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 ................................................................................................... 170 145 ORMSBEE 5/18/2015 10:45 AM 146 GONZAGA LAW REVIEW Vol. 50:2 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 pop- ular 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 10 of B, is a highly unique pattern.” 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 148 GONZAGA LAW REVIEW Vol. 50:2 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