Ears Wide Shut

Home , Harrisongs, Harrison on Harrison, The Neptunes

ORMSBEE 5/18/2015 10:45 AM

EARS WIDE SHUT

Matthew H. Ormsbee*

TABLE OF CONTENTS

INTRODUCTION ...... 146

I. MUSICAL FORM ...... 150 A. Compositional Considerations ...... 150 B. Historical Practice of Borrowing Musical Ideas ...... 152

II. JUDICIAL INTERPRETATION ...... 155 A. Constitutional Basis for Protection of Intellectual Property ...... 155 B. Copyright Law Framework ...... 156 1. The Copyright Act and Acquisition of Rights ...... 157 2. Exclusive Rights to the Copyright Holder ...... 157 C. Judicial Hostility to Music ...... 159 D. Use of Expert Testimony to Detect Infringement ...... 161

III. COMPLICATING MATTERS ...... 162 A. Freedom of Speech ...... 162 B. Fair Use Doctrine ...... 163

IV. FURTHER COMPLICATIONS ...... 164 A. Industry and Genre Standards ...... 164 B. Bad Faith ...... 165

V. A PLACE FOR ARBITRATION ...... 166 A. An Effective Tool ...... 166 B. An Appropriate Tool ...... 168

CONCLUSION ...... 170

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Music infringement suits have suffered a long history of misinter- pretation by the judiciary. While this is not entirely the courts’ fault, litigants can take steps to avoid an unfavorable outcome by addressing the most pressing issues raised in music rights lawsuits through arbitration. This Article explores ways in which arbitrators, content creators, and disseminators may more effectively approach the multi- faceted issues that arise in the application of copyright principles to music rights disputes.

INTRODUCTION

Courts have long struggled with copyright doctrine as it applies to music. As a result, the judiciary’s misapplication of copyright law principles to cases concerning music composition has led to a dissonance between music and the law. This Article explores two arguments: first, the traditional model of copyright law is relevant to musical works, but it must be fine-tuned in order to be most applicable1, as seen in the Harrisongs case;2 and secondly, arbitration provides a more suitable forum for music rights disputes than the more traditional courtroom.

A concrete example based on a now famous dispute provides a good starting point. In the 1976 Harrisongs case, the plaintiff, Bright Tunes Music, claimed that a popular song, My Sweet Lord, by George Harrison, was allegedly plagiarized from an

* Attorney at The Wender Law Group and Of Counsel to Shiboleth LLP in New York City. The author is licensed to practice in state and federal courts in New York and New Jersey. He was formerly a Staff Member and thereafter the Executive Editor of the Cardozo Journal of Conflict Resolution at Benjamin N. Cardozo School of Law at Yeshiva University. He earned his J.D. from Benjamin N. Cardozo School of Law in 2012, and his B.A. from Hendrix College in 2007. The author previously studied piano performance at the Juilliard School and his prior publications include “Music to Everyone’s Ears: Binding Mediation in Music Rights Disputes” (Yeshiva University, 2011) and “Law School 20|20” (iBooks, 2013). The author gratefully acknowledges help and inspiration from professors Peter Goodrich and Julie Jordan. 1. See Rebecca Tushnet, Worth A Thousand Words: The Images of Copyright, 125 HARV. L. REV. 683, 684-85 (2012) (“Copyright is literal. It starts with the written word as its model, then tries to fit everything else into the literary mode. Protections for photographic, musical, audiovisual, and other modes of expression were added to the U.S. Code slowly and haphazardly, following economic rather than conceptual demands. Taking words as the prototypical subject matter of copyright has continuing consequences for copyright law, which often misconceives its object, resulting in confusion and incoherence.”) (citing Anne Barron, Copyright Law and the Claims of Art, 6 INTELL. PROP. Q. 368, 372-73 (2002)). 2. Bright Tunes Music Corp. v. Harrisongs Music, Ltd., 420 F. Supp. 177 (S.D.N.Y. 1976). ORMSBEE 5/18/2015 10:45 AM

2014/15 EARS WIDE SHUT 147 earlier song, He’s So Fine, to which Bright Tunes owned the copyright.3 Harrison conceded that he had heard He’s So Fine prior to composing My Sweet Lord;4 after all, He’s So Fine had already held the number one spot on the billboard charts for over a month in America. At trial, the judge focused on whether there was any evidence that Harrison independently arrived at the score of My Sweet Lord. Harrison’s counsel put forth extensive evidence of the germination of the song idea on Harrison’s behalf and of the actual song writing process of Harrison and his band.5 Harrison’s counsel also demonstrated that the underlying lyrics of the two songs were substantially dissimilar.6 His counsel further demonstrated that the two songs did not sound alike to most laypersons: He’s So Fine was a catchy pop tune, loved by teenage suburbanites, while My Sweet Lord sounded more like a folksy, gospel piece with acoustic guitar.7 Perhaps more troubling, the U.S. District Court for the Southern District of New York imposed its own interpretation of the music theory behind the two songs, making much out of the measure-by-measure construction of the two songs.8 The court described two specific motifs, one composed of only three unremarkable descending quarter notes,9 and stated that while “neither Motif [A nor Motif B] is novel, the four repetitions of A, followed by four repetitions of B, is a highly unique pattern.”10

3. Id. at 178. 4. Id. 5. Id. at 180 (“It is apparent from the extensive colloquy between the Court and Harrison covering forty pages in the transcript that neither Harrison nor Preston [who was an American black gospel singer in Harrison’s group] were conscious of the fact that they were utilizing the He’s So Fine them.”). 6. The lyrics of He’s So Fine concern a handsome boy, “the envy of all the girls.” The lyrics of My Sweet Lord speak of reverence and nearness to God. 7. Even a cursory listen to both songs is enough to reveal that they do not sound alike. See USC Gould School of Law, Bright Tunes Music v. Harrisongs, MUSIC COPYRIGHT INFRINGEMENT RESOURCE (2012), http://mcir.usc.edu/cases/1970-1979/Pages/bright harrisongs.html. This website provides musical scores and sound recordings of the plaintiffs’ and defendants’ songs at issue in notable copyright infringement disputes. 8. Bright Tunes Music, 420 F. Supp. at 178 (“He’s So Fine . . . is a catchy tune consisting essentially of four repetitions of a very short basic music phrase, “sol-mi-re,” (hereinafter Motif A) . . . followed by four repetitions of another short basic musical phrase, “sol-la-do-la-do,” (hereinafter Motif B) (citations omitted)). 9. The following three notes constitute Motif A:

10. Bright Tunes Music, 420 F. Supp. at 178. ORMSBEE 5/18/2015 10:45 AM

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In truth, the motifs are anything but novel, and even their combination does not generate protectable originality. With regard to Motif A, it is difficult to conceive of any three notes, standing alone, being truly original; this would constitute a veritable “tidbit” of musical expression and is almost ipso facto too short to allow for genuine distinction among composers.11 Motif B, consisting of only five notes, is also not sufficiently original to warrant protection, and can be traced from earlier works of several composers.12 Finally, combining the two motifs in four repetitions of Motif A and four repetitions of Motif B is an unremarkable and entirely routine musical technique, which has been practiced for centuries.13 It is worth noting at this point that at least one free online program works much like Google’s search engine, allowing users to search for a particular sequence of notes by selecting keys on an on-screen piano keyboard. Based solely on the intervals among chosen notes, the program will return a number of songs matching the given motif.14 Too often, a motif of only five notes brings up so many preexisting songs with the same motif (potentially spanning centuries) that the program will automatically urge the user to filter their results by entering, for instance, “Mozart,” “winds,” or “quartet” to render the number of results manageable. As it turns out, the “highly unique pattern” of four repetitions of Motif A, followed by four repetitions of Motif B is in fact not highly unique, but rather a common fixture in musical composition.

