The Role of the Expert Witness in Music Copyright Infringement Cases
The R ole of the Expert Witness in Music Copyright Infringement Cases
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1 Michael Der Manuelian, Th e Role of the Expert Witness in Music Copyright Infringement Cases , 57 Fordham L. Rev. 127 (1988). Available at:
Historically, courts viewed popular music with a curled lip and a
suspicious eye.' Arguably, it is this tendency that first inspired music
infringement2 plaintiffs to introduce the testimony of music experts to
bolster or legitimize their claims.3 In recent years the popular music
industry has flourished,4 and the financial stakes in music infringement
litigation have risen significantly.5 Not surprisingly, the testimony of
* An earlier version of this Note received First Prize in the 1988 Nathan Burkan
Memorial Competition at the Fordham University School of Law.
1. In Arnstein v. Edward B. Marks Music Corp., 82 F.2d 275 (2d Cir. 1936), for
example, Judge Learned Hand wrote that "[s]uccess in [popular love songs] is by no
means a test of rarity or merit." Id. at 277. In Darrell v. Joe Morris Music Co., 113 F.2d
80 (2d Cir. 1940) (per curiam), discounting similarities between the plaintiff's song and
an allegedly infringing song, the Court of Appeals for the Second Circuit noted that
"while there are an enormous number of possible permutations of the musical notes of
the scale, only a few are pleasing; and much fewer still suit the infantile demands of the
popular ear." Id. (emphasis added). In Carew v. R.K.O. Radio Pictures, Inc., 43 F.
Supp. 199 (S.D. Cal. 1942), the court noted that "[a] phrase from Beethoven, or from any
other great composer, might linger in the mind of a student of music for many years," but
that "the trite phrasing of an ordinary popular song, with its limitations" could not. Id.
2. The term "infringement" in the copyright context is used generally to refer to a
violation of any right granted to copyright owners by the 1976 Copyright Act. See 17
U.S.C. § 501(a) (1982). This Note, however, focuses on infringements in which part or
all of a protected musical work is used in the writing of a "new" musical work.
3. This is not to say that the value of music experts has gone unquestioned. For
example, one court commented on the "doubtful function of the expert as an aid to the
court in this class of litigation." Baron v. Leo Feist, Inc., 78 F. Supp. 686, 687 (S.D.N.Y.
1948), aff'd, 173 F.2d 288 (2d Cir. 1949). Another prided itself on its ability to endure
"'with patience and fortitude'" music expert testimony which included "cacophonous
demonstrations." Northern Music Corp. v. King Record Distrib. Co., 105 F. Supp. 393,
398 (S.D.N.Y. 1952).
4. See J. Taubman, In Tune with the Music Business 51 (1980) (noting accelerated
growth of recording industry); H. Vogel, Entertainment Industry Economics
(technological innovation has increased potential uses of music). Today there are more
opportunities to exploit a popular song. For example, when licensed for advertising
purposes, a popular song may have considerable earning power. Rather than using an
original, unfamiliar jingle, manufacturers now frequently use established popular songs to sell
their products. The Beatles' "Revolution," Cyndi Lauper's "True Colors," and the old
standard, "I Don't Want to Set the World on Fire" are among the songs that have been
exploited in this way.
Popular song revenues have been further increased by the avid enforcement of the
statutory performance right, see 17 U.S.C. § 106(4) (1982), by licensing organizations
such as the American Society of Composers, Authors and Publishers (ASCAP), whose
members are owners of music copyrights. See, e.g., Lodge Hall Music, Inc. v. Waco
Wrangler Club, Inc., 831 F.2d 77 (5th Cir. 1987); Billy Steinberg Music v. Cagney's Pub,
Inc., 1988 Copyright L. Dec. (CCH) 26,268 (N.D. Ill. April 8, 1988).
5. In 1987, a jury awarded a plaintiff over $500,000 in damages. See Gaste v.
Kaisexperts has become commonplace.6 Both parties usually come armed
with experts, and the ensuing battle often constitutes a significant
segment of a music infringement trial.7
In the context of copyright infringement suits, a significant
courtmade8 limitation has been imposed on expert testimony. This restriction
on experts' participation was first articulated in Arnstein v. Porter' in
1946 and later developed in Sid & Marty Krofft Television Productions,
Inc. v. McDonald'sCorp.'" From the outset, the Arnstein limitation has
been criticized for its impracticability." Arnstein developed the
distinction between copying and improper appropriation, and used it as a
boundary in determining the permissible scope of expert testimony.
Although Krofft purported to clarify and explicate the Arnstein
standards, its departures from Arnstein are significant and problematic,
particularly in music infringement litigation. 12 Moreover, Krofft failed to
address ihe fundamental difficulties in applying the Arnstein principles.
This Note examines the role of the expert in music copyright
infringement litigation. Part I analyzes Arnstein v. Porter,3 focusing on its
discussion of the elements of copyright infringement and of the limitation
on the use of expert testimony. In Part II, this Note reviews the Krofft
standards, which purportedly incorporate and expound on the Arnstein
erman, 683 F. Supp. 63 (S.D.N.Y. 1988) (song "Feelings" found to infringe unsuccessful
French song). Despite a reduction of the award by approximately $100,000, see Brief for
Appellant Kaiserman at 10, Gaste v. Kaiserman (No. 88-7367) (available in the files of
the FordhamLaw Review), the defendants have appealed the court's denial of their
motion for ajudgment notwithstanding the verdict, see Brief for Appellant, supra, at 2. For
examples of other awards and settlements, see Walsh, Has Somebody Stolen TheirSong?,
Time, Oct. 19, 1987, at 86.
6. See R. Osterberg, How to Prove Plagiarism of a Musical Work 6, in Creativity
Versus the Copier: The Trial of a Copyright Action (Aug. 10, 1987) (distributed at the
Annual Meeting of the ABA Tort and Ins. Practice Section) (available in the files of the
Fordham Law Review).
7. See, e.g., Record at 178-357, Selle v. Gibb, 567 F. Supp. 1173 (N.D. Ill. 1983)
(No. 78-3656), aff'd, 741 F.2d 896 (7th Cir. 1984) (discussed infra notes 100-39 and
accompanying text); see also R. Osterberg, supra note 6, at 6 ("It has become
customary... to include in a music plagiarism trial detailed music analysis by experts, supported
by charts, recordings and courtroom demonstrations on a piano or other musical
instruments.") (footnote omitted); Clark, CopyrightLitigation, in Kraft, Using Experts in Civil
Cases, 137, 138 (P.L.I. 1977) (Use of experts in copyright litigation is "firmly entrenched
as a valuable and... often essential element in prosecuting or defending an action for
8. The federal courts have exclusive jurisdiction over actions for infringement of
statutory copyright. See 3 M. Nimmer & D. Nimmer, Nimmer on Copyright § 12.01 [A],
at 12-3 (1988) [hereinafter Nimmer]. The Copyright Act of 1976 exclusively governs the
rights that together constitute a "copyright," see 17 U.S.C. §§ 106, 301 (1982), but the
statute invites incorporation and evolution of judicial doctrine in the area of
infringement, see Nimmer, supra, § 12.11 [D], at 12-83 (noting court-evolved principle that access
and substantial similarity together create inference of copying).
9. 154 F.2d 464 (2d Cir. 1946).
10. 562 F.2d 1157
(9th Cir. 1977)
11. See infra text accompanying notes 48 and 153.
12. See infra notes 82-98 and accompanying text.
13. 154 F.2d 464 (2d Cir. 1946).
principles. Noting significant dissimilarities, Part II critically compares
the law of these cases. Part III illustrates the context in which the
principles of Arnstein and/or Krofft should operate through an examination of
the use of expert testimony in the Selle v. Gibb 4 trial. Part III also
summarizes the shortcomings of Arnstein. This Note concludes that, because
of the general impracticability of the Arnstein limitations and the dubious
applicability of the Krofft standards in music infringement litigation,
analytic testimony by experts should not be limited to the issue of copying as
required under Arnstein, but should also be considered on the ultimate
issue of whether the copying constitutes an infringement.
I. ARNSTEIN v.PORTER. THE LIMITATION ON EXPERT TESTIMONY
A plaintiff must establish three elements to prove copyright
infringement. 15 First, the plaintiff must establish his
Second, the plaintiff must show that the
protected material. Third, the plaintiff must demonstrate that the
defendant's copying constituted "improper appropriation."'"
