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University of New South Wales Law Journal Student Series |
COPYRIGHT THEORY AND MUSICAL CREATION: OH WHY IS THERE SUCH A DISCONNECT?
RADHA PULL TER GUNNE[1]
In 2017, Ed Sheeran released the song ‘Shape of You’, which was the world’s best-selling song that year.[2] However, in May 2018 all royalty payments were frozen by the Performing Right Society (PRS) in the United Kingdom (UK) because Sam Chokri claims that the song ‘Shape of You’ was copied from his song ‘Oh Why’ released in 2015. Chokri argues that a substantial part is taken of his song ‘Oh Why’ because the lyrics “oh why, oh why, oh why” are similar to those of “Oh I, Oh I, Oh I” in ‘Shape of You.[3] As a response, Ed Sheeran started an action for declaration that he has not infringed any copyright.[4] Chokri brought a counter claim alleging that the two songs are substantially similar and that Sheeran had access to the song ‘Oh Why’ because the song is available on platforms such as Youtube and Spotify. Further, Sheeran and Chokri met at parties in 2011 and Chroki argues Sheeran and him share certain links by being part of overlapping circles of artists, writers and producers.[5]
In December 2019 there was a hearing before Justice Nugee in the High Court of England and Wales on the admission of similar evidence.[6] The evidence Chokri put forward related to the argument that Sheeran was in the habit of appropriating the compositional skill and labour of other songwriters, either consciously or subconsciously.[7] Chokri seems to argue a pattern of subconscious copying that should convince the courts to establish copyright infringement. The judgement in the case has been postponed and this essay will use Sheeran v Chokri as a test case to analyse the common law doctrine of ‘subconscious copying’. Further, to understand the current development of copyright law for musical cases, a short analysis of European Union (EU) copyright law for musical works is also included. As Brexit has happened and this is a case in the UK, the UK may want to draw from either the common law traditions or still rely on case law from the European Court of Justice (CJEU) for further explanation of copyright law. Therefore, this essay covers both United States (US) and EU perspectives. This essay contributes to the literature by outlining a substantive overview of why there is a significant disconnect between the theory of copyright protection and the reality of music creation.
This essay aims to answer the following question: "Is the doctrine of subconscious copying in musical copyright infringement cases appropriate when the psychology of creativity, brain functioning and the basic concepts of music creation are taken into account?” To answer this question, this essay firstly provides an overview of the rationales for copyright protection to understand why we protect certain creative works (part II). Then, the subconscious copying doctrine is analysed, including its origins in the US and its application in the UK. Further, this part will cover the defence of independent creation and arguments for and against the subconscious copying doctrine. Part IV provides a short analysis of EU law to understand the current patterns for copyright protection for musical works as EU law does not recognise the concept for subconscious copying. What will become clear is that copyright protection favours the protection of current copyright holders. Therefore, to understand whether such a protection is warranted, part V dives into how musical works are created, from a brain functioning and musical rule perspective. Part V ends by tying psychological research back the rationales for copyright protection. Part VI outlines the implication of the clear disconnect between copyright theory and the practice of musical creation which leads to a conclusion in part VII.
This essay aims to contribute to the current body of literature by outlining key concepts of literature on the subconscious copying doctrine. Most articles criticize the doctrine from one or two angles but this essay aims to bring these angles together and build upon it by including the argument that the link between copyright and creative incentives is less strong than theory has led us to think.[8] This is important to keep in mind since copyright is a tax on learning, culture and speech.[9] As the link between creativity and copyright protection is not as strong as once thought, this essay aims to portray the issue that current copyright laws are very much in favour of right holders. This similar view can be taken from an EU perspective. Even though EU copyright law is under developed regarding the understanding of protection for musical works, current case law indicates that EU law provides for a broad protection for musical works. In both legal frameworks, continental EU law and common law, there seems to be a disconnect between how the legal field thinks music should be protected and how musical creation actually happens in practice. Musical creation depends on the opportunity for new artists to be inspired by previous works in order to develop their own. By studying and understanding existing music styles, new artists can decide in what type of genre their music would like to fall and how this can be achieved. Studying previous musical works is thus part of music creation and what is caught in the subconscious cannot be held against an artist. It is not possible to consciously have control over the subconscious to avoid liability.
In general, copyright protects works from unwanted reproduction.[10] Such protection is afforded under certain rationales, which can be divided up into two main categories. Firstly, copyright has economic and utilitarian justifications and secondly moral and ethical justifications.