11. Note, however, that there are a few exceptions concerning “tidbit themes.” The NBC chime theme, for example, is certainly protectable and would be recognized by most who have heard the theme as denoting NBC Universal. This consists of a given note, followed by a second note a major sixth above, followed by a third note a major third below the second note, thus, constituting a major chord in second inversion. Again, this is an exceptional theme and most protectable themes are considerably longer, which adds to their originality. To hear the NBC chime theme and other examples of sound trademarks, see Trademark “Sound Mark” Examples, U.S. PAT. & TRADEMARK OFFICE (Aug. 30, 2012, 10:49 AM), http://www.uspto.gov/trademarks/soundmarks/. 12. See, e.g., FLORENT SCHMITT, Lied and Scherzo, Op. 54 (1910); PAUL WRANITZKY, 6 String Quartets, Op. 32 (1790); CLAUDE DEBUSSY, Quatour à Cordes, Op. 10 (1893); MARTIN GRAYSON, Quartet for Recorders (2008); MAURICE RAVEL, Daphnis et Chloé, Suite No. 1 (1911); RALPH V. WILLIAMS, A London Symphony (1913). The following three notes constitute Motif B:

13. See, e.g., id. 14. See Petrucci Music Library, INTERNATIONAL MUSIC SCORE LIBRARY PROJECT (AUG. 13, 2014), http://imslp.org. Songs can be searched based on a number of criteria, including by melody. ORMSBEE 5/18/2015 10:45 AM

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Despite the fact that the songs are not identical, that there was evidence of independent germination, and that the senior song’s motifs were either too minute to qualify as a recognizable motif or were too commonplace, the Southern District found protectable musical elements and sufficient evidence to support a cause of action for copyright infringement.15 The court’s reasoning was based on its own interpretation of transition passages and musical fingerprints, such as grace notes in the same exact location.16 The court also mentioned that the harmonies are the same in each song. Identical harmonies are not surprising, however, considering the universal popularity of the chord progression used.17 The Southern District did, however, concede several notable differences in the two songs: the “same Motif A” was concededly modified by Harrison to suit the words of his song, and Motif B was “repeated three times, not four.”18 Furthermore, instead of “He’s So Fine’s fourth repetition of Motif B, My Sweet Lord has a transitional passage of musical attractiveness of the same approximate length.”19 Finally, in footnote six of the court’s opinion, the court concedes that “expert witnesses for the defendants asserted crucial differences in the two songs,” but these crucial differences were brushed aside in light of the “modest alterations in the repetitions or the places of beginning of a phrase,” which had “nothing to do whatsoever with the essential musical kernel that is involved.”20 It is interesting to consider what the court means by “musical kernel.” Even though no bad faith was suspected, the court held that “My Sweet Lord is the very same song as He’s So Fine with different words, and Harrison had access to He’s So Fine.”21 It was no defense that there was detailed testimony of the independent creation of My Sweet Lord, and that another musician, Billy Preston, may have been the composer as to part of My Sweet Lord.22 In other words, what the court called “subconscious infringement” is no less infringement than garden-variety willful infringement. And after all, like

15. Bright Tunes Music, 420 F. Supp. at 179. 16. Id. “My Sweet Lord . . . also uses the same Motif A . . . four times, followed by Motif B, repeated three times, not four. In place of He’s So Fine’s fourth repetition of Motif B, My Sweet Lord has a transitional passage of musical attractiveness of the same approximate length, with the identical grace note in the identical second repetition.” 17. Id. at 179. The opinion indicates that during the course of the song writing, Harrison was “alternating between what musicians call a Minor II chord and Major V chord.” Id. 18. Id. at 178. 19. Id. 20. Id. 21. Id. at 181. 22. Id. at 180. ORMSBEE 5/18/2015 10:45 AM

150 GONZAGA LAW REVIEW Vol. 50:2 everyone else, Harrison had “access” to He’s So Fine, having heard the song before, so it is not completely implausible that he used He’s So Fine as his musical inspiration. In searching for how and why the court decided the way it did, it is possible that this instance of alleged copying went too far, if in fact Harrison copied the earlier song. Perhaps, in a time of rampant plagiarism among musicians in the 1970’s, the court wished to make a high-profile example involving a former member of the Beatles in order to deter would-be infringers. It is curious, however, that in a case that should so evidently hinge on musical analysis, the court devoted less than one page of script to it. And the analysis that is provided might raise eyebrows among musicians: small flourishes, such as grace notes, are significant.23 Yet, different words, genre, target audiences, and overall sound do not seem to matter to the analysis. Moreover, the grace note, a brief flourish before a more prominent note,24 is considered a modest alteration on Harrison’s part, though it is not even included in the official recording of the song. The Harrisongs case is only one of many examples of a court fashioning a non-musical approach for a manifestly musical dispute. This Article addresses other judiciary attempts to fashion a quasi-musical analysis through various opinions. Of special importance are the judiciary’s efforts to interpret musical expression, and the history and industry practice of borrowing musical themes among composers and performers. In the end, a better approach is proposed.

I. MUSICAL FORM

A. Compositional Considerations

The test of whether musical expression has been improperly appropriated has been recognized as “whether the defendant took from plaintiff’s work so much of what was pleasing to the ears of lay listeners who comprise the audience for whom such popular music is composed, that the defendant wrongfully appropriated something which belongs to the Plaintiff.”25 This benchmark begs the question, what is pleasing to the ears of lay listeners who comprise the audience for whom the music is composed? And how should one analyze similarities? Courts have recognized that “while there are an enormous number of possible permutations of the musical notes of the scale, only a few are pleasing;

23. A grace note is “a musical note added as an ornament” or “a small addition or embellishment.” MERRIAM-WEBSTER DICTIONARY (ed. 2015). 24. See id. 25. Arnstein v. Porter, 154 F.2d 464, 473 (1946). ORMSBEE 5/18/2015 10:45 AM

2014/15 EARS WIDE SHUT 151 and much fewer still suit the infantile demands of the popular ear.”26 Thus, we know that certain portions of the musical language are out of bounds, but it is not always clear what portions of musical expression stand at musicians’ disposal. Furthermore, “all popular music is said to have certain fundamental similarities because it is made up of the same fundamental elements, such as pitch and rhythm,”27 and because there is a finite number of keys on the piano from which music can be created.28 In other words, the constraints of Western music dictate that traditional melodies curry much greater favor among listeners.29 After all, there is a certain commonality among songs, following from the foundations on which Western music is composed.30 While it is frequently said that the similarity of expression between two works counts the most, regardless of the style,31 it would be a mistake to consider only technical details. Courts are aware of the limitations on popular notes and chords,32 but historically, the courts made their job easier by falling back on four key characteristics when assessing similarity: melody, harmony, rhythm, and structure.33 The first characteristic, melody, is “the tune or theme around which

26. Darrell v. Joe Morris Music Co., 113 F.2d 80, 80 (2d Cir. 1940). 27. Paul Grinvalsky, Idea-Expression in Musical Analysis and the Role of the Intended Audience in Music Copyright Infringement, 28 CAL. W. L. REV. 395, 409 (1992). 28. Since there are twelve unique keys on the piano, repeated over and over, there are only twelve unique keys in which music can be played. This proposition excludes any music that would include “microtonalities,” or tones whose frequency falls in pitches other than the notes on a piano. 29. Sergiu Gherman, Harmony and its Functionality: A Gloss on the Substantial Similarity Test in Music Copyrights, 19 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. 483, 509 (2009). 30. Michael R. Graif and Jason Gottlieb, Substantial Similarity in the Age of Electronic Music, N.Y. L.J., Jan. 6, 2014, at 1. 31. Id. 32. Courts are “mindful of the limited number of notes and chords available to composers and the resulting fact that common themes frequently reappear in various compositions, especially in popular music.” Gaste v. Kaiserman, 863 F.2d 1061, 1068 (2d Cir. 1988); see also Tisi v. Patrick, 97 F. Supp. 2d 539, 548 (S.D.N.Y. 2000) (“The striking similarity test . . . is applied with particular stringency in cases . . . involving popular music.”). 33. John R. Autry, Toward a Definition of Striking Similarity in Infringement Actions for Copyrighted Musical Works, 10 J. INTELL. PROP. L. 113, 121 (2002). However, some authorities have insisted on only three elements, noting that “a musical work consists of rhythm, harmony, and melody—and that the requisite creativity must adhere in one of these three.” 1 MELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT § 2.05[D] (2014). ORMSBEE 5/18/2015 10:45 AM

