Vanderbilt Journal of Entertainment & Technology Law Volume 7 Issue 1 Issue 1 - Winter 2004 Article 6 2004 Too Much of a Good Thing: Deciphering Copyright Infringement for the Musician Joseph K. Christian Follow this and additional works at: https://scholarship.law.vanderbilt.edu/jetlaw Part of the Entertainment, Arts, and Sports Law Commons, and the Intellectual Property Law Commons Recommended Citation Joseph K. Christian, Too Much of a Good Thing: Deciphering Copyright Infringement for the Musician, 7 Vanderbilt Journal of Entertainment and Technology Law 133 (2021) Available at: https://scholarship.law.vanderbilt.edu/jetlaw/vol7/iss1/6 This Note is brought to you for free and open access by Scholarship@Vanderbilt Law. It has been accepted for inclusion in Vanderbilt Journal of Entertainment & Technology Law by an authorized editor of Scholarship@Vanderbilt Law. For more information, please contact [email protected]. Deciphering Copyright inriingement for the Musician By Joseph K. Christian* copyrighted work the exclusive right to The musical score for a new Hollywood reproduce, distribute, display, and publicly 4 thriller is all but complete, yet the composer is perform the work, among other rights. To the unhappy about the very beginning. He doesn't feel owner of a copyright in music, that means that that it creates the ominous mood he had no one else may perform the musical work, or envisioned for the dark opening scene. Then it hits make or distribute copies of the original him. The opening four notes from Beethoven's Fifth manuscript or a recording of the work, without Symphony..."buh, buh, buh, buuuuuummm,"... the permission of the copyright owner.' make the perfect phrase to set the mood. Nothing The inherent nature of music makes it else will do. The only question is whether he can difficult to detect copyright violations. While it is legally use that phrase. Luckily, any copyright that might have been held on that work It's onl expired long ago. { four notes, and But what~three if that of work were still them are the same protected? The composer might no deal. Or is it? 9 think: "It's only four notes, and three of them are the same-no big deal." Or is it? How is a composer relatively easy to detect wholesale copying of an to know if such copying is illegal? Will any amount entire work, copying of only a portion of an original of copying be acceptable? These are the types of work can be rather difficult to prove. There will questions that this Note will address. inevitably be similarities between works since all Billie Holliday, the famous jazz vocalist, was a music is made from a small set of notes, limited proponent of originality. She once said, "You can't by the range of the performer or instrument, and copy anybody and end with anything. If you copy, limited even further by the patterns that most 6 it means you're working without any real feeling. listeners appreciate. These similarities No two people on earth are alike, and it's got to be demonstrate the need for a systematic method that way in music or it isn't music.' " Other people of distinguishing the acceptable similarities from tend to agree with Charles Caleb Colton, who first the offensive takings. used the phrase, "Imitation is the sincerest of Unfortunately for the artists, there is no flattery."2 clear rule to determine when a musician illegally Imitation may indeed be flattering, but at copies another work of music. Since the genesis least in the world of music, too much imitation is of the copyright laws, musicians have struggled to illegal. Copyright law protects "original works of answer the question:"How much of my work can authorship fixed in any tangible medium of "[a]t what point does such fragmented similarity expresson."3 It guarantees the owner of a become substantial so as to constitute the MUSIC be the same as this previous work without violating A plaintiff in a copyright infringement case the law?" In many instances, musicians intentionally must prove three major elements as part of his take a small portion of a previously written work prima facie case: (I) valid copyright - the person and incorporate it into a work of their own because alleging infringement must show that his copyright they like that specific portion or because they are is valid; (2) copying in fact - plaintiff must prove that inspired by that particular idea. In other situations, the defendant did, in actuality, copy at least a portion musicians take a portion of another work to refer of plaintiff's work; and (3) illicit appropriation - to the original work or its composer, or even to make plaintiff must show that the copying is severe enough fun of the original work. All of these musicians have to constitute an unlawful taking.9 The first element long tried to figure out how much they may take of this test is not usually at issue when dealing with before it will infringe upon another's copyright. musical