Blog by Richard Heagy
NOTE: Procedure in the US District Courts is not necessarily as portrayed in this play, which is a follow-on to the recent blog about Naruto v. Slater entitled ‘ENOUGH ABOUT MONKEY SELFIES.’
(The scene is a courtroom, not your ordinary one, but an outdoor setting in a cow pasture. The judge sits on a rail fence, squirming uncomfortably. To one side is a sign on a stick leaning against the fence: U.S. District Court. On the other side is a pine tree, the Plaintiff, with an abandoned piece of sheet metal at the base of the tree; behind it are two smaller trees. In front of the judge sits a large metal drum, upon which a gavel rests. A red barn is in the background and the hot sun is shining above)
JUDGE: Conifer vs. the United States. This is an action against the U.S. Copyright Office filed by a tree.
(The JUDGE pauses, shakes his head)
JUDGE: Is that right Counsellor, a tree?
PLAINTIFF’s ATTORNEY: That is correct, unusual as it may be.
JUDGE: Not really, after a while you have seen everything.
(The JUDGE looks around and notices the trees off to the side)
JUDGE: Which one is the Plaintiff?
PLAINTIFF’s ATTORNEY (pointing): The tall one with the drooping branches, nearest the fence.
JUDGE: The complaint alleges that the Defendant has refused to file three copyright applications for musical compositions created by the Plaintiff on the ground that an author of copyrightable material must be a human being. Defendant filed a motion to dismiss on the grounds that Plaintiff has no standing to file a suit, citing Naruto v. David Slater, a 2016 case in which a District Court in San Francisco held that a monkey cannot be the author and owner of a selfie—a photograph of the monkey taken by itself. Defendant also filed a motion to dismiss for failure to state a claim upon which relief may be granted, contending that Plaintiff’s material consists merely of sounds that are not subject to copyright protection.
PLAINTIFF’s ATTORNEY: Your Honour, may it please the court…
JUDGE: I prefer ‘Your Excellency.’
PLAINTIFF’s ATTORNEY: Your Excellency …
JUDGE: Your Excellency, what?
PLAINTIFF’s ATTORNEY: I was about to say …
JUDGE: Well, get on with it! Do you think I can sit on this rail fence all day?
PLAINTIFF’s ATTORNEY: Sorry, Your Honour.
JUDGE: Your what?
PLAINTIFF’s ATTORNEY: Your Excellency. Defendant’s Reliance on Naruto v. Slater is premature at this time.
JUDGE: How is that?
PLAINTIFF’s ATTORNEY: The case is on appeal in the Ninth Circuit, which has been known to toss copyright law on its head, and PETA (acting as Next Friend of Naruto) is very determined to pursue the case.
JUDGE: True enough.
PLAINTIFF’s ATTORNEY: In any event, Naruto v. Slater is not on point, because it involves alleged copyright infringement. The instant case is concerned with copyright registration.
SOLICITOR GENERAL: I do not know why we have to hear the case out here in the sticks.
JUDGE: Careful, sonny… In case you have not noticed, the Plaintiff is a tree and can hardly walk to California, unless you believe in Monty Python’s sketch The Walking Tree of Dahomey. We accommodate plaintiffs with disabilities here.
PLAINTIFF’s ATTORNEY: Unlike you lazy bozos in Washington.
SOLICITOR GENERAL: I object, Your Honour.
JUDGE: It’s Your Excellency. The next one who says “Your Honour,” is in contempt of court.
(Some cows pass by on their way to the barn. The JUDGE bangs his gavel on the metal drum)
JUDGE: Bailiff, clear the court.
(The BAILIFF shoes the cows away, toward the barn. The JUDGE again bangs the gavel on the metal drum as the cows exit, this time giving the sounds a musical twist)
PLAINTIFF’s ATTORNEY: That has a nice ring to it, Your Excellency, very musical.
JUDGE: Thank you.
PLAINTIFF’s ATTORNEY: You might want to record it; I can recommend a good agent.
JUDGE: Do you really think so?
SOLICITOR GENERAL: I object.
JUDGE: You don’t like my music?
SOLICITOR GENERAL: That is not what I meant, Your Honour.
JUDGE: Did I hear you correctly?
SOLICITOR GENERAL: I said Your Excellency; I’m sure that’s what I said.
JUDGE: You did not.
SOLICITOR GENERAL: I meant to say Your Excellency.
JUDGE: Too late. Bailiff, this man is in contempt.
(The BAILIFF approaches and places a dunce cap on the head of the SOLICITOR GENERAL. The dunce cap is a little too large and the BAILIFF tries to help the SOLICITOR GENERAL adjust it)
BAILIFF: There is a twenty-five cent deposit for the cap.
(The SOLICITOR GENERAL puts his hands in his pockets and comes up empty)
SOLICITOR GENERAL: No change. Will you take a check? I don’t usually travel with cash.
