33 How much copying is too much?

Substantial Similarity; Extrinsic vs. Intrinsic Test

Once a plaintiff has shown ownership of the copyright to the work in question and that the defendant did engage in some copying of plaintiff’s work, the next and most difficult allegation to prove is that the amount of copying constitutes infringement. Recall from above that not all copying is impermissible. Copying a formulaic chord progression or a common phrase from a lyric typically does not rise to the level of infringement. So, how do we define the threshold above which copying can be said to constitute musical plagiarism? The courts have settled on the phrase “substantial similarity” as the level of copying that a plaintiff will need to prove to succeed in a case of copyright infringement. This phrase, like most legal concepts, depends entirely on the facts and context of each case. We cannot define it in the abstract. So, in this section we will examine several historical cases as guidelines for what constitutes musical plagiarism and what does not. The interpretation of this standard has changed and evolved over the years, particularly in recent years. So we will also look at recent and controversial cases that indicate trends that will shape this dynamic area of music law going forward.

Over the years, courts have crafted a two-part test to determine whether musical works are “substantially similar,” known as the “intrinsic vs. extrinsic” test. The extrinsic part of the test seeks to determine whether the objective musical elements or ideas of the works involved in the lawsuit, such as harmony, melody, rhythm, lyrics, etc., are substantially similar. ‘Extrinsic’ might seem like an odd choice for this concept, so let’s examine the use of this word. The prefix of the word, -ex, means outside, such as “external”. The musical ideas with which the extrinsic test concerns itself do not consciously involve a listener’s subjective, or inward, impression of the song. When listening to a song, most people (unless they have advanced musical training) do not track the harmonic progression, melodic phrases, tempo, meter, etc. on an analytic level. Most listeners take in music on a holistic level, responding to the song subconsciously through bodily movement (dance), emotion, singing along to a catchy chorus, or some other non-analytic level. 

The extrinsic test thus seeks to determine the level of similarity between the musical concepts or ideas expressed in two musical works on an objective, analytic level that requires formal musical training. Accordingly, the extrinsic test typically requires expert witness testimony to explain to a jury the similarities (or lack thereof) of specific, objective musical elements employed in the two songs. The two sides to a music copyright suit often call upon musicologists, music theorists, or performing musicians as expert witnesses to explain these elements to a jury so that they can judge whether  the similarity rises to the level of infringement. 

In establishing infringement, the plaintiff’s expert witnesses will attempt to prove not only that both songs contain similar objective musical elements, but that those elements constitute protected elements and are used in both songs in similar ways. On the other hand, the defendant’s expert witnesses will attempt to show the jury that the extrinsic musical elements plaintiff claims are common to both songs are in fact not protected elements because they are too generic, conventional, or common to constitute protected elements of musical expression. Unprotected musical characteristics — those that are generic, common, or conventional ideas —  cannot be the basis for infringement. If the plaintiff can show that the defendant’s song copied protected musical elements of plaintiff’s song, then the copying must also be shown to be of a degree that would not be expected to occur independently or from coincidence. So, the plaintiff’s experts will attempt to show that the use of similar protected elements in both songs could only have occurred through copying (whether intentional or not).

The courts have come to recognize that no comprehensive checklist can be constructed for protected musical elements critical to every music copyright infringement claim. This is because every musical work uses the many various elements of musical composition to a different degree and in different combinations. For example, some musical works rely primarily on a distinctive melody (a set of particular pitches from a scale, heard in a particular order and rhythm) to convey their originality, with little of interest happening rhythmically or harmonically. However, a different song may have no perceptible or memorable melody, but an original and foregrounded rhythmic pattern that identifies the song. Another song may use an unusual chord progression and a distinctive melody, but a very common and unremarkable rhythm. There are a practically infinite number of combinations of these protected elements, so while we might wish for a checklist or formula for determining substantial similarity under the extrinsic test, the complexity and variety of musical expression makes that impossible.

