Stairway to Heaven: RIAA and NMPA on copyright under- and overprotection

Both the RIAA and the NMPA, and their many members, have a shared interest in maintaining strong but not excessive copyright protection, and in helping copyright law develop in ways that clarify the law’s boundaries.

Composers need copyright protection so they can profit from their music, and have an incentive to create more music. But they also need copyright law to let them create new music incorporating ideas from the vast cultural library of past musical works. Serious composers hear thousands of compositions throughout their lifetimes, and inevitably create new compositions using underlying musical structures and fragments that may share common elements with pre-existing works: the same set of possible notes, motifs, chords, musical fragments, and the like.

Copyright law thus needs to carefully calibrate and balance its rules to prevent both over- and underprotection. Composers’ intellectual property must be protected, but new songs incorporating new artistic expression influenced by unprotected, pre-existing thematic ideas must also be allowed.

The court should reconsider the “inverse ratio” rule, under which “a lower standard of proof of substantial similarity is required ‘when a high degree of access is shown’”. As the Second, Seventh, and Eleventh Circuits have recognized, this rule “confuses more than it clarifies.” The inverse ratio rule is also both vague and logically unsound. The “striking similarity” principle correctly recognizes that striking similarity can raise its own inference of access, and can thus makeup for limited evidence of access.

The court should also correct the precedent set by the panel allowing findings of infringement based on the use of uncopyrightable elements. Most compositions share some elements with past compositions — sequences of three notes, motifs, standard rhythmic passages, arpeggios, chromatic scales, and the like. Likewise, all compositions share some elements of “selection and arrangement” defined in a broad sense. The universe of notes and scales is sharply limited. Nearly every time a composer chooses to include a sequence of a few notes, an arpeggio, or a chromatic scale in a composition, some other composer will have most likely “selected” the same elements at some level of generality. 

To keep every work from infringing — and to keep authors from being able to claim ownership of otherwise unprotected elements — the Court has stressed that selection and arrangement is infringed only when there is virtual identity between two works, not loose resemblance. The same principle should be recognized for music.

Indeed, while as a practical matter few composers create works that are strikingly similar to older ones, nearly all composers enjoy a striking level of access to a vast range of works: they hear them online, on the radio, at concerts, at home, and elsewhere. Indeed, they may hear them without ever seeking them out — played as mood music in elevators, supermarkets, and restaurants, or as incidental music in a film or in a television or radio commercial. Yet even if hearing the songs this way counts as a “high degree of access” (itself a vague concept that juries would have a difficult time applying), that should not allow the creators of new works to be sued under a “lower standard of proof of substantial similarity”.

This case strikes at the heart of the creative process, and thus at the core of the copyright law’s attempts to protect the creative rights both of past authors and of present ones. Authors, including composers, must and should use unprotectable elements created by those creators coming before them. The panel decision, however, makes that especially perilous.