Copyright music conundrum

Question

I've heard that there are experiments that seem to imply that every song is almost identical to many other songs in significant ways because there is just so much music out there now.

Just thinking out loud before looking at the laws, it seems like there might be a possibility that we are now done with music and nobody is allowed to write any more because it will infringe on someone's copyright, somewhere.

I assume this has been addressed. I would be very interested in hearing how this conundrum has been addressed by the law, if it has?

Obviously this is a huge topic but I hope that it is possible to answer just this one aspect of the larger issue of copyright law in music in a reasonable way, hopefully with links to further reading.

Answer 1

This "conundrum" has not been addressed in law. Ordinary principles of copyright law apply.

Copying or producing a derivative of a work subject to copyright is prohibited unless a fair use defence applies.

Copyright infringement requires copying. If there is no copying, then there is no infringement. There will be a presumption of copying upon the plaintiff establishing reasonable access and substantial similarity, but this can be rebutted. See Three Boys Music Corp. v. Bolton, 212 F.3d 477 (9th Cir. 2000):

By establishing reasonable access and substantial similarity, a copyright plaintiff creates a presumption of copying. The burden shifts to the defendant to rebut that presumption through proof of independent creation.

Answer 2

F* you Pachelbel!

I am sure everybody knows the progression D A B F♯ G D G A. Cord progression I V vi iii IV I IV V. Pachelbel's Canon in D, right? No. Just about any type of music steals those notes and that progression! That chord progression is super popular and called Pachelbel Progression, and you find it, or a variant of it like... everywhere. Even the Soviet Anthem is a variant of the Pachelbel Progression!

How can that be legal?!

First of all, copyright runs out. 70 years after the author's death, a work, including a chord progression, goes into the public domain. Afterward, everybody may use what was used in that work for free. No fees, no licenses, no negotiations.

Now, a second part is what is actually protected by copyright: each independent tangible expression is. So Pachelbel's Canon in D, if written today as a wholly new work, would be protected as sheet music.

But if you modify a work, you gain a copyright in what you add. So when the orchestra plays it, they gain a copyright on that recording and the sound engineer in the specific mix and setup used. Then a DJ Remixes the song and creates a different thing - and has copyright in how he mixed it with other music or altered the recording.

But two people taking the same sheet music can create separate recordings and both have copyright protection in their artistic expression. You could ask music fans and some will discuss the pros and cons of specific recordings, orchestras, and even how individual musicians influence the very same song.

So, there can be multiple different copyrights in basically the same song from the same basic sheet music. But what if we have different songs and they just pretty much sound the same?

There a different doctrine of copyright comes around: Scènes à faire. Scenes that you need to do. Certain Aspects of a work can't be protected. A rock band has a guitar, a bass, a drum kit, and a singer, Punk Rock has sick guitar solos, death metal is screamed into the microphone and a chamber quartet is 2 violins, a viola and a cello. Nobody has a copyright in a band setup. Even a rare setup like "4 Violoncello" isn't protectable - it's just another uncommon band setup. What can be protected is a particular arrangement for a song, and how this one sounds. So, if I take our loved/hated Pachelbel Canon and invert the whole thing, handing all the good parts to the cello and relegating all the underlying parts to the piano? The arrangement and recording are a tangible expression and protectable, but not the setup of "Solist and Piano", or even "Cello and Piano". And as we already know, the copyright in the original sheet music is gone.

Wait, I said the arrangement has a copyright? Yes, The arrangement is a variation of the original theme. It takes Pachelbel's notes and writes them out differently. In how it changes it or distributes it differently between different instruments, it makes specific expressions of the arranger. Those changes are copyrightable... unless they are, again, not creative. If I condense a song to a single cello and piano, there are only so many choices I can do. Anyone doing the arrangements has only a very limited choice between them.

Answer 3

It doesn’t matter how similar the works are: it matters if one is a copy of the other

Music can be similar because there was copying, or it can be similar by coincidence. Your position that there is only so much music in the world tends towards coincidence.

However, I don’t accept the proposition that “that every song is almost identical to many other song” because the ‘phase space’ of music is for all practical purposes, infinite. However, that’s not really relevant for the legal issues.

The legal question is not “is this song like other songs”, it’s “was this song copied from this particular copyrighted song in a way that is not fair use/fair dealing?”

To start with, many, many pieces of music are no longer (or never were) protected by copyright. So, copying or making derivative works from those is fine.

Putting that aside, let’s consider the situation where an artist releases a song that is similar to another song.

1. The copyright owner has to notice.
2. The copyright owner has to care enough to take action.
3. There must be evidence that the second song was derived from the first song. This is a matter for the finder of fact to determine. This includes deciding that the two songs are sufficiently similar and that this is the result of copying rather than just happenstance.
4. There must not be a fair use/fair dealing defence.