Summit Papers 16

Session 5: Friday 4:45
Moderator: Patrick Preston

Brian Gaber
Professor of Commercial Music
Florida State University

Access Verses Substantial Similarity: Copyright Issues in Three Boys Music v. Michael Bolton and Vince P. v. Kanye West

A study and comparison of two music copyright court cases: The 2000 case of Three Boys Music v. Michael Bolton and the case of Vince P. v. Kanye West, the former ending with a 5.4-million-dollar settlement in favor of the plaintiff, the latter ending with dismissal and exoneration of the defendant. The paper explores the question what constitutes substantial similarity, what constitutes access and what elements are considered protected under copyright. The issue of substantial similarity is explored through melodic, harmonic, and rhythmic analysis. The case against Bolton hinged both on substantial similarity of musical elements and what the jury determined what adequate evidence of access. In Vince P. v. Kanye West, access was never in question. Vincent Peters delivered a recording of his song “Stronger” to West’s friend and producer, John Monopoly with the hopes of starting a business relationship. Within a year, West released his own track of the same name. Proving substantial similarity is problematic when one considers the limited and shared vocabulary and grammar of American popular music. This is compounded by the industry’s desire to emulate anything that is financially successful. The law makes distinction between willful and unconscious copying as well as the possibility of independent creation by more than one person. There are currently no scientifically proven ways to measure similarity. This is in spite of the prevalence of experts in music theory, musicology, acoustics and digital audio processing frequently appearing before judges and juries. The question remains, whose standard of similarity is used in deciding cases; the untrained ears of the jury, the judge who has the best understanding of the law or musical expert witnesses?

Jeffrey Izzo
Assistant Professor of Recording Industry
Middle Tennessee State University

The Monopoly of Protection vs. the Presumption of Permission: Is Copyright Law an Analog Ship Adrift in a Digital Sea?

It is safe to say that a good many legal scholars, record industry figures, music journalists, and other commentators believe that U.S. copyright law in its current incarnation has shown itself to be somewhat ill-equipped to handle the ever-growing onslaught of digital exploitation of music. Despite numerous attempts at fixes, the law appears to be playing a constant game of "catch up." Critics claim that authors maintain too firm a stranglehold on society, and protective controls on existing works need to be relaxed so they can be used more freely as building blocks for new creations. Many authors, conversely, favor the tight restraints on how others may use their works -- certainly the direction toward which the legal scale is currently tipped. But with today's comprehensive and effortless consumer access to music in such an array of forums and formats, is tight artistic control a viable state of affairs for the 21st century? Or is the copyright law overdue for a thorough re-examination of its purported balance between promoting the “useful arts” and “securing for limited Times to Authors…the exclusive Right to their…Writings…” If so, such a rethink could result in a seismic morphing from the Age of the Author to the Era of the Consumer, with composers, recording artists, et al., sacrificing the monopolized hold on their creations in the name of freer consumer access and use.

If this were to be deemed an acceptable path to follow, inevitably several challenging questions would arise. How can this even be accomplished? Do we abolish the current statutory scheme and begin anew, or continue with Band-Aids and quick fixes? In light of the 9th Circuit’s recent decision in Lentz v. Universal et al., should Fair Use (or some development thereof) be the focal point of copyright law? What would the implications of such a "re-boot" be on an international level? This paper will explore, from both legal and artistic perspectives, these and other questions by imagining two opposing realities: the first being essentially the world in which we now live, whereby the artist/author owns his or her original work from the moment of tangible expression, and an "alternate universe" in which there is no such immediate ownership rights, but instead a “presumption of permission,” which will automatically allow others to use those works as they see fit. The copyright law, conceived in an age of magnetic recording tape and vinyl LPs, has historically existed in the space between these two extremes. The question is, can it continue to do so, or is it merely an analog ship adrift in a digital sea, seeking a safe harbor and calmer waters from which it may chart a new course?