Copyright Concerns In 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.