When does one pop song infringe the copyright of another pop song? US case law on the topic – which more or less mirrors Canadian law – shows the unpredictability of how music copyright infringement determinations are made. In two recent high profile US cases, one jury found for the plaintiff where the two songs had almost nothing in common (Gotta Give it Up and Blurred Lines) whereas in the other case, the jury found for the defendant even though there was significant borrowing from the plaintiff’s composition (Taurus and Stairway to Heaven).
There are many points of complexity in music infringement cases which no doubt account for such wildly different outcomes. In this column, I unpack some of the more difficult issues within the US and Canadian context. These difficulties include: (1) how music is compared (2) the legal test for copyright infringement and (3) the relevance of lay versus expert opinions about the comparison. I conclude with some ideas for making the infringement analysis better in music copyright cases.
How Music Is Compared
We begin with a technical, though critical, point. The Blurred Lines and Stairway to Heaven cases were both about (as these cases overwhelmingly are) infringement of the musical composition – i.e. the melody, harmony and chords that make up the song. This is distinct copyright from sound recording or performance elements of a song – i.e. the arrangements, choice of instrumentation, the production feel – which have their own copyright but have no bearing on the musical composition per se.
These accoutrements can have a profound impact on lay perception about the similarity. In one study, songs which compositionally had little in common were more likely to be considered similar if they shared the same genre or “sound”. Conversely, compositionally similar songs were less likely to be viewed as similar if they were played in different styles. This finding was reflected in Blurred Lines in which the jury sided with the plaintiff even though the two songs, at the end of an extensive analysis, shared only the same “production feel.” At the summary judgment stage of the Stairway to Heaven case, the court rightly discounted expert reports which drew on similarities in production or performance.
So how do you make the comparison? One might think that sheet music would be a media neutral means of comparison. However, such a comparison is not as accessible to lay jurors nor, in pop music circles, is that necessary...