August 17, 2017 Musicology No Comments

The three legged stool and why you need a musicologist before you write that complaint.

I don’t know. But looking at the court decision that threw this out, I’d have to say the plaintiff, Timothy Arnett, didn’t engage a musicologist, and didn’t have his ducks in a row before filing his complaint. In it, he makes vague references to vague similarities between his track, “Remember Me” and Alan Jackson’s song “Remember When.” Thusly Arnett arrived at a weak “substantial similarity” position, not strong enough to fortify his vague access argument.

Mind you, he had no case anyway, but plenty of plaintiffs get way further down the road with no more of a case than Arnett had. Anyone who has read much of what is written here on Musicologize would know at this point that you need the forensic musicology that substantiates your similarity claim, saying more than “they sound the same,” and in addition to that you also need your “access” argument.

What’s the “access” argument?

Copyright infringement is a bit of a three legged stool. The first leg is the striking similarity part. That’s the part that deals with “do the two songs sound very alike (to the casual listener)?” Another leg is the access part. That’s the part that asks, “did the other composer have access to the song she supposedly copied? Did she have a chance to hear Song A, steal its ideas, and the write Song B?” Then there’s a boring but often sticky wicket of a third leg, and it asks “Is the song or portion of the song original enough to be protected by copyright law, or is it just so common to all music that it belongs to everybody?”

One of the main arguments in the famous Stairway To Heaven case was that the chord progression that’s so familiar as the intro to Stairway To Heaven is just a basic chromatic descent through the chords in the key, a common device, pretty much the same as you’d hear in “My Funny Valentine,” and thus, neither Randy California’s to own, nor Zeppelin’s to steal. So there’s that third leg in action. We sometimes call this sort of thing “prior art.”

Strength in all three arguments is great if you can get it, but if at least one “leg” of your arguments is strong, it can take some weight off the other legs. Let’s abandon the legs metaphor at this point.

In Arnett’s complaint the access argument was apparently weak, and the court decision takes pains to explain that a strong substantial similarity argument would’ve lowered the bar for the access argument. There’s a spirit in the law that says when two songs are very alike, it can’t be a coincidence. Access is gradually assumed. It’s like saying, “They must’ve heard it somehow! They basically say, “You gave us so little, you didn’t help yourself here at all.”


Written by Brian McBrearty