Some Day My Lawsuit Will Come

by Wade Sampson, staff writer
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“Music has always had a prominent part in all of our products from the early cartoon days. I have had no formal musical training. Credit for the memorable songs and scores must, of course, go to the brilliant composers and musicians who have been associated with me through the years.”Walt Disney

What early Disney animated classic song was accused of being plagiarized?

Ashley Tisdale sang it on an album. Barbra Streisand sang a version with altered lyrics on a DVD. The Cheetah Girls sang it, as did Sinead O’Connor.

Jazz pianist Dave Brubeck did a version of the song as did other jazz musicians including Miles Davis, Bill Evans, Oscar Peterson, Herbie Hancock and The Chet Baker Trio, who released an album named after the song.

The American Institute in one of their infamous “100 Greatest” lists had the song at position No. 19 on its “100 Greatest Songs in Movie History”.

"Some Day My Prince Will Come" had lyrics by Larry Morey with music by Frank Churchill and was written for Disney’s legendary first animated feature, Snow White and the Seven Dwarfs.

Walt was adamant that the music for Snow White to be something different that the usual musical shows.

“We should set a new pattern, a new way to use music. Weave it into the story so somebody doesn’t just burst into song,” stated Walt firmly which established an innovative way to use songs in a musical to progress the story and reveal character years before the Broadway musical Oklahoma that is often given credit for this innovation.

Morey and Churchill wrote 25 songs for the film including the never-used "The Lady in the Moon," "Music in Your Soup" and "You’re Never Too Old To Be Young."

Eight of those songs written by Morey and Churchill were used in the final film. Six of those songs made the “Hit Parade” of 1938 including Some Day My Prince Will Come.

It wasn’t nominated for “Best Song” at the Academy Awards but neither were any of the other songs from the film nor "Hooray for Hollywood" or "Let’s Call the Whole Thing Off." The winner that year was "Sweet Leilani" from the movie Waikiki Wedding.

The concept for "Some Day My Prince Will Come" first appeared in a story conference on August 1934. It was originally going to be part of a dream sequence of Snow White and the Prince dancing in the clouds surrounded by animated stars doing antics similar to the “Silly Symphonies” series.

Lyricist Morey was a multitalented Disney employee who worked in the story department and was a sequence director on Snow White.

Musician Churchill was born October 20, 1901 in Rumford, Maine, just weeks before Walt Disney was born. He began his career playing piano accompaniment in movie theaters when he was only 15 years old, went on to playing honky tonk piano in Tijuana, mood music on silent film sets, and was an accompanist and soloist for five years at KNX radio.

He joined the Disney Studios in December 1930 and ended up scoring about 50 animated shorts including Playful Pluto (Pluto battling the flypaper), Who Killed Cock Robin? and Mickey’s Premiere, Churchill was responsible for the incredibly popular "Who’s Afraid of the Big Bad Wolf?" for the Disney animated short, The Three Little Pigs.

Shortly after the premiere of The Three Little Pigs, Churchill married Walt’s secretary, Carolyn Shafer.

After the success of Snow White, Churchill was briefly hired away by Walter Lantz to score an animated feature to be called Aladdin. The film never got beyond the storyboard stage when Lantz determined it would be too expensive to produce. Churchill returned to the Disney Studio where he worked on The Reluctant Dragon (producing four unmemorable songs with Morey), Dumbo and Bambi.

He won an Oscar for scoring with Oliver Wallace the animated feature Dumbo, as well as sharing an Oscar nomination with Ned Washington for the song "Baby Mine" from the film.

Unfortunately, Churchill committed suicide on May 14, 1942 and reportedly “died at the piano” from a self inflicted gunshot wound. Churchill was described as a tall, thin, reserved and quiet man who never objected if someone didn’t feel his composition was quite right because he could always come up with another dozen.

Like several employees of the Disney Studio at the time, Churchill had an alcohol problem, as well as bouts of depression. At the time of his death, he was one of the highest paid members of ASCAP.

