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Songwriters Claim Infringement By ‘Broadway Danny Rose’ Song

July 22, 1989

TRENTON, N.J. (AP) _ The Woody Allen movie ″Broadway Danny Rose″ made a lot of people laugh. For Wandra Merrell, the mid-1980s film brings that certain feeling lamented its theme song, ″Agita″ - an upset stomach.

A lawsuit she and her songwriting partner filed in U.S. District Court in Trenton claims the verse melody of ″Agita″ borrowed 49 of the 52 notes in the verse of ″Pepino, the Italian Mouse.″ Ms. Merrell of Cresskill and Ray Allen of Long Island, N.Y., wrote that early-1960s novelty song, which became a No. 1 single for Lou Monte.

What the songwriters thought would be a simple copyright infringement case has turned into a four-year legal battle, with a jury trial still nowhere in sight.

″It’s been absolute hell,″ Ms. Merrell said last week. ″We’ve been working against the top guns - Orion Pictures, Woody Allen. It’s like David vs. Goliath.″

The $50 million copyright infringement lawsuit against Allen and Orion was dismissed last year by a judge after the defendants bought rights to ″Pepino″ for $50,000 from SBK-EMI Music Publishing Co. The ″Pepino″ songwriters got none of the money from the retroactive deal.

Ray Allen and Ms. Merrell claim the $50,000 was peanuts, and are angry they didn’t get a share. They are suing SBK for breach of fiduciary responsibility, but the lawsuit remains mired in briefs and pre-trial proceedings.

Neither song involved could be considered serious fare; ″Pepino″ chronicles a mouse that does a ″cha-cha on the floor″ and ″Agita″ waxes lustily about spicy food and its effects on one’s digestive system.

But the financial stakes are serious.

The melody is heard 23 times in the movie, and the film has had an estimated 2 million performances, the plaintiffs say. Those prospective royalties and other damages reach well into the millions of dollars, Ms. Merrell said.

″If people can steal what you have, every songwriter in America is in jeopardy,″ said George Brown, Ms. Merrell’s husband and longtime manager. ″In this court, they’re allowing it so far.″

Orion Pictures and Allen’s publicists did not respond to requests for comment from The Associated Press.

SBK vice president and senior attorney Harold Rosenbloom issued a statement saying, ″SBK is vigorously defending the action, and we anticipate we will ultimately be successful.″

He declined to comment further.

Even though Orion wound up paying the ″Pepino″ publishers, ″Agita″ composer Nick Apollo Forte denies that he copied the Lou Monte hit.

Forte, who also acted in ″Broadway Danny Rose,″ insisted in an interview that the song was entirely his own work and substantially different from ″Pepino.″

Forte, a nightclub performer and part-time boat skipper in Snug Harbor, R.I., said he knows how his accusers feel when it comes to taking on the entertainment industry conglomerates. He said he spent $40,000 of his own money in legal fees - more than he made from the movie, he says - to defend ″Agita″ as his original work. He says he finally decided to cut his losses and surrender.

″There’s one little part that sounds similar, but the notes are different,″ he said. ″You can’t fight the big companies.″

Ms. Merrell and Ray Allen claim the David role in this battle, but they’re hardly industry midgets. More than 200 of their songs have been recorded by various artists, Ms. Merrell says. Among them: ″Spanish Nights,″ a hit for Connie Francis, and ″Baby Lover,″ made popular by Petula Clark.

But their ditty about an Italian mouse is probably their most enduring. It reached No. 1 on the charts in late 1962 and earned Lou Monte a gold record on Frank Sinatra’s Reprise Records.

She and her partner say four musicologists have verified their contention that the verses of ″Pepino″ and ″Agita″ are nearly identical. But she’s still a long way from getting a chance to prove it to a jury. The next of many pretrial court hearings is scheduled in late August in Trenton.

″We know we’re going to win sooner or later,″ Ms. Merrell said, ″but we don’t want to die trying.″

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