As a writer of songs and books, I, too, have had that frustrating experience of coming up with what I think is the most brilliant, original idea in the world, only to find my idea mimicked in my local bookstore or on my car radio. While I might be tempted to scream, “Stop, thief!,” as a copyright lawyer, I know to stop, breathe, and consider first. Not every copy is actionable copyright infringement, nor is every sound-alike a copy.
First, there are few original ideas anymore. The world is full of creative people. If you’ve thought it, chances are someone else has thought it, too. Second, how could that author have copied you if your manuscript is merely a file on your computer and hasn’t seen the light of day? Third, just because someone else’s art seems eerily similar to yours doesn’t mean it’s infringing. Certain elements (like song titles) aren’t necessarily protectable and can’t be monopolized by one person. Otherwise, art as we know it would come to a halt. Which begs the question: When is that sound-alike theft, and when is it fair game?
A good lesson in how to analyze your own case before you make it one can be found in a recent court opinion by Judge Aleta Trauger of the U.S. District Court for the Middle District of Tennessee, Brainard v. Vassar, U.S. Dist. LEXIS 36104. (In the interests of full disclosure, you should know that my former law firm, Riley Warnock & Jacobson, represented the prevailing defendants in the case.) Two songwriters claimed that their song “Good Ol’ Days to Come” was infringed by a song called “Good Ole Days” recorded by country artist Phil Vassar.
The court tossed the case, concluding that the two songs are not “substantially similar,” one of the requirements for copyright infringement. In comparing the songs, the court first filtered out any unprotectable elements: 1) raw ideas, 2) scenes a faire (elements that can be expressed no other way given the setting), and 3) stock themes. So the court did not consider the core idea of the plaintiffs’ song that despite the great times of the past, the “good ol’ days are yet to come.” Also filtered: the subjects of drinking, socializing and courting (topics virtually required in a country song about the “good ol’ days”).
After “casting aside” the unprotectable elements, the court, looking at the technical music structure and the song’s chorus, considered whether the “ordinary observer,” based on his “net impression,” would find the two songs substantially similar. The court found certain similarities in the two choruses a close call but, in the end, concluded that the ordinary observer would not consider the two songs substantially similar as a whole.
Given the close call that was the Brainard case, you can see that no two cases of alleged copying are alike. That seeming knock-off mocking you from the bookstore shelves may very well be actionable. But Brainard provides a good structure for analyzing your own case before rushing to judgment. Lesson learned: Before you waste your time, money, and reputation, look before you leap into a copyright-infringement lawsuit. Consider whether the similarities between the two works are of raw ideas, scenes a faire or stock themes, or of something more: the unique way those ideas are expressed, like an original melody line or lyrical phrase. After filtering out the unprotectable elements, ask yourself: Would an ordinary observer find the two works substantially similar? If you can’t decide this for yourself, ask a lawyer for help.