The extrinsic test not only helps to distinguish protected from unprotected musical elements, it can also show, paradoxically, that some particular, unique combination of unprotected musical elements could result in a protected musical expression. For example, the extrinsic test could show that a conventional chord progression, lyrics consisting of common expressions, and a simple melody consisting of a simple scale descent constitute a set of unprotected musical elements because they are so generic. However, a plaintiff could still argue that this particular combination of otherwise unprotected musical elements is so unusual that it should warrant copyright protection. In other words, a combination of otherwise generic musical elements might sound so uncommonly “generic” that it is in fact original.

The extrinsic/intrinsic test is meant to be an “and” test, not an “either/or” test. So after finding that a song contains objective, extrinsic musical elements that were likely copied from the preexisting musical work, the jury must then also determine that there is enough intrinsic similarity between the songs so that, taken together, the extrinsic and intrinsic similarities constitute substantial similarity between the two songs. If the jury finds no objective, extrinsic similarities, then even if finds intrinsic similarities there should be no verdict based on substantial similarity.

Unlike the extrinsic test, the intrinsic test asks the jury to consider the subjective impression of the “total concept and feel” of the songs as a whole rather than an objective, analytic consideration of constitutive musical elements. In making this intrinsic determination, the jury will rely on what it considers the untrained impression of an “ordinary, reasonable person,” rather than on detailed musical analysis presented by a music expert. Given the objective musical similarities already shown by the an expert witness, would an average music listener also hear the defendant’s musical work as being substantially similar to the plaintiff’s? Or, would an average listener, despite the presence of some objective similarities, nonetheless find that the two songs are not substantially similar?

Vicarious and Contributory Liability (Secondary Liability)

When someone has infringed on another person’s copyright, they are said to be liable for that infringement (rather than saying they are “guilty” of infringement, which is a criminal concept). Lawyers use the term “primary liability” to describe this sort of direct liability of a person for directly causing harm to another. However, two other important forms of secondary or indirect liability that can also arise in music copyright cases: vicarious liability and contributory liability.

Vicarious liability occurs when a third party (other than the plaintiff and the primary defendant) benefits financially from the copyright infringement even though that third party did not directly engage in the infringing activity. In other words, the third party vicariously benefited from the infringement without directly engaging in the infringing behavior. In order to prove vicarious infringement, the plaintiff must show three elements: (a) that the third party benefitted financially from the infringement, (b) that the third party had the right and the ability to supervise or control the primary defendant’s infringing activity, and (c) that the third party failed to exercise that control or supervision. In order to find a third party liable of vicarious infringement, the primary defendant must also have been found liable of infringement.

An example of vicarious infringement would be a record company whose president knows their recording artist has copied a demo recording sent in from another artist and passed the song off as his own. The record company, through its contractual relationship with the primary defendant (the recording artist and plagiarizing songwriter) stands to benefit directly and financially from the recording of the infringing song, and has the supervisory ability to instruct its artist to rewrite the song or not release it due to the infringement. If the record company fails to exercise that supervisory capacity, they could be held liable for vicarious infringement.

Contributory infringement, or contributory liability, occurs when a third party knows of the infringing activity, or had reason to know of it, and also intentionally induces or contributes to the infringement. To prove contributory infringement, the plaintiff must provide evidence that the third party clearly expressed an intent to assist in the infringement or took other affirmative steps that encouraged or assisted the infringement. Again, the plaintiff must also prove the primary infringement case in order to also prevail in a claim of contributory infringement.

Taking the above example of the record company being liable for vicarious infringement, it could also be liable for contributory infringement if it not only failed to exercise supervisory ability to stop their artist from copying the plaintiff’s song, but also provided the plaintiff’s song demo to the songwriter and encouraged them to copy it. We will discuss a more widespread and subtle form of contributory liability below when we discuss internet piracy of sound recordings.