Your Honor, That Guy “Subconsciously” Copied My Music!

Meibo Chen, MJLST Staffer

Under the Copyright Act, 17 USC § 106, a copyright owner of a copyrighted work has exclusive rights to reproduce, create derivative works, distribute, perform, or display that work.  The Copyright Act specifically carves out provisions that make it applicable to the music industry.  Thus, it is no surprise that the music industry frequently utilized the courts to protect its respective works.  While seemingly superfluous and redundant, such legal actions are justified as copyright infringement and piracy cost the US economy nearly $12.5 billion and more than 71,000 jobs yearly.

Copyright infringement, to the traditional public audience, simply would translate to: “that person downloaded my copyrighted music without my permission,” or “that person copied by song without my permission.”  Here is the kicker that the average consumer or musician most likely would not know.  There is such a thing called “subconscious copying” and “subconscious copyright infringement.” The illustrative case is George Harrison vs Bright Tunes Music Corp.  Long story short, the second musician wrote a song that very similar to that of the first musician’s, give or take a few notes and chords.  Even though the judge did not believe the second musician purposefully plagiarized, the second musician was nonetheless liable for a whopping $587,000.00 for subconscious plagiarism.

Flash forward to 2000, the 9th Circuit decided a similar case in Three Boys Music Corp. v. Michael Bolton, and put Learned Hand’s “subconscious copying” concept on the mantle.  More specifically, the 9th Circuit articulated the concept as requiring (1) a chain of events established between plaintiff’s work and defendant’s access to that work or (2) plaintiff’s work has been widely disseminated.

That boils down to an almost ridiculously broken cause of action for copyright infringement.  It is as if more famous musical works get more deference in an infringement case, just because more people heard it.  It also takes the objective standard and throws it out the window, as this “subconscious copying” forces a judge or jury to dive inside the mind of the alleged infringer.  To make it even more ridiculously broken, the fact-finder has to determine the SUBconscious.

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