The role of the expert in establishing the first element is virtually
nonexistent. The expert plays a significant role, however, in establishing the
element of copying.19 In fact, expert testimony is sometimes mandatory
rather than permissive.2 0
However, a plaintiff may not rely on expert
14. 567 F. Supp. 1173 (N.D. Ill1.983), aff'd, 741 F.2d 896 (7th Cir. 1984).
15. See W. Patry, Latman's The Copyright Law 191 (1986).
16. See, e.g., Spectravest, Inc. v. Mervyn's Inc., 673 F. Supp. 1486, 1490 (N.D. Cal.
1987) (citing Sid & Marty Kroft Television Prods., Inc. v. McDonald's Corp., 562 F.2d
(9th Cir. 1977)
). This element is demonstrated most easily by presenting the
copyright certificate itself. See 17 U.S.C. § 410(c) (1982) (certificate of registration made
before or within five years of first publication of the work constitutes prima facie evidence
of the copyright's validity).
17. Copying may be proved either directly, which is rare, or indirectly by
demonstrating both access and "similarities or other factors circumstantially evidencing copying."
W. Patry, Latman's The Copyright Law 195 (1986) (emphasis omitted) (citing Alexander
v. Haley, 460 F. Supp. 40, 43 (S.D.N.Y. 1978)). Courts often refer to this showing of
similarities as "substantial similarity," which tends to confuse this type ofcircumstantial
evidence of copying with the third element of copyright infringement. See id. at 193; see,
e.g., Benson v. Coca-Cola Co., 795 F.2d 973, 974 (11th Cir. 1986) ("To establish copying,
[plaintiff] must show that [deferqdant] had access to [plaintiff's] song, and that
[defendant's] song is so substantially similar to [plaintiff's] that 'an average lay observer would
recognize the alleged copy as having been appropriated from the original work.' ")
(citation omitted); infra note 137.
18. See Arnstein v. Porter, 154 F.2d 464, 468 (2d Cir. 1946). This element requires
an evaluation of the substantiality and materiality of the similarities between the
plaintiff's work and the allegedly infringing work. See W. Patry, Latman's The Copyright
Law 193 (1986).
19. See infra notes 32-36 and accompanying text.
20. See, e.g., Testa v. Janssen, 492 F. Supp. 198, 203 (W.D. Pa. 1980) (expert
testimony is required when a plaintiff seeks to dispense with direct proof of access and
attempts to establish copying by showing that two works are "strikingly similar"); see also
Selle v. Gibb, 741 F.2d 896, 905 (7th Cir. 1984) (because plaintiff's expert failed to
address issue of prior common source, plaintiff did not meet its burden of proving striking
similarity, i.e., similarities "sufficiently compelling" in the absence of proof of access).
analysis to prove the third element-that defendant's copying constituted
improper appropriation.2 This delimitation of the expert's role in
infringement cases, first articulated in Arnstein v. Porter2,2 is still
In Arnstein, the plaintiff4 charged Cole Porter with infringement of
several of the plaintiff's compositions.25 The district court granted
defendant's summary judgment motion2 6 and the plaintiff's appeal2 7
afforded the Court of Appeals for the Second Circuit an opportunity to
expound on, formulate and perhaps2" make sense of the requirements
and applicable standards for infringement actions.2 9
The court distinguished the elements of copying and improper
appropriation30 and discussed the types of evidence permissible to prove each.
Under Arnstein, copying can be proved by the defendant's admission or
by circumstantial evidence-evidence of access3 1 combined with
cient similarities to permit an inference of copying.32 If the plaintiff lacks
evidence of access, copying still may be inferred from similarities "so
striking as to preclude the possibility that the plaintiff and defendant
independently arrived at the same result." 33 Expert dissection and
analysis 34 may be used to establish similarities and their sufficiency in proving
copying. 35 Thus, under Arnstein, the issue of copying may be decided
with the aid of "analytic or other comparison of the respective musical
compositions as they appear on paper or in the judgment of trained
Once copying is established, the plaintiff must prove the third element,
improper appropriation, or illicit copying. 37 On this issue, expert
analysis and dissection of the music are not permissible.38 Instead, the test for
improper appropriation relies on the "response of the ordinary lay
hearer.",39 In explaining the "lay hearer" test and the exclusion of expert
(S.D.N.Y. May 22, 1987) (citing Meta-Film Assocs. v. MCA, Inc., 586 F. Supp. 1346,
1355 (C.D. Cal. 1984)).
32. The court stated:
As to the first--copying-the evidence may consist (a) of defendant's
admission that he copied or (b) of circumstantial evidence-usually evidence of
access-from which the trier of the facts may reasonably infer opying.... If
there is evidence of access and similarities exist, then the trier of the facts must
determine whether the similarities are sufficient to prove copying. On this issue,
analysis ("dissection") is relevant, and the testimony of experts may be received
to aid the trier of the facts.
Arnstein, 154 F.2d at 468.
33. Id. The court explained that "a case could occur in which the similarities were so
striking that we would reverse a finding of no access, despite.., no evidence thereof
other than the similarities." Arnstein, 154 F.2d at 469; see, eg., Wilkie v. Santly Bros.,
Inc., 13 F. Supp. 136 (S.D.N.Y. 1935) (with no proof of access plaintiff prevailed in
infringement action because of striking similarity), aff'd, 91 F.2d 978 (2d Cir.), cert.
denied, 302 U.S. 735 (1937). But see Selle v. Gibb, 741 F.2d 896, 901 (7th Cir. 1984)
(striking similarity considered in isolation is insufficient to establish access by
34. Music analysis is "the study of a composition with regard to form, structure,
thematic material, harmony, melody, phrasing, orchestration, style, technique, etc." W.
Apel, Harvard Dictionary of Music 36 (1961). "Dissection" refers to the cutting up of
the musical work into smaller units for the purpose of music analysis. See, eg., Record at
218-50, Selle v. Gibb, 567 F. Supp. 1173 (N.D. Il.1983) (No. 78-3656) (dissection into
four-bar and eight-bar units), aff'd, 741 F.2d 896 (7th Cir. 1984), (discussed infra text
accompanying notes 109-35). For detailed discussion of music analysis, which exceeds
the scope of this Note, see N. Cook, A Guide to Musical Analysis (1987) and J. White,
The Analysis of Music (1976).
35. See Arnstein, 154 F.2d at 468.
36. Id. at 473; see also id. at n.19 ("Where plaintiff relies on similarities to prove
copying (as distinguished from improper appropriation) paper comparisons and the
opinions of experts may aid the court.").
37. The court explained: "If copying is established, then only does there arise the
second issue, that of illicit copying (unlawful appropriation)." Arnstein, 154 F.2d at 468.
38. "[T]he test is the response of the ordinary lay hearer; accordingly, on that issue,
'dissection' and expert testimony are irrelevant." Id. (footnote omitted). Note, however,
that not all expert testimony is excluded. An expert's testimony may aid the factfinder in
determining the reactions of lay hearers. See infra note 45 and accompanying text.
39. Arnstein, 154 F.2d at 468.
analysis and dissection, the court characterized the plaintiff's "protected
interest" as "his interest in the potential financial returns from his
compositions which derive from the lay public's approbation of his efforts."'
Under Arnstein, an action for infringement of a music copyright serves to
compensate the plaintiff for the deprivation of potential financial returns
that results from the defendant's copying. The issue, therefore, is
"whether defendant took from plaintiff's works so much of what is
pleasing to the ears of lay listeners, who comprise the audience for whom such
popular music is composed, that defendant wrongfully appropriated
something which belongs to the plaintiff."4 1 Thus, under Arnstein, the
factfinder must determine the issue of illicit copying based on a
hypothetical lay listener's aural comparison.4 2
The Arnstein court reversed the district court's grant of summary
judgment, and instructed the lower court as to what the plaintiff could use to
prove his case on remand:
At the trial, plaintiff may play, or cause to be played, the pieces in
such manner that they may seem to a jury to be inexcusably alike, in
terms of the way in which lay listeners of such music would be likely to
react. The plaintiff may call witnesses whose testimony may aid the
jury in reaching its conclusion as to the responses of such audiences4. 3
This language suggests that the jurors are not to decide illicit copying
based on personal responses, but rather on how they perceive a "lay
listener" would be likely to "react." 4 Furthermore, expert testimony on
this issue is permitted only for the purpose of determining the reactions
of lay audiences.4 5 Thus, under Arnstein, the expert may testify as to the
following: first, the expert's perceptions, based on analysis or dissection,
of any similarities between the plaintiff's and the defendant's works
(these perceptions are permissible evidence only on the issue of copying);
and second, the expert's perception of a lay listener's perception of any
similarities, which is the only expert testimony to be considered by the
jury on the issue of improper appropriation.