Posthumously, he received two additional Oscar nominations for his co-writing the score for Bambi and for co-writing the song Love Is a Song from the same film. In addition, he wrote the song "Never Smile at a Crocodile" for the Peter Pan project being developed but the film itself was not produced for another decade.

In one obituary, Walt Disney supposed said he would “never find anyone to replace the man from Rumford, Maine who grew up playing with piglets and had a talent for jaunty tunes.”

However, Churchill’s popular song, "Some Day My Prince Will Come" was actually the subject of some controversy. It was claimed that Churchill had stolen part of the tune from another composer and the result was a court case that ended in 1941.

Ernest LaFrance, in The New Yorker magazine October 29, 1938, commented; “On the day after Yale beat Navy in the final quarter, we read in the claim of T.W. Allen Co., music publishers that "Some Day My Prince Will Come" the torch song of Snow White, was just "Old Eli" in waltz time. We like to think that the whole gamut of human emotions is only a matter of timing of a metronome, and that such widely divergent things as love and hate can hang on the springs of the same little ditty. Under the sweater of each varsity man is a Prince on a horse; there is probably more than a trace of Red Grange in every Snow White.”

Thornton Allen, owner of the copyright to "Old Eli" claimed that Churchill lifted the chorus of that song and used it in "Some Day My Prince Will Come." "Old Eli" was slang to refer to Yale University that was named after its first major benefactor, Elihu Yale.

Allen further claimed nine musical similarities between the two works:

  • Both compositions were written and published in the same key; (in court, both sides admitted that this was insignificant)
  • Both compositions were written and published in the same tempo;
  • Both were written and published with the same unique chorus structure;
  • Both compositions were written and published with the same unique harmonic structure;
  • The theme in each is repeated in the same way and at exactly the same place;
  • Both have the same unique interval of a 6th instead of the customary 4th twice in the same place and between the same notes;
  • Both have the same note progression at the same place and on the same notes with the exception of one note;
  • Both compositions were published in the same rhythm; (In court, it was pointed out that "Old Eli" was published as a march but "Some Day My Prince Will Come" was originally written as a waltz, and later published for commercial purposes as a fox trot.)
  • The notes in the themes of both compositions as repeated are identical with two minor changes.

Most of these claims were shown to be unimportant in the final decision.

"Old Eli March" was written by Wadsworth Doster in 1909, while he was a student at Yale University. Doster was not a professional musician, but he had studied music at Yale and frequently played the song on piano at Yale re-unions, in nearby restaurants and in a few private homes. Doster never copyrighted the song himself, but assigned all his rights, title and interest in it, including the right to copyright the same, to Allen and his music publishing company.

Thornton Allen included Old Eli in a volume of musical compositions titled Intercollegiate Song Book, Eastern Edition, which was published and put out to the public for sale on October 6, 1936. The copyright registration was September 26, 1936.

Allen claimed that on November 25, 1932, he had sent a copy of the song to the Disney Studios in addition to orchestra leaders and others in an attempt to get them interested in the song.

In his final decision, New York District Judge Conger wrote:

“It may be that he did send this copy to Disney when he says he did. On the other hand, Mr. Allen had no record of any kind, either to refresh his recollection or to substantiate his statement. He did have from the Disney Studio an acknowledgment of his letter of November 26, 1932. Mr. Allen was unable to produce a copy of his letter, but the respondents eventually produced the original from the Hollywood office of the Disney Studio, and it there appeared that the letter was directed to the Disney New York office, and not to the Hollywood office. It further appeared that there was enclosed in the letter a list of musical compositions which Mr. Allen was sending to Disney.

“The composition 'Old Eli' was not specifically mentioned, but Mr. Allen claimed it was among those designated at the end of the list as ‘etc., etc.’ After all, the proof on this point is supported only by Mr. Allen's recollection after these many years. Taking for granted, however, that he did send this copy of 'Old Eli' to Disney in 1932, there is no proof that Mr. Churchill ever saw it. He has testified that he did not. It was not sent to him direct. If it was retained by Disney, it undoubtedly would have been in their library. Mr. Churchill testified that he used the library very little. That he composed by thinking of a tune in his mind, and then writing it down on a piece of paper. Weighing all the probabilities, I have come to the conclusion that the evidence is not sufficiently strong for me to hold that Churchill actually did see and have in possession, prior to or at the time he wrote his composition, a copy of  'Old Eli.'"