BAILIFF (to JUDGE): Wants to know if we will take a check for the deposit.
JUDGE: The Court will exercise its discretion and waive the twenty-five cent deposit.
(The BAILIFF turns to leave and accidentally steps on the SOLICITOR GENERAL’s shoes)
SOLICITOR GENERAL: These shoes are brand new. Do you have any idea how much they cost?
BAILIFF: No, I wear boots.
JUDGE (to SOLICITOR GENERAL): The United States of America is wasting the Court’s time. Do you have anything more to say?
SOLICITOR GENERAL: I have not even started, Your Excellency. I wish to file an objection to the statement made by Plaintiff’s Attorney.
JUDGE: What is it that you find objectionable?
SOLICITOR GENERAL: The whole thing is insulting.
JUDGE: You will have to be more specific. Are you objecting to lazy or bozos?
SOLICITOR GENERAL: Both.
JUDGE: Objection overruled as to lazy; it is common knowledge that Congress has not accomplished much of anything for quite some time.
SOLICITOR GENERAL: What?
JUDGE: Counsellor, are you familiar with Rule 201?
SOLICITOR GENERAL: Which one?
JUDGE: Rule 201 of the Federal Rules of Evidence. It provides that a U.S. District Court may take judicial notice of a fact not subject to reasonable dispute and generally know. Do you have any evidence to offer to refute the statement that Congress is lazy?
SOLICITOR GENERAL: Are you kidding?
JUDGE: Objection overruled, as to lazy.
SOLICITOR GENERAL: I still object to bozos.
JUDGE: Because the word bozos is modified by the adjective lazy, it cannot be separated from lazy in this context; objection also overruled as to bozos. You may sit down.
(The SOLICITOR GENERAL looks around, finds nothing to sit on and steps back)
JUDGE (to PLAINTIFF’s ATTORNEY): Are you ready to make an opening statement?
PLAINTIFF’s ATTORNEY: Yes, Your Excellency. Plaintiff has filed this action to require the U.S. Copyright Office to register three musical works composed by the Plaintiff. The Plaintiff will call a witness to testify that some sounds made by trees—and in particular the Plaintiff’s—are considered to be music, thus subject to copyright as musical compositions, although they would qualify as sound recordings whether or not considered as music. The Defendant’s refusal is contrary to law.
JUDGE (to SOLICITOR GENERAL): Counsellor, do you wish to make an opening statement for the Defendant.
SOLICITOR GENERAL: I do not think it is necessary to take any more of the Court’s time, and I must get back to Washington for an important meeting.
(The SOLICITOR GENERAL looks at his watch)
JUDGE: Was that a yes or a no?
SOLICITOR GENERAL: No opening statement. Instead, I make a motion to dismiss for lack of standing, as Plaintiff is not a human being.
JUDGE: I do not see that requirement in the copyright statute. Motion denied.
(The JUDGE hits the metal drum with his gavel)
SOLICITOR GENERAL: Then, I would like to make an opening statement.
JUDGE: Too late.
SOLICITOR GENERAL: The Rules of Civil Procedure of the Federal District Courts allow …
JUDGE: We have a shorter version out here sonny—in the sticks as you call it.
SOLICITOR GENERAL: I need to make a phone call.
JUDGE: Fine, but you will have to step outside the courtroom. Court will recess for ten minutes.
SOLICITOR GENERAL: We are in a cow pasture, not a courthouse.
JUDGE: Bailiff, would you set up the perimeter of the courtroom?
(The BAILIFF enters the barn and returns with a two-wheeled white line marker, which he pushes around to set off a rectangle that marks the interior of the courtroom, ending at the rail fence. The BAILIFF looks down as he pushes the machine, diligently trying to make the lines straight. Near the edge of the proposed boundary, the SOLICITOR GENERAL is dialing his cell phone, but doesn’t notice the approaching BAILIFF)
SOLICITOR GENERAL (into phone): No, I am not calling from a secure phone; I am calling from a cow pasture.
(The BAILIFF, eyes on the ground, pushes the machine over the SOLICITOR GENERAL’s right foot, covering the shoe with white chalk)
SOLICITOR GENERAL: Shit.
SOLICITOR GENERAL (continuing – into phone): No, I wasn’t talking to you.
SOLICITOR GENERAL (continuing): Hello … hello … hello …
(The BAILIFF reaches the fence, finishing his task, returns the chalk machine to the barn and reappears)
BAILIFF: Court is back in session.
SOLICITOR GENERAL: I was disconnected; I didn’t finish my call.
JUDGE (to SOLICITOR GENERAL): Maybe you did not hear the Bailiff, but Court is back in session. Would you like a recess until tomorrow morning so you can go into town and buy a hearing aid?
SOLICITOR GENERAL: No, no. Everything is fine.
