Copyright Concerns In Electronic Music

Not all of those elements are necessarily copyrightable. Unprotectible aspects of a song include a common motif in the particular idiom, a clich'd lyric or a simplistic melodic line, or a common key signature and rhythm.

The commonality of many songs follows from the structure of Western music. There are only 12 notes in a chromatic scale (i.e., each note on a piano, which repeat every 12 notes). (This generalization excludes music employing micro-tonalities, or tones whose frequency is “between” the notes on a piano, a technique employed rarely.) As a result, there are only 12 major and 12 minor keys, and a limited number of possible melodies or chord progressions within each key. Thus, most Western songs have used “tonal-functional harmony at their core, and have a traditional songlike melody.” (Quoting Sergiu Gherman, “Harmony and its Functionality: A Gloss on the Substantial Similarity Test in Music Copyrights,” Fordham Intellectual Property, Media and Entertainment Law Journal, 19:2 (2008).) As a result, the limited nature of traditional Western music (particularly commercially oriented music) favors a party seeking to copy it.

While much electronically produced music contains traditional elements of music, an increasing (and increasingly popular) amount uses those elements sparingly, or not at all. Yet only the stodgiest would deny that it is music or a “work of authorship” under the Copyright Act. Indeed, courts have made this same point about music in other styles like hip-hop.

The Copyright Act does not define “music.” At base, music is simply a collection of sound waves arranged in a particular manner. Modern electronic synthesizers can manipulate waveforms to recreate traditional instruments, alter them or create virtually any other kind of sound wave imaginable. The waveforms can take on other characteristics as well, depending on their amplitudes, frequency, phase and other features, all of which combine to make the particular soundwave that a listener hears. The versatility of music software is such that a modern-day musician can apply a multitude of different types of effects (chorus, reverb, delay, compression, distortion, modulation, etc.) to existing sounds, and in the process create an entirely new sound.

Not all synthesized sounds are original, but even unoriginal sounds can be adapted into original works. Music production software comes with a wide array of pre-created, license-free “sample” sounds. Electronic musicians often mix and match these samples, or combine them with other sounds, to create original musical compositions. (For example, one particular synthesizer sound, often called “Hoover” or “Dominator”) appears on numerous electronic songs with minimal, if any, alteration.) Electronic musicians may also alter the samples significantly so as to create entirely new sounds, also forming original musical compositions.

A composition that results from such a creative endeavor may not have the traditional elements of melody, harmony, chord progressions or lyrics. But it represents a creative effort, the likes of which the Copyright Act is designed to protect. A court attuned only to the traditional elements of music may miss what makes electronic music protectible.

Successful prosecution or defense of an electronic music copyright case depends on understanding electronic music ' both its method of creation and the commonly used expressions of the genre.

Plaintiffs must be aware of the characteristics comprising electronic music beyond the traditional markers: synthesizer settings and combinations; timbre; tonality; rhythmic disruptions; and other computerized effects.

Defendants should consider the common or unoriginal elements of the music. Most producers use one of a limited number of digital audio workstations or commercially available sound sets. As a result, many sounds used in modern electronic music contain (or simply are) those “presets.” Two songs may sound similar, but only because their creators used the same unoriginal license-free presets, or a similar method of creating the song. (See, e.g., Watt v. Butler, 744 F.Supp.2d 1315 (N.D.Ga. 2010) (granting summary judgment for defendants; the creator of the allegedly infringing song testified that “[t]he keys on the [computer] keyboard were right beside each other. And that's how the tune came about.”).

Counsel on both sides of a dispute should encourage their clients to articulate the creative process behind their respective work, the legal relevance of which even the artist may not fully appreciate. The creative process in electronic music is not just knob-twiddling or pressing computer buttons. The computer is a musical instrument and the process of composing can be used to explain why the resulting composition is protectible.

Particularly given the “newness” of electronic music, artists should exercise diligence in protecting their copyrights. After all, someone was the first person to chant, “Go [name], it's your birthday” in a hip-hop song and someone was the second. Once the hundredth person uses it, it is an unprotectible part of the idiom, but the second person was arguably violating a copyright that could have been protected by the first. ( See, Lil' Joe Wein Music v. Jackson, 245 Fed.Appx. 873 (11th Cir. 2007) (hip-hop phrase “Go [name], it's your birthday,” not protectible because it was a “common hip-hop chant”).

Courts, for their part, must be willing to consider non-traditional elements of music beyond melody and rhythm, particularly when it comes to expert assistance. Courts analyzing substantial similarity frequently hear experts in musicology whose analysis of musical scores explain similarities in the written representation of the musical work. But problems abound in analyzing sound through written means. Traditional music has a traditional notation, with agreed-upon symbologies. Most electronic music cannot be written out like the score for a Beethoven sonata, as there is no agreed way to represent timbre in writing. Thus, an expert might be called on to examine not sheet music, but instead the method of producing the sounds in the piece, or even the actual waveforms.