152 GONZAGA LAW REVIEW Vol. 50:2 a piece of music is constructed.”34 The second characteristic, harmony, “is the relationship of each pitch included in a composition to the other pitch choices made by the composer.”35 Essentially, harmony relates to the interplay between chords, as one melds into the next. Some chord progressions make a musical piece distinctive, while other progressions are known to be common and unimaginative.36 The third characteristic, rhythm, is defined by the amounts of time given to pitches and silences.37 “The important components of [this characteristic] are tempo, note value and silence, and symmetry.”38 An analysis of rhythmic elements omits melody and harmony completely, and focuses exclusively on the notes and silences. Finally, the fourth characteristic, the structure of the work, refers to the number of measures or chord changes in a song or theme.39 This characteristic entails a holistic approach to the two pieces, and focuses on the number of measures, key changes, and repeats.40 Of these four characteristics, melody is “potentially [the] most dispositive.”41 This may be because melody is more accessible to non- musicians, and because after one hears a song several times, the one characteristic that most often lingers in one’s mind is the melody. In any case, melody should not be dispositive in an action for infringement; this is one of the crucial shortcomings of the Harrisongs court’s analysis. As discussed above, the court gives little attention to other factors—perhaps due to a failure on the defense counsel’s part to raise other dissimilar factors as a defense. This factor appears to be particularly damning in the Harrisongs case, though in ordinary course it should not be.

B. Historical Practice of Borrowing Musical Ideas

If the musical elements that a composer uses to compose a piece are finite, then compositions must at some point overlap to some degree in their creative elements. Indeed, it is expected that certain modulations and rhythmic patterns will be incorporated in certain types of music. Historically, the practice of

34. Autry, supra note 33, at 121. 35. Id. at 122. 36. See, e.g., Bright Tunes Music Corp. v. Harrisongs Music, Ltd., 420 F. Supp. 177, 178 (S.D.N.Y. 1976) (“While neither motif is novel, the four repetitions of A, followed by four repetitions of B, is a highly unique pattern.”). 37. See Autry, supra note 33, at 137. 38. Id. 39. See id. at 138-39. 40. See id. at 138-39. 41. Id. at 124. ORMSBEE 5/18/2015 10:45 AM

2014/15 EARS WIDE SHUT 153 building upon preexisting musical conventions, from popular themes to common chord progressions, has been widespread for centuries and persists to this day.42 Furthermore, musical quotations—explicit allusions to a prior composer’s work—are commonplace in music.43 From a moral standpoint, such references, so long as they do not represent wholesale borrowing, are to be commended because an occasional homage is still an independent work of originality.44 An examination of musical practices in the classical period reveals that musicians would commonly pay homage to a predecessor, oftentimes a former instructor or inspirational figure, by taking a simple, well-known melody of the predecessor, sometimes only a few easily recognizable notes, and adapting it to new accompaniment.45 This practice, known by the form “theme and variations,” would honor the original melody, while breathing new life into it via the new composer’s reworking, making listeners even more familiar with the predecessor’s repertoire and immortalizing their melodies.46 The Variations on a Theme by Joseph Haydn,47 by Johannes Brahms, is a well-known example of this practice. Within his Variations, Brahms took as his focus a popular melody composed by Joseph Haydn and transformed it repeatedly in a series of variations, each standing independently of the

42. Aaron Keyt, Comment, An Improved Framework for Music Plagiarism Litigation, 76 CAL. L. REV. 421, 424 (1988) (“While copying words from another author’s book without some form of acknowledgement is generally considered plagiarism, the music world functions according to different social expectations and has done so for centuries. Composers historically have drawn heavily from folk music and current popular music. In addition, composers often borrow directly from their colleagues.”). 43. See, e.g., Charles Ives, Fourth Symphony (1910-25) (combining various popular tunes in an extensive collage). 44. See, e.g., PAUL GRIFFITHS, MODERN MUSIC: THE AVANT GARDE SINCE 1945 200 (1981) (“[T]he more significant reasons for such borrowings have been those of an aesthetic or even moral order: the need to test the present against the past and vice versa, the . . . wish to find musical analogues for the multiple and simultaneous sensory bombardment in the world.”). 45. Keyt, supra note 42, at 424 (“Composers historically have drawn heavily from folk music and current popular music. In addition, composers often borrow directly from their colleagues.”). 46. See examples of theme and variations from Johann Sebastian Bach, Franz Joseph Haydn, or Ludwig van Beethoven. Musical Variation is defined as “[a] technique of modifying a given musical idea, usually after its first appearance; a form based on a series of such modifications. Variation is one of the most basic and essential of musical techniques and is widely distributed . . . .” THE HARVARD CONCISE DICTIONARY OF MUSIC AND MUSICIANS 701 (1999). 47. Johannes Brahms, Op. 56a and 56b (1873) (borrowing the theme by Haydn entitled Divertimento No. 1). ORMSBEE 5/18/2015 10:45 AM

154 GONZAGA LAW REVIEW Vol. 50:2 others.48Each variation begins with Haydn’s melody as its thesis. Listening carefully, one can hear the central melody or some mutation of it in each variation, though Brahms has reworked the melody with his own compositional embellishment.49 The practice of reworking and contributing to preexisting melodies is commonly justified by asserting that all creative musical expression sprang from a common, universal source.50 In other fields, such as literature, prior compositions were viewed by later artists as part of a “common fund.”51 Thus, under the theory that every artist can access a universal source of inspiration unclaimed by any one individual, a plaintiff’s claims of artistic theft lose some degree of legitimacy. In modern times, however, composers are arguably less amenable to the practice of borrowing other musicians’ work. In the absence of musicians of legendary status, such as Beethoven or Wagner, who stand unequivocally arm and shoulder above their peers, there are few renowned musicians to whom others allude, especially if it is intended that the audience instantly recognize a melody. Another reason may be a greater sense of territoriality among musicians—a feeling that what they compose is theirs and theirs alone. Finally, Americans may simply be a more litigious folk now than ever before. In any event, the historic practice of borrowing and building upon prior musicians’ work is storied and should be viewed as equivalent to industry practice. This is akin to an author taking a common plot component from a prior author—for example, an orphaned boy who works hard to make his mark in the world, all the while learning life lessons – which is of course completely legal. This is, after all, a reality of the publishing industry. Subsequent authors frequently find their unique narrative voice and explore certain plot fixtures by copying—sometimes literally—predecessor’s works. “Joan Didion has described learning to write by typing Hemingway’s fiction; Hunter S. Thompson did the same with ‘The Great Gatsby.’”52 Reading the following passage, one can see how a philosophy of the “common fund” of originality can just as easily be applied to music:

Originality is a relative concept in literature. As writers from T. S. Eliot to Harold Bloom have pointed out, ideas are doomed to be

48. Id. 49. Id. 50. Arnstein v. Edward B. Marks Music Corp., 82 F.2d 275, 277 (2d Cir. 1936) (“True, it is the themes which catch the popular fancy, but their invention is not where musical genius lies, as is apparent in the work of all the great masters.”). 51. Keyt, supra note 42, at 425. 52. Lizzie Widdicombe, The Plagiarist’s Tale, THE NEW YORKER (Feb. 13, 2012), http://www.newyorker.com/reporting/2012/02/13/120213fa_fact_widdicombe. ORMSBEE 5/18/2015 10:45 AM

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rehashed. This wasn’t always regarded as a problem. Roman writers subscribed to the idea of imitatio: they viewed their role as emulating and reworking earlier masterpieces. It wasn’t until the Romantic era, which introduced the notion of the author as solitary genius, that originality came to be viewed as the paramount literary virtue.53

The source quoted above goes on to say that one can imagine a scale: on one end are the creators “who poach [mere] plot ideas . . . and on the other [end] are those who copy passages word for word.”54 Clearly, it is the word-for-word copiers the law should address. To reference the Harrisongs case again, Harrison should have been considered an artist who was not stealing word for word, or note for note, but rather broadened elements of prior works.