40. Id. at 473. Actionable copying, therefore, is copying that is violative of this
interest. See infra note 147 and accompanying text.
41. Arnstein, 154 F.2d at 473.
42. For that reason, tone-deaf persons should be excluded from the jury. See id. at
473 n.22. The court suggested use of advisory juries for determination of this issue in
bench trials. See id. at 473.
44. The analogy to the conduct of a "reasonably prudent person under the
circumstances" in negligence law is apparent. See Metzger, Name That Tune: A Proposaflor an
Intrinsic Test of Musical Plagiarism,34 Copyright L. Symp. (ASCAP) 139, 163 (1987).
45. The court stated that, although
[e]xpert testimony of musicians may also be received ... it will in no way be
controlling on the issue of illicit copying, and should be utilized only to assist in
determining the reactions of lay auditors. The impression made on the refined
ears of musical experts or their views as to the musical excellence of plaintiff's
or defendant's works are utterly immaterial on the issue of misappropriation.
Arnstein, 154 F.2d at 473.
Arnstein's definition of the expert's role in proving improper
appropriation raises problems. Whether an expert, highly educated in the field of
music theory, analysis, and history, can in fact hear again as a lay listener
is speculative at best. It is also questionable whether the witness'
qualifications as a music expert establish an expertise in the aural perceptions of
a lay hearer. Whether a jury can be presumed to know what constitutes
a "lay listener's" response is similarly problematic.4 6
In his dissent, Judge Clark sharply criticized47 the court's analysis and
construction of legal precedent:
I find nowhere any suggestion of two steps in adjudication of this issue,
one of finding copying which may be approached with musical
intelligence and assistance of experts, and another that of illicit copying
which must be approached with complete ignorance; nor do I see how
rationally there can be any such difference, even if a jury-the now
tchhoosseenisisnusetsruamndentthoefemviudseinccael daectceocrtdioinng-lcyo.4u8ld be expected to separate
Judge Clark maintained that copyright infringement is actionable
wherever there is actual copying, regardless of the degree to which the
defendant used the plaintiff's work in the creation of his own.4 9 The sole issue,
then, is whether "the claim of similarities [is] sufficient to justify the
inference of copying."5 In Judge Clark's view, although "one may look to
the total impression to repulse the charge of plagiarism where a minute
'dissection' might dredge up some points of similarity,... one must [not]
keep his brain in torpor for fear that otherwise it would make clear
differences which do exist.""1 More simply stated, expert analysis and
dissection should not be wholly disregarded merely because their abuse might
lead to unjust results.
Noting that "[m]usic is a matter of the intellect as well as the
emotions," 2 Judge Clark advocated a less restrictive use of music experts,5 3
46. Cf Whelan Assocs., Inc. v. Jaslow Dental Laboratory, Inc., 797 F.2d 1222,
123233 (3d Cir. 1986) (noting the doubtful value of the ordinary observer test in cases
involving complex subject matter unfamiliar to most members of the public), cert. denied, 479
). Music is among "the most baffling of the arts." N. Cook, A Guide to
Musical Analysis 1 (1987). The accessibility of music, and its ability to involuntarily
affect its listener do not render it simple subject matter, for music is the product of "the
most apparently precise and rational techniques." See id.
47. Judge Clark characterized the court's opinion as "anti-intellectual and
bookburning." Arnstein, 154 F.2d at 478 (Clark, J., dissenting).
48. Id. at 476 n.1.
49. See id.
51. Id. at 476.
52. Id. ("that is why eminent musical scholars insist upon the employment of the
intellectual faculties for a just appreciation of music"). In this vein, Professor Kerman
[T]here is nearly always some combination of feeling and thinking in our
response to music, some combination of emotional and intellectual elements.
This is true when popular music is in question just as much as with the more
self-consciously "artistic" music of the concert hall. It is true that plenty of
although he also acknowledged the potential for abuse of expert
dissection. 4 Thus, Judge Clark advocated the use of experts on the overall
issue of liability and firmly rejected the court's reliance on "what lay
auditors may think of [the music]," because lay hearers are incompetent
on the issue." He believed that chaos would result from the practice of
making "all decisions of musical plagiarism... by ear, the more
unsophisticated and musically naive the better."56 Although in previous cases
the court had relied on "what seemed the total effect," it nonetheless had
always "analyzed the music enough to make sure of an intelligible and
SID & MARTY KROFFT TELEVISION PRODUCTION; INC V
McDONALD'S CORP. AND EXPERT TESTIMONY
Despite the efforts of Judge Clark," the copyright infringement
principles of Arnstein have endured. 9 In particular, Arnstein's limitation on
the use of expert dissection and analysis continues to be good law."°
Nevertheless, the Court of Appeals for the Ninth Circuit, in Sid & Marty
Krofft Television Productions,Inc. v. McDonald's Corp.,61 attempted a
bold refinement of the law in this area.
In Krofft, the plaintiffs claimed that the defendants' "McDonaldland"
television commercials infringed their copyright in the "H.R. Pufnstuf"
children's television show.62 The complaint also alleged infringement of
various copyrighted articles of "Pufnstuf" merchandise because
McDonald's had marketed a whole line of merchandise based on the characters
in their commercials.6" At trial, the jury found in favor of the plaintiffs
on the issue of infringement, and the Court of Appeals for the Ninth
Circuit affirmed the judgment."4
The Idea-Expression Dichotomy Limitation
Apparently responding to previous misconstruction of the applicable
law,6" the court included a detailed discussion of proof of infringement6 6
and superimposed the difficult doctrine6 7 of the idea-expression
dichotomy 68 upon the two-step infringement analysis of Arnstein v. Porter. The
court presumed that the bifurcation of the Arnstein test had been
motivated in fact by the then unarticulated doctrine of the idea-expression
dichotomy.69 Professedly "not resurrect[ing] the Arnstein approach," 70
Krofft established a similarly bifurcated test which, although significantly
different, parallels the Arnstein test in that it delimits the use of expert
The Krofft court was dissatisfied with the infringement equation:
proof of ownership + access + substantial similarity = infringement.71
Concerned that such a formulation would overextend the scope of
copyright protection, the court strove to refine the formulation. 72 The court
reasoned that a "new dimension ' 73 should require that substantial
similarity extend not only to general ideas, but also to the expression of those
ideas.74 Therefore, the requirement of substantial similarity implies a
two-step inquiry: first, whether there is substantial similarity of ideas,
and, second, whether there is substantial similarity in the expression of
The Krofft test for substantial similarity of ideas-"the extrinsic
test" 7 6 -"depends ... on specific criteria which can be listed and
analyzed.... [A]nalytic dissection and expert testimony are appropriate. '7 7
expression dichotomy"). The articulation of the idea-expression dichotomy post-dated
Arnstein. See generally 1 M. Nimmer & D. Nimmer, Nimmer on Copyright § 2.18[C], at
2-200 (1988) (discussion of benchmark case of Mazer v. Stein, 347 U.S. 201 (1954)); W.
Patry, Latman's The Copyright Law 30-34 (6th ed. 1986) (discussing idea-expression
70. Krofft, 562 F.2d at 1165 n.7.
71. See Krofft, 562 F.2d at 1162. Note that this "equation" is not theArnstein
formulafion. See supra text accompanying notes 15-18, 30-37; infra text accompanying notes
72. The court appeared troubled that the formulation
would produce some untenable results. For example, a copyright could be
obtained over a cheaply manufactured plaster statue of a nude. Since ownership
of a copyright is established, subsequent manufacturers of statues of nudes
would face the grave risk of being found to be infringers if their statues were
substantially similar and access were shown.
