BLURRED LINES Navigating Copyright Infringement Actions

Thursday, July 27th, 2017

By Christian A. Horsnell

How many times have you been sitting in the car listening to the radio or your favorite subscription service, heard a song and thought to yourself “that sounds like …”?  Simple, right?  Maybe for listeners — but that’s not the way it works in the courtroom.

It seems that, every time a song by a popular artist and/or songwriter is found to have infringed the copyright of another song, music fans and some music industry pundits get outraged at the perceived injustice and focus their ire on the United States Copyright Law.  They call it outdated and demand revision to suit the digital age.  In truth, the Copyright Act is not to blame, or maybe it is, because the Copyright Act does not define copyright infringement.  That has always been the province of the judicial system.  For more than a century and a half, judges and juries have determined what was and what was not copyright infringement and why.  Imagine it — real people establishing the law for a change, instead of politicians.  No wonder we are confused.  Perhaps this brief look inside a typical copyright infringement action (not the rather unique Blurred Lines case) will help.

To succeed in an infringement case one must prove ownership of the allegedly infringed work and improper copying of it by another.  The adjective “improper” is a fairly recent addition to the infringement litany to remind us that not all elements of a work subject to copyright protection are, indeed, protectable.  To be protected the contributions of the author/songwriter to the work must be original.  Being original does not require that the work be unique or even “good.”  The author/songwriter just has to create it himself or herself and not copy it from another source.  Some things are not protectable, including 4/4 time, a four-bar blues riff, commonplace expressions or themes (see, e.g., You Never Even Called Me by My Name) and typical “scenes a faire” (girl meets boy, girl gets tired of boy and ditches him, girl meets new boy …).

Since actual proof of copying is not usually available, copying is generally shown by proving that (a) the infringer had access to the infringed work and (b) substantial similarity between one’s own work and that of the infringer.  While one generally has to prove both access and substantial similarity, there is an implicit inverse ratio between the two, i.e., the more access you prove, the less substantial similarity needs to be established and vice-versa.

Access is defined as having a “reasonable opportunity” to see or hear an existing work.  This is often contrasted with having only a “bare possibility” to have done so.  Access does not have to be direct.  The cases that actually get to trial frequently involve previously released songs and “subconscious copying,” i.e., it reached X chart position so the infringer must have heard the song and, inadvertently, incorporated some of the protectable elements into the infringing work.

Substantial similarity is the keystone for establishing copyright infringement and is determined by the “audience test.”  The ultimate question put to the trier of fact is whether the ordinary, reasonable person, being recently familiar with work one, would find work two to be substantially similar to it without any suggestion or expert analysis.  One can immediately recognize the fallacy in the audience test.  The “audience” is either a judge or jury and assumes the role of that “ordinary, reasonable person.”  Yet, the mere fact that they are being asked the question as part of a copyright infringement trial suggests that the works are substantially similar, and focusing on that alleged similarity merely reinforces that suggestion.  Additionally, every litigator at this level of federal practice knows how to couch a complaint to allow expert testimony into a trial.  As a practical matter, the audience test fails on its face, but, like many aspects of the legal system, it is best thing that we have.  At least for now, until someone develops an algorithm to take the decision making out of human hands.

The biggest conundrum facing a judge or jury is that the courts have not provided much guidance in determining what is “substantial,” instead using helpful phrases like “not trivial” to define it.  The process is further confounded by the nature of the similarity.  It can be qualitative or quantitative.  It can be a small, but quintessential element of the first work (e.g., the three note progression in He’s So Fine, or “Call me Ishmael” that opens Moby Dick).  Or it can relate to the work as a whole and permeate the second work (as alleged in The Wind Done Gone or the similarity between Romeo and Juliet and West Side Story).  Of course, the secondary examples above are hypothetical and assume that Moby Dick and Romeo and Juliet still had copyright protection.  Efforts have been made, particularly by the Ninth Circuit Court of Appeals, to add some clarity to the analysis, but, to me, they seem merely to complicate it.

Many of you already know the above.  In the end, it is not rocket science or an effort to stifle creativity, but real people trying to do the right thing for creative individuals.  So, the next time that a popular song by one of your favorite artists or songwriters is found to have infringed another work, you can blame the system, but try to have sympathy for the poor souls who had to navigate its convoluted path to try and make the “right” decision.

Published in MusicRow Magazine (, July 2017