II. JUDICIAL INTERPRETATION

A. Constitutional Basis for Protection of Intellectual Property

An inquiry into the basis for federal copyright protection for creators of sufficiently original works of authorship begins with the United States Constitution.55 In addition, the U.S. Congress has provided incentives and safeguards for authors of original works, supplying ample periods of absolute protection56 and what is often referred to as a “bundle of exclusive rights” for lawful copyright holders under the Copyright Act of 1976.57 Particularly relevant to our inquiry are the goals of copyright law. The copyright law scheme is designed “to stimulate activity and progress in the arts for the intellectual enrichment of the public.”58 Implicit in this notion is the idea that new and creative works are inherently good for the public, and further the progress of the arts, rather than merely re-hashing preexisting works. Copyright law thus embodies a carefully crafted quid pro quo scheme: in order to “promote the Progress of Science and useful Arts,” we give artists monopolistic rights to exclude others for a limited time, but such monopolistic rights should

53. Id. 54. Id. 55. U.S. CONST., art. I, § 8, cl. 8 (“Congress shall have Power . . . [t]o promote the Progress of Science . . . by securing [to Authors] for limited Times. . .the exclusive Right to their respective Writings”). 56. The length of the copyright protection term has been consistently expanded since the first Copyright Act. See Eldred v. Ashcroft, 537 U.S. 186, 194-95 (2003). 57. See 17 U.S.C. § 106 (2012) (describing the six exclusive rights that belong to a copyright owner). 58. Pierre N. Leval, Toward a Fair Use Standard, 103 HARV. L. REV. 1105, 1107 (1990). ORMSBEE 5/18/2015 10:45 AM

156 GONZAGA LAW REVIEW Vol. 50:2 only be granted to creators of original content, thus furthering the progress of the Arts.59

B. Copyright Law Framework

A plaintiff seeking to demonstrate copyright infringement of their “work of authorship”60 must prove access to and unjustified copying of original elements of a copyrighted work.61 In the process of inspecting a copyrighted work containing both protectable and non-protectable elements, a court will examine the protectable elements more closely, deciding whether they, on their own, are substantially similar to the same elements appearing in another work.62 “The sine qua non of copyright is originality.”63 Originality in this context refers to the originality of a work to an author, and has been described as constituting two prerequisites: (1) “that the work be independently created by the author” and (2) “that [the work] possess at least some minimal degree of creativity.”64 The requisite level of creativity is constitutionally mandated for all copyrightable works, but has been held to be a very low bar; even a slight amount of originality will suffice to render a work copyrightable.65 In analyzing and justifying the “copyrightability” of a work, courts most often cite in their support the “intellectual property clause” within United States Constitution.66 Accordingly, the promotion of the “progress of Science” by a time-limited monopoly to “authors” of an exclusive right to their “respective [w]ritings” has long been considered the primary objective of copyright law in

59. U.S. CONST., art. I, § 8, cl. 8. 60. 17 U.S.C. § 102(a). 61. Feist Publ’ns v. Rural Tel. Serv., 499 U.S. 340, 361 (1991). Note, however, that as an alternative, a litigant can show musical copying – even in the absence of proof of access to a copyrighted work – by demonstrating that a subsequent work is “strikingly similar” to an earlier work, to such a degree that there is no other explanation besides copying. See Three Boys Music Corp. v. Bolton, 212 F.3d 477, 485 (9th Cir. 2000). 62. Knitwaves, Inc. v. Lollytogs Ltd., 71 F.3d 996, 1002 (2d Cir. 1995) (citations omitted). 63. Feist Publ’ns, 499 U.S. at 345. 64. Id. 65. See, e.g., id. at 345 (“To be sure, the requisite level of creativity is extremely low; even a slight amount will suffice. The vast majority of works make the grade quite easily, as they possess some creative spark, ‘no matter how crude, humble or obvious’ it might be. Originality does not signify novelty; a work may be original even though it closely resembles other works so long as the similarity is fortuitous, not the result of copying. To illustrate, assume that two poets, each ignorant of the other, compose identical poems. Neither work is novel, yet both are original and, hence, copyrightable.”). 66. U.S. CONST., art. I, § 8, cl. 8 (“To promote the Progress of Science . . . by securing for limited Times to Authors . . . the exclusive Right to their respective Writings.”). ORMSBEE 5/18/2015 10:45 AM

2014/15 EARS WIDE SHUT 157 the U.S.67 The central balance of copyright law has been described as “stimulat[ing] creative expression without unduly limiting access by others to broader themes and concepts deployed by the author.”68

1. The Copyright Act and Acquisition of Rights

The modern legislative embodiment of the constitutional mandate for copyright protection is found in the Copyright Act of 1976.69 Section 102(a) of the Copyright Act provides the explicit extension of federal law protection to “original works of authorship fixed in any tangible medium of expression.”70 Section 102(a) also provides a nonexhaustive list of categories of “works of authorship,” such as literary works, musical works, including any accompanying words, motion pictures and sound recordings.71 In contrast with Section 102(a), Section 102(b) of the Copyright Act presents limitations on the extent of legislative copyright protection. Particularly, 102(b) states that copyright protection does not “extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.”72 Section 102(b) essentially puts forth the classic dichotomy between unprotected ideas and protectable expressions of ideas. For example, an original musical score by Mozart concerning a magical flute would almost certainly be eligible for copyright, yet the ephemeral idea of a magical flute, by itself, will not be copyrightable, absent a showing of embodiment of the idea. Note that courts have held that even expression of an idea is not always copyrightable, particularly when there is only one or a few ways of expressing an idea; in such cases, the expression would effectively accord monopolistic protection to the idea itself.73

2. Exclusive Rights to the Copyright Holder

Section 106 of the Copyright Act identifies six exclusive rights that belong to a copyright owner to exercise and authorize others to exercise:

67. See David S. Olson, A Legitimate Interest in Promoting the Progress of Science: Constitutional Constraints on Copyright Laws, 64 VAND. L. REV.. 185, 189-90 (2011). 68. Lotus Dev. Corp. v. Borland Int’l, Inc., 49 F.3d 807, 819 (1st Cir. 1995), aff’d, 516 U.S. 233 (1996). 69. 17 U.S.C. §§ 101-810 (2012). 70. § 102(a). 71. Id. 72. § 102(b). 73. Kregos v. Associated Press, 3 F.3d 656, 663 (2d Cir.1993). ORMSBEE 5/18/2015 10:45 AM