Copyright law has an economic and utilitarian justification in the sense that it grants an exclusive right to achieve certain social purposes.[11] Firstly, to incentivize people to create and secondly to ensure creators are rewarded for the labour they have invested in the creation of their work.[12] This justification for copyright has mainly its origination in the US.[13] Nowadays the economic rationale has further developed to also include the ‘economic contribution’ of copyright to the broader economy. The justification is found in the sense that copyright supports copyright-intense industries, which create economic output and employment, and spill-over benefits for other industries. These industries either provide goods or services to copyright-intensive industries or sell associated goods.[14]
Another justification for copyright, which is mainly popular in European continental countries, is the idea that each individual possesses their own personality. When an individual creates a work it would means that by extension, an intellectual creations is derived from the personality of the creator.[15] It would thus be considered immoral if the law let anyone freely use the works of the creator without consent or compensation.[16] These ethical and moral justifications are explicitly called out in the EU InfoSoc Directive which states that a high level of copyright protection is crucial for intellectual creation and to safeguard the dignity and independence of creators.[17] Even though these justifications were more influential in Europe, they are also embodied in other copyright regimes, especially through the recognition of moral rights and the connection of copyright duration to the lifespan of the author.[18]
However, using copyright law to promote creativity is a balancing act. Authors need legal rights for their creative works to make the creative process economically worthwhile.[19] Nevertheless, copyright can also have a chilling effect on creative expression. This is for instance the case when copyright protection is granted too broadly or the term of protection is too long.[20] This essay additionally argues that establishing copyright infringement through the subconscious copying doctrine also leads to chilling effects. This will be further outlined after first an analysis of what the subconscious copying doctrine is.
US federal copyright law outlines that a plaintiff can establish prima facie copyright infringement by proving two elements. Firstly, the plaintiff has to own a valid copyright in the material that is allegedly copied and secondly, that the defendant has copied protected elements of the plaintiff’s work.[21] To prove copying in the absence of direct evidence, the plaintiff can demonstrate copying by showing that the two works are “substantially similar” and that the defendant had “reasonable access” to the plaintiff’s work.[22] The US courts do not treat “reasonable access” and “substantial similarity” as independent requirements. If there is a high degree of access to the plaintiff’s work, the plaintiff only has to demonstrate a lower degree of similarity to persuade the court.[23]
There are two ways a plaintiff can show that the defendant had reasonable access to the copyrighted work. Firstly because of a particular chain of events that can establish the defendant’s access, for example through dealings with the record company. Secondly, reasonable access can be inferred when the plaintiff’s work has been widely disseminated.[24] Such proof of widespread dissemination is sometimes accompanied by the theory of copyright infringement through subconscious copying. Subconscious copying was first applied in the case Fred Fisher, Inc. v Dillingham by Judge Learned Hand in 1924.[25] This was a music infringement case and Judge Hand determined copyright infringement based on: ‘Once it appears that another has in fact used the copyright as the source of his production, he has invaded the author’s rights. It is no excuse that in doing so him memory played him a trick.’[26] This, thus, means that subconscious copying occurs when a creator is familiar with an original work and this work leads to the creation of a work that is similar to the original work without the artist realizing the influence of the original work.[27]
The scope of subconscious copying was further expanded in the case Bright Tunes Music Corp. v Harrisongs Music, Ltd.[28] In this case the defendant was still held liable even though he provided a detailed description of how he created his song. The court recognized that the defendant did not consciously plagiarize the theme of the original song but determined that the songs were musically identical, except for one phrase.[29] The court reasoned that it would constitute infringement ‘Because his subconscious knew it already had worked in a song his conscious mind did not remember’.[30] Further, the court also found that the “reasonable access” element was met due to the popularity of the plaintiff’s song.[31] The bar for establishing infringement through subconscious copying was further lowered in Three Boys Music Corp v Bolton[32].[33] The infringing song was written more than 25 years later and the infringed song was never released on an album and the single did not even become a hit.[34] Nevertheless the court held that the plaintiff’s copyright was infringed, even though admitting that ‘this may be a weak case of access and a circumstantial case of substantial similarity.’[35] This means that in the US, copyright infringement mainly depends on a test of sufficient similarity, as the requirement for proof of access is so low.[36] Further these three cases make it clear that US copyright law currently treats subconscious copying the exact same way as conscious copying which means both deliberate and inadvertent copiers are liable for copyright infringement.[37]
