The Rhetoric of Predictability: Reclaiming the Lay Ear in Music Copyright Infringement Litigation
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The R hetoric of Predictability: Reclaiming the Lay Ear in Music Copyright Infringement Litigation
Austin Padgett 0 1 2
0 Franklin Pierce Law Center , Concord, NH , USA
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The Rhetoric of Predictability: Reclaiming the Lay Ear in
Music Copyright Infringement Litigation
AUSTIN PADGETT* TABLE OF CONTENTS I. INTRODUCTION...................................................................................125 II. HISTORICAL DEVELOPMENT ..............................................................126
I. INTRODUCTION
Some things cannot be described. This is the theory that recent literary
criticism has placed as its cornerstone. Philosopher-critic Roland Barthes
identified this trend in his Mythologies, stating that critics often ―suddenly
decide that the true subject of criticism is ineffable, and criticism, as a
consequence, unnecessary.‖1 Unfortunately, this view has become singular
within the legal academy whenever an author discusses music copyright
infringement analysis. It seems that scholars fear the thought of trusting a
jury with such an ―ineffable‖ subject as music and must propose
alternatives, such as expert testimony, specialized courts, or mechanical analysis,
* J.D. Candidate, Franklin Pierce Law Center (2009); M.M., College-Conservatory of Music,
University of Cincinnati (
2007
); B.M., Samford University (2004). This note was the winning entry in
the second annual Pierce Law Student Symposium writing competition.
1. ROLAND BARTHES, MYTHOLOGIES 34 (Annette Lavers trans., 1972).
PIERCE LAW REVIEW
that will diminish the ability of a jury of lay ears to determine what is or is
not substantially similar.2
This article proposes that the simplest and best approach to music
copyright infringement litigation is to accept the jury‘s determination of
substantial similarity in its most classic form. Part II of this paper will explore
the development of the current standards that the federal courts use in
music copyright infringement cases. Part III will survey scholarly reactions to
these standards, detailing and categorizing the variety of proposals put
forth by different authors. Part IV will describe the shortcomings and
unnecessary complexity of these proposals, advocating for the simplest and
original approach put forth by the courts in Part II.
II. HISTORICAL DEVELOPMENT
Article I, Section 8 of the U.S. Constitution gives Congress the power
to ―promote the Progress of Science and useful Arts, by securing for
limited Times to Authors and Inventors the exclusive Right to their
respective Writings and Discoveries.‖3 Congress utilizes this power to grant
rights and protection to owners of ―original works of authorship fixed in
any tangible medium of expression.‖4
The Copyright Act of 1976 grants several rights to a copyright holder:
the right of reproduction, the right to prepare derivative works, the right to
distribution, and the rights to perform, display, or transmit a work.5
Therefore, a defendant may infringe any of these rights when she performs any
of these actions and has ―done so without either the copyright owner‘s
authorization or the benefit of one of the limitations contained in §§ 107
through 122.‖6
In 1991‘s Feist Publications, Inc. v. Rural Telephone Service Co., the
Supreme Court announced the two-prong test for a prima facie copyright
infringement action.7 First, the plaintiff must prove ―ownership of a valid
copyright‖ and, second, ―copying of constituent elements that are
original.‖8 In order to meet the second prong of the Feist standard, the plaintiff
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must prove two separate elements. The plaintiff must first prove that the
defendant copied her work—that is, that the defendant ―used the plaintiff‘s
material as a model, template, or even inspiration.‖9 The plaintiff must
also demonstrate that the copying is ―actionable‖ because the defendant
copied the protected material.10
A plaintiff may use several methods to prove that the defendant copied
the work. The most effective, and the most atypical, course is to present
direct evidence of the copying.11 Another option requires the plaintiff to
prove that the defendant had access to the copyrighted work and that there
is ―probative similarity‖ between the two works that would indicate
copying of the protected work.12 However, the plaintiff may forego the access
requirement if the trier of fact finds that the defendant‘s wor (...truncated)