The recently revived Ambrosetti v. Oregon Catholic Press lawsuit was first filed in 2016. Can these things drag on or what?!
Some of you probably weren’t born yet, so how about a quick recap?
A decade ago, plaintiff Vincent Ambrosetti believed his song “Emmanuel” was infringed by Bernadette Farrell’s “Christ Be Our Light,” for which Oregon Catholic Press is the publisher. He therefore sued, but of course the defense argues Farrell never heard “Emmanuel” (you can’t copy what you’ve never heard, right? and besides, the works aren’t substantially similar — more on that in a moment) Years of back and forth ensue, and notably some of the plaintiff’s evidence — letters from OCP’s publisher, which may have supported the question of access — were excluded as evidence. Five years on, the case gets tossed.
Now, this being Musicologize, we’re gonna not dwell on the access question, and get to the downstream part where “Christ Be Our Light” Is. Not. “Emmanuel.” Because it’s not. And therefore, ultimately, the question of access is irrelevant. But the unholy spirit of the flawed and fraught “inverse ratio rule” — supposedly buried with Skidmore v. Led Zeppelin — is still flying around over at the Ninth Circuit — for background, see this 9th Circuit vs 2nd Circuit analysis. Pedantically, five years later, in 2025, the Ninth revived it!
And here’s the problem: with the resurrection of Ambrosetti v. OCP, we’re not confronting a hard musicology issue. It’s being made hard, with questionable forensic musicological analysis propping up an argument that should ultimately be doomed, and a pedantic process reanimating a non-case. The plaintiff’s music expert witness relied on musicological contrivances, misalignments, and overstatement of inconsequential overlap — common failures, granted. The defense’s expert countered (somewhat ironically but mostly correctly) that the musical gestures involved are ordinary liturgical devices. That’s understaging it. They’re broadly commonplace. In fact, I’d argue that even if Bernadette Farrell had Emmanuel open on the coffee table while she wrote Christ Be Our Light, she’d still have failed to copy it in any meaningful, protectable sense.
Yet the Ninth Circuit’s familiar liturgy persists: fixate on the vagaries of access, let a jury sort out “triable” similarity. That’s doctrinal theater. The similarities are trivial; access is irrelevant. The rest of this is the system indulging in ritual over reality. Let’s look at the illogic of the ritual and then we’ll get to its immorality.
In 2020, the Ninth Circuit buried the so-called “inverse ratio rule” in Skidmore v. Led Zeppelin. They called it illogical, unhelpful, and confusing — and at the time I applauded. In my own writing, I’d said the rule was simply nonsensical: you can’t flip access and similarity. As I put it then, you could give me a perfect score for knowing Happy Birthday, but that tells you nothing about whether the song I’m writing will be similar to it.
But then, I reconsidered. Shyam Balganesh, a Columbia professor, persuaded me that the rule wasn’t inherently incoherent, just poorly applied. As circumstantial evidence, similarity and access can be probative when taken together. The mistake was treating it as a formula or as a rule. So I softened. My critique became less “nonsense” than “misapplied.”
Which brings us to Ambrosetti v. OCP. This is why the inverse ratio was abandoned. The compositional similarities here are trivial. Musically, they don’t adequately support the inference of copying, or even access. But here the Ninth Circuit rather insists on letting the question of access breathe life back into the claim. That’s how you get a resurrection of the inverse ratio rule in all but name. Weak, barely plausible similarity mixed with the overemphasis on access, and a decade-old case finds its way back — a reversal, and again a triable issue according to the Ninth Circuit’s opinion reviving Ambrosetti v. Oregon Catholic Press. The peril for OCP is a tragedy because the case is musicologically silly. The music is clear, but the process overindulges first beating to death, “Did the defendant possibly hear the song?” which is very much a forest-for-the-trees pitfall, and it clouds the more substantive issue: substantial similarity.
And here’s why this sticks in my craw!
I’m not wise enough to dictate the law, but I do know this: litigation is expensive. Extra rounds, if they’re nonsense, are just throwing time, energy, and money away. Increasingly I’m fascinated with the morality of intellectual property law. If that sounds lofty, so be it. To me, it sounds considerate.
Meanwhile, of course, two forensic musicologists can disagree. Ambiguities do exist, and sometimes these things are genuinely close calls. Who’s to say? Well, I am. At the end of the day, this is the point of Musicologize: to say when similarities are substantive and when they’re not. And here, they’re not. Christ Be Our Light is not Emmanuel. That’s clear. So it matters, yes, morally. Because when a non-case like this gets extra innings, it doesn’t only waste resources, it distorts the risk profile for everyone — not just plaintiff and defendant, but also publishers, writers, insurers, even future juries trying to do what’s right. It makes it seem as if trivial similarities and speculative access theories deserve to be feared, insured against, and litigated. Trivial similarities don’t create actual liability; they just greatly distort the music copyright risk profile.
So let’s call this case what it is: not a music copyright infringement, but a resurrection of process over substance. And a failure in that the similarities in this case are trivial and should not have their day before a jury. Access is irrelevant. And the rest is just holy smoke and mirrors.