Krofft, 562 F.2d at 1162-63 (emphasis added). The court attributed this unjust result in
part to the minimal prerequisites for copyright registration. Id. at 1163 n.5. But, as even
Krofft indicated, "the scope of protection against infringement is not necessarily
coextensive with the scope of the copyright secured." Id. Perhaps better stated, the principle is
that "'the degree of protection afforded by the copyright [registration] is measured by
what is actually copyrightable' in the materials, and not by the entirety of the
submission" to the Copyright Office. Harcourt Brace & World, Inc. v. Graphic Controls Corp.,
329 F. Supp. 517, 525 (S.D.N.Y. 1971) (quoting Dorsey v. Old Surety Life Ins. Co., 98
F.2d 872, 873 (10th Cir. 1938)). This rule of copyright law affords the alleged infringer
far greater protection than the Krofft court acknowledges.
73. See Krofft, 562 F.2d at 1164.
74. See id.
75. See id.
77. Id. The court provided the following example to explain how the extrinsic test is
to be applied: "the idea ... embodied [in a nude statue] is a simple one-a plaster
recreation of a nude human figure. A statue of a horse or a painting of a nude would not
embody this idea and therefore could not infringe." Id. This hypothetical is of little
assistance in explaining the test, and in no way illuminates the need for and relevance of
expert testimony. Intuitively, one would expect that ideas embodied by a work would be
discernible without the assistance of experts. For example, in Aliotti v. R. Dakin & Co.,
831 F.2d 898 (9th Cir. 1987), the extrinsic test was satisfied because "both lines of
prodThe issue of substantial similarity of expression of the ideas is
"necessarily more subtle and complex, 78s not because the similarity of expressions
is hard to discern, but because the "expression" of the idea is difficult to
distinguish from the idea itself.79 According to the Krofft court, the
appropriate test of substantial similarity of expression is "an intrinsic
onedepending on the response of the ordinary reasonable person."8 "
Rather than clarifying or adding "a new dimension, ' 8 2 Krofft's
bifurcated substantial similarity test only muddies the waters. On the one
hand, the court claimed that Arnstein is still good law, 3 yet, on the
other, expressly declined to "resurrect" it.8 4 Moreover, Krofft's
suggestion that its new formulation harmonizes with Arnstein15 cannot
withstand even mild scrutiny.
According to Krofft, an infringement plaintiff must prove four
3) substantial similarity of ideas; and
4) substantial similarity of expression of those ideas.
Under Arnstein, however, the plaintiff need prove only three elements:
copying (access8 6 + similarities evidencing copying); and
3) improper appropriation.
Krofft equates its second and third elements with Arnstein's second:
"When the court in Arnstein refers to 'copying' which is not itself an
ucts depict the same subject matter--stuffed dinosaur toys." Id. at 900-01. Such an
inquiry hardly requires the aid of expert analysis or dissection.
78. Krofft, 562 F.2d at 1164. Interestingly, the Krofft court adopted the "total
concept and feel" approach, see id. at 1167 (citing Roth Greeting Cards v. United Card Co.,
429 F.2d 1106, 1110 (9th Cir. 1970)); see also Hartman v. Hallmark Cards, Inc., 833 F.2d
117, 120-21 (8th Cir. 1987) ("[i]nfringement of expression occurs only when the total
concept and feel of the works in question are substantially similar"), which by its very
terms suggests that a finding of infringement can turn on similarities of concepts. By
statute, however, concepts are expressly denied copyright protection. See 17 U.S.C.
§ 102(b) (1982).
79. See Krofft, 562 F.2d at 1164.
80. Id. In seemingly circular reasoning, the court explains that "it is intrinsic because
it does not depend on the type of external criteria and analysis which marks the extrinsic
test.... Because this is an intrinsic test, analytic dissection and expert testimony are not
appropriate." See id.
81. See id.
82. Id. at 1164.
83. See id. at 1165.
84. See id. at 1165 n.7.
85. See id. at 1165, 1165 n.7.
86. Note that in some cases access may be inferred from striking similarities. See
supra note 33 and accompanying text.
infringement, it must be suggesting copying merely of the work's idea,
which is not protected by copyright."8 7 Furthermore, Krofft suggests
that its fourth element is similarly reflected in Arnstein's third: "To
constitute an infringement, the copying must reach the point of 'unlawful
appropriation,' or the copying of the protected expression itself."8 8
Amstein did not contemplate this type of qualitative distinction between
material copied and material improperly appropriated, as Krofft presumes.
Rather, Arnstein's distinction was one of the degree to which defendant
copied plaintiff's work.89 Moreover, if Krofft's professed parallels to
Arnstein's test are followed through, the implication is that: access +
substantial similarity of ideas = copying. Surely this seems less
compelling circumstantial evidence of copying than that required by Arnstein,
that is, access + sufficient similarities to evidence copying = copying.
Indeed, in Krofft's example, a cheap statue of a nude90 would be
"copied"'" whenever another produced a cheap statue of a nude.92
In short, Arnstein and Krofft are farther apart than Krofft suggests.
Consequently, the role of expert analysis and dissection is necessarily
different under Krofft and Arnstein. In Krofft, expert analysis and
dissection may go only to the determination of whether there is a substantial
similarity of ideas between the two works. In Arnstein, expert analysis
and dissection may be considered on the issue of copying, that is, in
identifying similarities which, with proof of access, evidence copying. In
Krofft, expert analysis is not relevant to the determination of substantial
similarity of expression of ideas; whereas, in Arnstein, expert dissection
testimony is not to be considered on the ultimate issue of "improper
In music plagiarism cases,93 application of the Krofft standards is even
more problematical. Under Krofft, consideration of expert analysis and
dissection hinges upon the nature of the works' allegedly similar
elements, that is, whether they constitute idea or expression. Generally, the
idea-expression distinction has proved to be elusive.94 In music,
however, the distinction between idea and expression is, at best, chimerical.
87. Krofft, 562 F.2d at 1165. This is a flawed reading of Arnstein. Under Arnstein,
"copying... is usually proved by circumstantial evidence of access to the copyrighted
work and substantial similarities as to protectiblematerial in the two works." Reyher v.
Children's Television Workshop, 533 F.2d 87, 90 (2d Cir.) (citing Arnstein) (emphasis
added), cert. denied, 429 U.S. 980 (1976).
88. Krofft, 562 F.2d at 1165.
89. See Arnstein, 154 F.2d at 473 ("The question, therefore, is whether defendant
took from plaintiff's work so much ... that defendant wrongfully appropriated
something which belongs to plaintiff.") (emphasis added).
90. See supra note 72.
91. Infringement would not be the necessary finding.
92. See supra note 72.
93. Krofft was not such a case; Arnstein was.
94. See, e.g., Warner Bros. v. American Broadcasting Cos., 720 F.2d 231, 240 (2d
Cir. 1983) (claim alleging infringement of "Superman" character); see also supra notes
67-69; infra note 96.
For example, consider the songs at issue in Bright Tunes Music Corp.
v. HarrisongsMusic, Ltd.95 In Bright Tunes, the court found that George
Harrison's "My Sweet Lord" infringed the copyright of "He's So Fine."
A strict application of Krofft would require that the factfinder consider
expert analysis and dissection on the issue of substantial similarity of
ideas, but disregard such testimony on the issue of substantial similarity
of expression. This is not practicable. First, the ability of a jury to
adequately comprehend the idea-expression dichotomy is doubtful; federal
judges have found the doctrine difficult to apply96 since its inception. 97
Furthermore, even assuming a basic understanding of the doctrine, its
application to music as the subject matter of copyright poses a still
greater hurdle. What of a song's music is "idea" and what is
"expression"? 9 8
EXPERT ANALYSIS IN PRACTICE: SELLE V. GIBB AND THE
SHORTCOMINGS OF ARNSTEIN
Recent music plagiarism cases have, for the most part, ignored Krofft's
introduction of the idea-expression dichotomy and adhered to the
principles of Arnstein.99 Selle v. Gibb,1°° a well-known music plagiarism case
95. 420 F. Supp. 177 (S.D.N.Y. 1976), aff'd sub nom. Abcko Music Inc. v.
Harrisongs Music Ltd., 722 F.2d 988 (2d Cir. 1983).
96. See, e.g., Franklin Mint Corp. v. National Wildlife Art Exch., Inc., 575 F.2d 62,
65 (3d Cir.) ("Precision in marking the boundary between the unprotected idea and the
protected expression ... is rarely possible."), cert. denied, 439 U.S. 880 (1978); see also
supra notes 67-69, 94.
97. "Idea" has a very specific and different meaning in the vocabulary of musicians
and composers. A musical "idea" is the composer's theme, his "gift from Heaven."
