Fordham Intellectual Property, Media and Entertainment Law Journal Volume 30 XXX Number 4 Article 7 2020 FRE-Bird: An Evidentiary Tale of Two Colliding Copyrights Daniel Abowd Fordham University School of Law, [email protected] Follow this and additional works at: https://ir.lawnet.fordham.edu/iplj Part of the Entertainment, Arts, and Sports Law Commons, and the Intellectual Property Law Commons Recommended Citation Daniel Abowd, FRE-Bird: An Evidentiary Tale of Two Colliding Copyrights, 30 Fordham Intell. Prop. Media & Ent. L.J. 1311 (2020). Available at: https://ir.lawnet.fordham.edu/iplj/vol30/iss4/7 This Note is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Intellectual Property, Media and Entertainment Law Journal by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact [email protected]. FRE-Bird: An Evidentiary Tale of Two Colliding Copyrights Cover Page Footnote J.D. Candidate, 2021 (Evening Division), Fordham University School of Law; M.A., 2014, New York University; B.A., 2011, Cornell University. Thank you to Professor Hugh Hansen and his staff at the Emily C. & John E. Hansen Intellectual Property Law Institute, particularly Soban Ahmed, Yuan Yuan Wang, and Rilana Wenske, for their guidance. Thank you also to Professors Olivier Sylvain, Kristelia García, Joseph Fishman, Pamela Samuelson, Sepehr Shahshahani, Janet Freilich, and Ron Lazebnik for their comments and suggestions. A special thank you to my editor, Claire Abrahamson, for her wisdom, and to the staff and editorial boards of both the Fordham IPLJ and the Fordham Law Review for their encouragement and assistance. Finally, a profound thank you to the Royalty Network team, particularly Frank and Kathy, for their support, and to my family and my wife, Naina, for their love. Disclosure: the author is employed as Vice President—General Manager at The Royalty Network, Inc., a music publisher that represents a portion of the work “Thinking Out Loud” in certain territories, on behalf of songwriter Amy Wadge, and is tangentially involved in its surrounding litigations. All views expressed are the author’s own and do not reflect the opinions of The Royalty Network, Inc., its clients, or its affiliated songwriters. This note is available in Fordham Intellectual Property, Media and Entertainment Law Journal: https://ir.lawnet.fordham.edu/iplj/vol30/iss4/7 FRE-Bird: An Evidentiary Tale of Two Colliding Copyrights Daniel Abowd* Sound recordings are not musical compositions. Sound record- ings embody musical compositions. Thus, when sound recordings appear in musical composition infringement trials, they do so as an imperfect facsimile of the composition they actualize. As a result, they can confuse and mislead juries tasked only with evalu- ating the similarity of the underlying composition. On the other hand, music is an aural medium: how can juries be expected to compare two songs without listening to their commercial embodiments? Several recent cases have hinged on the admissibility of sound recordings in composition infringement trials. In doing so, they have implicated three fundamental questions: (1) Where does composi- tion end and sound recording begin? (2) How has the evolution of creative and business practices in the music industry compli- cated the formerly tidy separation of composition and perfor- * J.D. Candidate, 2021 (Evening Division), Fordham University School of Law; M.A., 2014, New York University; B.A., 2011, Cornell University. Thank you to Professor Hugh Hansen and his staff at the Emily C. & John E. Hansen Intellectual Property Law Institute, particularly Soban Ahmed, Yuan Yuan Wang, and Rilana Wenske, for their guidance. Thank you also to Professors Olivier Sylvain, Kristelia García, Joseph Fishman, Pamela Samuelson, Sepehr Shahshahani, Janet Freilich, and Ron Lazebnik for their comments and suggestions. A special thank you to my editor, Claire Abrahamson, for her wisdom, and to the staff and editorial boards of both the Fordham IPLJ and the Fordham Law Review for their encouragement and assistance. Finally, a profound thank you to the Royalty Network team, particularly Frank and Kathy, for their support, and to my family and my wife, Naina, for their love. Disclosure: the author is employed as Vice President—General Manager at The Royalty Network, Inc., a music publisher that represents a portion of the work “Thinking Out Loud” in certain territories, on behalf of songwriter Amy Wadge, and is tangentially involved in its surrounding litigations. All views expressed are the author’s own and do not reflect the opinions of The Royalty Network, Inc., its clients, or its affiliated songwriters. 