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(1) reproductions, (2) derivative works, (3) distribution of copies or phonorecords, (4) performances, (5) public displays, and (6) public performances.74 Section 106 of the Copyright Act embodies each of these exclusive rights, subject only to Sections 107-122 of the Copyright Act.75 In conjunction with Section 106, Section 501(a) of the Copyright Act defines a copyright infringer as anyone who violates any of the Section 106 exclusive rights. Arnstein v. Porter, a seminal copyright case, puts forth the traditional test for prima facie copyright infringement. Such test consists of (1) ownership of a valid copyright and (2) unauthorized exercise of a Section 106 right, which consists of direct evidence of copying (or circumstantial evidence of copying via access and similarity) and improper appropriation (or substantial similarity).76 While the threshold of copyrightability is notoriously low, the difficulty comes in determining whether a subsequent work infringes an earlier copyrighted work. Absent exact replicas or near exact copies, the substantial similarity test has been the hallmark of determining impermissible appropriation of copyrighted material. Considering the indispensability of this factor, it is unfortunate that there is no definite standard for it, and that subjectivity plays a large role.77 The substantial similarity standard has been called “notoriously confusing and confused, perplexing students and courts alike.”78 The Second Circuit Court of Appeals has stated:

The test for infringement of a copyright is of necessity vague. In the case of verbal “works” it is well settled that although the “proprietor’s” monopoly extends beyond an exact reproduction of the words, there can be no copyright in the “ideas” disclosed but only in their “expression.” Obviously, no principle can be stated as to when an imitator has gone beyond copying the “idea,” and has borrowed its “expression.” Decisions must therefore inevitably be ad hoc.79

74. § 106. 75. Section 110 of the Copyright Act, for example, defines traditional limits on the copyright holder’s exclusive rights. One such example is for the performance or display of a copyrighted work for a limited educational purpose by instructors and pupils. § 110. 76. Arnstein v. Porter, 154 F.2d 464, 468-69 (2d. Cir. 1946). 77. Tushnet, supra note 1, at 716 (“[I]nstability in the definition of substantial similarity, as well as in the tests courts use to distinguish ideas from expression, is a hallmark of this core function of copyright law, and discomfort with images is a major driver of [this] problem.”). 78. Id. 79. Peter Pan Fabrics, Inc. v. Martin Weiner Corp. 274 F.2d 487, 489 (2d Cir. 1960). ORMSBEE 5/18/2015 10:45 AM

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In a sense, the inquiry into copyright infringement seems somewhat straightforward: since copyright protects only original expressions – and not pure ideas – judges need only determine, first, which parts of a claimant’s work are protectable, and then, whether the subsequent work takes an inappropriate amount of the first work. Yet, while courts have noted that the “substantial similarity” to be examined is only within the protected “expression” parts of a work, they have also acknowledged that a court cannot compare only the copyrightable elements in its determination.80 Much has been written about the line between permissible copying and impermissible copying. The former generally finds support in the fair use doctrine, as discussed below, which allows commentators to borrow portions of copyrighted works in order to refer to or criticize such works. The critical question in this context is whether the defendant in an action took from plaintiff’s work “so much of what is pleasing to the ears of lay listeners, who comprise the audience for whom such . . . music is composed, that defendant wrongfully appropriated something that belongs to the plaintiff.”81

C. Judicial Hostility to Music

It is important at this point to provide a clarification of the term “hostility” in the context of judicial interpretation of music. This term finds significance not so much in the judiciary’s overt resentment of musicians or music as a form, but rather in well-intentioned but ill-conceived incomprehension regarding interpretation of music forms in copyright litigation.82 This paper focuses on several explanations for this notion of hostility: (1) courts have historically been too eager to infer copyright infringement83 based on mere access to the allegedly infringed work and similarity to it,84 without any

80. See, e.g., Boisson v. Banian, Ltd., 273 F.3d 262, 272 (2d Cir. 2001). 81. Arnstein, 154 F.2d at 473. 82. Tushnet, supra note 1, at 729 n.209 (“It may be that courts’ incomprehension of music makes them believe that musical similarities are more likely to come from copying – even good faith, subconscious copying – than they are from the ordinary generic similarities judges recognize more easily in detective stories . . . , resurrected-dinosaur-island stories . . . , and the like.”) (citations omitted). 83. See Robin Feldman, The Role of the Subconscious in Intellectual Property Law, 2 HASTINGS SCI. AND TECH. L.J. 1, 9 (2010) (claiming that the “subconscious copying doctrine is vulnerable to a number of criticisms”). 84. See, e.g., Three Boys Music Corp. v. Bolton, 212 F.3d 477, 481 (9th Cir. 2000); Bright Tunes Music Corp. v. Harrisongs Music, Ltd., 420 F. Supp. 177, 181-82 (S.D.N.Y. 1976); Fred Fisher, Inc. v. Dillingham, 298 F. 145, 148 (S.D.N.Y. 1924) (L. Hand, J.). See also Dane S. Ciolino and Erin A. Donelon, Questioning Strict Liability in Copyright, 54 ORMSBEE 5/18/2015 10:45 AM

160 GONZAGA LAW REVIEW Vol. 50:2 evidence of actual copying on the part of the defendant,85 and especially in music disputes;86 (2) courts have been reluctant, in the context of finding of similarity, to consider a fair use argument;87 (3) judges may rely too heavily on expert testimony for the plaintiff;88 (4) judges often are ignorant of or consciously fail to acknowledge the historical context of borrowing themes from earlier musicians;89 (5) judges are at a loss to consider the idea/expression dichotomy in the framework of music;90 and (6) judges are often not open to arguments that free speech concerns should trump moderate copyright infringement claims.91 Note, finally, that courts have all too often held that striking similarity to another musical work, even in the absence of evidence of access to the work, can suffice to find infringement.92 In light of the communal nature of music composition, in which artists draw on prior artists’ achievements regularly, courts arguably should require at least minimal evidence of access.

RUTGERS L. REV. 351, 379-380 (2002); Carissa L. Alden, Note, A Proposal to Replace the Subconscious Copying Doctrine, 29 CARDOZO L. REV. 1729 (2008). 85. Cf. Alden, supra note 84, at 1736 (finding that, since Fred Fisher v. Dillingham, “only three other cases have been decided under the subconscious copying doctrine”); see also Tushnet, supra note 1, at 729 n.209 (“Even in music, findings of subconscious copying are rare.”). 86. Tushnet, supra note 1, at 729 n.209 (“Actually, this rule [regarding subconscious infringement] is almost entirely limited to music cases, with the sole exception dating from 1926.”). See Edwards & Deutsch Lithographing Co. v. Boorman, 15 F.2d 35, 37 (7th Cir. 1926) (suggesting subconscious copying as one justification in a case where infringement of a time teller was found); Sheldon v. Metro-Goldwyn Pictures Corp., 309 U.S. 390 (1940). 87. Fair use has been defined as follows: “Copyright law [addresses] the inevitable tension between the property rights it establishes in creative works, which must be protected up to a point, and the ability of authors, artists, and the rest of us to express them- or ourselves by reference to the works of others, which must be protected up to a point. The fair-use doctrine mediates between the two sets of interests, determining where each set of interests ceases to control.” Blanch v. Koons, 467 F.3d 244, 250 (2d Cir. 2006). It is a historically subjective and hard to define standard, giving judges an incredible amount of discretion in fair use findings. 88. See Michael Der Manuelian, Note, The Role of the Expert Witness in Music Copyright Infringement Cases, 57 FORDHAM L. REV. 127 (1988). 89. See supra Part II.C. 90. See Peter Decherney, Gag Orders: Comedy, Chaplin, and Copyright, in MODERNISM & COPYRIGHT 135, 139 (Paul K. Saint-Amour ed., 2011) (“At times, the distinction between ideas and expression can seem meaningless or arbitrary. We might imagine paraphrasing another author’s words to express the same idea differently, but how can anyone decouple the underlying idea of an image or a musical phrase from its expression?”). 91. See discussion infra Part III.A. 92. See Arnstein v. Porter, 154 F.2d 464 (2d. Cir. 1946). ORMSBEE 5/18/2015 10:45 AM

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D. Use of Expert Testimony to Detect Infringement

