Page:Edward B. Marks Music v. Borst Music.pdf/4

 that the second composition was not original but was taken directly from the verses set down by Gussie L. Davis. The title of defendants’ song differs only in that the words “In the” were dropped from Davis’ title. The verse and refrain of the two songs have a line for line identity, varied only by occasional substitution of synonymous words. A line for line comparison of the lyrics of the two songs will serve to illustrate their striking similarity: {|
 * Plaintiff’s Composition
 * Plaintiff’s Composition


 * Defendants’ Composition

All the passengers had gone to bed, Except one young man with a babe on his arm, Who sat there with a bowed-down head, The innocent one commenc’d crying just then, As tho’ its poor heart would break, One angry man said, make that child stop its noise, For your keeping all of us awake. ‘Put it out’ said another,
 * “On a dark stormy night, as a train rattled on,
 * “On a dark stormy night, as a train rattled on,
 * Don’t keep it in here,

We’ve paid for our berths and want rest, But never a word said the man with the child, As he fondled it close to his breast Where is its mother go take it to her This a lady then softly said ‘I wish that I could’ was the mans sad reply, But she’s dead, in the coach ahead. All the passengers were gone to bed Except one young man, with a babe in his arms, As he sat with a bowed down head. The innocent one began crying just then, As tho’ its poor heart would break, When an angry man said: ‘Make that child stop its noise, Because it’s keeping all of us awake.’ Put it out said another, don’t keep it in here, We have paid for our berths and want rest. But never a word, said the man with the child, As he held it close to his breast. Oh, where is its mother go take it to her, A lady so softly said, I wish that I could was the young man’s reply, But she’s dead in the coach ahead. Thinking of the happiness, of just a few short years; For baby’s face brings pictures of a cherished hope that’s dead But baby’s cries can’t waken her In the baggage coach ahead. Thinking of the happy days of just a few short years. Baby’s face brings pictures of a childish face that’s dead, But baby’s cries can’t waken her, She’s in the coach ahead. Of a wife who was faithful and true, He told how he’d saved up his earnings for years, Just to build up a home for two, How, when Heaven had sent them this sweet little babe, Their young happy lives were blessed, In tears he broke down when he mentioned her name, And in tears tried to tell them the rest,
 * “One dark stormy night, as the train rolled along,
 * While the train rolled onward a husband sat in tears,
 * While the train rolled onward a husband sat in tears,
 * As the train rolled onward, the husband sat in tears,
 * Ev’ry eye filled with tears when his story he told,
 * Ev’ry eye filled with tears when his story he told,
 * Ev’ry woman arose to assist with the child,
 * Ev’ry woman arose, from the story he told,
 * Ev’ry woman arose, from the story he told,