Substantial Similarity and Music

From Guest Irina Manta.

For those interested in more scholarship on the topic of substantial similarity in copyright law, Carys J. Craig and Guillaume Laroche (York University-Osgoode Hall Law School) recently posted a piece entitled Out of Tune: Why Copyright Law Needs Music Lessons. Here is the abstract:

This chapter offers a critical analysis of copyright law that integrates insights from music. The authors argue that the unique qualities of musical works magnify the mismatch between creative practices and copyright doctrine, and suggest that an interdisciplinary analysis can shine a revealing light on both the problem and potential paths to improvement. Beginning with an overview of copyright doctrine in Canada in respect of musical works and music infringement claims, the authors then borrow analytical concepts from the discipline of music theory to problematize copyright’s “reasonable listener” test for determining substantial copying. Using a specially-designed musical composition, the authors illustrate how and why this test may fail to perform its necessary role in the infringement analysis. The authors conclude by identifying some ways in which the legal analysis could be improved, including a more extensive use of both expert and survey evidence, and greater consideration of the accepted norms and practices of the relevant creative community. The overarching aim of this chapter is to demonstrate the importance of bringing the insights from musical and other creative disciplines to bear on the law of copyright, so that it might more accurately reflect the very practices it is meant to encourage.

Rebecca Tushnet has posted some of the key excerpts here. The authors give an interesting overview of the special problems entailed in similarity determinations for musical works and show that Canadian law largely suffers from the same problems as U.S. law in that area. They are also open to the possibility of introducing surveys in copyright litigation (similar to the ones we use in trademarks cases), as I suggested in previous work.