Substantial Similarity in the Age of Electronic Music
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.
The Traditional Framework
To establish copyright infringement, a plaintiff must demonstrate access to, and copying of, the elements of the work that are original.1 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."2
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 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."3 Courts expanding beyond that limited ambit do so rarely and tentatively, and focus on traditional elements of musical composition: "melody, motifs, melodic contours, tonality, pitch emphasis, bass line, tempo, generic style, rhythm, ornamentation, harmony and lyrics."4 Courts will also examine combinations of these elements: the same melody line in the same rhythm,5 or a similar melody with similar words.6
Not all of those elements are necessarily copyrightable. Unprotectible aspects of a song include a common motif in the particular idiom,7 a clichéd lyric or a simplistic melodic line,8 or a common key signature and rhythm.9
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).10 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."11 Courts are "mindful of the limited number of notes and chords available to composers and the resulting fact that common themes frequently reappear in various compositions, especially in popular music."12 The limited nature of traditional Western music (particularly commercially-oriented music) thus favors the party seeking to copy it.
How Electronic Music Differs
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 that electronic music is a "work of authorship" under the Copyright Act.13 Indeed, courts have made this same point about music in other styles. "For the uninitiated, much of rock music sounds the same, and a hasty comparison...could result in a finding of superficial similarity."14
The Copyright Act does not define "music." At base, music is simply a collection of sound waves arranged in a particular manner. When an object is vibrated, that vibration displaces molecules, which produces sound. The molecules travel in waves, until the energy created by the vibration dissipates.15 The sound takes a particular waveform, depending on its volume, frequency (i.e., pitch), and timbre (i.e., the character of the sound). Differing timbres are critical to music: Such differences allow a listener to distinguish between a violin and a trumpet playing the exact same pitch.16
After several hundred years of music made by a limited set of instruments, any sound can now be created with little more than a laptop and software. 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.17 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.18 They 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.
Towards a New Framework
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.