The courts in the UK first applied the subconscious copying doctrine in Francis Day & Hunter, Ltd v Bron which involved two popular songs.[38] The facts in this case were similar to the Three Boys case but the UK Court of Appeal decided to go a different way by requiring a higher standard for proving the causal connection of access between the two works, despite finding substantial similarity. [39] Lord Wilberforce proposed a six-factor analysis to determine whether the defendant had subconsciously copied the plaintiff’s work.[40] Even though the defendant was not held liable, Lord Diplock indicated in an obiter dictum that in case of subconscious copying the remedy of damages may be excluded, thus explicitly acknowledging the possibility of copyright infringement based on subconscious copying.[41]
In the following case EMI Music Publishing v Evangelos Papathanassious[42] subconscious copying was discussed again but the High Court Chancery Division seemed reluctant to hold the defendant liable.[43] This was the case because the supposed similarity, a four-note sequence, was not sufficient.[44] Nevertheless, the court did consider whether it was possible that the defendant had heard and thus copied the plaintiff’s work. However, the facts of the case were not strong enough to infer a causal connection and thus establish subconscious copying.[45]
Thus, based on these two cases above, establishing copyright infringement will clearly depend on the specific facts of the case, since determining the degrees of musical similarity is so complex.[46] However, these cases do seem to suggest that a plaintiff must show that a unique musical element was copied which is more than merely a few notes and that there is a “causal link” to establish infringement.[47]
A defendant confronted with the possibility of being held liable for copyright infringement based on subconscious copying can defend themselves by using the “independent creation” defence as this is a complete defence against liability.[48] Copyright can protect two separate works, even if they are identical, if they were independently created.[49] As the subconscious copier believes that their work is created independently, this defence is usually raised by the defendant.[50] This defence, additionally, lines up with the rationales for copyright protection because if a defendant did create their work independently, at the time of creation the defendant was not aware of the plaintiff’s work. If a defendant would be held liable, this would most likely have a chilling effect on creative output as creators would be held liable for similarities in copyright protected work in the world, even when that work was never encountered by the creator.[51]
Nevertheless, this defence is argued to be flawed. An example provided to illustrate this argument is that of the creation of a poem. One composes the poem while having completely forgotten to have heard it before, and the other recreates a poem based on subconscious memory.[52] Based on the subconscious copying doctrine, the first author would receive copyright protection for their poem while the second would not. Therefore, the independent creation defence is unjust because there is no way a judge could decide which of those two is applicable to an author who coincidentally recreates a work.[53] The injustice of this defence is further intensified due to the fact that the onus is shifted to the defendant once the plaintiff establishes substantial similarity and reasonable access.[54]
As noted before, subconscious copiers are treated the same as conscious copiers and are liable for copyright infringement.[55] Therefore, it is argued that the subconscious copying doctrine is not in line with the rationales for copyright protection because holding subconscious copiers liable for copyright infringement creates a disadvantage for artists to create work.[56] The law cannot deter subconscious copiers because they are, by definition, not aware of it. This means that everytime a creator produces a work, that person assumes some risk of copyright liability which is beyond their control. This is because the creator cannot know whether she has been subconsciously influenced by another work.[57]
However, others argue that this risk is not as evident since the doctrine is only applied in factually complex cases.[58] The doctrine has been used to protect those creators whose work has slowly faded from popularity and other creators have attempting to benefit from that prior popularity. The cases that apply the subconscious copyright doctrine scrutinize the defendant’s background to ensure she would have knowledge of the prior work but merely ‘forgot’ about it.[59] However, these arguments for the subconscious copying doctrine are supposedly strengthened based on the assumption that the defence of independent creation is workable.[60] As discussed in the previous section, this is already a point of contention.
Further, it can also be argued that holding subconscious copiers liable is morally unfair. Based on the current copyright framework, an independent creator’s work will be protected, but the subconscious copier, who put in similar creative effort into their work would not be. From a moral perspective the subconscious copier should arguably also be protected,[61] in addition to both investing time and effort. Therefore, the main argument for subconscious mainly seems to be that treating subconscious and conscious copying similar results in easily administrable law.[62] Does this supposed benefit outweigh the harm subconscious copying potentially has? Establishing copyright infringement through subconscious copying strengthens the rights for current right holders. Should this type of protection be afforded? The following part analyses EU law and their perspective on copyright protection for musical works and whether they have a similar approach.