And while there are professors who teach modern electronic music, the phenomenon is new enough that there are relatively fewer senior academics. Some courts have recognized the necessity of practical experience in a particular style. One district court considering two rap songs accepted as an expert an ethnomusicologist, rather than a more traditional professor of composition or music theory. (See, Watt v. Butler, supra.) That expert, however, was also a full professor at the University of Toronto Faculty of Music, trained in musical analysis and transcription, and had previously served as an expert witness in music copyright cases ' so it was not much of a stretch.

The U.S. Supreme Court's Daubert standard and Rule 702 of the Federal Rules of Evidence need not be relaxed, just reconsidered. The world's foremost expert to analyze synthesized sounds for similarity may be a 28-year old DJ or producer who may not be able to read sheet music. Courts should be cautious not to disqualify experts for a lack of academic status or publications. Practical expertise in the field is key.

Certainly, music that avoids centuries of fundamental composition techniques may well be mistaken as such. But courts should not dismiss the creativity inherent in these works, particularly when circuit courts have noted that the substantial similarity analysis takes into account the particular audience for whom the work is intended. ( See, e.g., Kohus v. Mariol, 328 F.3d 848 (6th Cir. 2003).

Senior lawyers and judges, perhaps not the target audience for electronic music, might not immediately appreciate its original, and protectible, elements. But a particular composition should not be unprotectible just because it does not conform to the typical guideposts for assessing substantial similarity. If courts take the position that it is unprotectible, electronic music would be easier to copy, and more difficult to protect, undermining the fundamental, constitutional purpose of copyright law.

Michael R. Graif is a partner and Jason Gottlieb is a counsel based in the New York City office of Curtis, Mallet-Prevost, Colt & Mosle. Nicole Mazanitis, an associate, assisted in the preparation of this article.

'

SPECIAL OFFER: Twitter, LinkedIn, Facebook and Google+ followers can get an online subscription to Entertainment Law & Finance for only $299. Click here, select Digital Only and use promo code ENTLOL299 at checkout. This offer is valid for new subscribers only.

'

Driven by technical advances in electronic music production, an increasing amount of popular music lacks several traditional markers that courts use to determine whether one song is “substantially similar” to another: melody, harmony, rhythm and lyrics. Instead, the creativity inherent in electronic music centers on the “texture” of the sound being produced. But can a sound texture be protected by copyright? This article provides a road map for lawyers and judges alike to navigate substantial similarity in non-traditional forms of music, with a particular focus on electronic music.

To establish copyright infringement, a plaintiff must demonstrate access to, and copying of, the elements of the work that are original. The U.S. Court of Appeals for the Second Circuit noted in Knitwaves v. Lollytogs, 71 F.3d 996 (2d Cir. 1995), that when a court compares works with both protectible and unprotectible elements, the court's inspection will be “more discerning,” and the court will ask “whether the protectible elements, standing alone, are substantially similar.”

The ground rules for evaluating substantial similarity in traditional music are familiar. From Bach through Britney Spears, Western musical compositions traditionally embodied a limited set of features. As Nimmer on Copyright, 2.05[D], put it: “It has been said that a musical work consists of rhythm, harmony and melody ' and that the requisite creativity must adhere in one of these three.” Courts expanding beyond that limited ambit focus on traditional elements of musical composition, such as melody, motifs, tonality, pitch, tempo, style, rhythm, harmony and lyrics. Courts also examine combinations of these elements: the same melody line in the same rhythm, or a similar melody with similar words.

Not all of those elements are necessarily copyrightable. Unprotectible aspects of a song include a common motif in the particular idiom, a clich'd lyric or a simplistic melodic line, or a common key signature and rhythm.

The commonality of many songs follows from the structure of Western music. There are only 12 notes in a chromatic scale (i.e., each note on a piano, which repeat every 12 notes). (This generalization excludes music employing micro-tonalities, or tones whose frequency is “between” the notes on a piano, a technique employed rarely.) As a result, there are only 12 major and 12 minor keys, and a limited number of possible melodies or chord progressions within each key. Thus, most Western songs have used “tonal-functional harmony at their core, and have a traditional songlike melody.” (Quoting Sergiu Gherman, “Harmony and its Functionality: A Gloss on the Substantial Similarity Test in Music Copyrights,” Fordham Intellectual Property, Media and Entertainment Law Journal, 19:2 (2008).) As a result, the limited nature of traditional Western music (particularly commercially oriented music) favors a party seeking to copy it.

While much electronically produced music contains traditional elements of music, an increasing (and increasingly popular) amount uses those elements sparingly, or not at all. Yet only the stodgiest would deny that it is music or a “work of authorship” under the Copyright Act. Indeed, courts have made this same point about music in other styles like hip-hop.

The Copyright Act does not define “music.” At base, music is simply a collection of sound waves arranged in a particular manner. Modern electronic synthesizers can manipulate waveforms to recreate traditional instruments, alter them or create virtually any other kind of sound wave imaginable. The waveforms can take on other characteristics as well, depending on their amplitudes, frequency, phase and other features, all of which combine to make the particular soundwave that a listener hears. The versatility of music software is such that a modern-day musician can apply a multitude of different types of effects (chorus, reverb, delay, compression, distortion, modulation, etc.) to existing sounds, and in the process create an entirely new sound.