(He looks at his watch)
SOLICITOR GENERAL: If we could just speed things up, maybe I can make the five o’clock train back to Washington.
JUDGE: Give your watch to the Bailiff to hold so you can concentrate on the case.
SOLICITOR GENERAL: It’s very expensive.
(He suddenly covers the watch with his right hand)
JUDGE: A Rolex?
SOLICITOR GENERAL: Certainly not. It’s a Patek Philippe.
PLAINTIFF’s ATTORNEY: The Department of Justice must pay pretty well. I must have the wrong job.
JUDGE: Me too. Any vacancies at the DOJ?
SOLICITOR GENERAL: I will just put the watch in my pocket if that will be OK, Your Excellency.
(He takes the watch off and puts it in his pants pocket)
JUDGE (to PLAINTIFF’s ATTORNEY): Let us proceed. Counsellor, you may argue the Plaintiff’s case.
PLAINTIFF’s ATTORNEY: Copyright law provides two distinct types of protection for musical works, one for musical compositions and another for sound recordings. A musical composition often contains lyrics in addition to melody, but does not always have lyrics.
BAILIFF: What’s lyrics?
JUDGE: Bailiff, your duties do not include asking questions.
BAILIFF: Sorry, Your Excellency.
PLAINTIFF’s ATTORNEY: Lyrics, for the benefit of the Bailiff, are the words that accompany a song, but not all compositions have words, as in Plaintiff’s case. Copyright results the moment the words and/or melody are fixed in a tangible form, such as saved on a computer disk or printed as a hard copy, etc.
JUDGE: We do not use etcetera in this courtroom, Counsellor. Bailiff, strike etcetera from the record.
PLAINTIFF’s ATTORNEY: When a sound recording is made of the musical composition, a copyright results, which is separate from the copyright in the musical work itself.
SOLICITOR GENERAL: Aha! Perhaps you could explain how your client created a copyright in its work by reducing it to writing, prior to recording it. Maybe he wrote it down with a branch.
(The SOLICITOR GENERAL laughs at his own joke)
SOLICITOR GENERAL (continuing): Perhaps we could have a demonstration.
JUDGE (to SOLICITOR GENERAL): Counsellor, approach the bench.
SOLICITOR GENERAL: Who me?
JUDGE: Who me what?
SOLICITOR GENERAL: Who me, Your Excellency?
JUDGE: That’s better.
(He motions with his index finger and the SOLICITOR GENERAL comes forward)
SOLICITOR GENERAL: Here I am.
(He points at the steel drum)
SOLICITOR GENERAL: I guess this is the bench.
JUDGE: Lucky guess.
(He pounds the gavel on the drum so loud that the SOLICITOR GENERAL jumps)
SOLICITOR GENERAL: Did I say something wrong?
JUDGE: No jokes in the courtroom, got that?
SOLICITOR GENERAL: Absolutely.
JUDGE: Absolutely, what?
SOLICITOR GENERAL: Absolutely, Your Excellency.
JUDGE: Another thing. Why are you dressed up like a funeral director?
SOLICITOR GENERAL: I didn’t realize that we would be in the middle of a … I mean outdoors.
JUDGE: Very well. Let’s continue.
(The SOLICITOR GENERAL moves back and the PLAINTIFF’s ATTORNEY steps forward)
PLAINTIFF’s ATTORNEY: As everyone knows, or at least almost everyone knows …
(He looks at the SOLICITOR GENERAL)
PLAINTIFF’s ATTORNEY (continuing): If a musical composition is not in writing, it becomes fixed in a tangible form when recorded the first time it is sung or played. Two copyrights come into existence simultaneously, one for the original musical composition and another for the sound recording. If the musical composition includes lyrics in addition to melody, then there are three copyrightable works.
SOLICITOR GENERAL: I know that. I was just exploring a point.
PLAINTIFF’s ATTORNEY: Naturally, a point that I just explained away.
JUDGE: Can we continue?
PLAINTIFF’s ATTORNEY: The copyright to the sound recording belongs to the producer and the copyright to Plaintiff’s music …
SOLICITOR GENERAL: Objection. It has not yet been established that the sounds allegedly made by Plaintiff are actually music.
PLAINTIFF’s ATTORNEY: Your Excellency, I am about to establish that.
JUDGE: Objection overruled.
PLAINTIFF’s ATTORNEY: I call my first witness.
(He whistles and a back bird swoops down from nowhere and perches on the rail fence)
SOLICITOR GENERAL: You are calling a crow as a witness. Is this, a joke?
(The black bird flies above the head of the SOLICITOR GENERAL and hovers, flapping its wings)
RAVEN: I am a raven, not a crow, you idiot.
(Then it flies back to settle on the rail fence)
SOLICITOR GENERAL: Your Excellency, I object to the word … oh, never mind.
