiddler played only the highlighted notes… lo and behold! — it sounded exactly like our song! Our attorneys spent hours trying to explain this to the judge, but he would only accept what he was hearing.

In fact, as you can compare for yourself via the Columbia Law Library’s Music Plagiarism Project, the songs barely rate even a charitable resemblance. Arnstein didn’t help his cause by admitting that he had threatened the defendants. The New York Herald Tribune reported Arnstein’s testimony: “‘I was desperate,’ Arnstein said quaveringly. ‘I heard my song being played everywhere, and I was starving. I was out of my mind and might have committed murder.'” (Lawrence remembered that Arnstein “paraded in front of the ASCAP offices wearing a sandwich sign that read: ‘My songs have been plagiarized by the following writers: Irving Berlin, George Gershwin, Cole Porter, Jerome Kern, Rodgers and Hart.'”) Theatrics aside, Arnstein’s suit was eventually dismissed by the Second Circuit. (Judge Learned Hand took the opportunity to excoriate popular music in general, suggesting that pop songwriters were too witless to plagiarize: “[The defendant’s] gifts were very limited, and to attribute to him the ingenuity and penetration so to truncate and modify, and thus really to create a melody out of other elements, is harder than to suppose that the extremely simple theme should have occurred to him out of his own mind.”)

Undeterred, Arnstein next brought suit against ASCAP itself. Arnstein v. ASCAP (29 F. Supp. 388 [S.D.N.Y. 1939]) was much in the vein of his previous action, right down to Arnstein’s familiar allegations of an enormous conspiracy to pirate his compositions. From his complaint:

That they have in cooperation with the other defendants and their attorneys conceived the plan of branding the complainant as a lunatic and have worked in harmony with the officers of ASCAP and MPPA (Music Publishers Protective Association) to oust the complainant from the W.P.A. and have caused him to starve.
…
That his room was constantly ransacked and many manuscripts and letters stolen. When he complained to the Police Department no action was taken but two gorillas beat plaintiff up and plaintiff produced a Doctor’s certificate at the trial to prove that he received medical attention for several weeks….
…
That the conspiracy extended even to the Court Room during the trial. Witnesses and Musicians were accosted by defendants attorneys and induced to disappear. That twenty-five (25) musicians from the Union who signed affidavits to the similarity of the Music, were given jobs in the Russian Ballet as an inducement for not testifying at this trial.

Arnstein managed to come up with two expert witnesses willing to testify that his song “Whisper to Me” bore certain resemblances to Joe Burke’s “My Wishing Song,” although the force of said testimony was blunted when the experts admitted under cross-examination that both songs bore certain resemblances to a previously existing number called “Are You Lonesome Tonight?” Arnstein similarly tried to sue BMI a few years later (Arnstein v. Broadcast Music, 137 F.2d 410 [2d Cir. 1943]), brazenly citing “Whisper to Me” again, this time comparing it to a tune called “It All Comes Back to Me Now.” His next try, Arnstein v. Twentieth Century Fox Film (52 F. Supp. 114 [S.D.N.Y. 1943]), was his most far-fetched yet, asserting that Harry Warren’s “I’ve Got a Gal in Kalamazoo” had infringed Arnstein’s Wagnerian parody chorus “Kalamazoo” pretty much on the grounds that they both mention the same city.

Finally, though, Arnstein caught a break. For his final trip through the judicial system, Arnstein took aim at none other than Cole Porter. “Begin the Beguine” had been stolen from Arnstein’s setting of “The Lord Is My Shepherd.” “Don’t Fence Me In” had lifted from Arnstein’s “A Modern Messiah.” “My Heart Belongs to Daddy” had its illicit origins in an Arnstein instrumental called “A Mother’s Prayer.” Arnstein had become accustomed to grants of summary judgement for the defendants—the presiding judge saying, basically, that there wasn’t enough evidence to even bother with a jury trial—and he had always lost on appeal. But Arnstein v. Porter (154 F.2d 464 [2d Cir. 1946]) was, surprisingly, remanded for trial by the district court, and Arnstein got his chance in front of a jury. Of course, he lost—but it took some doing. Charles Schwartz relates in his biography of Porter:

In the two-week long jury trial that followed, Monty Woolley, Deems Taylor, and Sigmund Spaeth all appeared in Cole’s defense to support his contention that he had never taken material from Arnstein. Cole also testified that he neither knew Arnstein nor was familiar with his work. When the case finally went to the jury it was dismissed as being without merit after a deliberation of nearly two hours. But though Cole won the case, it was perhaps as a result of the experience gained from this trial that, when asked if he ever went out without a carnation in his boutonniere, Cole answered, “Only when I’m being sued, because a carnation in the buttonhole never helps your case before a jury.”

