Revisiting Innovative Technologies to Determine Substantial Similarity in Musical Composition Infringement Lawsuits
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157 REVISITING INNOVATIVE TECHNOLOGIES TO DETERMINE SUBSTANTIAL SIMILARITY IN MUSICAL COMPOSITION INFRINGEMENT LAWSUITS YVETTE JOY LIEBESMAN1 CONTENTS I. Introduction............................................................. 158 II. The Current Test for Infringement.......................... 160 III. Alternative Ways to Compare Songs ...................... 165 A. Musical Elements of a Song ............................... 165 B.The Physics of a Song............................................. 168 IV. A New Analytical Method: Using The Software Itself to Determine Substantial Similarity of Copyrightable Expression....................................................................... 170 V. Blurred Lines .......................................................... 171 VI. Discussion ............................................................... 177 VII. Conclusion .............................................................. 178 1 Professor of Law, Saint Louis University School of Law. The author wishes to thank Professor Ann Bartow and the faculty and staff of the Franklin Pierce Center for Intellectual Property at University of New Hampshire School of Law for organizing and inviting her to present at its IP Redux Conference in April 2018. The author also thanks the participants of the IP Redux conference for their valuable insight, conversation and feedback on this essay. She is especially grateful to Professor Zahr Said, whose strong encouragement led to this update of the original article. Please be aware that, due to the brevity of and word limitations for this essay, most of the prose in Sections II and III is taken from the original article, either directly (omitting quotation marks indicating so) or paraphrased; footnotes are abbreviated. Full citations for sources in the summary sections can be found in the original article. Volume 59 – Number 1 158 IDEA – The Law Review of the Franklin Pierce Center for Intellectual Property I. INTRODUCTION A music video by Sir Mashalot2 combines six award- winning popular country-western songs,3 demonstrating the amazing similarity among the tunes. Not mentioned by the mash-up4 artist is that none of the songs are infringing on any of the others. While all copied the same chord progressions, none copied any protected copyrightable expression, and thus none of the authors of the melodies are infringing. It is often difficult to determine if there has been unlawful copying of a song. Currently, a judge or jury relies on music experts who analyze the songs based on a limited number of characteristics in a head-to-head comparison. In addition, these finders of fact may not have an adequate musical knowledge base to make a bona fide determination. For example, in Dawson v. Hinshaw Music,5 the finder of fact had to compare the sheet music of the two songs in question, even though he did not know how to read sheet music.6 In 2007, I published an article on music copyright infringement—Using Innovative Technologies to Analyze for Similarity Between Musical Works in Copyright 2 Sir Mashalot, Mind-Blowing Six Song Country Mashup,YOUTUBE (Nov. 4, 2014), https://www.youtube.com/watch?v=FY8SwIvxj8o. 3 The six songs in the mash-up video are USure Be Cool if you Did= by Blake Shelton, UClose Your Eyes= by Parmalee, UThis is How We Roll= by Florida Georgia Line, UReady Set Roll= by Chase Rice, UChillin9 It= by Cole Swindell, and UDrunk on You= by Luke Bryan. 4 Mash-Up,MERRIAM-WEBSTER DICTIONARY, https://www.merriam- webster.com/dictionary/mash-up (last visited May 19, 2018) (defining a Umash-up= as Ua piece of music created by digitally overlaying an instrumental track with a vocal track from a different recording.=). 5 Dawson v. Hinshaw Music, 905 F.2d 731 (4th Cir. 1990). 6 Id. 59 IDEA 157 (2018) Revisiting Innovative Technologies to Determine Substantial Similarity in Musical Composition Infringement Lawsuits 159 Infringement Disputes7.in which I argue that we use more reliable methods to determine whether a musical work has been unlawfully copied. My article proposed two analytical tools that would aid the finders of fact evaluating songs for substantial similarity of their copyrightable expression. My proposed method based on the Art of Music relied on song databases to determine similarities within musical genres and between songs.8 My Physics of Music method relied on the physical harmonics of sound for its analysis.9 In the intervening years, there has continued to be criticism on how unlawful music copying is determined,10 which has only strengthened the argument that we need to change the current method of dueling experts and limited [/2.v+R*/0 /V )SW */0T*9 Sv+2/0ql 2WO/Zql +Sq)S2l v0Z )SW structure of the work.11 Courts continue to struggle with discerning what is unprotected and thus available for the public to use, and where that that permitted use ends.12 There also continues to be a risk that the finder of fact is not familiar enough with the form of music at issue to make an unlawful copying judgment.13 An unintended audience may find that the two works sound substantially alike where an intended audience may find the works fall short of 7 Yvette Joy Liebesman, Using Innovative Technologies to Analyze for Similarity Between Musical Works in Copyright Infringement Disputes, 35 AIPLA Q.J. 331 (2007). 