Use of expert testimony in music infringement suits is now commonplace.93 As is generally the case with expert testimony, adversaries know well in advance when the other side plans to introduce an expert, and each party eventually pursues litigation with the help of its own expert.94 The proverbial “battle of the experts” is often foreseeable in high stakes cases, but too often, the judge will side with the party who has greater resources to retain an authoritative and believable expert. There is every reason to believe that the battle of the experts phenomenon will grow in the future, but, as a result, the ultimate issue of infringement may be better informed, rather than left wholly to “unguided ears” to decide.95 One crucial limitation has been enunciated in the context of expert testimony at copyright infringement trials.96 Plaintiffs in copyright infringement cases must establish three elements to prove their case: (1) ownership of a valid copyright; (2) defendant’s copying of copyrighted material; and (3) the defendant’s copying constitutes “improper appropriation.”97 The Arnstein v. Porter case is important in this matter because it states on which of these three elements expert witnesses may testify, and to what degree. Specifically, while the expert will rarely testify to the first element, experts are often indispensable in establishing the second factor. Also, plaintiffs may not rely on expert testimony to prove the third element.98 Instead, a plaintiff requires the “response of the ordinary lay hearer” to establish “improper appropriation.”99 Accordingly, under Arnstein, judges determine the third factor based on a hypothetical lay listener’s aural comparison, thus affording the factfinder, be it juror or trial judge, great discretion, since the standard is hypothetical and subjective.100

93. See Robert C. Osterberg, How to Prove Plagiarism of a Musical Work, CREATIVITY VERSUS THE COPIER: THE TRIAL OF A COPYRIGHT ACTION 6 (Aug. 10, 1987). 94. See, e.g., Selle v. Gibb, 567 F.Supp. 1173 (N.D. Ill. 1983), aff’d, 741 F.2d 896 (7th Cir. 1984). 95. See generally Der Manuelian, supra note 88. 96. Id. at 147. 97. Arnstein, 154 F.2d at 468. 98. See Der Manuelian, supra note 88, at 129-30. 99. Arnstein, 154 F.2d at 468. 100. Der Manuelian, supra note 88, at 132. ORMSBEE 5/18/2015 10:45 AM

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III. COMPLICATING MATTERS

A. Freedom of Speech

As discussed in Part II.B.2.,101 American copyright law provides copyright holders a bundle of intellectual property rights, allowing the holder to effectively silence would-be users of the protected material. Detractors of copyright law, as the law currently strikes a balance between free speech and silencing would-be infringers, often claim that certain instances of copyright are inconsistent with the theory of freedom of speech102 under the First Amendment.103 The discussion of freedom of speech in this paper primarily addresses the risk of stifling creative musical discourse by over-protecting certain artistic expression. As copyright law is a creature of the U.S. Constitution, this document is at the heart of the free speech debate. Historically, federal courts have noted that while the “Copyright Clause and the First Amendment [are] intuitively in conflict, [they] were drafted to work together to prevent censorship” so that “the balance between the First Amendment and copyright is preserved, in part, by the idea/expression dichotomy and the doctrine of fair use.”104 The “idea/ expression dichotomy” refers to the decision to render mere ideas uncopyrightable, but the expression of ideas copyrightable (with limitations). Fair use, further discussed infra, refers to the permitting of minimal and transformative uses of copyrightable subject matter by third parties. Thus, while copyright law may serve to silence citizens when they wish to exercise their freedom of speech regarding copyrighted materials, minimal uses of copyrighted materials and use of pure ideas, free of copyrighted expression of such uses, remain fair game for all. This conflict has been called “the inevitable tension between the property rights [of creative works], which must be protected up to a point, and the ability of authors, artists, and the rest of us to express them- or ourselves by reference to the works of others . . . .”105 In

101. See supra Part II.B.2. 102. U.S. CONST. AMEND. I (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”). 103. See generally Steven J. Horowitz, A Free Speech Theory of Copyright, 2009 STAN. TECH. L. REV. 2 (2009). 104. Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257, 1263 (11th Cir. 2001) (citing Eldred v. Reno, 239 F.3d 372, 375 (D.C. Cir. 2001)) (quoting Harper & Row, 471 U.S. 538, 560 (1985)). 105. Blanch v. Koons, 467 F.3d 244, 250 (2d. Cir. 2006). See Warner Bros. Entm’t Inc. v. RDR Books, 575 F. Supp. 2d 513, 540 (S.D.N.Y. 2008) (“At stake in this case are the ORMSBEE 5/18/2015 10:45 AM

2014/15 EARS WIDE SHUT 163 defense of freedom of speech, the idea/expression dichotomy and the fair use doctrine mediate to determine which interest will prevail. In the context of music rights, both the fair use doctrine and the idea/ expression dichotomy should be used more liberally, and as a sword rather than as a shield, as they are most often used. Music in everyday life often fulfills a particular function: from evoking an emotion in film, to entertaining or shocking the audience, or of course, for dancing.

B. Fair Use Doctrine

The fair use doctrine is a subjective standard that permits certain minimal, transformative appropriation of copyrighted material by parties other than the copyright holder. Such an exception to the rule against copyright infringement has been realized since at least the early eighteenth century,106 and the Copyright Act of 1976 contains a fair use provision (and four-factor test therein), providing that “the fair use of a copyrighted work . . . is not an infringement of copyright.”107 Indeed, “[f]rom the infancy of copyright protection, some opportunity for fair use of copyrighted materials has been thought necessary to fulfill copyright’s very purpose, ‘[t]o promote the Progress of Science and useful Arts.’”108 incentive to create original works which copyright protection fosters and the freedom to produce secondary works which monopoly protection of copyright stifles—both interests benefit the public.”); see also Leval, supra note 58, at 1109 (though “the monopoly created by copyright . . . rewards the individual author in order to benefit the public[,] the monopoly protection of intellectual property that impeded referential analysis and the development of new ideas out of old would strangle the creative process.”). 106. Leval, supra note 58, at 1105 (“Not long after the creation of the copyright by the Statute of Anne of 1709, courts recognized that certain instances of unauthorized reproduction of copyrighted material, first described as ‘fair abridgement,’ later ‘fair use,’ would not infringe the author’s rights.”) (citations omitted). 107. 17 U.S.C. § 107 (1982). “Notwithstanding the provisions of Sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiples copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use, the factors to be considered shall include – (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.” 108. Cariou v. Prince, 784 F. Supp. 2d 337, 346 (S.D.N.Y 2011) (citing Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 575 (1994) (quoting U.S. CONST., art. I, § 8, cl. 8)). ORMSBEE 5/18/2015 10:45 AM

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Needless to say, the judge’s authority in a fair use inquiry is immense. Fair use inquiries call for a “case-by-case analysis,”109 and “all [of the four factors] are to be explored, with the results weighed together in light of the purposes of copyright.”110 Furthermore, judges are given certain favored uses, enumerated in the Copyright Act, to guide their decision-making.111 Considering that trial judges must by definition abuse their discretion in order to be reversed on appellate review, many decisions on fair use are for this reason never reversed. In the context of music, the application of the fair use doctrine should be more liberal and forgiving than in other fields, such as literature or visual art. One possible explanation for less than consistent application of the fair use doctrine is the doctrine’s undefined contours and objectives.112 Courts are familiar with the method by which they should approach fair use doctrine matters, as explained in Folsom v. Marsh,113 namely, that a court must “look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work.”114 Even though this reasoning was adopted in the Copyright Act,115 it provides very little guidance for judges, who may be at a loss to determine how much weight to give each factor, and whether the complete absence of one factor should control at all.