Aaron Copland, supranote 54, at 23. Often the idea is a melody line. See id. Ironically,
findings of infringement often are predicated upon musical "ideas," that is, melodic
similarities. See, e.g., Northern Music Corp. v. King Record Distrib. Co., 105 F. Supp. 393,
398 (S.D.N.Y. 1952) (focusing on "substantial melodic similarity"); see also Siskind v.
Newton-John, 1987 Copyright L. Dec. %26,113, at 21,103 (S.D.N.Y. May 22, 1987)
(noting melody is the "most important feature of the music").
98. See Comment, An ImprovedFrameworkfor Music PlagiarismLitigation, 76 Calif.
L. Rev. 421, 443 (1988) ("In music there is no 'idea' or 'expression' to be distinguished.");
cf Franklin Mint Corp. v. National Wildlife Art Exch., Inc., 575 F.2d 62, 65 (3d Cir.
1978) ("Troublesome... is the fact that the same general principles are applied in claims
involving plays, novels, sculpture, maps, directories of information, musical
compositions, as well as artistic paintings. Isolating the idea from the expression... necessarily
depend[s] to some degree on [what] the subject matter is.").
In a recent Ninth Circuit music plagiarism case, on defendants' summary judgment
motion, the idea-expression issue was avoided because the defendants stipulated, for the
purposes of their motion, that substantial similarity of the compositions' ideas existed.
See Baxter v. MCA, Inc., 812 F.2d 421, 424 (9th Cir.), cert. denied, 108 S. Ct. 346 (1987).
The Court, purportedly following Krofft, found that the district court had erred in
granting summary judgment for the defendants. Although the district court judge claimed to
have an ear "'as lay as they come,' " id. at 423 (quoting unreported opinion of the district
court), the appellate court found that his ear was not "lay enough," that "reasonable
minds could differ as to whether [the two musical works] are substantially similar." Id.
99. See, e.g., Benson v. The Coca-Cola Co., 795 F.2d 973 (1lth Cir. 1986); Selle v.
Gibb, 567 F. Supp. 1173 (N.D. Ill. 1983), aff'd, 741 F.2d 896 (7th Cir. 1984); Testa v.
tried before a jury in 1984, illustrates this substantial adherence to the
forty-year-old Arnstein principles. The testimony of the plaintiff's music
expert was typical in structure and line of questioning, and was
appropriately limited to the issue of copying.
In Gibb, the plaintiff, Ronald Selle, a part-time musician and
composer, sued the Bee Gees1 °1 for copyright infringement. Selle alleged that
the Bee Gees' song, "How Deep Is Your Love," infringed the copyright
of Selle's song, "Let It End." Unable to produce direct evidence of
copying, Selle resorted to the circumstantial evidence formula: access +
similarities evidencing copying = copying.10 2 Because Selle had no evidence
of access, however,103 he sought to establish access by demonstrating
striking similarity between the two works. 1 4
To achieve this, Selle relied heavily upon the testimony of his music
expert. This, of course, comported with Arnstein because the issue of
access pertains to proof of copying, for which expert dissection and
analysis are appropriate. 0 5
The Expert Testimony1 06
The structure of the direct examination was not unusual. Plaintiff's
counsel first established the general qualifications of the expert, Arrand
Parsons. 107 Parsons testified that he was qualified to make the
comparaJanssen, 492 F. Supp. 198 (W.D. Pa. 1980). But see Baxter v. MCA, Inc., 812 F.2d 421,
423 (9th Cir.) (following Krofft), cert. denied, 108 S. Ct. 346 (1987).
100. 567 F. Supp. 1173 (N.D. Ill. 1983), aff'd, 741 F.2d. 896 (7th Cir. 1984).
101. The Bee Gees are a group of three brothers, Barry, Maurice and Robin Gibb.
They are internationally known performers and creators of popular music.
The plaintiff also named as defendants Paramount Pictures Corporation, which made
and distributed the movie, "Saturday Night Fever," the soundtrack of which featured the
allegedly infringing song, "How Deep Is Your Love," and Phonodisc, Inc., which made
and distributed the cassette tape of the song.
102. See supra note 17.
103. See Selle v. Gibb, 567 F. Supp. 1173, 1181 (N.D. Ill. 1983) ("Plaintiff concedes he
has no evidence that the Bee Gees ... ever had the opportunity either to have seen the
score of [plaintiff's] song, or to have heard it played."), aff'd, 741 F.2d 896 (7th Cir.
104. See Gibb, 741 F.2d at 901. Arnstein expressly contemplates this type of proof of
access, "[b]ut a case could occur in which the similarities were so striking that we would
reverse a finding of no access, despite weak evidence of access (or no evidence thereof
other than the similarities)." Arnstein v. Porter, 154 F.2d 464, 469 (2d Cir. 1946)
105. See supra notes 31-36 and accompanying text.
106. Notably, defendants called no expert witness to testify during the trial, see Selle v.
Gibb, 741 F.2d 896, 904 (7th Cir. 1984), although an analysis report for defendants by
Harold Barlow, one of the leading music experts in the country, was the subject of part of
a deposition by defendants of plaintiff's expert, see Record at 275-78, 340-42, 344, Selle
v. Gibb, 567 F. Supp. 1173 (N.D. Ill. 1983) (No. 78-3656), aff'd, 741 F.2d 896 (7th Cir.
1984). Barlow's report noted the similarities of Selle's song to other Bee Gees songs
predating Selle's composition. See id. at 276. Barlow also noted similarities to Beethoven
and Handel. See id. at 342.
107. Parsons had been a music professor at Northwestern University for thirty years
and served as program annotator for the Chicago Symphony Orchestra. He received his
tive analysis of the two songs because of his extensive experience with
music analysis."' 8
The plaintiff's claim was based on similarities of two music themes
common to both works. 0 9 The first theme, Theme A, consisted of eight
measures; the second, Theme B, was four measures long. Before
explaining his analysis, Parsons stated his conclusion: "My opinion is that the
two songs had such striking similarities that they could not have been
written independent of one another.... I would say I don't see how
['How Deep Is Your Love'] could have been composed independent of
'Let It End.' "o After describing to the jury the process of musical
notation,"1 1 Parsons began his analysis.
Parsons focused on the songs' similarities of pitch and rhythm for each
of the common themes. 11 For each theme, using Mylar overlays,' 13
Parsons first demonstrated the number of identical pitches with the same
relative location within their measures, and then demonstrated the
number of identical rhythmic impulses. Following each part of his
analysis, recordings 1 4 of the analyzed themes were played as Parsons
physically pointed out the similarities on the music manuscript. 5
Parsons testified that "of the 34 notes in the Selle Theme A or first
eight bars and 40 notes in the Gibb Theme A, or first eight bars,"' 116
"[t]here are 24 notes... in common, and in similarity [sic] symmetrical
B.A. in music from Columbia University and held master's degrees in education and
composition. Parson's extensive music studies had covered harmony, counterpoint, form,
analysis, orchestration, fugue and composition. See Record at 187-98. These credentials
are impressive but not atypical. In a recent plagiarism case, the chairman of the Juilliard
School music theory department testified on behalf of Rolling Stone Mick Jagger. See
Gannett Westchester Newspapers, Apr. 21, 1988, at 15, col. 3.
108. Record at 198. Note the following excerpt, however:
Q: Prior to your involvement in this case, have you ever made a comparative
analysis of two popular songs?
Id. The defendants seized on this admission, both during cross-examination, see Record
at 266-67, 288-90, and on appeal, see Selle v. Gibb, 741 F.2d 896, 904 (7th Cir. 1984).
109. The claim was based on music alone; the lyrics of the two songs were completely
different. See Record at 203.
110. Id. at 202.
111. See id. at 205-18.
112. Parsons' purpose was "[t]o compare the melodies to see what similarities existed
between the two compositions." Id. at 199.
113. These overlays indicated and numbered the similarities using red arrows and
numerals. Musical "ties" were identified in turquoise. In short, the demonstration was
elaborate. See id. at 222-23, 226-27, 232-34.
114. The faithfulness of the recordings to the copyrighted versions of the songs was a
hotly contested issue at trial. The recordings used in Parsons' demonstration had been
made at plaintiff's request, and in anticipation of trial. Defendants questioned whether
the renditions were accurate, whether the copyrighted versions had been used in making
the recordings, and whether it was appropriate to use instruments not called for
specifically by the copyrighted version of the song. See, e.g., id. at 256-58, 262-63, 323-27.
