Courts continue to struggle with discerning the level of substantial similarity between musical compositions in infringement analyses, which is related to their difficulty in determining the portion that is available for the public to use, and where that permission stops. This paper argues that, under the current policies regarding copyright protection and unauthorized copying, the current test is inadequate and a new infringement test should be considered. Two alternatives are proposed. The first test uses objective mapping of a song’s artistic elements. The second considers the link between wave motion theory of physics and music and proposes comparing the mathematical algorithms that model the physics of the songs in dispute. Either test has advantages over the current test, and should be considered as ways to improve the analysis of songs in music infringement suits.
Liebesman, Yvette Joy, Using Innovative Technologies to Analyze for Similarity between Musical Works in Copyright Infringement Disputes (2007). 35 AIPLA Quarterly Journal 331, Summer 2007.