The subconscious copying doctrine is a common law creation which EU law does not recognise. EU copyright law is de facto harmonized by the CJEU, following from numerous case laws.[63] Under EU law, the main criterion to obtain copyright protection is that there needs to be come degree of creativity/originality.[64] This is achieved when the work is the “author’s own intellectual creation”.[65] However, how this exactly applies to musical works is not yet clarified and the body of law focused on musical copyright protection is still underdeveloped due to limited case law. Nevertheless, the extent to which a work can express the “author’s own intellectual creation” is interpreted very broadly. This was outlined in Infopaq where it was held that the reproduction of an extract of 11 words could amount to an example of copyright infringement.[66] It has always been the case that short melodies can receive copyright protection. However, the question now is whether Infopaq has made it possible that a mere two or three note musical sequence can also be protected.[67]
On the 29th of June 2019 the CJEU published the judgement for Pelham v Hütter about sampling. Sampling is the process of taking a portion (sample) of a song for the purpose of using it as an element in a new composition. Samples are often mixed, modified and repeated in a loop for it to be more or less recognisable in the new work.[68] The Advocate General Szpunar (AG) had provided his opinion on the case which was a very wide interpretation of the right to reproduction in article 2(c) InfoSoc Directive[69] and outlines that music sampling is not possible without the authorization of the right holder.[70] This strict interpretation was met by much criticism.[71] The CJEU followed the AG’s strict interpretation, with the exception that sampling is possible when it is modified in such a way it is unrecognisable in the new work.[72] Further, the CJEU also diverged from the opinion of the AG because the AG stated that following Infopaq extremely short extracts could constitute infringement when what is copied is considered the intellectual creation of the author.[73] However, the CJEU decided that sampling does not constitute a copy as it does not reproduce all or a substantial part.[74]
Sampling is different from subconscious copying since the person who uses the sample, consciously uses the sample in their new work. However, this case is important to understand the scope of protection for musical works. Even though the AG has provided a very broad approach to the right to reproduction the CJEU provided some leeway by not considering sampling to be a copy. However, infringement can take place when the sample is not made unrecognisable in the new work. This is still a strong restriction since the idea of sampling often is to have it be recognisable.[75] What this does indicate is a similar thought pattern and approach to the protection of musical creators. The subconscious copying doctrine was developed to be able to hold an artist liable even without a clear indication of direct copying, and the CJEU seems to indicate that when a sample still sounds alike, this is also considered copying.
Therefore, both with subconscious copying and the development of EU copyright law, there seems to be a certain element of disconnect between how musical works are created and how the law provides protection to already created musical works. Both subconscious copying and EU copyright law does not provide much room for the use of previous work, even though this is an inherent part of musical creation.[76] The following section provides background to brain function, music creation and the connection of copyright as an incentive for creativity.
The brain and its creative processes are still not fully understood. This is mainly because many different parts of the brain are involved in creative processes.[77] In addition, a single creative process does not exist as creativity can even be part of just an ordinary thought or a subconscious one.[78] Nevertheless, psychologists and neuroscientists have made progress in the studies of the subconscious and its impact on the conscious. For instance, Carl Jung wrote in his book “Man and his Symbols” that the brain never forgets an impression and that the mind, especially during a creative process, has the ability to recall old impressions.[79] As this impression is drawn from the subconscious, the person may perceive it as a fresh idea.[80] This concept is also referred to as cryptonesia and what in copyright law is considered subconscious copying. Many famous authors have been affected by cryptonesia, including Friedrich Nietzsche. Psychologists argue that the material a creator may draw upon from the subconscious has ‘become unconscious because ... there is no room for it in the conscious mind.’[81] This means that it is normal and even necessary that some material moves to the subconscious mind. This would prevent the conscious mind from becoming cluttered.[82] These so-called implicit memories have influence on an individual’s behaviour, even though the individual is unaware of its influence.[83]
This means that some of the material a creator draws on will thus be material that is moved to the subconscious which she learned from others. However, this does not mean that all what is produced by the subconscious is unoriginal.[84] Some of the most creative and original works that authors have produced begun in their subconscious minds.[85] As an author is not able to distinguish between an original and unoriginal thought from her subconscious, it does not seem just to penalize her for the use of the unoriginal when it will also dissuade her from using the original thought.[86] This means that when copyright does not recognise subconscious copying as a form of independent creation, it will stifle creativity while it is that what copyright aims to protect.[87] Further, others argue that creativity is influenced by social and cultural phenomenon, as much as psychological phenomenon and that creativity is a combination of the three. It is suggested that creativity is based on the idea that a creator learns a technique of a given field and adds creativity by changing it. Creativity would then be considered relative, historically situated and based on social agreements.[88] Therefore, the next paragraphs will look at pop music, how one creates it and the influence of culture.