115. See, e.g., id. at 230.
positions. '117 Of the thirty-five rhythmic impulses in the Selle
composition and the forty rhythmic impulses in the Gibb composition, Parsons
found that thirty were identical."1 8 Parsons concluded that "the
similarities are so great, the similarities are so vivid and striking that they would
preclude independent composition."1' 9 After a similar analysis of the B
themes, Parsons reached the same conclusion.12 0 Next, Parsons noted
that each theme appeared in the same parts of each song, and that this
supported his conclusion. 2 1 Finally, Parsons testified that he knew of no
"two musical compositions by two different composers that contain as
many striking similarities as exist between [these two songs]." 1 22
On cross-examination, defendants attacked Parsons' testimony on
many levels. First, defense counsel sought to demonstrate that Parsons'
analysis had relied improperly on printed versions of the Bee Gees's
song.123 Second, defense counsel focused on Parsons' inexperience with
popular music analysis, 2 4 and, specifically, his failure to familiarize
himself with other Bee Gees works before reaching his conclusion.1 25 Next,
by pointing out the sequential nature of Theme A-that Theme A was
really two measures developed by a sequential repetition, defense counsel
sought to minimize the significance that Parsons had given the Theme A
eight-bar similarity.126 Defense counsel continued to question critically
the relevance of other similarities Parsons had noted in his direct
testimony.12 7 The cross-examination then sought to expose alterations in the
118. See id. at 236.
119. Id. at 237.
120. See id. at 248.
121. See id. at 249-50.
122. Id. at 250.
123. See id. at 256-58. This was especially important because the Bee Gees could not
read or notate music, and, therefore, the defense counsel asserted, the comparison should
have been based on a work tape the Bee Gees had recorded in France. See id. at 346-47.
124. See, e.g., id. at 266-67, 289-90.
125. See id. at 268-72.
126. See id. at 292-98.
127. For example, defense counsel cast doubt on the significance of the noted rhythmic
similarities as follows:
Q: Would you say that the rhythm in this case, the rhythm pattern, was a
Not unusual. Something that is found in many songs-well, not
manyfound in other songs?
A: I couldn't answer to that without making shall we say extensive
comparisons of the rhythmic elements of those four eight bars... two [sic] infinite
numbers of songs, to find out if indeed it is common to, similar to other
songs in the exact way that it appears there, in the, the point of
comparison, you see.
Q: You haven't done that?
A: I have not, no....
Q: You didn't think that was important to a determination of whether there
was any significance to the rhythm being duplicated in the two songs, at
least to the extent you claim it has been?
songs as they were recorded in anticipation of trial.128
Following a brief redirect examination, 129 Parsons was questioned
about two points not raised by either counsel. First, after noting that
Parsons' analysis was based on twelve allegedly strikingly similar
measures, 130 the court inquired as to the total length of each song. 131 Parsons
testified that the Selle and Gibb songs consisted of thirty-two bars and
twenty-six bars, respectively. 132 Second, the court questioned Parsons
about his use of the term "striking similarity"; that is, whether the term
is used in music analysis and whether Parsons knew of its legal
implications. 133 Parsons answered that, before analyzing the two songs, he had
been unaware of the legal implications of the term, but his testimony was
unclear about whether the term is used in the context of music
The dissection testimony thus sought to show striking similarity and
thereby establish the element of access. At no time did the expert testify
about the substantiality of the alleged appropriation, except, perhaps,
indirectly, when the judge inquired as to the length of the songs after he
had first noted the length of the themes that were the subject of the
B. Instructions to the Jury
The jury instructions in Gibb, 136 however, did not expressly articulate
the fundamental Arnstein distinctions. For example, the jury was not
instructed to disregard the expert's dissection when considering the
substantiality of the similarities. 137 Nor did the court delineate the two steps
of Arnstein: "Infringement requires proof of originality in plaintiff's
work and copying by defendant composers[,] showing that, one, the
defendants had access to the work, and two, that the defendants' work is
substantially similar to the plaintiff's.' ' 138 Moreover, the court either
injected the lay observer test into the issue of copying, or melded the
elements of copying and improper appropriation:
If you find that the defendants had access to plaintiff's song so that
they were able to copy it, then plaintiff must also establish a substantial
similarity in the two works ....
To prove substantial similarity plaintiff must establish ... that the
average person would recognize [defendant's song] as having been
appropriated from parts of [plaintiff's song] ....
However imprecise the jury instructions, Gibb provides a clear
demonstration of the role of music expert testimony as developed in Arnstein.
The Shortcomings of Arnstein
Despite the fact that the Arnstein principles have endured for forty
years, Arnstein has had its detractors.
Many have focused on Arnstein's
average lay observer test' 4 and the expert testimony limitation. Against
the former, Professor Nimmer has argued that copyright is intended "to
protect writers from the theft of the fruits of their labor, not to protect
against the general public's 'spontaneous and immediate' impression that
the fruits have been stolen."' 41 In addition, the analogy to the
"reasonable man under the circumstances"' 4 in negligence law is not sound; the
"average lay hearer" standard is not a standard by which the factfinder
measures the defendant's conduct."4
Rather, it is a standard by which
the factfinder determines the response of an "average lay hearer,"
presumably someone other than the defendant, to the similarities of the two
works.'" Furthermore, an average lay hearer may not be qualified to
determine the responses of the particular audience for whom the music
has been composed.'4 5 If, as Arnstein suggested,"' copyright law should
protect the plaintiff's interest in potential financial returns,'4 7 the
mate test for infringement should consider specifically the response of the
market from which those returns would derive1. 4 Finally, the
"layhearer test" may promote findings of infringement based on overall
similarities which, in fact, may be attributable, not to copying, but to
common sources 149 or genuine coincidence, 150 and conversely, as Professor
Nimmer has suggested, under the lay hearer test, "very real
tion" may go undetected.
The Arnstein limitation on expert testimony also has inspired
criticism. 1 52 A frequent criticism notes that:
[T]he distinction between the two parts of the Arnstein test may be of
doubtful value when the finder of fact is the same person for each step:
that person has been exposed to expert evidence in the first step, yet
she or he is supposed to ignore or "forget" that evidence in analyzing
the problem under the second step. Especially in complex cases, we
doubt that the "forgetting" can be effective when the expert testimony
is essential to even the most fundamental understanding of the objects
In other words, the limitation of Arnstein is more theoretical than
More importantly, however, adherence to Arnstein's exclusion of
ex148. See Nimmer, supranote 8, at § 13.03[E], at 1348 n.93 ("Ifthe works in issue are
directed to a particular audience, then the 'spontaneous and immediate' reaction of that
audience is determinative. Thus, if the works are directed to an audience of children,
'this raises the particular factual issue of the impact of the respective works upon the
minds and imaginations of young people,' who may not be as bent as their elders upon
'"detecting disparities."' ") (quoting Sid & Marty Krofft Television Prods., Inc. v.
McDonald's Corp., 562 F.2d 1157, 1166
(9th Cir. 1977)
(quoting Ideal Toy Corp. v. Fab-Lu,
Ltd., 261 F. Supp. 238, 241 (S.D.N.Y. 1966))).
149. See Rizzi v. Robbins Music Corp., 58 U.S.P.Q. 315 (S.D.N.Y. 1943) (similarity
between plaintiff's and defendant's songs probably resulted from common source rather
than defendant copying from plaintiff because there was no evidence of access and
defendant testified that he patterned his song after Wagnerian theme); see also Selle v. Gibb,
741 F.2d 896, 905 (7th Cir. 1984) (noting that similarities may have been attributable to
common sourcel; MCA, Inc. v. Wilson, 425 F. Supp. 443, 451-52 (S.D.N.Y. 1976) (court
examined similarities to determine whether attributable to use of common musical forms
or elements and, therefore, non-infringing), aff'd and modified on other grounds, 677
F.2d 180 (2d Cir. 1981).
150. A finding of copyright infringement cannot properly be based upon similarities
that result from genuine coincidence. See Sheldon v. Metro-Goldwyn Pictures Corp., 81
F.2d 49, 54 (2d Cir. 1936) (L. Hand, J.) ("[I]f by some magic a man who had never
known it were to compose anew Keats's Ode on a Grecian Urn, he would be an 'author,'
and, if he copyrighted it, others might not copy that poem, though they might of course
copy Keats's."), cert. denied, 298 U.S. 669 (1936).