(He looks at his wrist, having forgotten that the watch is in his pocket)
JUDGE (to RAVEN): Take the witness stand.
(The BAILIFF wheels over a large wheelbarrow and the RAVEN flies over and perches on the edge of a handle)
JUDGE: Bailiff, swear in the witness.
BAILIFF: I forgot to bring a Bible.
JUDGE: Just proceed without one.
BAILIFF (to RAVEN): Hold up your right … forget it.
PLAINTIFF’s ATTORNEY: Raven, are you familiar with the Plaintiff?
PLAINTIFF’s ATTORNEY: What is your relationship?
RAVEN: Well, I often rest on its branches and it never complains or tries to shake me off.
PLAINTIFF’s ATTORNEY: Would you say that you were friends?
SOLICITOR GENERAL: Aha! Your Excellency, I move to have Raven declared as a hostile witness.
JUDGE: What purpose will that serve?
SOLICITOR GENERAL: Well … uh …
JUDGE: Time’s up. Motion denied.
PLAINTIFF’s ATTORNEY: Raven, are you familiar with the sounds that Plaintiff makes?
RAVEN: Of course; I hear them several times a day.
PLAINTIFF’s ATTORNEY: Would you consider them to be music?
SOLICITOR GENERAL: Objection. It has not been established that Raven is an expert witness in the field of music.
PLAINTIFF’s ATTORNEY: I will stipulate that Raven is not an expert music witness, but I merely ask the Court to hear his testimony as a personal opinion, by one who has spent much more time in the woods listening to the sounds of trees and birds than any music professor or graduate of The Julliard School in New York City.
JUDGE: Very well. Subject to the stipulation that Raven is not an expert witness, you may proceed.
PLAINTIFF’s ATTORNEY: I repeat; would you consider Plaintiff’s sounds to be music?
RAVEN: Kraaa, kraaa, kraaa.
PLAINTIFF’s ATTORNEY: I beg your pardon.
RAVEN: Sorry, English is not my first language. Sometimes I forget. I meant to say most of them.
SOLICITOR GENERAL: Objection to most of them.
JUDGE: Objection sustained.
(He hits his gavel on the steel drum)
JUDGE (to PLAINTIFF’s ATTORNEY): Counsellor, your question will have to be more specific.
PLAINTIFF’s ATTORNEY: I would like to offer into evidence this CD, which the Court and Raven may listen to, followed by Raven’s opinion as to whether the sounds constitute music. The CD is attached to Plaintiff’s complaint as an Exhibit.
JUDGE: Very well, you may proceed.
PLAINTIFF’s ATTORNEY: There are three compositions on the CD, Your Excellency.
(The PLAINTIFF’s ATTORNEY sets up a battery operated CD player and all gather round to listen to the sound recording, their facial expressions varying from time to time. The first one emits various sounds, including branches creaking and swaying in the wind, leaves rustling and branches snapping back, returning to position as squirrels jump from one branch to the next)
SOLICITOR GENERAL: Your Excellency, this is not a recording of a musical composition, and cannot possibly qualify for copyright protection. It is just loud sounds, and basic ones at that.
PLAINTIFF’s ATTORNEY: Music is not the only sound that can be recorded.
SOLICITOR GENERAL: Yes, but this case is about the Plaintiff’s alleged copyright in a recorded musical composition, not the recording of basic non-musical sounds.
PLAINTIFF’s ATTORNEY: I stand corrected, a rare occurrence.
SOLICITOR GENERAL: The sounds are not music and have no artistic quality at all.
PLAINTIFF’s ATTORNEY: Artistic merit is not a requirement for copyright. I cite Hein v. Harris 175 F. 875 (1910), affirmed by the Second Circuit in 1923, in which Judge Learned Hand stated that the lack of originality and musical merit in songs is of no consequence. The case involved copyright infringement, in which Judge Hand compared Arab Love Song to I Think I Hear a Woodpecker.
SOLICITOR GENERAL: Nevertheless, a musical work must contain a sufficient amount of creative expression to be copyrightable. I cite the Compendium of U. S. Copyright Office Practices, Third Edition (2014).
PLAINTIFF’s ATTORNEY: I object. The Compendium is not a law; it is merely an internal document used by the U.S. Copyright Office as a guide in registering works for copyright, or more precisely what the Copyright Office is willing to register.
SOLICITOR GENERAL: I object to your objection.
JUDGE (to SOLICITOR GENERAL): Counsellor, could you give the Court a more specific citation from this Compendium?
SOLICITOR GENERAL: Certainly, Your Excellency.
(He opens his briefcase, pulls out a thick book and starts thumbing through it)
PLAINTIFF’s ATTORNEY: Are you going to read the whole thing? How many pages is it, anyway?
SOLICITOR GENERAL: 1,288 pages, but it won’t take very long; I have bookmarked several sections.