According to the court testimony, "Some Day My Prince Will Come" was written by Frank Churchill, on or about November 1934, in connection with the movie production Snow White and the Seven Dwarfs. The copyright on his song was obtained on January 25, 1935, as an unpublished work, and requests for copyrights as a published work were made on December 14, 1937. "Some Day My Prince Will Come"  was published when the motion picture Snow White was first shown, which was around Christmas 1937.

The Disney Studios hired composer and music commentator Deems Taylor to testify on its behalf as an expert witness. Taylor appeared in Disney’s Fantasia (1940) and although his name is pretty much forgotten by modern audiences, he was quite popular and well known at the time.

Taylor was a friend of the famous Algonquin Round Table. He became a music critic for New York World in 1921 and became a well-known promoter of classical music including being an intermission commentator on radio for the New York Philharmonic. He served six years as president of ASCAP. Taylor was also a composer including orchestral works and operas and authored several books.

Since the main contention was the similarity of the notes in the first eight bars, Taylor testified that there was indeed a similarity in the first eight bars of each but with one significant difference. He discounted the importance of any minor similarity: "It is a very common harmonic progression. You find the elements of it in the exercises in harmony books."

Later, when he dissected the measures, he made an analysis of the harmonies and found many substantial differences which he illustrated by charts and by use of the piano.

Allen’s primary claim was that out of a total of 30 notes in "Old Eli," 27 are identical in "Some Day My Prince Will Come.

Taylor testified: "I should say that the first eight bars of the two songs both as originally stated and as repeated show a certain similarity in general contour though not in detail. As for the other bars I find no similarity whatsoever between the two songs."

Musical experts for Disney agreed that there was a similarity in the first four measures of each song, but that the rhythmic structure of each was entirely dissimilar; that the harmonic structures were different; that the second four measures were different and the next eight measures were completely different; that the only similarity was the opening phrase of the chorus, that is, the progression of notes of the opening phrase was similar; that the choruses in their entirety were substantially different; that the similarity would not impress someone as being any more similar than a number of other melodies that one might hear; that all popular music that is held down to a formula, more or less, is apt to be similar to other popular music that has been written at one time or another; that while the first eight bars were similar, there were more differences than similarities.

Much of the testimony was extremely intricate musically with experts on both sides arguing their points vehemently. The judge, in his final decision, commented on the expertise of them but felt that one set of experts did not outshine the other in determining his opinion.

In addition to the Disney Studios, RKO Radio Pictures (that distributed the film) and Irving Berlin Inc. (because it published the song) were also respondents in the suit.

Judge Conger finally decided that he had “come to the conclusion that as far as this testimony is concerned, complainant has failed to convince the Court that the writer of the song "Some Day My Prince Will Come" copied the composition "Old Eli" to such an extent that it constituted piracy or plagiarism. In coming to this conclusion I have also used my own musical sense, such as it is, and I have arrived at the result that while there are similarities between the two compositions, there are a great many differences. I have heard the compositions played, and to my ear there is a similarity, but not such a similarity as would impress one. In other words, I would not take the one for the other.”

Conger also took in to account the reputation and works of the accused composer: “Mr. Churchill was a professional writer of undoubted ability. He composed music directly on paper and not by playing a piano. He apparently had real talent for composing. He had composed a great deal of music prior to this song, while working for Disney. He was given the words for ‘Some Day My Prince Will Come’ and was told that a romantic melody was wanted in connection with it. The words or lyrics required the musical setting to be in waltz time.” Conger also emphasized that there was no evidence that Churchill had direct access to "Old Eli." Conger stated: “He denies that he ever heard it, and the evidence does not tend to contradict him.”

If you’d like to hear the musical clip from "Old Eli" and compare it with the same passage from "Some Day My Prince Will Come" or want to read the entire opinion by Judge Conger on the case “Allen v. Walt Disney” (41 F. Supp 134 Southern District of New York 1941), then go to this site (link).