compositions, and it is almost always analyzed This tradition has created a superstition amongst separately from the other two elements. musicians. Many musicians believed, and some still The second and third elements, however, believe, that copying only three bars from a musical have been scrutinized on numerous occasions by work can never be illegal.7 Unfortunately, things are various federal courts. Two major tests have come not so simple, as no bright line rule such as this exists. out of this scrutiny, one from the Second Circuit, The copyright infringement analysis is complex, and and one from the Ninth Circuit.'0 Although the various courts approach it differently. This range of tests purport to be very similar, one can discern treatment causes confusion as to how much copying differences upon closer examination.' is too much, especially for those unfamiliar with the intricacies of copyright law. A. Arnstein v. Porter and the Second In Part I,this Note will explain the basic tests Circuit Test for copyright infringement as structured by the United States Courts of 66 Appeals for the Second M any nnusicians believed, and and Ninth Circuits. Part II will then examine som e still believe, that copying several cases involving the copying of various onl thitee bars from a musical amounts of music, workca arranged from the n never be illegal. 9 smallest quantity of copying to the largest quantity among the selections.8 Next, in Part Ill, the Note will discuss the difficulties with making sense of these decisions and the bases for Arnstein v. Porter involves two composers. 1 their complexity. Finally, Part IV of this Note outlines Arnstein, the plaintiff, composed many works, one some patterns in the somewhat perplexing of which sold over a million copies.1 3 However, the 14 jurisprudence of the various Circuit and District majority of his other works yielded little success. courts in a way that will be helpful to the intellectual The defendant, Cole Porter, was a famous jazz writer property lawyer in addition to the musician who and performer. He composed numerous jazz charts knows very little about the law of copyright that have become today's standards. Arnstein alleged infringement. that Porter copied, at least in part, from various compositions of his own." I. The Basics of Copyright In evaluating these claims, the court set up a bifurcated test to analyze the second and third Infringement elements of copyright infringement, copying in fact and illicit appropriation.1 6 The first part of this test analyzes copying in fact by looking for one of two Too Much of a Good Thing? things, either the defendant's admission that he copied copying in fact, Krofft adopts the same basic plaintiff's work, or circumstantial evidence that approach as the Second Circuit. The Kroft court, proves the defendant had access to plaintiff's work. 7 however, departs from the Second Circuit's Also, the court can use analysis and dissection of approach in determining substantial similarity and 25 the two compositions to look for similarity. 8 brakes this element down into a two-part test. In this part of the test, which looks for The first part of the inquiry is an "extrinsic test" copying in fact, the court will listen to expert for similarity of ideas.2 6 The extrinsic test depends testimony in an effort to discern similar aspects of on "specific criteria which can be listed and analyzed. ' 27 Applied to music, this test looks at similar 6" Fragmented literal similarity occurs aspects much like the second step in when a portion of a defendant's com- the Arnstein test.28 In position or performance analyzing these is "virtually, aspects, courts though not necessarily, completely consider expert testimony.29 Since word for word, [or note for note]" this step can be identical to a portion of the plaintiff's decided as a matter of law, it is possible to composition or performance. ' decide these types of cases at summary judgment.3 ° Indeed, the increased ability 9 the music. Examples of these technical aspects to dispose of cases at the summary judgment stage include patterns of notes, using a particular phrase seems to be the Ninth Circuit's main incentive for as melody or accompaniment, the chord structure departing from the Second Circuit test. The second of the piece, or the lyrics used in specific parts of part of the Krofft analysis is an intrinsic test for the work. similarity of expression.3 The intrinsic test depends If the plaintiff can establish copying in fact, on the "response of the ordinary reasonable the court will then analyze illicit appropriation by person" and does not rely on expert testimony.2 looking for "substantial similarity" from the Different circuits use different standards for " 20 perspective of the "ordinary lay hearer ' In this copyright infringement, but most employ a method second part of the test, expert testimony is irrelevant; very similar to one of these two.