(He starts flipping through the book, but it is thick and heavy and he drops it; some of the bookmarks fall out, but he scrambles to pick them up, first grabbing the book)
JUDGE: Looks like this is going to take you some time. Counsellor, why don’t you have a seat in the witness box?
(He looks at the BAILIFF and motions with his hand. The BAILIFF moves the wheelbarrow toward the SOLICITOR GENERAL and scoops him up into it; the book falls to the ground. The BAILIFF picks up the book and remaining bookmarks and hands them to the SOLICITOR GENERAL)
JUDGE: Bailiff, why don’t you and I take a break and go have a cold beer. Court is in recess for fifteen minutes.
(They walk off as the SOLICITOR GENERAL attempts to get out of the wheelbarrow; unsuccessful, he sits back and flips through the pages, inserts a bookmark here and there, and continues looking)
SOLICITOR GENERAL (mumbling to himself): It’s here somewhere.
(The JUDGE and the BAILIFF return in fifteen or more minutes. The BAILIFF carries a ceramic beer stein, which he hands to the SOLICITOR GENERAL)
SOLICITOR GENERAL: Thank you.
(He takes a sip and stops)
SOLICITOR GENERAL: What is this? I was expecting a cold beer.
BAILIFF: It’s lemonade.
SOLICITOR GENERAL: Really, it’s somewhat weak.
BAILIFF: You can’t drink alcohol in the courtroom.
JUDGE: Court’s in session. Counsellor, have you found your citation?
SOLICITOR GENERAL: Yes, Your Excellency. Section 803.3(A) of the Compendium.
JUDGE: Counsellor, you must stand to address the Court.
(The SOLICITOR GENERAL struggles to get out of the wheelbarrow without success)
JUDGE: Bailiff, help the SOLICITOR GENERAL out of the witness box.
(The BAILIFF tips the wheelbarrow forward and the SOLICITOR GENERAL climbs out)
SOLICITOR GENERAL (dusting himself off): My new suit; it’s all dirty.
JUDGE: No problem. You don’t have to look presentable out here. Let’s have your citation.
SOLICITOR GENERAL: I just gave it to you.
JUDGE: You were not before the court when you spoke.
BAILIFF: You were in the witness box.
SOLICITOR GENERAL: Very well, I again cite Section 803.3(A) of the Compendium.
JUDGE: Counsellor, the Compendium has no standing as law, although the Court may give due deference to the opinions of the U.S. Copyright Office if you wish to offer the Compendium into evidence.
(The SOLICITOR GENERAL hands the Compendium to the BAILIFF)
JUDGE: So entered.
SOLICITOR GENERAL: I request that the Court rule that the first composition is not subject to copyright because it has only basic sounds that are not music; there is absolutely no creative expression whatsoever.
JUDGE: Denied. The motion is redundant as worded.
SOLICITOR GENERAL: What?
JUDGE: Absolutely and whatsoever are redundant. You can use one or the other, not both.
BAILIFF: His Excellency was an English teacher before he became a judge.
SOLICITOR GENERAL: I don’t believe it.
BAILIFF: It’s true.
SOLICITOR GENERAL: I wasn’t talking to you.
BAILIFF: Talking to yourself again; I had better write that down.
(The SOLICITOR GENERAL turns away and ignores the BAILIFF)
JUDGE: Counsellor, do you wish to restate your motion?
SOLICITOR GENERAL: Yes, Your Excellency. I make a motion for the Court to rule that the first so-called composition is not subject to copyright protection because the sounds are not musical and have no creative expression whatsoever.
JUDGE: Motion granted. Bailiff, play the next one.
(He bangs the gavel. The next recording includes branches creaking and swaying in the background, together with the sound of pine cones dropping and repeatedly landing on an abandoned piece of sheet metal at the base of the tree)
SOLICITOR GENERAL: I would like to…
PLAINTIFF’s ATTORNEY: Objection.
SOLICITOR GENERAL: You can’t object; I haven’t said anything yet.
PLAINTIFF’s ATTORNEY: My witness should be recalled first.
JUDGE: Objection sustained. Bailiff, move the witness stand back over here.
(The BAILIFF moves the wheelbarrow close to the fence and the RAVEN hops back on one of the handles)
JUDGE: Raven, you are still under oath. Counsellor, you may proceed.
PLAINTIFF’s ATTORNEY: Raven, you just listened to the Plaintiff’s second musical composition.
SOLICITOR GENERAL: Objection. Counsel is leading the witness. It has not been established that these sounds are music.
PLAINTIFF’s ATTORNEY: Raven, in your personal, non-expert opinion, what do you consider the sounds you just heard to be?
RAVEN: It’s music to my ears.
SOLICITOR GENERAL: Nonsense. There is no creativity to it.