151. See Nimmer, supra note 8, at § 13.03[E], at 13-52.
152. See, ag., Whelan Assocs., Inc. v. Jaslow Dental Laboratory, Inc., 797 F.2d 1222,
1232-33 (3d Cir. 1986) (action for infringement of computer programs), cert.denied, 479
); cf. Spectravest, Inc. v. Mervyn's Inc., 673 F. Supp. 1486, 1492 (N.D.
Cal. 1987) (Because "[r]easonable minds often differ as to the 'total concept and feel' of
complex artworks" such as songs and movies, "[w]hat must be weighed in these cases are
subtle, nuanced, interrelationship [sic] of many components.").
153. Whelan, 797 F.2d at 1232-33.
154. See, e.g., supra notes 136-39 and accompanying text.
pert dissection and analysis on the issue of improper appropriation
precludes a meaningful evaluation of the quality' 55 and quantity of
similarities by the factfinder. Once copying is established, the factfinder
must determine the issue of "improper appropriation" by focusing on
similarities that relate to copyrightable material, and discounting those
which are the result of common source or common musical form rather
than copying.' 56
Without the benefit of expert analysis and dissection,
the factfinder is ill-equipped to distinguish these two types of similarities.
Consequently, the unguided, possibly "incompetent"' 5 7 ears of the
factfinder may perceive as qualitatively important similarities that are
not the result of copying.
In addition, the Arnstein limitation deprives the factfinder of
information that may help the factfinder more easily hear the works at issue
through the ears of the "audience for whom such popular music is
By noting similarities dictated by the particular type of
musical works at issue, expert dissection and analysis provide the factfinder
with guidance as to the response of the targeted audience; similarities
dictated by form or type of work are most likely insignificant to the ears
of the targeted audience familiar with that form or type of work. In
short, expert dissection and analysis are relevant 5 9 to the improper
appropriation determination, and, accordingly, the jury should be
encouraged to consider them on this issue. Although abuse of expert
dissection and analysis 6 ° may make it difficult for the factfinder "to see
the forest for the trees,"'' this danger is substantially outweighed by the
benefits of the increased guidance' 6 2 with which the factfinder will make
155. "Even if a copied portion be relatively small in proportion to the entire work, if
qualitatively important, the finder of fact may properly find substantial similarity."
Baxter v. MCA, Inc., 812 F.2d 421 (9th Cir.), cert. denied, 108 S. Ct. 346 (1987); see, e.g.,
Fred Fisher, Inc. v. Dillingham, 298 F. 145 (S.D.N.Y. 1924) (similarity of an eight note
"ostinato" sufficient to establish infringement).
the ultimate infringement determination.16 3
The idea-expression analysis of Krofft is particularly unsuited to music
as the subject matter of copyright. The Arnstein principles, though
imperfect, provide a more workable analysis for determining music
copyright infringement. The difficulties in applying the Arnstein standards
could be resolved by permitting consideration of expert analysis and
dissection on the ultimate issue of improper appropriation. If experts are
permitted to testify as to the relative importance of the similarities, juries
will less likely attach undue significance to similarities of the works that
the lay hearer misperceives as substantial and unique to the two works at
issue. As a matter of course, experts are heavily involved in music
plagiarism litigation. Although the battle of experts may be intensified, the
ultimate issue of infringement would be better informed and not decided
wholly by unguided ears. In practice, this proposed change may be a
mere formality. As the Arnstein dissent pointed out over forty years ago,
a jury cannot be expected to distinguish the issues and the evidence in
accordance with the Arnstein formulation.
Although Rule 704, enacted long after Arnstein was decided in 1946, does not per se
abolish Arnstein's limitation on the use of expert testimony, it does cast suspicion upon
the validity of the policies underlying the limitation.
163. Notably, even the Arnstein court failed to entirely eliminate the expert's
testimony from the jury's consideration on the ultimate issue of improper appropriation. See
supra note 38.
21. See infra notes 37-42 and accompanying text.
22. 154 F.2d 464 , 468 ( 2d Cir . 1946 ).
23. See infra notes 60 , 99 and accompanying text.
24. The plaintiff, a rather litigious eccentric, had filed and lost five other plagiarism suits prior to Arnstein v. Porter. For a more complete discussion , see Orth , The Use of Expert Witnessesin MusicalInfringement Cases , 16 U. Pitt . L. Rev. 232 , 247 n. 79 ( 1955 ).
25. Arnstein , 154 F.2d at 467. The allegedly infringing songs included such Porter standards as "Begin the Beguine," "My Heart Belongs to Daddy," "Night and Day," and "You'd Be So Nice to Come Home To." See id .
26. The Arnstein summary judgment standard-"whether 'there is the slightest doubt as to the facts' "--wasabandoned long ago . Arnstein , 154 F. 2d at 468 (citation omitted); see Heyman v . Commerce and Indus. Ins. Co., 524 F.2d 1317 , 1319 ( 2d Cir . 1975 ). However, as recently as 1980, plaintiffs have argued that, in copyright infringement cases, the Arnstein summary judgment standard should still apply . See Testa v. Janssen , 492 F. Supp . 198 , 203 n.5 (W.D. Pa . 1980 ). Courts consistently have refused to apply a special standard for summary judgment in this context, see , e.g., id.; Scott v. Paramount Pictures Corp., 449 F. Supp . 518 , 520 (D.D .C. 1978 ), aff'd, 607 F. 2d 494 (D.C. Cir . 1979 ), cert. denied, 449 U.S. 849 ( 1980 ), and instead apply the standard of Rule 56(c) of the Federal Rules of Civil Procedure-whether a genuine issue ofmaterial fact exists, see , e.g., Baxter v. MCA, Inc ., 812 F.2d 421 , 424 (9th Cir.) (citing Fed. R. Civ . P. 56 (c)), cert denied, 108 S. Ct . 346 ( 1987 ); Zimmerman v . Tennille , 1988 Copyright L. Dec. (CCH) 26 ,267, at 21 , 799 (S.D.N .Y. April 21, 1988 ) (citing Anderson v . Liberty Lobby , Inc., 477 U.S. 242 ( 1986 ) and Celotex Corp . v. Catrett, 477 U.S. 317 ( 1986 )).
27. See Arnstein, 154 F.2d at 468.
28. The particularly incendiary dissent of Judge Clark casts significant doubts upon the merits of the court's analysis and conclusions . See infra notes 47-57 and accompanying text.
29. Courts still cite Arnstein for its discussion of expert testimony . See, ag., Baxter v. MCA, Inc ., 812 F.2d 421 , 424 (9th Cir.), cert denied, 108 S. Ct . 346 ( 1987 ) ; infranote 60 and accompanying text .
30. This "improper appropriation" element, also known as "illicit copying," was a new factor in the law of infringement . See Orth, supra note 24 , at 249.
31. The evidence of access must establish "a reasonable possibility that the complaining work was availableto the alleged infringer." Selle v . Gibb , 741 F.2d 896 , 901 ( 7th Cir . 1984 ) (emphasis in original); see also Sid & Marty Krofft Television Prods ., Inc. v. McDonald's Corp., 562 F.2d 1157 , 1172 ( 9th Cir . 1977 ) ("Access is proven when the plaintiff shows that the defendant had an opportunity to view or to copy plaintiff's work."). Note, however, that the plaintiff must establish "more than a 'bare possibility' of access." Siskind v . Newton-John, 1987 Copyright L. Dec. (CCH) 26 ,113, at 21 , 102 music lovers claim to enjoy music only for its emotional side and not for its intellectual side .... But these people might ask themselves-for a startwhether the third or thirtieth time they listen to a folk song, rock number, or symphony movement, the same "gut reaction" they experienced the first time still persists in the same way. Is not memory now a consideration, and is not memory an intellectual process ? J. Kerman, Listen 3 ( 1972 ).
53. Arnstein , 154 F.2d at 476 - 77 (Clark, J., dissenting).
54. See id. at 477. Judge Clark noted that finding plagiarism on the basis of insignificant similarities, "by dint of extreme dissection," would be the same as finding "Shakespeare a plagiarist on the basis of his use of articles, pronouns, prepositions, and adjectives also used by others." Id.; see O'Brien v . Thall , 127 U.S.P.Q. 325 , 326 (D. Conn . 1960 ) (Attempting to show similarities, plaintiff, "by force ofarms," made changes in defendant's musical composition .), aff'd, 283 F.2d 741 ( 2d Cir . 1960 ) ; see also Aaron Copland, What to Listen for in Music 6 (2d ed. 1957 ) ("It is insufficient merely to hear music in terms of the separate moments at which it exists. You must be able to relate what you hear at any given moment to what has just happened before and what is about to come afterward.").
