12(B-flat)(6): Pre-trial Assessment of Scene a Faire in Musical Composition Copyright Infringement Cases

Jeremy King

            Music copyright cases are strange beasts.  With slight variations by circuit, the general inquiry is whether an ordinary listener would think the two songs sound similar.[1]  This seems simple enough: play two songs for a jury of laypeople and ask them if they think they sound similar.  However, since pop music[2] typically deserves a thin copyright and therefore contains many unprotectable elements, these trials can easily turn into battles over the credibility of dueling experts rather than, as the Second Circuit’s test articulates, whether the “ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them, and regard [the] aesthetic appeal as the same.”[3]  

            So we are presented with two bad options: 1) let these cases always go to trial, have both sides spend unnecessary amounts of money on experts whose findings are tainted because they are hired to give a specific result, only to have the jury confused over what exactly they are adjudging due to the complexity of the standards provided[4], or 2) let a single judge, likely untrained in music theory and musicology and whose understanding of current music trends and “prior art” is likely lacking, decide what an ordinary observer would find.  When circuits,  such as the Fourth Circuit, find that “when it is clear that the work is intended for a more particular audience, the court's inquiry must be focused upon the perspectives of the persons who comprise that group[,]”[5] this presents a problem, as most 70-year old federal judges are not the target audience for pop music.[6] The problem that “60-year-olds, 40-year-olds, and 20-year-olds, even those who are music lovers, may know and love entirely different bodies of music, so that music intimately familiar to some may be entirely unfamiliar to others[,]” has been acknowledged by Judge Leval in determining if it is reasonable to infer that a listener recognized a work as potentially being under copyright.[7]

            Essentially, we are left with something akin to the Heisenberg Uncertainty Principle: the more legal expertise regarding the intricacies of copyrightable subject matter the trier of fact has, the less likely it is that they have a grasp of what an “ordinary observer” would find to be substantially similar.  But what if we could take certain complicated elements of the legal analysis out of the equation?  What if we were able to remove the bias of litigant-hired experts, and have experts actually judge portions of the works, rather than allowing for the ventriloquist act that is lawyers questioning themselves through their experts?  What if we could cut down on frivolous lawsuits and use copyright law to encourage more creative works as opposed to just more “creative” works?

            My solution is simple.  Rather than having parties to music copyright litigation hire their own experts and file cross-motions for summary judgement read by a judge lacking musical expertise who is not the target audience, hire a court-appointed, salaried Musicologist[8] to assess the two works and filter out anything he or she deems scene a faire.[9]  If the case proceeds to trial, this removes any guesswork by the jury regarding which elements they are being asked to review, as an impartial expert will have made recommendations or rulings on the issues of copyrightability that are apt to trip up juries.  This expert could also create versions of the songs that include only the protectable elements, so the jury can simply listen to what remains and decide if the works are substantially similar.  If the parties still move for summary judgement, this expert can advise the judge, bolstering the judge’s ability to represent an “ordinary listener.”  The salary for such a position can be factored into court costs split by the parties.[10]

            The current system of dueling expert testimony runs the risk that a hyper-technical explanation from the more charismatic expert is the determinative factor for a jury tasked with deciding based on their non-expert knowledge.  If we wanted the Recording Industry Association of America or the American Federation of Musicians to decide music copyright cases, Congress could mandate that[11], but that is antithetical to the standards enunciated by the courts under the current Copyright Act.  Absent setting up a court with exclusive appellate jurisdiction for all music copyright cases[12] this would split the difference between having expert technical knowledge regarding copyrightability and allowing the ultimate determination to be made by a jury of laypeople.


[1] This post presupposes that access has been determined so as to focus on the similarities between the works.

[2] For the purposes of this post, “pop music” encompasses any current music other than orchestral music, opera, or jazz.

[3] Peter F. Gaito Architecture, LLC v. Simone Dev. Corp., 602 F.3d 57, 66 (2d Cir. 2010).

[4] i.e. “If you leave out everything we said was not protectable, do you think these sound the same?”

[5] Lyons P'ship, L.P. v. Morris Costumes, Inc., 243 F.3d 789, 801 (4th Cir. 2001).

[6] Standards like this, while well intentioned, present an entire other can of problematic worms, as a jury will almost never be entirely comprised of a work’s target audience, but I for one trust the consensus of six to twelve individuals attempting to role-play as that audience more than a single judge and his or her handpicked clerks.  This is a problem for another day.

[7] Capitol Records, LLC v. Vimeo, LLC 826 F.3d 78 (2d Cir. 2016).

[8] Personally I do not think these people must have specifically Musicology degrees.  Music Theory and Musicology are two different disciplines, but Music Theory, the main focus of a Composition degree, focuses more on the skills necessary to analyze and transcribe musical pieces, which is usually the evidence that Musicologists provide in such trials.  Since the focus is on music written post-1900, were I the one hiring for this position I’d be looking for someone with a Master’s Degree in Composition from Berklee College of Music, specifically because of Berklee’s focus on contemporary music.

[9] Scene a faire is a term of art for elements that are unprotectable because they are necessary building blocks dictated by the genre of work you are creating.  In a musical context examples would be a standard rock drum beat, a common chord progression, scales, etc.

[10] Since this would be a desirable position due to its stability and the fact that it would, frankly, be a fun job, the costs would likely be greatly reduced from the current hourly-rate system.  Spread out over many litigants’ court fees, this would save money for any litigant who would otherwise hire their own expert, and would not present a significant financial barrier to those who otherwise would not hire an expert.  It also would level the playing field.

[11] It would be a jury of their peers, so in a certain sense it doesn’t seem that outlandish.  This would probably lead to bias based on record companies and other business relationships though, so it’s probably a terrible idea.

[12] Like the Federal Circuit has for patents.