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Surface Noise We had a sound baby, I mean a sound. —sam phillips • 1 • In the fall of 1948 a small, short-lived Los Angeles record company released a record called “A Little Bird Told Me” by singer and pianist Paula Watson, her ‹rst for the company. The record became an R&B hit despite a Billboard review characterizing the disc as a “staccato rhythm novelty cleverly written and performed, but too pop ›avored for the race lists.”1 The record’s pop appeal, however, was con‹rmed by the crossover success that eventually pushed it past a million in sales. The record label, Supreme, was owned by an African American man named Al Patrick, who was also a dentist. He acquired the song from Harvey O. Brooks, a professional songwriter and pianist who had also written the score and theme song for Mae West’s I’m No Angel (1933). Brooks had come up with the ditty some ten years earlier but thought little of it and set it aside until, in 1947, he decided to offer it to bandleader Woody Herman. When Herman declined, Brooks took the song to Patrick, whom he knew was looking for some “catchy novelties.” The song was light as air— “nothin’,” Brooks called it—with a perky melody, a bouncy beat, and an uncomplicated romantic lyric.2 According to Arnold Shaw, the success of such novelty material relied “almost entirely on the whims of the young.”3 It ‹t easily alongside such lighthearted fare as Dinah Shore’s “Buttons and Bows” or Doris Day and Buddy Clark’s “Love Somebody,” two of the year’s top hits. It was just the kind of song to appeal to the “teen-age and collegiate market” that consensus held was “reawakening ,” returning to its “prewar status as a key in›uence factor and a largesized merchandising mart for the produce of the industry.”4 Within weeks the song was covered for Decca by Evelyn Knight, one of the company’s stable of ‹ne and experienced pop singers, in an arrangement substantially similar to Watson’s. Introductory a cappella five 143 humming was followed by a groove featuring heavy downbeat accents with prominent hand claps on the backbeat. Male backing vocals answered each lead phrase in a call-and-response pattern and took the lead melody through the song’s middle section. Each track’s outro featured similar harmonic phrases from the backing singers and a ‹nal “And now I know it’s true” from the lead. Knight even mimicked Watson’s chirpy bird sounds, and, since both women had sweet, light voices, the overall effect was quite similar. The Decca release became one of the most popular records of 1949. For Brooks, it was all unexpectedly good news, as were the two other covers by Blue Lu Barker (Capitol) and Janette Davis and Jerry Wayne (Columbia). It was, he said, “just like ‹nding $100,000.”5 Patrick, on the other hand, was furious. Although Watson’s disc was the rare indie million seller, he felt certain that Knight’s recording had robbed his company of even greater potential sales. In a surprise move, attorneys for Supreme ‹led a $400,000 lawsuit against Decca, claiming what amounted to plagiarism of its arrangement. It was the same complaint LaVern Baker would make against Georgia Gibbs four years later. While the assertion had musical merit, the legal case ran up against by now familiar problems concerning the nature of property rights in the technological age. After a three-day trial, federal judge Leon Yankwich ruled for the defendant. Only the songwriter (the “author”) was afforded a right of ownership under current law. There was no such protection for arrangements or recordings because, the judge wrote, “[N]o recognition of the right of arrangement is given to anyone except the author,” an interpretation he drew from a Patent Of‹ce rule. In making his ruling, Yankwich cited many precedents—in intellectual property, trademark, copyright, antitrust, and trade regulation cases—including a nod to Judge Learned Hand’s decision in the RCA Mfg. Co. v. Whiteman case from 1940. But no precedent addressed the implicit conceptual issues before the court. Nor did the argument put forward by Supreme’s lawyers, which was limited to a claim of unfair competition: the Knight recording’s substantial similarity to Watson’s had “the object of misleading, confusing and deceiving phonograph record dealers and the public into the belief that the product of the plaintiffs was being sold...

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