PLAINTIFF’s ATTORNEY: Not true at all. The tree, unassisted and by its own action, is dropping pine cones (onto a piece of metal) at repeated but intermittent intervals, creating a syncopated rhythm, much like a drum solo.
SOLICITOR GENERAL: It is not music in my opinion.
PLAINTIFF’s ATTORNEY: Objection. You are not an expert witness.
SOLICITOR GENERAL: But I do have a right to a personal opinion, just like your witness.
PLAINTIFF’s ATTORNEY: Of course, but do you actually listen to music?
SOLICITOR GENERAL: Everyone does.
PLAINTIFF’s ATTORNEY: That’s not an answer. It’s a yes or no question.
SOLICITOR GENERAL: Yes.
PLAINTIFF’s ATTORNEY: What is your favourite type of music?
SOLICITOR GENERAL: Classical—chamber music in particular.
PLAINTIFF’s ATTORNEY: Something by Haydn or Mozart I suppose. Do you have a preference?
SOLICITOR GENERAL: Haydn’s string quartet Op. 20 … Say, why are we talking about what kind of music I like?
JUDGE: Counsellor, is this going anywhere relevant to the case?
PLAINTIFF’s ATTORNEY: Yes, as my next question will show.
JUDGE: Very well, proceed.
PLAINTIFF’s ATTORNEY (to SOLICITOR GENERAL): Do you like ragtime music?
SOLICITOR GENERAL: Are you kidding?
PLAINTIFF’s ATTORNEY: I take that as a no.
SOLICITOR GENERAL: It is just a lot of unorganised noise flying about in the air.
PLAINTIFF’s ATTORNEY: You apparently agree with Judge Learned Hand’s opinion of ragtime.
SOLICITOR GENERAL: I suppose so.
PLAINTIFF’s ATTORNEY: Then, you must agree with Judge Hand’s statement in Hein v. Harris that copyright law protects musical works without any merit or originality. So, what’s your problem with a copyright for Plaintiff’s second work?
SOLICITOR GENERAL: That was a trick question.
JUDGE: Yes, but well done.
BAILIFF: You stepped in it that time.
JUDGE: Bailiff, you need not state the obvious.
BAILIFF: Sorry, Your Excellency.
SOLICITOR GENERAL: I ask the Court to rule that the sounds in the second composition reveal no creativity and are not copyrightable.
JUDGE: I will reserve judgment for now, but the Plaintiff’s composition does resemble a drum solo. Bailiff, play the last composition.
(The BAILIFF plays the third work, predominantly a whistling sound, shrill at times, with a wide range that keeps changing as the wind blows through a hole in a large branch; birds sing in the background)
PLAINTIFF’s ATTORNEY: Raven, please give us your opinion, not as an expert witness but as a personal opinion, as to the merits of the composition we just enjoyed.
SOLICITOR GENERAL: Objection to enjoyed.
PLAINTIFF’s ATTORNEY: You didn’t enjoy it?
SOLICITOR GENERAL: That’s not the point. Enjoyed gives undue merit as to the quality of the sounds.
PLAINTIFF’s ATTORNEY: Raven, please give us your opinion, not as an expert witness but as a personal opinion, as to the merits of the composition we just listened to, whether or not you enjoyed it.
RAVEN: I especially liked the birds singing in the background.
SOLICITOR GENERAL: Aha! If, and I say if, the Plaintiff is an author, then it follows that the birds singing in the background are joint authors. They have not been included as plaintiffs so I ask for dismissal on the basis that not all necessary parties are before the Court.
PLAINTIFF’s ATTORNEY: Objection. The birds singing in the background are not making a substantial creative contribution to the work, so they cannot be joint authors. They are similar to non-featured background singers who appear with a lead singer; they are not joint authors.
JUDGE (to SOLICITOR GENERAL): You have not established that the birds are necessary parties under Rule 19(a). Dismissal denied.
PLAINTIFF’s ATTORNEY: Raven, aside from the birds singing in the background, did you find the composition musical, in your personal opinion?
RAVEN: Very much so.
PLAINTIFF’s ATTORNEY: Creative?
SOLICITOR GENERAL: Objection.
PLAINTIFF’s ATTORNEY: No further questions.
(The RAVEN flaps its wings and rises a bit into the air)
JUDGE: Just a minute, Raven.
(He turns to the SOLICITOR GENERAL)
JUDGE: Did you wish to cross-examine the witness?
SOLICITOR GENERAL: By all means.
(The RAVEN perches on the wheelbarrow handles, jumping back and forth from one to the other)
SOLICITOR GENERAL: Raven, do you spend all of your time resting on the branches of the Plaintiff.
RAVEN: No, I fly quite a wide area and hang about here and there.
SOLICITOR GENERAL: So you are familiar with the sounds of many different trees.
SOLICITOR GENERAL: Would you describe most of these sounds as noise rather than music?