Most cases where subconscious copying is an issue relate to popular music which is heavily influenced by culture. Many songs seem similar and this phenomenon has lead researchers to analyse the similarities between many different top hits. For instance, researchers were able to develop an algorithm which predicts the next pop hit[89] or predict a song’s future sales based on teenage brain activity.[90] Pop music is a genre and songs which fall within this genre have certain similarities. Genres are built upon similar sounds, feelings and types of music.[91] This means virtually every song is, or at least partly, inspired by some other artist or musical work.[92]
Musicians often adopt different styles and techniques from others to create their own sound.[93] However, as it is built upon previous works, often the work will have substantial similarities which is further exacerbated because music in general is limited due to musical rules. In western music a musical piece is limited to a scale of only twelve notes.[94] From these twelve notes, three are formed together to create a single chord which can result in several three-note progressions, e.g. chord progressions. Theoretically, there is a vast amount of chord progressions that could be created but music tradition favours specific ones.[95] Further, the general two components of music are lyrics and melodies. Comparing the lyrics of the infringed and infringing work is often easy while the comparison of melodies is complex.[96] Pop songs are often based on major and minor scale and contain a simple harmonic pattern. That is the reason that two songs can be based on the same chord progression and give us the impression that the songs are similar.[97]
The inherent nature of musical composition and the fact that the song writing process is limited shows that two artists may create a similar song as there are only limited musical decisions to be made.[98] This means that courts with limited knowledge of music and a vague and broad test to determine “copying” can simply confuse influence with copying.[99] If creators would be unable to draw from their musical influences due to the fear of copyright infringement, the degree of creativity in music becomes limited. If previous artists did not have the room to grow and learn from their musical influences, it would be hard to imagine what music would sound like today. Famous classical composers, such as Beethoven and Mozart often recycled their own works and developed new creations based on the works of others.[100] Further, up-and-coming artists draw inspiration from their musical influences to learn the necessary fundamentals to write and compose songs.[101]
The subconscious copying doctrine is argued to be necessary because it protects those creators whose work has slowly faded from popularity, to prevent other creators from benefitting from that prior popularity.[102] This would be in line with the economic rationale for copyright protection because if work can easily be copied and used by other artists, artists will not want to invest in the creation of new music. Thus, the rationales for copyright protection mainly focuses on copyright being an incentive for creativity. The legal analysis for copyright and intellectual property law has previously mostly been based on economic research. However, psychological research has established that the law’s ability to promote creativity is limited.[103] In economic theory too little emphasis is provided to a creators’ intrinsic motivation to create instead of merely creating to receive copyright protection.[104] Thus, the link between copyright and creative incentives is less strong than theory has led us to think. The interaction of copyright and creativity is substantially more complicated than how it is supposed to work in theory.[105] This is important to keep in mind since copyright is a tax on learning, culture and speech.[106]
Currently it seems that copyright protection for musical works receives broad protection. The subconscious copying doctrine ensures that alleged infringers can be held liable when no proof of direct infringement can be established but there is substantial similarity and reasonable access through widespread dissemination. In the US, copyright infringement mainly depends on a test of sufficient similarity, as the requirement for proof of access is so low.[107] However, UK law already sets the precedent of being very fact specific when determining substantial similarity and holds the plaintiff to a higher bar to indicate that the musical element copied is more than merely a few notes.[108] The UK seems to have a more balanced interpretation of subconscious copying, however, does still accept the doctrine. Further, EU law indicates a broad interpretation of the right to reproduction, which can also be applied to musical works. This is the legal framework in which Sheeran v Chokri will be decided upon. The question is whether the court will follow the approach of broad protection for copyright holders or instead follow a more nuanced approach that is in line with musical practice and the understanding of how the brain works.