Not all synthesized sounds are original, but even unoriginal sounds can be adapted into original works. Music production software comes with a wide array of pre-created, license-free “sample” sounds. Electronic musicians often mix and match these samples, or combine them with other sounds, to create original musical compositions. (For example, one particular synthesizer sound, often called “Hoover” or “Dominator”) appears on numerous electronic songs with minimal, if any, alteration.) Electronic musicians may also alter the samples significantly so as to create entirely new sounds, also forming original musical compositions.

A composition that results from such a creative endeavor may not have the traditional elements of melody, harmony, chord progressions or lyrics. But it represents a creative effort, the likes of which the Copyright Act is designed to protect. A court attuned only to the traditional elements of music may miss what makes electronic music protectible.

Successful prosecution or defense of an electronic music copyright case depends on understanding electronic music ' both its method of creation and the commonly used expressions of the genre.

Plaintiffs must be aware of the characteristics comprising electronic music beyond the traditional markers: synthesizer settings and combinations; timbre; tonality; rhythmic disruptions; and other computerized effects.

Defendants should consider the common or unoriginal elements of the music. Most producers use one of a limited number of digital audio workstations or commercially available sound sets. As a result, many sounds used in modern electronic music contain (or simply are) those “presets.” Two songs may sound similar, but only because their creators used the same unoriginal license-free presets, or a similar method of creating the song. (See, e.g., Watt v. Butler, 744 F.Supp.2d 1315 (N.D.Ga. 2010) (granting summary judgment for defendants; the creator of the allegedly infringing song testified that “[t]he keys on the [computer] keyboard were right beside each other. And that's how the tune came about.”).

Counsel on both sides of a dispute should encourage their clients to articulate the creative process behind their respective work, the legal relevance of which even the artist may not fully appreciate. The creative process in electronic music is not just knob-twiddling or pressing computer buttons. The computer is a musical instrument and the process of composing can be used to explain why the resulting composition is protectible.

Particularly given the “newness” of electronic music, artists should exercise diligence in protecting their copyrights. After all, someone was the first person to chant, “Go [name], it's your birthday” in a hip-hop song and someone was the second. Once the hundredth person uses it, it is an unprotectible part of the idiom, but the second person was arguably violating a copyright that could have been protected by the first. ( See, Lil' Joe Wein Music v. Jackson, 245 Fed.Appx. 873 (11th Cir. 2007) (hip-hop phrase “Go [name], it's your birthday,” not protectible because it was a “common hip-hop chant”).

Courts, for their part, must be willing to consider non-traditional elements of music beyond melody and rhythm, particularly when it comes to expert assistance. Courts analyzing substantial similarity frequently hear experts in musicology whose analysis of musical scores explain similarities in the written representation of the musical work. But problems abound in analyzing sound through written means. Traditional music has a traditional notation, with agreed-upon symbologies. Most electronic music cannot be written out like the score for a Beethoven sonata, as there is no agreed way to represent timbre in writing. Thus, an expert might be called on to examine not sheet music, but instead the method of producing the sounds in the piece, or even the actual waveforms.

And while there are professors who teach modern electronic music, the phenomenon is new enough that there are relatively fewer senior academics. Some courts have recognized the necessity of practical experience in a particular style. One district court considering two rap songs accepted as an expert an ethnomusicologist, rather than a more traditional professor of composition or music theory. (See, Watt v. Butler, supra.) That expert, however, was also a full professor at the University of Toronto Faculty of Music, trained in musical analysis and transcription, and had previously served as an expert witness in music copyright cases ' so it was not much of a stretch.

The U.S. Supreme Court's Daubert standard and Rule 702 of the Federal Rules of Evidence need not be relaxed, just reconsidered. The world's foremost expert to analyze synthesized sounds for similarity may be a 28-year old DJ or producer who may not be able to read sheet music. Courts should be cautious not to disqualify experts for a lack of academic status or publications. Practical expertise in the field is key.

Certainly, music that avoids centuries of fundamental composition techniques may well be mistaken as such. But courts should not dismiss the creativity inherent in these works, particularly when circuit courts have noted that the substantial similarity analysis takes into account the particular audience for whom the work is intended. ( See, e.g., Kohus v. Mariol, 328 F.3d 848 (6th Cir. 2003).

Senior lawyers and judges, perhaps not the target audience for electronic music, might not immediately appreciate its original, and protectible, elements. But a particular composition should not be unprotectible just because it does not conform to the typical guideposts for assessing substantial similarity. If courts take the position that it is unprotectible, electronic music would be easier to copy, and more difficult to protect, undermining the fundamental, constitutional purpose of copyright law.

Michael R. Graif is a partner and Jason Gottlieb is a counsel based in the New York City office of Curtis, Mallet-Prevost, Colt & Mosle. Nicole Mazanitis, an associate, assisted in the preparation of this article.

'