IV. FURTHER COMPLICATIONS

A. Industry and Genre Standards

The incremental nature of knowledge in the arts and sciences is often cited as an element in defense of copyright infringement.116 Accordingly, every original work must flow – even if it is now far removed – from prior works, because no thinker works in a vacuum, but rather each artist studies the progress of arts in his respective field with an eye to building upon them. Such a claim has been taken so far that certain scholars have said, “All intellectual

109. Campbell, 510 U.S. at 577-78. 110. Id. 111. 17 U.S.C. § 107 (“The fair use of a copyrighted work, for purposes such as criticism, comment, news reporting, teaching, scholarship, or research, is not an infringement of copyright.”). 112. Id. 113. Folsom v. Marsh, 9 F. Cas. 342 (C.C.D. Mass. 1841) (No. 4901). 114. Id. at 348. 115. 17 U.S.C. § 107 (1987). 116. See Keyt, supra note 42, at 424. ORMSBEE 5/18/2015 10:45 AM

2014/15 EARS WIDE SHUT 165 creative activity is in part derivative.”117 New variations on prior thought may be original, but prior thinkers are thought to provide the exclusive fodder for later inventors.118 Furthermore, important areas of intellectual activity, such as criticism and history, are explicitly referential and simply cannot exist without prior works.119 Perhaps more so than other fields falling subject to copyright law, music necessarily builds upon prior references. Particular factors necessitate this. First, the argument that there is “nothing new under the sun” is bolstered by the music preferences of the listening public. The often unrefined demands of the public dictate that only certain chords and chord progressions are pleasurable (and thus marketable), so that any music worth copyrighting must necessarily possess familiar chord progressions that will be favorably received by the public. Second, in literature, at least, words can be constructed, or borrowed from other languages. In music, however, there is no equivalent of neologisms, and while the 88 keys of the piano may be played in new combinations, and via new instruments, the number of combinations that have value for listeners are, again, constrained by the historic preferences of Western music and the general public. And finally, the idea/expression dichotomy, discussed above, is more readily recognized to date. Thus, subsequent works are more often found noninfringing in the context of literature and visual arts, where courts willingly find that abstract ideas are free for all. The Romeo and Juliet motif, for instance, is universally recognized, and has been used and re-used by numerous authors who wish to write about lovers tragically torn apart by their families’ conflict. But does such a recognizable idea exist in music? Arguably, the most recognizable and pleasing motifs in music would be foreclosed to subsequent musicians, especially if the court in question is one like the Harrisongs court.

B. Bad Faith

To return to the Harrisongs case, it is unknown whether the court ever suspected bad faith on the part of George Harrison. The court never goes so far as to expressly state a suspicion of bad faith. But the facts of the case are peculiar, and the court describes them in such a way that the widespread fame of the original song and timing of Harrison’s song are suspicious.120

117. Leval, supra note 58, at 1109. 118. Chafee, Reflections on the Law of Copyright, 45 COLUM. L. REV. 503, 511 (1945) (“The world goes ahead because each of us builds on the work of our predecessors.”). 119. Leval, supra note 558, at 1109. 120. See generally Bright Tunes Music Corp. v. Harrisongs Music, Ltd., 420 F. Supp. 177, 178 (S.D.N.Y. 1976). ORMSBEE 5/18/2015 10:45 AM

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Bad faith is a recognized factor in the traditional fair use analysis. According to the first such factor under the Copyright Act, the court must consider “the propriety of a defendant’s conduct,” as a relevant factor in the court’s consideration of character of the use.121 “Though not itself determinative, it has been considered relevant in this matter that a defendant could have acquired the copyrighted [material] legitimately.”122 That is, if the defendant cannot offer evidence to support the notion that he at least attempted to gain legal authority to use a copyrighted work – or even a license – then his conduct will reflect negatively on any subsequent and unauthorized use of a copyrighted work. In George Harrison’s case, this factor would have weighed heavily in his favor, since he presented extensive evidence of his and the band members’ activities, which led to the germination of My Sweet Lord. Except where willful improper appropriation is the case, the bar for bad faith in music infringement suits should be raised. This is in part a factor of the limited elements that musicians may draw upon to create copyrightable works. It is also a factor of the collective nature of composition, discussed above. Finally, the danger of finding infringement even in light of a great amount of evidence of independent creation should be avoided by giving less weight to mere suspected bad faith.

V. A PLACE FOR ARBITRATION

A. An Effective Tool

The argument in favor of using arbitration to settle music rights disputes flows naturally from the desire to settle disputes of an abstruse and specialized nature while incurring as little time and expense as possible. Seasoned lawyers and business persons will readily acknowledge the unpredictability of outcomes but the predictability of draining resources that traditional litigation embodies. All the while, the benefits of binding arbitration are well known, though still underused. Arbitrations begin either with an initial arbitration clause or a post-conflict agreement to enter arbitration. Either way, arbitration is purely a creature of contract.123 Simply put, no party in the U.S. can be compelled to arbitrate a

121. NXIVM Corp. v. Ross Inst., 364 F.3d 471, 478 (2d Cir. 2004) (citations omitted). 122. Cariou v. Prince, 784 F. Supp. 2d 337, 351 (S.D.N.Y. 2011) (citing NXIVM Corp., 364 F.3d 471). 123. Anita Stork, Arbitration in Copyright Disputes: IBM v. Fujitsu, 3 BERKELEY TECH. L.J. 241, 260, 62 (1988), available at http://scholarship.law.berkeley.edu/ btlj/vol3/iss2/3. ORMSBEE 5/18/2015 10:45 AM

2014/15 EARS WIDE SHUT 167 commercial dispute. Rather, the parties must contractually agree to be bound by an arbitration clause prior to a dispute arising, and absent such a contractual agreement or a willingness on the part of the parties to arbitrate even absent an arbitration clause, the parties must resort to conventional litigation for dispute resolution.124 With this said, why would a party ever agree to arbitrate? Because the incentives for arbitrating are strong: even for plaintiffs who have the option to litigate, arbitration provides a relatively fast and inexpensive forum in which the parties can work under default rules or create their own arbitration expectations and limitations, all in the process of arriving at a mutual and binding resolution.125 In other words, if plaintiffs believe they have a strong case in the courtroom, they will have the same strong case in arbitration, but while spending less time and funds to achieve the same end. Assuming the parties have agreed to submit to arbitration, the next step is to agree on a particular arbitrator or group of arbitrators. Typically, a contract will leave this decision to a recognized dispute resolution group, such as the American Arbitration Association, to locate a ready and willing arbitrator to hear a dispute.126 Alternatively, the contract may require the parties to first seek to amicably agree on a suitable arbitrator or a third party who is disinterested and qualified to settle the dispute. Either way, the selection of an arbitrator, much like the process of arbitration itself, must be either a consensual or at least a neutral process.127 Regarding arbitrator selection, arbitration is an especially effective tool for settling music rights disputes, because rather than having a federal judge randomly selected to one’s case, the parties have the affirmative right to select an individual with experience and proven intelligence in the field of intellectual property and media rights. By choosing a resolution expert with true know- how, the parties set themselves up for an outcome tailored to the minutiae of their dispute. As for the process itself, arbitration is overseen by an arbitrator but driven by the parties. Arbitration can be as formal as the parties desire, mimicking a court proceeding or unraveling more along the lines of a friendly discussion.128 Staples of trial practice, such as opening statements, evidence formalities, and calling and cross-examining witnesses can be included in an arbitration.129 Regarding formalities or the lack thereof, again, arbitration offers palpable advantages to would-be litigants. Rather than relying on a federal

124. Id. at 248. 125. Id. at 250. 126. Id. 127. Id. 128. Id. at 250-52. 129. Id. at 250-51. ORMSBEE 5/18/2015 10:45 AM

168 GONZAGA LAW REVIEW Vol. 50:2 judge who must balance countless parties and a crushing docket, an arbitrator is present for the benefit of the parties, listening to their concerns, observing expert witnesses and party representatives explain the crux of a dispute, considering the intricacies of music rights, and assisting in collectively fashioning a remedy not only for the present dispute, but also to foresee and resolve possible future disagreements.130 Arbitration offers at least one additional benefit: it offers parties the same binding, enforceable outcome that would result at the conclusion of a lawsuit.131 Thus, while ongoing negotiations or mediation sessions may also result in party settlements, such outcomes, while laudable, are typically not enforceable in a court of law. Arbitrations, in contrast, provide a lasting outcome that a party can hang its hat on.132 And that, at the end of the day, lends legitimacy and finality to a decision that will entice parties to return to arbitration in the future, rather than proceeding with a lawsuit.

