The Rhetoric of Predictability: Reclaiming the Lay Ear in Music Copyright Infringement Litigation

University of New Hampshire Law Review, Dec 2008

[Excerpt] “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. 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, that will diminish the ability of a jury of lay ears to determine what is or is not substantially similar. 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.”

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The Rhetoric of Predictability: Reclaiming the Lay Ear in Music Copyright Infringement Litigation

File: 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 1 This Notes is brought to you for free and open access by the University of New Hampshire - School of Law at University of New Hampshire Scholars' Repository. It has been accepted for inclusion in The University of New Hampshire Law Review by an authorized editor of University of New Hampshire Scholars' Repository. For more information , please contact , USA 2 Part of the Communication Technology and New Media Commons , Entertainment, Arts, and Sports Law Commons, Intellectual Property Law Commons, and the Music Commons Follow this and additional works at: https://scholars.unh.edu/unh_lr - 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 2008 127 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)


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Austin Padgett. The Rhetoric of Predictability: Reclaiming the Lay Ear in Music Copyright Infringement Litigation, University of New Hampshire Law Review, 2008, Volume 7, Issue 1,