8 See infra § III.A. 9 See infra § III.B. 10 See, e.g., Williams v. Gay, 885 F.3d 1150, 1183Y97 (9th Cir. 2018) (Nguyen, J., dissenting); see infra notes 67Y106 and accompanying text. 11 See Liebesman, supra note 7, at 339 (citing John R. Autry, Note, Toward a Definition of Striking Similarity in Infringement Actions for Copyrighted Musical Works, 10 J. INTELL. PROP. L. 113, 121 (2002)). 12 See Paul M. Grinvalsky, Idea-Expression in Musical Analysis and the Role of the Intended Audience in Music Copyright Infringement, 28 Cal. W. L. Rev. 395, 396 (1992); see, e.g., Apple Comput., Inc. v. Microsoft Corp., 779 F. Supp. 133, 135 (N.D. Cal. 1991). 13 Grinvalsky, supra note 12. Volume 59 – Number 1 160 IDEA – The Law Review of the Franklin Pierce Center for Intellectual Property substantial similarity. Or, as noted supra, the judge or jury may be forced to compare sheet music even if he or she Z/W*09) P0/t S/t )/ +WvZ R)j14 We need to replace the current method—which is what my earlier article discussed— using new, assessable, reproducible methods to evaluate substantial similarity of the copyrightable expression. This essay first summarizes from my 2007 article the basics of music infringement and my two proposed test methods.15 I then discuss how using either of these tools to decide if a work has been unlawfully copied—that is, if there substantial similarity between two songs— could have affected the Blurred Lines lawsuit. II. THE CURRENT TEST FOR INFRINGEMENT16 It is a well-established principle of copyright law that an author only has ownership of their original creative expression—not for the underlying idea, nor for any other uncopyrightable parts (such as facts or individual words) or that part of the work that everyone is free to copy.17 It is difficult, however to determine where to draw the line 14 Dawson, 905 F.2d at 737. 15 Liebesman, supra note 7, at 335Y56. 16 As noted supra, most of the prose in this section is taken from the original article, either directly (omitting quotation marks indicating so) or paraphrased; footnotes are abbreviated. Full citations for sources in the summary sections can be found in the original article; Liebesman, supra note 7, at 335Y42. 17 See, e.g., Sid & Marty Krofft Television Prods., Inc. v. McDonald9s Corp., 562 F.2d 1157, 1163 (9th Cir. 1977) (UIt is an axiom of copyright law that the protection granted to a copyrighted work extends only to the particular expression of the idea and never to the idea itself. This principle attempts to reconcile two competing social interests: rewarding an individual9s creativity and effort while at the same time permitting the nation to enjoy the benefits and progress from use of the same subject matter.= (citing Mazer v. Stein, 347 U.S. 201, 217Y18 (1954); Baker v. Selden, 101 U.S. 99, 102-03 (1879)).). 59 IDEA 157 (2018) Revisiting Innovative Technologies to Determine Substantial Similarity in Musical Composition Infringement Lawsuits 161 between an unprotectable idea and a protectable original Wr.+W**R/0j fR0ZW+* /V Vv[) V/OO/t b(ZTW _Wv+0WZ dv0Z9* idea/expression model from the 1930 Second Circuit case, Nichols versus Universal Pictures,18 where he declared that one analyzes the specificity of the expression—and thus copyright protection—in layers. Moving from specific to general, at some point the level of character development, themes, and dialogue would no longer be protected expression, but would reach the level of being an unprotected idea.19 Songs often use the same uncopyrightable note or chord sequence that anyone is free to copy, and no one who (*W* )SW *W,(W0[W /+ )SW UT+//'W= /+ UVWWOR0T= R* infringing.20 It is not always easy, however, to remove the uncopyrightable elements from those the author has the right to control. For example, if one considered individual notes in a song as unprotectable and removed them from the infringement analysis, then there would be nothing left to examine, even though unprotectable individual notes may be combined in an original copyrightable expression,21 analogous to how unprotectable individual words can be 18 Nichols v. Universal Pictures Corp., 45 F.2d 119 (2d Cir. 1930). (examining a dispute between a movie, UThe Cohens and The Kellys,= and a play, “Abie’s Irish Rose,”“ which had the same basic plot—a Jewish boy marries an Irish Catholic girl—where both the play and movie revolve around the differences between their families and the turmoil their unions cause. 19 Id. at 87. 20 Williams v. Gaye, 885 F.3d 1150, 1185 (9th Cir. 2018) (Nguyen, J., dissenting). 21 Apple Comput., Inc., 779 F.