I Hate These Blurred Lines: Wrongful Appropriation and Copyrightability in Music Copyright
This is based in part on an earlier paper that we presented at the Art of Record Production Conference in Aalborg, Denmark in December 2016, a draft of which is embedded below with voiceover and music examples. As this is an academic paper about music copyright, it contains musical excerpts from the original audio recording. My first attempt to embed the video resulted in an automatic takedown (academic fair use YouTube dispute is in progress), so I’m trying again with a Screencast embed. Because the video represents commentary and (not for profit) academic research, I’m continuing to claim fair use. Let’s see how long the audio survives!
Abstract: We have two concerns with music infringement trials: The first concern is the process by which juries decide questions of whether a defendant copied too much from a plaintiff’s work. (This is the inquiry sometimes known as “wrongful appropriation” or “substantial similarity”.) This paper discusses the challenges of methodology in forensic musicology, and the musical and psychological difficulties of applying the ‘substantial similarity’ test fairly and objectively. (Bonadio, 2016; Gordon, 2015). We present an analysis of three disputes, with comparative audio examples – The Isley Brothers/Michael Bolton (2001); Robin Thicke & Pharrell Williams/Marvin Gaye (2015); and Randy California/Led Zeppelin (2016).
Our second concern addresses copyright classifications, in particular, the contested relationship between the creative decisions that give rise to copyrights in “musical works” (compositions) and the creative decisions that give rise to “sound recordings” (sounds as rendered). We suggest that overlap between the two is common and should be better recognized. To illustrate the potential compositional contributions of performers and sound engineers, we utilize audio examples from Newton v. Diamond and other disputes.