"Talent borrows. Genius Steals." -- Oscar Wilde

For the past month, better radio stations around the country have been giving airplay to the new Bruce Springsteen single, "Radio Nowhere." A tight, expansive furious rocker, the track also appears on his just-released CD, "Magic," maybe his best since 1987's "Tunnel of Love." Though I've always found the man's ongoing promotion of left-populist agitprop more than a little irritating, I give credit where due: It's a great record.

But hanging over this, at least for a while, was a potential legal matter. A portion of the single sounds similar to Tommy Tutone's 1982 hit, "867-5309/Jenny." That hadn't escaped the notice of the still-active Northern California band's lead singer, Tommy Heath, who owns 12 percent of the song's publishing rights. "Everybody's calling me about it," he said several weeks ago. "I think it's close enough that if I wanted to, I could work with it. I don't really get into that sort of thing, but the kids do need braces so maybe I will."

Fortunately, he didn't. Heath's comment rocketed around the Internet, prompting Springsteen fans to ask: Where does this one-hit wonder get off jump-starting his career like this? And why would Springsteen have a need to copy anyone? By late September, Heath reversed himself. "I'm really honored at a similarity, if any," he remarked. "I think there's too much suing in the world now, and I'm writing Bruce's manager (Jon Landau) now a letter to assure him that I'm not taking any action."

Well, thank God for the Internet and Heath's attack of good sense. But had a suit been filed, it might have succeeded, or at the very least, saddled Springsteen with needless aggravation and legal expenses. Such a possibility suggests that the courts have been excessively creative in interpreting copyright infringement law.

Objectively, there wouldn't have been much of a case. It's true that the main melody of the two songs share an Em-C-G-D chord sequence. But so do Bon Jovi's "Misunderstood" and any number of other songs. What's more, the counter-melody and the bridge in Springsteen's song bear no resemblance to those of "867-5309." And the lyrics are utterly different both in content and context.

The beauty of "Radio Nowhere," like that of all great rock n' roll, is that it "steals" from a variety of sources and creates something new in the process. The basic melody, if anything, sounds like a hybrid of the Clash's "Clampdown" and Warren Zevon's "Splendid Isolation." The snare drum is straight out of the Bobby Fuller Four's "I Fought the Law." Should these musicians (or their estates) sue? And if victorious, what percentage of the total award would accrue to each plaintiff? These are questions for obsessive lawyers and judges.

The legal profession, unfortunately, does obsess over plagiarism complaints, a legacy of a nearly-forgotten Tin Pan Alley eccentric named Ira Arnstein. During the mid-1930s, Arnstein had become convinced that major pop songwriters, including Cole Porter, George Gershwin, Irving Berlin and Jerome Kern, had been ripping off his work. During 1936-46 he brought forth not less than five plagiarism lawsuits. None proved successful, but they managed to alter the course of legal history.

Arnstein v. Edward B. Marks Music Corp. (82 F.2d 275 [2d Cir. 1936]), established the basic pattern. The plaintiff paired a song of his own with someone else's, and by matching pitch, notes and rhythm from selected song fragments, he could "prove" theft. One of the defendant co-writers, Jack Lawrence, recalled:

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.

For personal instability, this guy was almost enough to make you forget about Phil Spector. Arnstein, who admitted to threatening defendants, stated in testimony: "I was desperate. I heard my song being played everywhere, and I was starving. I was out of my mind and might have committed murder." The suit eventually was dismissed by the Second Circuit Court of Appeals, where Judge Learned Hand -- a prig, regrettably, as well as a genius -- used the occasion to chasten pop music songwriters as being incapable of sophistication.

Arnstein over the years brought forth more suits, including one each against the two rival nonprofit music copyright licensing services, ASCAP and BMI. Nobody wanted to deal with him. Defendants in the former case (Arnstein v. ASCAP, 29 F.Supp. 388 [S.D.N.Y. 1939]) gave roughly two dozen musicians jobs with a Russian ballet company so they wouldn't testify on behalf of Arnstein. The final suit, filed against Cole Porter (Arnstein v. Porter, 154 F.2d 464 [2d Cir. 1946]), made it to trial. The defendant won, testifying that he neither knew Arnstein nor was familiar with his work. After two hours of deliberation, the jury dismissed the case as without merit. The Columbia Law School Library's Music Plagiarism Project provides information on dozens of cases over the decades, a few dating back to the 19th century.

Ira Arnstein never won a case, and seems to have disappeared after 1946. But in the larger sense he had the last laugh. The effect of all those court actions, especially in the Cole Porter case, was to raise the bar for dismissal of nuisance suits. The Arnstein test, as it came to be known, remains to this day the basis for musical plagiarism cases. It has two components. First, the plaintiff needs to show that the defendant had access to the pirated material. And second, the defendant had to have improperly appropriated the material. Even without proof of "access," however, a plaintiff may prevail if the similarities between songs are "so striking as to preclude the possibility that the plaintiff and the defendant independently arrived at the same result." Continued...