The entire corpus of judicial opinions in the area of music copyright infringement focuses on melody as the single most distinctive element of the works in question. ."). In 2015, musicians Robin Thicke and Pharrell Williams were found liable for infringement in a capital trial over their hit "Blurred Lines". The fringes of the musical work are inhabited by supposedly incidental qualities such as harmony, rhythm, and timbre - aesthetic important to be sure, but has no property status.");.
How COPYRIGHT DEFINES THE MUSICAL WORK
And at least as long as the only doctrinal lever is the qualitative value of the copied expression, there is no reason to do so. Meanwhile, several prominent musicologists who specialize in music copyright disputes have expressed dismay that, in the wake of the "Blurred Lines" ruling, the law could suddenly protect something more than melody.5 1 The way things have always worked, the story goes. It is transgressive in a way that copying any of the surrounding elements is not perceived as being.
The Long Reign of Unidimensional Similarity
Prussia became the first of the German states to grant formal copyright protection to authors. Across the turn of the century, legal rhetoric in the United States continued to identify the melody as a prerequisite for music copyright. It is the arrangement or sequence of notes which is the composition's fingerprint and establishes its identity."1 3 6.
The Emergence of Multidimensional Similarity
Cases Prom oting a Broader Approach
Famous Music Corp.1 6 2 The case concerned the copyright of harmonies composed by Billy Strayhorn, a frequent collaborator of Duke Ellington's, for the jazz song "Satin Doll."1 63 Ellington's estate, which is expected to retain a larger share royalties, if Strayhorn's legacy had no copy - a proper interest in harmony, which is derived from the Northern Music Playbook that "harmony can never be the subject of copyright"1 64 because "it is in the ordinary musical vocabulary; only melody and structure are distinctly original, but breaking from the old view that music consists first of melodic originality and then only of mere mechanics,16 6 the court decided that "[p]tod. Bridges,1 6 9 for example, a court dismissed an infringement suit against hip-hop artists Ludacris and Kanye West for allegedly copying a chorus that combined: (a) a "call-and-response format"; (b) "the text 'thus' preceded by the monosyllabic word, thus" in one poem and . "so straight" in another); and (c) the rhythmic pattern of eighths, fourths, and eighths.170 Recognizing that each of these elements might be unprotected if it stood alone, the court nevertheless invoked the fundamental principle of copyright that "non-original elements, if combined, they may constitute an original copyrighted work. As in the "Blurred Lines" litigation a decade later, the case was settled only after a high-profile trial against the celebrity defendants; unlike that litigation, the alleged infringers prevailed .17 2. UMG Recordings, Inc.1 3 This case turned on the defendants' use of samples from George Clinton's funk song “Atomic Dog.” 1 74 The relevant copyright was in the musical composition, not the sound.recording, but the court overturned the distinction .1 5 It found that Clinton's "repetition of the word 'dog' in a low tone of voice at regular intervals and the sound of rhythmic panting"'6 were an integral part of the musical work.17 The jury thus properly considered them in finding that the defendants parties violated.
Perhaps the broadest definition of a musical work to date came in the 2015 decision New Old Music Group, Inc. Gottwald.", the Court there concluded that a work could be infringed simply by copying the beat of a work, completely independent of the melodies and harmonies surrounding it.179 The dispute was based on a claim "based only on the drum set part of the [allegedly copied work], and not in the parts played by any other instrument," meaning that there were "no "harmonic, melodic, or lyrical similarities" between them.1 0 The court denied the request for judgment defendants' summary judgment based on an original combination of elements within the drum pattern, which the court found could "reasonably be described as a moving groove, or the spine and song." 8. This proliferation, they pointed out, undermined any conclusion of actual copying and, moreover, made any material that might have been freely copied anyway eligible under the sctnes d faire doctrine of copyright.182 The representative examples they presented each had subtle differences from the plaintiff's work, such as the use of a tambourine or an open hi-hat instead of a closed hi-hat.1 3 The defendants claimed—understandably, given the history of music copyright - that "a composition does not change based on the instrument that performs it."1184 However, the court disagreed.
