Now hear this: Sometimes ears can lie

June 30, 1996|By GREGORY KANE

CHURCHVILLE -- A body could get used to this section of Harford County: a quiet country road lined with trees as green fields with livestock grazing roll by. But I'm not here on a sightseeing tour. I'm here to listen to a David and Goliath tale.

Ray Repp -- the David of this tale -- greets me at the door of his house on Cool Spring Road. A friend, Repp tells me, has described Cool Spring Road as "not country but bucolic."

Repp, a composer of religious hymns, invites me in. I take a seat as he and his friend Bill Kelly tell me about the tape, which Repp then pops in the audiocassette player.

"This is the first eight bars of 'Til You,' " a voice on the tape says, referring to a hymn Repp copyrighted in 1978. A piano then taps out the first eight bars.

"This is the first eight bars of 'Phantom,' " the voice says, referring to the Broadway hit "The Phantom of the Opera," with music composed by Andrew Lloyd Webber. (For this tale, the super-rich and successful Webber will have to take the part of Goliath.) The piano taps out another eight bars twice, and I look at Kelly with my eyebrows raised in suspicion.

"That sounds like the same song!" I exclaim. Therein lies the dilemma of Repp and Kelly, two nice Catholic gents from the Midwest who migrated to upstate New York and then came to Harford County last year to experience Maryland's allegedly "mild" winters.

"I'm glad you have that look on your face," Kelly tells me. I had just helped him reaffirm his cognitive abilities. The songs sound alike to him and Repp, too, so much so that Repp filed a plagiarism lawsuit against Webber in 1990. New York federal Judge Shirley Kram's ears are somewhat different. She claimed the songs didn't sound alike, refused Repp the opportunity of letting 12 people with normal ears hear both songs and tossed Repp's suit out of court. She let stand a countersuit claiming Repp's "Til You" was plagiarized from Webber's song "Close Every Door."

Repp and Kelly then play "Close Every Door." Judge Kram must hear on a different wavelength. "Close Every Door" and "Til You" sounded nothing alike to me, but Kram let Webber's countersuit stand. Trial is set for Sept. 9. Repp says he can't even appeal Kram's decision to dismiss his suit until the completion of the countersuit trial. Anybody getting the feeling that Goliath might clobber little David in this one?

Mind you, I'm not calling Webber a plagiarist. Heaven forfend. I just know that a song he wrote the music for sounds exactly like one Repp composed years earlier and put on an album called "Benedicamus." If by chance years later Webber thought of a tune that sounded exactly alike, it would be a coincidence of staggering proportions.

But call Webber a plagiarist? Nooooo. Not me. Repp, on the other hand, sincerely believes that Webber somehow got ahold of "Til You" and used the music as the theme for "Phantom." He discovered Webber's alleged artistic pilfering quite by accident, when Kelly bought him a Christmas gift back in 1989: the compact disc of the musical "The Phantom of the Opera."

"It was on sale," Kelly recalls. "I said 'I'll get that for Ray because it's cheap.' "

It took a few weeks, into January 1990, for Repp to actually listen to the CD. He listened to the theme from "Phantom," and the melody seemed darned familiar to him.

"I said, 'There's something wrong with that song,' " Repp reflects. Soon he was able to pinpoint exactly what was wrong: the lyrics, which were not the ones he wrote for "Til You." Kelly recalls that Repp came to him, red-faced, and told him, "That's my song."

Both men are pessimistic about the Sept. 9 trial. Based on the music I heard, the case should be a no-brainer for a jury. But that's what I thought about the Rodney King and the Reginald Denny beating trials. But once lawyers and experts got done with each jury, telling them they didn't really see what they saw, the outcomes in both cases were egregious.

I can see it now. The rich Webber hires high-priced lawyers who then hire high-priced experts who compare "Til You" and the theme from "Phantom."

"We know you think you may be hearing the same song," the experts will tell the jurors. "But you're only laymen. We're experts. Are you going to believe us or your lying ears?" Then they'll compare "Til You" to "Close Every Door."

"We know that, on the surface, these songs sound nothing alike," they'll say. "Allow us to alter reality for you." If the results of the King and Denny trials are any indication, the experts will prevail.

But Repp, who is paying his lawyers on a contingency basis, presses on. He has only himself to support, but believes others with his financial resources who have children to support might have given up by now.

"Damn it, the guy is wrong," Repp says of Webber. His stubbornness, his persistence, his good old American toughness taking on the big guys are prompted by his revulsion at people with money riding roughshod over common folks in the courts.

"At what time does the system say 'no' to that?" Repp asks. Maybe, with a jury not afraid to trust its common sense, it will happen in New York City on Sept. 9.

Gregory P. Kane's column appears on Wednesdays, Saturdays and Sundays.

` Pub date: 06/30/96

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