What changed? The Second District had decided to raise the bar for summary judgements, making it that much harder to simply dismiss nuisance lawsuits like Arnstein’s. Now, the plaintiff was only required to demonstrate two things: a) that the defendant might have indeed copied from the plaintiff, and b) that the copying constituted “improper appropriation.” Although subsequent case law has once again lowered the impediments to summary judgements, the Arnstein test remains the basis for music plagiarism cases. And both parts of the test are, well, complicated.

In the absence of a direct confession, to establish the fact of copying, the plaintiff needs to show that the defendant had access to the pirated material, and that the material was actually pirated—that the pieces in question are, in fact, suspiciously similar. (Note that this makes all the evidence for this part of the test circumstantial.) The court recognized the tricky nature of the access question; if that couldn’t be proved, the plaintiff could still satisfy the test if the similarities were “so striking as to preclude the possibility that the plaintiff and the defendant independently arrived at the same result.” How striking would that be, exactly? Good question. And while the test says that the less evidence of access, the more obvious the similarities need to be, what no court has ever really cleared up is whether the relationship works in reverse—that is, whether more compelling evidence of access allows for less of a resemblance between the original and the alleged copy.

Demonstrating that the copying amounted to “improper appropriation” is an even stickier wicket. The plaintiff needs to show that what was stolen is what made the original piece distinct and memorable to the ear of “the ordinary lay hearer.” That might seem reasonable—anyone can hear if two songs are the same, right? Maybe so, but most people aren’t aware that a lot of what they’re hearing may not actually be copyrightable. In legalese, such elements are called scènes à faire (literally, “scenes that must be made”), meaning they’re so common to a given situation that they’ve lost any claim to distinction. To allege that one romantic comedy stole from another because they both end with weddings would fail on the grounds that such a denouement is a scène à faire for romantic comedies. So just because two songs both start on do, mi, or sol, or both end on a V-I cadence, or both use, say, a twelve-bar blues progression shouldn’t be enough to establish plagiarism, but that’s assuming the judge or jury are musically literate enough to know the basic building blocks of tonal music.

And here’s where the system fails, because expert testimony on the question of improper appropriation is, at best, severely limited. Under Arnstein, a musical expert can only testify as to the hypothetical effect on that “ordinary lay hearer,” completely ignoring any opinion as to whether perceived similarities are scènes à faire or not. (As it is, having an expert witness try to put him or herself into the mind of a non-expert may, in fact, violate Federal rules of evidence regarding expert testimony.) Under a later, non-music plagiarism decision, Sid and Marty Krofft v. McDonald’s (562 F.2nd 1157 [9th Cir. 1977])—the first case to concern “total concept and feel” plagiarism—expert witnesses are simply excluded from the improper appropriation test. As lawyer (and trained composer) Jeffrey Cadwell points out in his article “Expert Testimony, Scènes à Faire, and Tonal Music: A (Not So) New Test for Infringement,” this means that musicians are shut out of the very part of the process where they’re most needed: establishing whether or not similarities between two works are proof of theivery or just part of a generic vocabulary.

Cadwell points out that the obvious solution—requiring proof of access and letting musical experts testify as to whether similarities between songs are trivial or not—was actually proposed prior to Arnstein, in a 1932 book on music copyright by Alfred Shafter. (Shafter’s book, from what I’ve seen, contains a number of howlers on musical substance, but he correctly foresaw the difficulty courts would have in dealing with it.) And since mass media and digital distribution have made access more and more easy to assume, others have proposed taking the guesswork out of the access question via compulsory music use licenses: basically cheap, no-permission-needed shout-outs to copyright holders that a particular piece of music is being covered, sampled, or otherwise borrowed (see, for example, this article by J. Michael Keyes). Are any of these going to happen soon? Probably not—the wheels of justice do grind exceedingly fine, and judges historically don’t like to admit that there’s a subject matter that might be beyond their ken.

So what eventually happened to Arnstein? I don’t know; after the Porter trial, he seems to have vanished—there were no further lawsuits, and I can’t find any record of him after 1946. Wherever he is, though, he’d probably be pleased to know that he’s still causing other composers legal troubles—if only indirectly.