Citing a dictum from a prior infringement case that was decided on the basis of garden-variety melodic content, the court ruled that "the instrumentation is. However, the melody cannot do the job assigned to it by the court—the notes simply don't fit on meaningful way.198 So, if not the tune, what really motivated the Fourth Circuit. My guess (and one can't do much more than guess, given the sparse interpretation in the opinion) is that the answer, in conclusion, is the opinion in which the court noting that in both works "the singing of the title lyric is an anthemic moment of singing performed with high volume and pitch."199 That is, the real similarity is the use of some of the same words and the same dynamics in the same place in the song to create a memorable melody, although a melody with different notes.
Historically, they examine tunes, a fact the court amply demonstrated when it cited to a number of.
THE AESTHETICS AND ECONOMICS OF MELODY
A given case can turn on shape, color, space or the intersection of any of the above. Speech is only a small part of a dramatist's way of expression; he draws from all the arts and composes his play from words and gestures and scenery and costume and from the appearance of the actors themselves." Over time, however, the scope of the reproduction right has expanded to the point where copying even relatively small fragments of expression, or such non-literal elements as plot and characters, can constitute a violation of the reproduction right.”).
232 For further discussion of the combined aesthetic and economic analysis in D'Almaine, see Anne Barron, Copyright Law's Musical Work, 15 Soc. 2 3 6 It is not always clear whether the analysis is intended to appeal to the economists, the aestheticians or a combination of the two. Much of the value in jazz songs lies in improvisation.2 4 1 Indeed, some recordings now recognized as classical music do quite a bit in terms of tune.
The sonic scaffolding produced in the studio is an essential component of the resulting work.2 58 For much music today, this is no longer the case. The timbre of synthesized beats is not, as argued, analogous to the color of the wall.2 6 0 It is more like the color of a painting.2 6 1. If, as I have argued, that creativity in many cases is part of the musical work, then it immediately takes a place alongside (and perhaps even before) melody as a fertile source of original material.
117, 123 (Ex.) ("[T]he mere adaptation of the air, either by changing it to a dance or by transferring it from one instrument to another, does not, even upon common supposition, change not the original subject. The ear tells you that it is the same."); Raphael Metzger, Name That Tune: A Proposal for an Intrinsic Test of Musical Plagiarism, 5 LOY.
MELODY LINES AS BOUNDARY LINES.........................................................................o903
The purpose of the patent law in requiring the patentee to [specifically claim his invention or discovery] is not only to secure to him all to which he is entitled, but to inform the public of what is still open to them."); Hoganas AB v. A zone of uncertainty into which enterprise and experimentation can only enter at the risk of infringement claims would discourage invention little less than unambiguous enclosure of the field."); Gen. At the same time, courts recognize that sometimes "language in patent claims may not capture every nuance of the invention or describe with complete precision the scope of its novelty. They have therefore developed the doctrine of equivalents, which protects the patentee.
Today's leading copyright debate advises that substantial similarity "represents one of the most difficult questions in copyright law, and one least susceptible to useful generalizations."290 These remarks are relevant to the world of copyright: caution the practitioner that substantial similarity is difficult, caution against trying to induce an analytical framework from existing precedent and move on. First and most importantly, it is modular.292 In most cases of non-literal infringement that are likely to pass through the doors of the judiciary, one could notice the melody and then pick it out from the rest. 292 My use of the concept of modularity derives from Professor Henry Smith's work in property law.
In effect, the law chose a single, easily identifiable facet of the job and then let second-comers organize their creative activities around that choice. The test is underinclusive, but the resulting ease with the rules of the game is probably worth the bargain. To be clear, my proposal is not to deny authorship status to composers of such expression, but only to limit the scope of the rights they receive.
If performance elements were part of the musical work, then the statutory license for covers could become much more complicated. But it has long outlived the time when it could claim to be true of the full range of music created and consumed. For almost every instance of musical agreement cited, I have provided a link to the corresponding entry in the online archive of The Music Copyright Infringement Resource.