If anything, it would be better to disregard the doctrine of subconscious copying. This, however, has been considered as difficult because then people would possibly rely on subconscious copying as a way to escape liability.[109] In the literature many alternatives to the subconscious copying doctrine are provided, such as the Unique Quality Test which would supposedly protect the musician’s original expression but also ensure that other artists would not be punished for using it as musical influence.[110] Or that the subconscious copying doctrine should be used as a defence. Jaeger argues that this defence can be achieved through a rebuttable presumption approach. If the defendant can provide enough evidence to overcome the presumption that she did not consciously copy the work, then she is not liable.[111] Sanderson and Wiseman take a different approach and assert that creating a subconscious copying defence will mitigate harm to the musician’s reputation because they see music creation as a burden and sacrifice that only a few talented people can bear. This is the case because intent it not required for liability and referring to subconscious copying would reinforce the ethereal nature of music creation.[112]
The literature clarifies that finding a way forward past the subconscious copying doctrine is not easy and it is understandable that this theory was created in the days of Fred Fisher.[113] But now that we have a better understanding of music creation and brain activity, copyright law should develop less in a void and more in line with reality and practice. Further the fact that copyright does not provide as much as an incentive for copyright protection, makes it important to rethink the current assumptions for copyright protection for musical works. The economic rationales which drive copyright protection should be more balanced against practical considerations. And, even though the link between copyright and its application to incentivize creation is less strong as once was thought, this essay does not mean to argue that copyright should be abolished. Other rationales for copyright are still important, such as the fact that copyright is a reward for the time and labour invested in the creation of work[114] and the more general ‘economic contributions’[115]. The music industry is very reliant on copyright protection for musical works and the moral justifications for copyright law also still stand strong. What this essay does mean to argue is that courts should look at copyright cases with a new view, and less of an emphasis on its necessity for creation and the supposed steep decrease in works when protection is less broadly interpreted as it is now. Such an interpretation would favour disregarding the current application of the subconscious copying doctrine. Hopefully the UK courts will realise that the doctrine of subconscious copying does not benefit copyright holders. Additionally, it is hoped that the argument Chokri put forward, that Sheeran has a tendency to copy the music of others, is not sufficient to establish a trend of subconscious copying. Lastly, the questions is whether the court in the UK will apply a more nuanced view when determining the substantial similarity between the lyrics “oh why, oh why, oh why” of ‘Oh Why’ and “Oh I, Oh I, Oh I” in ‘Shape of You by understanding the inherent nature of music creation.
To conclude and answer the question: "Is the doctrine of subconscious copying in musical copyright infringement cases appropriate when the psychology of creativity, brain functioning and the basic concepts of music creation are taken into account?” this essay has illustrated that the doctrine of subconscious copying is not appropriate and not in line with the rationales for copyright protection. This essay reached this conclusion by first outlining both economic and moral rationales for copyright protection. Then, this essay dove into the subconscious copying doctrine, outlining its origin in the US, the application in the UK, the weak defence of independent creation and a summary of the arguments for and against the doctrine. Further, to place the subconscious copying doctrine in a different light, a short introduction was provided into EU copyright protection for musical works which outlines another strict interpretation to the right to reproduction. Such a strict interpretation to the right to reproduction is not in line with how musical works are created, both from a musical rules’ perspective and from how the brain develops a creative idea. Further, to bring it back to the rationales first outlined, based on psychological research, it seems that copyright does not provide as much of an incentive for creativity as once thought. These concepts are tied together where it becomes clear that there is a significant disconnect between the theory of copyright protection and the reality of music creation. Musical creation depends on the opportunity for new artists to be inspired by previous works in order to develop their own. Studying previous musical works is part of music creation and what is caught in the subconscious cannot be held against an artist. It is not possible to consciously have control over the subconscious to avoid liability.
[1] LL.B, LL.M (Cum Laude). I would like to thank Associate Professor Catherine Bond for her assistance and encouragement. All errors are my own.
[2] Rob Copsey, ‘The Top 40 biggest songs of 2017 on the Official Chart’ Official Charts (Blog Post, 3 January 2018) <https://www.officialcharts.com/chart-news/the-top-40-biggest-songs-of-2017-on-the-official-chart__21327/>.
[3] Hayleigh Bosher, ‘Oh why, oh I, wonder if it is a substantial part...,’ IPKitten (Blog Post, 14 August 2018) <http://ipkitten.blogspot.com/2018/08/oh-why-oh-i-wonder-if-it-is-substantial.html> .
[4] Sheeran & Ors v Chokri & Ors [2019] EWHC 3584 (Ch) [3].
[5] Bosher (2018) (n 3).
[6] Sheeran v Chokri & Ors (n 4).
[7] Hayleigh Bosher, ‘Sheeran v Chokri Part 2: Admission of similar fact evidence, IPKitten (Blog Post, 8 January 2020) <http://ipkitten.blogspot.com/2020/01/sheeran-v-chokri-part-2-admission-of.html> .
[8] Christopher Jon Sprigman, ‘Copyright and creative incentives: what we know (and don’t)’ (2017) 55(2) Houston Law Review 451, 457.
[9] Ibid 455.
[10] Christopher Brett Jaeger, ‘“Does that sound familiar?”: Creators’ Liability for Unconscious Copyright Infringement’ (2008) 61(6) Vanderbilt Law Review 1903, 1905.
[11] Kathy Bowrey, et al, Australian Intellectual Property, Commentary, law and practice (Oxford Univeristy Press 2nd ed, 2015) 30.
[12] Jaeger (n 10) 1908.
[13] Reto Hilty, ‘Rationales for the legal protection of intangible goods and cultural heritage’ (Research Paper No. 09-10, Max Planck Institute for Intellectual Property, Competition & Tax Law, 2009) 4.
