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LEGAL SESSION
by Alan Bergman
An Original or Copy
Understanding the Nuances of Copyright Infringement
In a previous “Legal Session” column, I
quoted a facetious attorney who answered
the question of what constitutes copyright
infringement with, “Infringement is two
songs that sound alike to the ear of the
average tone-deaf judge.” I’m sure some
lawyers who wind up on the short end of
copyright infringement cases believe this.
But to actually prove copyright infringement
in federal court, where these cases
are brought, you must prove actual copying
and substantial similarity to a protectable
element.
Actual copying is usually established
circumstantially by showing access and
“probative similarity.” This rather medical
sounding term means a resemblance
between the works that is not likely to
have arisen by coincidence. When dealing
with printed works, one way of proving
copying is a device long used by publishers
of factual books like catalogs—the
purposeful placement of errors. If those
errors appeared in suspected infringing
versions, it offered strong evidence that
they were copied from the original.
But how do you prove similarity
between two pieces of music In most
copyright litigation cases each side has its
own musicologist who prepares elaborate
comparison presentations, complete with
charts with different colors representing
the similarities—and in this digital era, complex audio and computerized
models designed to favor one side or the other. An excellent site for examples
from all cases involving music was created by Charles Cronin at
cip.law.ucla.edu.
Proving access requires a showing that there was a reasonable opportunity
to see or hear the plaintiff’s work. This is a key element of infringement.
A perennial litigant in the history of American popular music was
Ira Arnstein, the plaintiff in many infringement cases against famous
songwriters. Arnstein v. Porter was dismissed because he couldn’t prove
that Cole Porter had access to his unknown “Modern Messiah” when he
wrote “Don’t Fence Me In.”
The portion copied has to protectable. An unsuccessful case was
brought by flutist James Newton against the Beastie Boys, who sampled a
six-second excerpt from his work “Choir.” This sample was held not substantial
enough to be protected because it was only notated as three notes
on the written lead sheet. Some commentators on this case have suggested
that if Newton had used his professional recording of the piece as his
deposit copy rather than the bare-bones lead sheet filed in the Copyright
Office, the result might have been different.
In another case, a rudimentary recorded drum lick was allowed by a
judge to go to the jury on the issue of whether it was substantial enough to
be protected. That doesn’t mean that there was a decision on the drum lick
case, because as what happens in many of these cases, once it’s allowed to
go to the judge or jury, the case is settled out of court and dismissed.
A finding of actual copying was stretched to the limit in the famous
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case brought by Ronald Mack against
George Harrison, claiming that the ex-
Beatle’s “My Sweet Lord” infringed
Mack’s “He’s So Fine.” Mack won
the case even though the court
acknowledged that Harrison might
have “unconsciously” misappropriated
the musical essence of “He’s So Fine.”
Another interesting case on the
issue of whether the element copied is
protectable involved Duke Ellington
and Billy Strayhorn and the jazz standard
“Satin Doll.” Ellington wrote the
“Satin Doll” lead sheet, but several
published arrangements incorporated
Strayhorn’s unique harmonization.
The Ellington argument was that mere
harmonic progressions cannot be sufficiently
original to constitute a protectable
element. This was consistent
with other decisions in this area but
this court disagreed. The judge in the
case wrote:
“The court is not convinced that
harmony is unprotectable as a matter
of law. While we agree that melody
generally implies a limited range of
chords which it accompanied, the
composer may exercise creativity in
selecting among these chords.
Harmony is the derivative creation
almost by definition. A composer generally
creates a harmony to accompany a particular melody, as opposed to
developing harmony in the abstract.”
It could be argued that in some of these cases, the copyright in the
underlying musical work, which is usually registered using the copyright
form PA, is confused with the rights of the sound recording which is registered
using the copyright form SR. Many so-called samples involve uses
of recordings containing underlying musical compositions—really two
separate licenses rather than one.
When is a sample using the underlying musical composition and when
is it the arrangement or the performance, for which there is usually no
copyright protection, at least in the United States When you register a
composition for copyright, and you have a recording of it, you should
deposit that recording rather than the lead sheet, which has been the practice
for many years. Rather than trying to express in a lead sheet what
you’re trying to protect, which was probably Newton’s problem, you file
the recording as your example of the underlying musical composition.
That way you will be secure that whatever is on that recording is what you
have registered. This also acknowledges the nature of jazz, which emphasizes
improvisation and performance and is difficult to capture in symbolic
notation.
DB
Alan Bergman is a practicing attorney—and jazz drummer—in New York who
has represented the likes of Ron Carter, Jack DeJohnette, Joe Lovano,
Dreyfus Records, Billy Taylor and the Thelonious Monk estate. To contact
him, go to alanbergman.com.
94 DOWNBEAT September 2008