1311 1312 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. [Vol. XXX:1311 mance/recording? (3) What are the policy implications for courts defining “composition” more broadly or more narrowly, and how do these interact with the underlying policies governing sound re- cording evidentiary decisions? This Note targets a seemingly simple question: how should courts approach the use of sound recordings in composition infringement trials? Any thorough answer, however, must grapple with the many underlying creative, industry, and public policy com- plexities that bear on that debate. Thus, this Note necessarily traces the historical convergence of composition and recording in creative, industry, and judicial contexts. It then discusses the underlying policy arguments that favor and oppose the unrestricted use of sound recordings in composition infringement trials. Finally, it marshals all of this context into a proposed “Triad” judicial frame- work that explicitly links a court’s inquiry into the “composi- tionality” of a recorded element to litigants’ burdens in seeking to admit, or preclude, that element as evidence of substantial similarity among compositions. 2020] FRE-BIRD 1313 A DAY IN THE LIFE: INTRODUCTION ................................... 1315 I. BORDERLINE: THE HISTORICAL CONVERGENCE OF COMPOSITION AND SOUND RECORDING ............. 1319 A. Before Recorded Music ................................ 1321 B. Tin Pan Alley ................................................ 1323 C. The Commingling of Songwriter, Producer, and Artist Roles ................................................... 1324 D. The Merging of Composition and Production 1326 E. The Evolution of Songwriter Splits .............. 1328 F. Sampling ....................................................... 1331 II. FORMATION: THE JUDICIAL COLLISION OF COMPOSITION AND SOUND RECORDING ............. 1333 A. Judicial Conceptions of “Composition” ...... 1333 1. Compositions v. Recordings .................. 1334 2. Modern Doctrine ................................... 1335 3. Protectable, Unprotectable, or “Constellation” ...................................... 1336 B. Scope of Protection ...................................... 1338 1. Pre-1978 and Post-1978 Copyright Office Regulation ............................................. 1338 2. The Deposit Copy Question .................. 1340 3. Creators’ Consensus .............................. 1341 C. Infringement Proceedings ............................ 1341 1. Substantial Similarity ............................ 1342 2. “Filtering Out” ....................................... 1343 3. Evidentiary Backdrop ............................ 1344 D. Recent Proceedings Featuring Sound Recording Rulings ......................................................... 1345 1. Blurred Lines ......................................... 1346 2. Stairway to Heaven ............................... 1348 3. Thinking Out Loud ................................ 1352 III. STICKSHIFTS AND SAFETYBELTS: POLICY PROS AND CONS .................................................................. 1354 A. Pros and Cons of an Expanded Definition of “Composition” ............................................. 1355 1. Cons: Arguments for the Traditional Definition of “Composition” ................. 1355 1314 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. [Vol. XXX:1311 a) The Expanded Definition Defies Prevailing Industry Understanding and Preference ........................... 1356 b) Broader Protection Risks Extending Copyright to Ideas, Rather Than Expression of those Ideas .......... 1358 c) There is a Fundamental Difference Between Composition and Performance............................... 1358 d) A Narrower Definition Is Simply More Manageable ...................... 1360 2. Pros: Arguments for an Expanded Definition of “Composition” .................................. 1361 a) A Broader Definition Promotes Fairness ...................................... 1361 b) Greater Accessibility of Songwriter Credit ......................................... 1362 c) Rightsholders Can License Around the New Reality ......................... 1363 B. Pros and Cons of Unrestricted Sound Recording Use in Composition Infringement Trials ...... 1364 1. Pros: Arguments for the Unrestricted Use of Sound Recordings in Composition Infringement Trials ................................ 1365 a) Unrestricted Sound Recording Use Reflects Evolving Creative Practices..................................... 1365 b) The Limitations and Drawbacks of Written Reductions .................... 1366 c) Expert Methodology .................. 1368 d) Using Sound Recordings Is Just Simpler ...................................... 1369 2. Cons: Arguments for More Restricted Use of Sound Recordings