B. An Appropriate Tool

Music-related disputes are especially well-tailored to arbitrations. Perhaps the greatest consideration for parties is the flexibility, which is achieved during arbitration. For instance, if one of the parties believes that the originality of a melody is in question – such as in the Harrisongs case – then the parties can spend an inordinate amount of time on this issue, presenting evidence as to the melody’s germination, composition, and aspects of similarity to another melody.133 In addition, in contrast to a judge’s court calendar, which is rigid, filled with appearances for other pending cases, and may unnecessarily extend the time for seeing a case to the end, arbitrators have considerable leeway in planning frequent meetings with parties, focusing solely on their issues, and concluding disputes as quickly as possible. While “educating” the decision maker will always take considerable time and resources on the part of litigants and parties to an arbitration, again, an arbitrator with preexisting experience and knowledge in intellectual property and media rights – indeed, selected on the basis of such traits – will save the parties considerable time and angst over an ill-informed decision. Moreover, courts routinely look to only the most traditional factors in analyzing music.134

130. Id. at 250. 131. Id. at 253. 132. Id. 133. See generally Bright Tunes Music Corp. v. Harrisongs Music, Ltd., 420 F. Supp. 177, 178 (S.D.N.Y. 1976). 134. Gherman, supra note 29, at 487. ORMSBEE 5/18/2015 10:45 AM

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A judge will only tentatively look to more non-traditional elements of music.135 Perhaps still rarer, courts may be inclined to examine complex combinations of these elements, such as combined melodies over similar rhythms, or combined with lyrics.136 An arbitrator, on the other hand, would be more likely to invest in a complex analysis, as this would increase the likelihood of finding a positive and mutual resolution among the parties. Arbitration allows the parties to highlight and investigate certain nuances in a musical piece that subtly add or detract from an overall finding of originality under copyright laws. These include numerous minute but un- protectable elements, such as common motifs,137 commonplace lyrics and oversimplified melodies,138 and conventional key signatures and rhythms.139 Parties are allowed to pursue considerations perhaps too refined or tangential (though nonetheless relevant) for a judge to permit, such as a musician’s creative process, nontraditional elements like the texture or “feel” of a song, how a song might look if it were to be reduced to ink and paper, and if a song is intended for a particular audience.140

135. Id. at 506. See also, e.g., Three Boys Music Corp. v. Bolton, 212 F.3d 478, 485 (9th Cir. 2000) (analyzing lyrics, rhythm, pitch, cadences, instrumental figures, the verse/chorus relationship, and a “fade” ending); Ellis v. Diffie, 177 F.3d 503, 506 (6th Cir. 1999) (phraseology, lyrics, rhythms, chord progressions, “melodic contours,” structures, and melodies); Cottrill v. Spears, No. 02-3646, 2003 WL 21223846, at *9 (E.D. Pa. May 22, 2003) (pitch, chord progression, meter, and lyrics); Tisi v. Patrick, 97 F. Supp. 2d 539, 543 (S.D.N.Y. 2000) (structure, melody, harmony, and rhythm); McKinley v. Raye, No. 3:96- CV-2231-P, 1998 WL 119540, at *5 (N.D. Tex. March 10, 1998) (lyrics, melodies, and song structure); Intersong-USA v. CBS, 757 F. Supp. 274, 280 (S.D.N.Y. 1991) (chord progress, structure, and pitch). 136. Bright Tunes Music, 420 F. Supp. at 178; Three Boys Music, 212 F.3d at 485. 137. See Lil’ Joe Wein Music v. Jackson, 245 Fed. Appx. 873, 878 (11th Cir. 2007) (hip-hop phrase “Go [name], it’s your birthday,” not protectible because it was a “common hip-hop chant”); Currin v. Arista Records, 724 F. Supp. 2d 286, 294 (D. Conn. 2010) (Pharrell and the Neptunes “I’m Frontin’ “ had no similarity to another song called “Frontin’ “ other than the name and an unprotectible “hip hop idiom.”). 138. Johnson v. Gordon, 409 F.3d 12, 21-22 (1st Cir. 2005) (the lyric “You’re the One for Me” an unprotectible cliché; the “life is but a dream” melody from “Row, Row, Row Your Boat” also would not be protectible). 139. Cottrill, 2003 WL 21223846, at *9 (Britney Spears’s “What U See Is What U Get” did not share substantially common elements with a song called “What You See Is What You Get,” outside the very common A-minor key signature, 4/4 rhythm, and the clichéd title.). 140. See, e.g., Kohus v. Mariol, 328 F.3d 848, 858 (6th Cir. 2003); Lyons P’ship, L.P., v. Morris Costumes, Inc., 243 F.3d 789, 802 (4th Cir. 2001); Whelan Assocs. v. Jaslow Dental Lab., 797 F.2d 1222, 1233 (3d Cir. 1986); Atari Games v. Nintendo of Am., 975 F.2d 832, 844 (Fed. Cir. 1992); Computer Assocs. Int’l v. Altai, 982 F.2d 693, 713 (2d Cir. 1992). ORMSBEE 5/18/2015 10:45 AM

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Finally, two subjects may not even receive appropriate consideration in a court proceeding. First, industry considerations may receive short shrift. Indeed, a judge may not even deem the norms of the music industry a “legal consideration,” requiring such a consideration to be addressed, if at all, in briefs filed with the court. Yet, the norms of lending musical elements and paying homage to a predecessor musician, as previously discussed, can be multi- faceted and crucial to a music rights dispute. Second, issues relating to free speech and fair use – which are never black- and-white considerations – require parsing through and discussion among the arbitrator and the parties. This would eliminate the element of surprise that many litigants first encounter on hearing the judge’s inexperience with intellectual property rights as well as the judge’s final opinion. Instead, while framing the issues, presenting evidence, and countering the other party’s contentions, each party will have a clear idea of the outcome of the dispute in real-time.

CONCLUSION

Ultimately, parties to a music rights dispute effectively have two options: either take their chances with a judicial proceeding or have a greater say in a binding outcome through arbitration. While ill-advised, if the parties decide to (or have no option but to) pursue litigation, then at the very least, they should emphasize in the course of litigation, through briefs and oral argument, that (i) all composition happens in light of an extended history of musical borrowing; (ii) musicians are constrained by the ears of their audience, thus some overlap among compositions is inevitable; and (iii) in deciding cases about music, judges should hand over the reins to the jury, if possible, to decide matters involving similarity of sound. Music is often viewed in sharp contrast with other art forms, which can help a judge more readily decide infringement cases. However, in this regard, music should not be treated the same as other art forms in copyright cases.141 Courts have done the best that they can in this respect, but judges should attempt to approach and understand music on its own terms. The vastly better alternative for all parties would be to resolve their issues through arbitration if possible. The essence of a music-rights dispute is the true creativity of a

141. As mentioned previously, the literary model of copyright law is wrong for musical analysis. See Tushnet, supra note 1, at 753 (“While courts have begun to recognize that copying an entire picture may be necessary to critique or analyze it, matters are far more uncertain for music or video, creating a significant gap between good educational and scholarly practice and the law.”). ORMSBEE 5/18/2015 10:45 AM

2014/15 EARS WIDE SHUT 171 composer and a musical piece’s place in the fabric of other compositions. The very nature of musical composition requires that the decision maker rely on the parties outside of court for an appropriate resolution.