55. See Arnstein, 154 F. 2d at 478 (Clark , J., dissenting).
56. Id . at 480.
57. Id . at 476.
58. Judge Clark did not acquiesce after Arnstein. Not a week later , in Heim v. Universal Pictures Co., 154 F.2d 480 ( 2d Cir . 1946 ), Judge Clark again assailed the "novel conceptions of legal plagiarism first announced in the Arnstein case": [T]he issue is no longer one of musical similarity or identity to justify the conclusion of copying-an issue to be decided with all the intelligence, musical as well as legal, we can bring to bear upon it-but is one, first, of copying, to be decided more or less intelligently, and, second, of illicit copying, to be decided blindly on a mere cacophony of sounds . Id. at 491 (Clark, J., concurring).
59. See , e.g., Whelan Assocs., Inc. v. Jaslow Dental Laboratory, Inc., 797 F.2d 1222 , 1232 ( 3d Cir . 1986 ) (infringement of copyright on custom computer programs), cert . denied, 479 U.S. 1031 ( 1987 ); Kisch v. Ammirati & Puris Inc ., 657 F. Supp . 380 , 382 -84 (S.D.N .Y. 1987 ) (alleged infringement of photograph copyright); Broderbund Software, Inc . v. Unison World, Inc., 648 F. Supp . 1127 , 1136 (N.D. Cal . 1986 ) (applying Arnstein's "two-step test" as "interpreted" by the Court of Appeals for the Ninth Circuit in Sid & Marty Krofft Television Prods ., Inc. v. McDonald's Corp., 562 F.2d 1157 ( 9th Cir . 1977 )) ; Silverman v . CBS , 632 F. Supp . 1344 , 1351 -52 (S.D.N .Y. 1986 ) (infringement of copyright in radio programs); Koontz v . Jaffarian , 617 F. Supp . 1108 , 1114 (E.D. Va . 1985 ) (infringement of copyright in manuals used in estimating contractors bids ), aff'd, 787 F.2d 906 ( 4th Cir . 1986 ).
60. See , eg., Concrete Mach . Co. v. Classic Lawn Ornaments, Inc., 843 F.2d 600 , 608 (lst Cir. 1988 ) (citing Arnstein); Universal Athletic Sales Co . v. Salkeld, 511 F.2d 904 , 907 (3d Cir.) (vacating summary judgment in favor of plaintiff because district court relied on dissection on ultimate issue of infringement), cert . denied,423 U.S. 863 ( 1975 ); Hearn v. Meyer, 664 F. Supp . 832 , 844 -45 (S.D.N .Y. 1987 ) (quoting Arnstein); Kisch v. Ammirati & Puris Inc ., 657 F. Supp . 380 , 382 -83 (S.D.N .Y. 1987 ) (same); Midway Mfg . Co. v. Bandai-America, Inc., 546 F. Supp . 125 , 139 (D.N .J. 1982 ) (dissection forbidden to justify finding ofappropriation); Stratchborneo v. Arc Music Corp ., 357 F. Supp . 1393 , 1403 (S.D.N .Y. 1973 ) (expert testimony should be used to raise inference of copying from striking similarities).
61. 562 F.2d 1157 ( 9th Cir . 1977 ).
62. See id. at 1162.
63. See id. at 1161-62.
64. See id. at 1175.
65. See id. at 1162 ( "An analysis of the cases suggests that... statements [of applicable infringement law] frequently serve merely as boilerplate to copyright opinions.").
66. See id. at 1162-65.
67. See id. at 1163 ( "The difficulty comes in attempting to distill the unprotected idea from the protected expression . "); Peter Pan Fabrics, Inc . v. Martin Weiner Corp., 274 F.2d 487 , 489 ( 2d Cir . 1960 ) (L. Hand , J. ) (no principle can be articulated that distinguishes idea from expression); Spectravest, Inc. v. Mervyn's Inc ., 673 F. Supp . 1486 , 1491 (N.D. Cal . 1987 ) (Determining whether there is substantial similarity of the idea or of the expression of the idea is often an "ephemeral task.").
68. As the Krofft court stated, "protection granted to a copyrighted work extends only to the particular expression of the idea and never to the idea itself . " 562 F.2d at 1163.
69. See id. at 1165 ( "[w]e believe that the court in Arnstein was alluding to the idea-
139. Id . at 1079.
140. This test is frequently referred to as "the audience test." See, e .g., Nimmer supra note 8 , § 13 .03[E], at 13- 47 ( 1988 ) ; Metzger, Name That Tune: A Proposaflor an Intrinsic Test of Musical Plagiarism,34 Copyright L . Symp. (ASCAP) 139 , 171 ( 1987 ).
141. Nimmer , supra note 8, at § 13 .03[E], at 13-49 ( footnote omitted) (emphasis in original). Judge Clark lodged a similar complaint in his Arnstein dissent . See supratext accompanying notes 55-56; supra note 58.
142. See Nimmer, supra note 8 , § 13 .03[E], at 13-49 to -50; supra note 44.
143. See id., § 13 .03[E], at 13-50.
144. See supra text accompanying notes 41-42.
145. See Note, Copyright Infringement Actions: The ProperRole for Audience Reactions in DeterminingSubstantialSimilarity, 54 S. Cal . L. Rev. 385 ( 1981 ) (questioning value of lay observer test when copyrighted matter is targeted for a particular, identified audience ).
146. See supra text accompanying notes 40-41.
147. Federal copyright law "is intended [in part] to motivate the creative activity of authors and inventors by the provision of a special reward." Sony Corp. of America v . Universal City Studios , 464 U.S. 417 , 429 ( 1984 ); see 1 M. Nimmer & D. Nimmer , Nimmer on Copyright § 1 .03[A], at 1-31 to 1- 32 ( 1988 ). Accordingly, "the immediate effect of [federal] copyright law is to secure a fair return for an 'author's' creative labor." Twentieth Century Music Corp . v. Aiken, 422 U.S. 151 , 156 ( 1975 ) ; cf Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539 , 566 - 68 ( 1985 ) (noting that the availability of a "fair use" defense is largely dependent upon the effect of the alleged infringer's use on the potential market for the complaining work ).
156. See , e.g., Walker v . Time Life Films, Inc., 784 F.2d 44 , 48 ( 2d Cir . 1986 ) (citing Arnstein v . Porter , 154 F.2d 464 , 468 ( 2d Cir . 1946 )), cert. denied, 476 U.S. 1159 ( 1986 ); Kisch v. Ammirati & Puris Inc ., 657 F. Supp . 380 , 382 (S.D.N .Y. 1987 ) (same). But see Aliotti v . R. Dakin & Co., 831 F.2d 898 , 901 ( 9th Cir . 1987 ) (advocating comparison of the "total concept and feel" of the works at issue ).
157. See supra note 55 , 56 and accompanying text.
158. See Arnstein v. Porter , 154 F.2d 464 , 472 ( 2d Cir . 1946 ) ; supra note 148 and accompanying text .
159. Note, however, that in Arnstein v. Porter,the court justified the exclusion of expert dissection and analysis on irrelevancy grounds . See supra note 38.
160. See supra note 54 and accompanying text .
161. Frankel v. Irwin , 34 F.2d 142 , 144 (S.D.N .Y. 1918 ) (infringement of literary work cannot be established by labored analyses).
162. This objective -to provide the factfinder with more guidance-motivated the framers of the Federal Rules of Evidence to abolish the "ultimate issue rule," see Fed. R. Evid . 704 advisory committee's note, which disallowed opinion testimony on ultimate issues . See McCormick on Evidence § 12 , at 30-32 (E. Cleary 3d ed. 1984 ). Rule 704 abolished the "unduly restrictive" ultimate issue rule, in part because it "generally served only to deprive the trier of fact of useful information." See Fed. R. Evid . 704 advisory committee's note. Additionally, the ultimate issue rule, like the Arnstein limitation on expert testimony, had been criticized for being "difficult of application." See id .