[14] Bowrey (n 11) 30.
[15] Hilty (n 13) 5.
[16] Birgitte Andersen, ‘How technology changes the scope, strength and usefulness of copyright: Revisiting the ‘economic rationales’ underpinning copyright law in the light of the new economy’ (Research Paper, Western Reserve University, Cleveland, Ohio, 2006) 13.
[17] Council Directive 2001/29/EC of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society [2001] OC L 167, recitals 9-11.
[18] Bowrey (n 11) 31
[19] Jaeger (n 10) 1908-1909.
[20] Ibid.
[21] Carissa Alden, ‘A proposal to replace the Subconcious copying Doctrine’ (2008) 29(4) Cardozo Law Review 1729, 1732.
[22] Ibid 1733; Jaeger (n 10) 1911.
[23] Jaeger (n 10) 1911.
[24] Janyarak Suvapan and Methaya Sirichit, ‘The subconscious copying doctrine across the legal system of the United States of America, United Kingdom and France’ (2019) 12(2) Naresuan University Law Journal 65, 69.
[25] Fred Fisher, Inc v Dillingham, 298 F. 145, 147 (D.N.Y 1924).
[26] Ibid [148].
[27] Jaeger (n 10) 1905.
[28] Bright Tunes Music Corp v Harrisongs Music Ltd, 420 Supp 177 (SD NY, 1976)
[29] Jaeger (n 10) 1921.
[30] Bright Tines Music Corp v Harrisongs Music Ltd (n 28) [181].
[31] Alden (n 21) 1737-1738.
[32] Three Boys Music v Michael Bolton [2000] USCA9 273; [2000] 212 F.3d 477
[33] Jaeger (n 10) 1922.
[34] Suvapan and Sirichit (n 24) 76.
[35] Three Boys Music v Michael Bolton (n 32) [486].
[36] Suvapan and Sirichit (n 24) 76.
[37] Jaeger (n 10) 1905.
[38] Francis Day & Hunter, Ltd v Bron [1963] 2 All E.R. 16 (Eng C.A.).
[39] Suvapan and Sirichit (n 24) 78; Alden (n 21) 1754.
[40] Francis Day & Hunter, Ltd v Bron (n 38) [29].
[41] Jay Sanderson and Leanne Wiseman, ‘Are musicians full of it? The metaphorical and figurative power of subconscious copying in copyright cases’ (2015) Griffith Journal of Law & Human Dignity 53, 57;Suvapan and Sirichit (n 24) 78.
[42] EMI Music Publishing v Evangelos Papathanassious [1993] EMLR 306.
[43] Suvapan and Sirichit (n 24) 78.
[44] Reuben Stone, ‘Name that tune’ (1992) New Law Journal 379-380.
[45] Suvapan and Sirichit (n 24) 78.
[46] Ibid.
[47] Ibid.
[48] Jaeger (n 10) 1912.
[49] Ibid 1913.
[50] Ibid 1912.
[51] Ibid 1913.
[52] Alden (n 21) 1740-1750.
[53] Ibid.
[54] Ibid.
[55] Jaeger (n 10) 1926.
[56] Ibid.
[57] Ibid.
[58] Danielle Mobley, ‘Déjà vu or Copyright Infringement? Why Melania Trump Infringed on Michelle Obama’s Copyrighted Speech Through Subconscious Copying (2018) 17 The John Marshall Review of Intellectual Property Law 360, 372.
[59] Ibid, 372-373.
[60] Ibid.
[61] Jaeger (n 10) 1927.
[62] Ibid 1928.
[63] Margoni, Thomas ‘The harmonisation of EU copyright law: The originality standard’ in Perry, M. (ed) Global Governance of Intellectual Property in the 21st Century (Springer International Switzerland, 2016) 85, 85.
[64] Annette Kur and Thomas Dreier, European Intellectual Property Law. Text, Cases and Materials (Edward Elgar, 1st edn, 2013) 3.
[65] Infopaq International v. Danske Dagblades Forening (C-302/10) [2009] ECR I-06569 [36].
[66] Ibid [48].
[67] Luke McDonagh, ‘Is Creative use of Musical Works without a licence acceptable under Copyright?’ (2012) 4 International Review of Intellectual Property and Competition law 401, 418.
[68] Pelham v Hütter (C-476/17) [2018] Opinion of Advocate-General Szpunar [1].
[69] Council Directive 2001/29/EC of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society [2001] OC L 167.
[70] Pelham v Hütter (C-476/17) [2018] Opinion of Advocate-General Szpunar [26].
