9th Circuit's Acceptance of 'Melodic Reduction' May Change Music Infringement Litigation

In a number of cases, the court found the opinion of similarity offered by the plaintiff's expert musicologist ' usually a music professor or otherwise credentialed music scholar ' to be legally deficient or otherwise irrelevant to the applicable legal standards. However, a decision earlier this year from the U.S. Court of Appeals for the Ninth Circuit in Swirsky v. Carey, 376 F.3d 841 (9th Cir. 2004), amended by 2004 U.S. App. LEXIS 17969 (9th Cir. 2004), appears to have expanded the net of music copyright infringement cases that may survive summary judgment. In Swirsky, the court found that a type of expert musicological analysis, commonly called “melodic reduction,” can raise a triable issue of fact concerning similarity. This article will explain melodic reduction and the problems that the Swirsky decision and melodic reduction may pose for defendants in music copyright infringement cases.

In order to survive a motion for summary judgment on a claim of copyright infringement, a plaintiff must demonstrate, among other things, that the allegedly infringing work is at least “substantially similar” to protectable expression embodied in the plaintiff's work. See, Grubb v. KMS Patriots L.P., 88 F.3d 1 (1st Cir. 1996). In most jurisdictions, the plaintiff must satisfy two tests in order to raise a triable issue concerning substantial similarity. The first is the so-called “extrinsic” test, which involves an evaluation of the similarity of the two works in terms of external, objective criteria. See, Damiano v. Sony Music Entm't Inc., 975 F. Supp. 623, 631 (D.N.J. 1997), appeal dismissed without op., 163 F.3d 1204 (3d Cir. 1998). Proof for the extrinsic test typically involves expert opinion.