RAVEN: Not really.
SOLICITOR GENERAL: Objection.
JUDGE: You can’t object to your own question.
SOLICITOR GENERAL: Do you know what a scherzo is, or a sonata?
RAVEN: Italian food?
SOLICITOR GENERAL: What about Schumann and Mendelssohn’s fugues?
RAVEN: Did they get in a fight?
SOLICITOR GENERAL: Have you ever listened to the piano concertos of Franz Liszt or Frederic Chopin.
RAVEN: I’ve never seen a piano out here in the cow pasture, much less heard one. It would not be a good idea, especially in the rainy season.
SOLICITOR GENERAL: Never mind. Let’s try one last time. Are you familiar with Samuel Barber’s Adagio for Strings or Ludwig van Beethoven’s Symphony No. 9 in D Minor?
RAVEN: Can’t say that I am.
SOLICITOR GENERAL: Then you are not familiar with the sound of real music?
PLAINTIFF’s ATTORNEY: Objection. Raven has obviously heard what the Solicitor General would have to concede is “real” music. Farm hands whistle and sing as they go about their daily choirs, sometimes playing music on their radios outdoors. Everyone knows that cows are more relaxed and produce more milk when listening to soothing music.
BAILIFF: Not everyone.
PLAINTIFF’s ATTORNEY: Almost everyone. I can hear music coming from the barn right now.
SOLICITOR GENERAL (shaking his head): It is Mozart’s Concerto for Flute and Harp in D Major.
RAVEN: If you say so. I didn’t know what it was but I have heard it before while sitting atop the barn.
JUDGE: Any further questions?
SOLICITOR GENERAL: What good would it do?
JUDGE: Bailiff, play that third composition again. I want to focus more on the whistling sounds and tune out the birds in the background.
(They all listen again)
RAVEN: Sounds like music to me.
SOLICITOR GENERAL: No one asked you. Your Excellency, I ask that the court strike this statement of the crow from the record.
RAVEN: Who you calling a crow, bozo?
(The RAVEN flies above, buzzing round the head of the SOLICITOR GENERAL, which fortunately is protected by the dunce cap. However, we hear a SPLAT just before the RAVEN flies off)
JUDGE: Order in the Court.
(He pounds his gavel on the metal drum repeatedly)
JUDGE (continuing): I will reserve judgment for now, but the whistling sound does resemble music.
SOLICITOR GENERAL: With all due respect, Your Excellency, the wind would seem to be the author of the whistling sound, not the tree, or alternatively a joint author.
JUDGE (to SOLICITOR GENERAL): Assuming that the Plaintiff, a tree, qualifies as an author, does the wind consider itself as a joint author?
SOLICITOR GENERAL: I have no idea.
JUDGE: You brought it up. If you don’t know, are you prepared to present a witness?
SOLICITOR GENERAL: Do you mean the wind?
(The SOLICITOR GENERAL takes off the dunce cap and waives it in the air in total frustration)
(The BAILIFF moves forward, takes the dunce cap by the edges and places it back on the SOLICITOR GENERAL’s head, very securely)
SOLICITOR GENERAL: Ouch, that hurts.
JUDGE: Are you making a complaint about the Bailiff? He’s my wife’s cousin.
SOLICITOR GENERAL: No, absolutely not … Your Excellency.
JUDGE: Now, where were we?
SOLICITOR GENERAL (to himself): In a cow pasture in the middle of nowhere.
JUDGE: What’s that Counsellor? You will have to speak up.
SOLICITOR GENERAL: Nothing, Your Excellency; just mumbling to myself. I don’t recall what I said.
JUDGE: Bailiff, make a note. Defendant’s counsel talks to himself and has memory problems.
(The SOLICITOR GENERAL raises his arm to look at his watch, which is not there)
JUDGE: I hope you are not looking to see what time it is?
(The SOLICITOR GENERAL starts scratching his wrist vigorously)
SOLICITOR GENERAL: No, Your Excellency. I just got a sudden itch.
JUDGE: Very well. Let’s continue.
SOLICITOR GENERAL: I would like to make a motion for dismissal for failure to join a necessary party.
PLAINTIFF’s ATTORNEY: You already made that motion.
SOLICITOR GENERAL: That was for the birds.
PLAINTIFF’s ATTORNEY: Certainly was.
SOLICITOR GENERAL: I am referring to the wind as a joint author this time. I move for dismissal with respect to the third composition for failure join a necessary party.
JUDGE: Do you have any evidence to introduce that the wind intended to be a joint author?
SOLICITOR GENERAL: No.
JUDGE: Motion to dismiss for failure to join a necessary party denied.
SOLICITOR GENERAL: The wind does not really need to be a joint author because the wind created the whistling sounds, not the Plaintiff.
JUDGE: Maybe it is time to question the Plaintiff.
