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The Olman Affidavit, Part One

The author. Abe Olman, self-described “pianist, composer, and publisher” was born in Cincinnati, Ohio on December 20, 1888. His first taste of music publishing came in 1910 when he got work at a publishing house in Cleveland as a “song demonstrator”. Three years later he traveled to Europe and played piano in the nightclubs of London and Paris. As World War I loomed he returned to New York and went back into music publishing. In 1920 he joined the secretive and powerful ASCAP organization and was a director of ASCAP from 1946 to 1956. In the 1930’s he was one of the first to see the advantages of promoting a song by placing it in a motion picture, including playing the theme song of a movie under the opening credits. He became the secretary and general manager of Leo Feist, Inc. in 1935 and held that post until 1956. He died in Rancho Mirage, California on January 4, 1984.

He also co-authored many songs including “Oh, Johnny, Oh” and, looking back on his boyhood, “Down By The O-HI-O”.  (Above information from ASCAP Biographical Dictionary, 4th edition, New York, 1980.)

Notes on the affidavit. The background is as follows - on June 30, 1948 Judge Simon Rifkind issued a decree in the “Baron vs. Feist” case which contained an injunction, ordering the defendant, Leo Feist, Inc. "to deliver up for destruction all infringing copies and devices [of the song “Rum and Coca-Cola”], and all plates, molds, and other matter for making such infringing copies". The injunctive papers were served on Feist’s attorneys on July 9, 1948 and were to go into effect on July 14. Olman filed his affidavit on the 13th in an attempt to stay the injunction. The attempt was successful, although Feist ultimately had to post a bond of $50,000 in order for the stay to be granted. (The bond, I guess, was a way of providing some immediate relief for the plaintiff in case Feist suddenly declared bankruptcy.)

Luckily for the historian Mr. Olman went a little overboard in his affidavit - a stay pending appeal would have been granted fairly easily in a case of this magnitude - and it contained information which appeared nowhere else in the written record. The first such bit of information, on page 2, is a report of the extremely modest sales figures and royalties for “Calypso Songs of the West Indies”, the songbook which contained the copyrighted melody of “Rum and Coca-Cola”.  This was part of Feist’s overall strategy to belittle and embarrass Maurice Baron and claim “entrapment” - see “The Settlement”, part 3.5. The key question here is - where did Olman get this information? In the affidavit he implied that it was part of the trial record, but I don’t think that was true. At least, I was not able to find it anywhere, and I carefully studied the testimony of Maurice Baron and Lionel Belasco.  Another explanation is that Olman got access to the sales figures through his position at ASCAP - he was a director of ASCAP when he submitted the affidavit - and this seems like an abuse of his office to me. Again - I am not sure about this.

On page three was the extremely valuable information about the gross income from “Rum and Coca-Cola” and Feist’s profits “from all sources” during calendar year 1945. As analyzed in “The Settlement” on this site I think the $132,145.42 was accurate - for Olman to have falsified this figure would have exposed him to criminal penalties. Olman followed with a ludicrous attempt to whittle down this sum of money to a “minimum recovery” below $250.  The main fallacy of his argument is that he jumped from “gross income” to “profits” - in other words he deducted all of his overhead, salaries, productions costs, etc. from the proceeds of “Rum and Coca-Cola”. In a case of “wilful” infringement this accounting method would never have been allowed by the judge.