May 31, 2022 Musicology No Comments

One for my lawyer friends.

My expertise is musical, not legal, but of course, I think about music through a legal lens pertaining to copyright law. And I’ll get frustrated with the way things are handled, legally, from time to time. This is one of those times.

The last time I tried to be so activist and academic was in regard to the inverse ratio rule. Did I get that struck down? Was that me? It was probably me, right? We’re gonna say it was. The “inverse ratio rule,” by the way, was the idea that a high degree of access (the alleged infringer totally heard your song first) might compensate for a lesser similarity requirement in calculating the likelihood that copying had taken place. And this, as I opined plenty, makes a certain amount of sense, just not quite enough sense to be reliable. Armed with the knowledge or at least a story of how [insert, say, Taylor Swift or Ed Sheehan] had heard a previous work and copied it, even if perhaps changing some of the notes, would-be plaintiffs might set the bar too low because their access argument seemed a sufficient counter. And indeed, if Tay had your track and copied it, that certainly explains why her song sounds the same. It’d be great if she’d admit it. It’s less great, investigatively, to be overly sure of it and ignore other possibilities. Enough on that, moving on to the thing bugging me today.

Copyright law is noble, I think, and I’ve written around here a zillion times. It does its best. But music is fluid and fluidity lends itself imperfectly to something so binary as infringement. Copyright law must try to draw boundaries. But I didn’t like it when Stairway To Heaven was never played in the courtroom, and the deposit copy of Stairway was the “four corners” of what was protectable because of a hundred-year-old law. Yes, there needs to be a practical limit — you can’t compare song A to countless versions of song B. You need those four corners, but it’s unsatisfying. Nobody cares that Stairway’s guitar intro isn’t on the deposit copy. We care only whether or not Page copied it from Taurus! The law is inadequate.

Similarly, I’m not crazy about “filtering” that which is unprotectable as a diagnostic tool in truth finding. I understand the idea. I certainly understand why it’s wielded as a sword sometimes. It’s okay, but imperfect and needs to be reined in.

Like the inverse ratio rule, there’s a reasonable premise in filtering. It says, let’s separate out what copyright does not protect. But that’s iffy. All music is on some level derivative. In any given work there are bound to be very original elements, some partly derivative elements, and some super common “appears in countless other works” types of elements, such as the “unprotectable building blocks” in music — scales, chords, and rhythms, etc. And there are scenes a faire, and elements of musical works better thought of as “ideas” than as “expression.” Some clarity might certainly come from “filtering” the elements that are unprotectable, and evaluating only what remains. But issues arise I think.

A concept like “a modicum of originality” is a tricky thing to quantify and agree about. (That’s Feist, I think? Phonebooks? I try to remember the big ones.) The bar is set intentionally low. To be protected by copyright, “even a slight amount of creativity will suffice.” Is it not more intellectually honest about admitting the difficulty in sleuthing around degrees of “low,” looking for a clear place to draw a boundary?

And music is interlaced and fluid. A melody is a series of notes that have pitch and duration. And those notes have their rhythmic placements, where they initially occur in musical time. And then those notes are given context and meaning by what the accompanying elements, like harmony, roughly the chords that accompany the melody.

Chord progressions are unprotectable for the most part. But I cannot necessarily get you closer to the truth by “filtering out” a chord progression that is by itself unprotectable. Elements in music aren’t by themselves. I similarly cannot ask you to better understand the similarity between two melodies by first filtering out that unprotectable arpeggio that sits at the beginning of both melodies. That arpeggio probably matters to what follows. These concepts span all intellectual property. Jokes for example are often built (I got this from somewhere) as a statement of a known fact as a setup and then a creative original observation as the punchline. The fact is certainly not original to the comic, but the punchline doesn’t exist in a vacuum. Ignoring it would a little bit putting your head in the sand. So it can depend on your intent. You want to know how much of your material is original to inform the question of protectability, but throwing away information detracts from the question of whether one work was copied from another.

To return to that phonebook thing for a sec. All music is an arrangement of musical fragments that by themselves might not be unique or original, just as the phonebook is an arrangement of pieces of information not dreamt up by the phonebook company.

Maybe “fallacy” is not fair. It’s not really that the question is bad. It’s that the reliance upon a clear answer is limiting and maybe even corrupting. Is nuance too much to ask for? I bristle when I observe things can get arbitrary in the pursuit of “neat.” The truth is in my estimation rarely neat. We might as well also acknowledge a peril, that litigation is combative, “war” as one attorney friend puts it. And that filtering becomes a weapon to be employed, as in, “after we crossed out all the notes that appear in prior art or are otherwise unprotectable there’s nothing left that’s shared by these two works!” But all elements of music ultimately appear in other works. All chords and rhythms appear in other works. It’s a question of degree, obviously. And two musicologists occasionally disagree, confoundingly, about what copyright law would prefer were just facts. There can be well-meaning (I’ll be nice) bad takes, such as “The similarity between Song A and Song B can also be found in prior art Song X, so, therefore, we must filter that out,” except that the alleged appearance in Song X might be a little gray, debatable, a bad take, a bad premise.

At some point, a well-intended idea can fail. The inverse ratio rule could be employed well or poorly. Filtering can too. And different circuits evidently handle things differently, to their credit I think, trying to figure out the best procedure. Courts do need to be somewhat practical.

Copyright law is noble, if tricky.

Written by Brian McBrearty