PLAINTIFF’s ATTORNEY: As the Court has already noted, the Plaintiff has a physical disability (being rooted to the ground), and cannot take the witness stand.
SOLICITOR GENERAL: No one is going to believe this when I get back to Washington.
BAILIFF: Don’t tell anyone.
JUDGE: If the Plaintiff cannot come to the courthouse, the Court will go to the Plaintiff. Bailiff, redraw the perimeter of the courtroom.
(The BAILIFF goes to the barn, returns with the chalk machine and pushes it along to enclose the Plaintiff within the boundaries of the courtroom. The JUDGE slides down the rail fence, sits closer to the PLAINTIFF, shaded by its branches, and waits for the BAILIFF to return)
JUDGE: Swear in the witness.
(The BAILIFF holds up a branch of the tree, looks around and drops it)
PLAINTIFF’s ATTORNEY: I will take the oath on behalf of my client.
JUDGE: That will not be necessary. We will just consider the witness sworn.
JUDGE (to SOLICITOR GENERAL): Counsellor, do you wish to ask the witness any questions.
SOLICITOR GENERAL (to PLAINTIFF): I would like to know if you did anything to cause the sounds that we heard in the compositions. If not, the sole creator must be the wind.
(He stares at the tree, then looks around at everyone else)
SOLICITOR GENERAL (continuing): I must be crazy. I am talking to a tree.
BAILIFF: Better than talking to yourself.
SOLICITOR GENERAL: I make a motion for summary judgment to dismiss compositions two and three on the basis that the Plaintiff itself took no action in the creation of the works and therefore cannot be an author.
PLAINTIFF’s ATTORNEY: Objection. A tree drops its pine cones on its own initiative after the pine cones release their pollen or seeds, not in response to the wind.
SOLICITOR GENERAL: That is not necessarily true if it was quite windy that day.
JUDGE: That is a question of fact for the jury. Motion to dismiss denied as to the second composition.
PLAINTIFF’s ATTORNEY: While we believe that the Plaintiff is the sole author of the third composition, it seems that we have the same question of fact as to the wind’s involvement.
JUDGE: Correct. Motion to dismiss also denied as to the third composition. Jury trial is set for the 13th of next month, right here in this courtroom. Court adjourned.
SOLICITOR GENERAL: I think I have tickets for a string quartet on that date.
JUDGE: Too bad, I guess you will just have to miss it. Look at the bright side. You will be able to hear Mozart’s Concerto for Flute and Harp in D Major from the barn.
(The SOLICITOR GENERAL looks at his wrist for the time)
SOLICITOR GENERAL: Where is my watch?
BAILIFF: In your pocket.
(The SOLICITOR GENERAL takes the Patek Philippe from his pocket, fastens it to his wrist and looks at the time)
SOLICITOR GENERAL: It’s five fifteen.
BAILIFF: I have five fourteen.
SOLICITOR GENERAL: What difference does it make? I have already missed the five o’clock train to Washington.
JUDGE: There is a milk train leaves at ten p.m. if you do not mind several stops, or we could find you a motel room near the station. By the way, do not forget to return the dunce cap to the Bailiff.
(The SOLICITOR GENERAL hands the dunce cap to the BAILIFF, who drops it and shakes his hand)
BAILIFF: There’s bird shit on the dunce cap.
JUDGE (to SOLICITOR GENERAL): Counsellor, you will have to pay for cleaning. That will be five dollars.
SOLICITOR GENERAL: Let me give you a check.
(He reaches in one pocket after another and comes up empty each time)
SOLICITOR GENERAL (continuing): Sorry, Your Excellency, but I do not seem to have my checkbook on me.
JUDGE: No problem. You can give the Court some collateral.
BAILIFF: What about one of those expensive shoes?
SOLICITOR GENERAL: How am I supposed to walk in a cow pasture with one shoe?
JUDGE: Good point. Your watch will do.
SOLICITOR GENERAL: A Patek Philippe, for a lousy five-dollar cleaning bill? That’s ridiculous.
JUDGE: Not to this Court. You can get it back at the trial, if you remember to bring the five dollars.
(He motions to the BAILIFF, who approaches the SOLICITOR GENERAL. The SOLICITOR GENERAL holds his right hand over the watch, and they struggle until the BAILIFF removes the Patek Philippe and puts it on his own wrist)
SOLICITOR GENERAL (to JUDGE): You’re not going to let him wear it, are you? It must be kept in a safe place.
JUDGE: Not to worry. I’ll keep it in my sight at all times.
(He holds out his hand. The BAILIFF takes off the watch and hands it to the JUDGE, who (after removing his own watch) replaces it with the Patek Philippe)
JUDGE (to SOLICITOR GENERAL): You can borrow mine if you like.
(The SOLICITOR GENERAL turns away and stomps off across the cow pasture)