Revisiting Innovative Technologies to Determine Substantial Similarity in Musical Composition Infringement Lawsuits

Authors

Yvette Joy Liebesman, Saint Louis University School of Law

Document Type

Article

Publication Date

2018

Abstract

A music video by Sir Mashalot² combines six award-winning popular country-western songs,³ demonstrating the amazing similarity among the tunes. Not mentioned by the mash-up⁴ artist is that none of the songs are infringing on any of the others. While all copied the same chord progressions, none copied any protected copyrightable expression, and thus none of the authors of the melodies are infringing.

It is often difficult to determine if there has been unlawful copying of a song. Currently, a judge or jury relies on music experts who analyze the songs based on a limited number of characteristics in a head-to-head comparison. In addition, these finders of fact may not have an adequate musical knowledge base to make a bona fide determination. For example, in Dawson v. Hinshaw Music,⁵ the finder of fact had to compare the sheet music of the two songs in question, even though he did not know how to read sheet music.⁶

Recommended Citation

Yvette Joy Liebesman. Revisiting Innovative Technologies to Determine Substantial Similarity in Musical Composition Infringement Lawsuits. The Law Reviewof the Franklin Pierce Center for Intellectual Property v. 59, no. 1, (2018).