[71] See for instance Berd Jütte and Joao Quintais, ‘Advocate General turns down the music – sampling is not a fundamental right under EU copyright law’ (2019) (forthcoming) European Intellectual Property Review 1, 1; Lionel Bently et al, ‘Sound Sampling, a Permitted Use under EU Copyright law? Opnion of the European Copyright Society in Realtion to the Pending Reference before the CJEU in case C-476/17, Pelham GmbH v. Hütter’ (2019) 50 International Review of Intellectual Property and Competition Law 467.
[72] Pelham v Hütter [2018] (Court of Justice of the European Union, C-476/17, 29 July 2019) [31].
[73] Pelham v Hütter (inion of Advocate-General Szpunar (n 69) [29]; Jütte and Quintais (n 71) 3.
[74] Pelham v Hütter (n 72) [55].
[75] McDonagh (n 67) 404-405.
[76] Ibid, came to a similar conclusion but focusing on ‘creative use’.
[77] Dahlia Zaidel, ‘Creativity, Brain, and Art: Biological and Neurological Considerations’ (2014) 7 Frontiers in Human Neuroscience 3.
[78] Rex Jung and Oshin Vartianian, The Cambridge Handbook of the Neuroscience of Creativity (Cambridge Univeristy press, 1st edn, 2018) 117.
[79] Carl Jung, Man and his Symbols (Dell New York, 1st edn 1999).
[80] Suvapan and Sirichit (n 24) 66.
[81] Jung (n 79) 24.
[82] Alden (n 21) 1750-1751.
[83] Jaeger (n 10) 1914.
[84] Alden (n 21) 1750-1751.
[85] Jung (n 79) 24-25, Jung lists mathematician Poincaré, the chemist Kekulé and the philosopher Descartes.
[86] Alden (n 21) 1750-1751.
[87] Ibid.
[88] Mihaly Csikszentmihalyi, Society, Culture and Person: A systems view of Creativity in Robert Sternberg (ed), The Nature of Creativity: Contemporary Psychological Perspectives (Cambridge University Press, 1988) 237.
[89] Mark Brown, Pop Hit Prediction Algorithm Mines 50 Years of Chart-Toppers for Data’, WIRED (Blog Post, 19 December 2011) <https://www.wired.com/2011/12/hit-potential-equation/>.
[90] Gregory Berns and Sara Moore, ‘A neural Predictor of Cultural Popularity’ (2012) 22(1) Journal of Consumer Psychology 154.
[91] Joseph Santiago, ‘The Blurred Lines of Copyright Law: Setting a New Standard for Copyright Infringement in Music 83(1) Brooklyn Law Review 289, 302.
[92] Olivia Lattanza, ‘The Blurred Protection for the Feel or Groove of a Song under Copyright Law: Examining the Implications of Williams v Gaye on Creativity in Music’ (2019) 35(2) Touro Law Review 723, 726.
[93] Santiago (n 91) 302.
[94] Lattanza (n 92) 748-749.
[95] Ibid.
[96] Ping-Hsun Chen, ‘Rethinking the “access” element in copyright infringement cases about popular music’ (2012) 1(2) NTUT Journal of Intellectual Property Law & Management 189, 198.
[97] Neil Wilkof, Doh” may be a female deer and “re” a drop of golden sun, but "me" harmony be the basis for copyright infringement? IPKitten (Blog Post, 8 June 2020) <https://ipkitten.blogspot.com/2020/06/doh-may-be-female-deer-and-re-drop-of.html>; and see also Axis of Awesome, ‘Four Chords Song’ Youtube (Music video, 10 December 2009) <https://www.youtube.com/watch?v=5pidokakU4I>.
[98] Rebecca Skirpan, ‘An Argument that independent creation is as likely as subconscious copying in music cases’ (2013) Law School Student Scholarship 112, 114.
[99] Santiago (n 91) 290-291.
[100] Lattanza (n 92) 752.
[101] Ibid 752.
[102] Mobley (n 58) 372-373.
[103] Gregory Mandel, ‘To promote the creative process: intellectual property law and the psychology of creativity’ (2011) 86(5) Notre Dame Law Review 1999 2000.
[104] Ibid.
[105] Sprigman (n 8) 457.
[106] Ibid 455.
[107] Suvapan and Sirichit (n 24) 76.
[108] Ibid 78.
[109] Skirpan (n 98) 18.
[110] Santiago (n 91) 316.
[111] Jager (n 10) 1907.
[112] Sanderson and Wiseman (n 41) 55.
[113] Fred Fisher, Inc v Dillingham (n 25).
[114] Jaeger (n 10) 1908.
[115] Bowrey (n 11) 30.
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