The current US circuits split on non-literal copyright in musical composition cases are thoroughly murky; many are not even holdings on what is copyrightable. Although this may seem tedious, it is important to implement expert testimony especially when sometimes our visceral reaction may be “this song is copied” and, in reality, it is not. The courts thus far have only been chipping at the surface of musical copyright protection by only looking at the lyrics and melody but there are other aspects of music including rhythm, tempo and the pattern, which should be protected and it is important that the courts address it in their holdings.
Infringement of music presents special problems for judges and juries because music is an intuitive art that is nonverbal and nonvisual. Consequently, traditional methods of establishing infringement are often unreliable when applied to music. Various circuits have applied different standards to determine if copyright exists within a musical composition, but the outcome of these cases is sometimes erroneous as well as unpredictable. Accordingly, this confusion in the circuit courts led me to suggest an element approach. Thus far the current tests from the different circuits are muddled, unpredictable and unfair for musicians. Copyright law is meant to promote creativity and not stifle it.
Though it is clear that the minimum threshold for a copyrightable sequence of notes is low, the true outer boundaries of copyrightability are unknown. This circuit split is uniquely confusing as the courts have been muddling the standard since the early 19th century. The 2nd Circuit has proposed that expert testimony should be disregarded and the jury should follow the lay person standard. This is dangerous since many jurors are unfamiliar with music and may hear two songs that sound similar but their composition is not identical and therefore are not infringing. An empirical study conducted showed that a layman cannot comprehend music without expert testimony since most jurors cannot hear two songs and differentiate them. The 7th Circuit has proposed a combination of tests which require proof of access, improper appropriation, and actual copying by means of showing probative similarity and access. Their analysis is more favorable towards musical composition however; it is also lacking a more in depth analysis. The courts should adopt an element by element standard where expert testimony will be crucial, so that the outcomes from such cases will be more predictable. This paper will focus on the current standards used by different circuits and how they may be improved using the current lawsuit filed by the Estate of Marvin Gaye, Pharrell Williams et al, v. Bridgeport Music Inc. as an example.
The Circuit Split Conundrum: There are Too Many Different Legal Analysis Tests for Non-Literal Copyright Infringement and None of them Are Effective
Under the Copyright Act, sound recordings and their underlying musical compositions are separate works with their own distinct copyrights. In the case of musical compositions the courts focus on the lyrics and melody of the two songs. They then must determine if there is copying in fact and/or improper appropriation. The 2nd Circuit has determined that one needs “two factors to establish copyright infringement of a musical composition: “(a) that the defendant copied from the plaintiff’s copyrighted work and (b) that the copying (assuming it to be proved) went so far as to constitute improper appropriation.” Proof of copying may be shown by direct evidence, such as an admission, or circumstantial evidence.  Currently, the copyright protects actual expression, not methods of expression.
The Circuit Courts have tried different ways to determine whether a musical composition is infringing the copyright in a pre-existing work. Part of the issue is proving that there was infringement, which is difficult for the Courts to determine if there is no literal copying in the composition. Thus, the Courts have created several different tests to figure out if there is infringement.
One test is the “access and similarity test”, which was applied by the 7th Circuit in Illinois. Most Courts consider access a significant element of proof of copying. Yet, courts disagree whether proof of access is always required, what access is, and what constitutes proof of access. The purpose of the “access and similarity test” was to allow Plaintiff a way to prove a copyright infringement claim when there is no direct proof.  The 7th Circuit Court said that “where direct evidence, such as an admission of copying, is not available, plaintiff may prove copying by showing that defendant had the opportunity to copy the original and that the two works are substantially similar, thus permitting an inference that defendant actually copied the original.” The court determined that a “plaintiff may prove copying by showing that the defendant had the opportunity to copy the original (often called “access”) and that the two works are “substantially similar,” thus permitting an inference that the defendant actually did copy the original.
The 7th Circuit Court has tried to use inverse ration to determine the level of similarity between works. It held that “degree of similarity required to establish an inference of access [should be] in an inverse ratio to the quantum of direct evidence adduced to establish access.” More recently, the Court noted that “similarity that is so close as to be highly unlikely to have been an accident of independent creation is evidence of access.” However, the 7th Circuit disagreed with this standard and noted, “we have never endorsed the other side of the inverse relation: the idea that a “high degree of access” justifies a “lower standard of proof” for similarity. The 7th Circuit determined that the various efforts to define concepts within the access and similarity test have, unfortunately had the unintended effect of obscuring rather than clarifying the issues. For example, if a Plaintiff cannot prove access but a piece of work is “strikingly similar”, shouldn’t that be enough to satisfy proof of infringement? In certain occasions a piece may be using a common template and the song may be similar but that does not prove improper appropriation. Furthermore, with progressing technology, anyone has access to musical compositions on the internet and if that is the case then the “access” element will always be assumed by the courts and therefore, this test is obsolete.
Thus far the standard applied by the 7th Circuit is most fair and consistent with copyright policy. Under 17 U.S.C.A. § 106(1), to prove infringement of a copyright owner’s exclusive reproduction right under Copyright Act requires proof of: (1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original. The court in Peters v. W., balances this standard. The 7th Circuit affirmed that there should be very little creativity necessary to hold a copyright and this allows authors to draw upon personal originality as well as previous authors as their creative inspiration.
The Widely Used Lay Person Test Fails in Empirical Testing
In Arnstein v. Porter, the 2nd Circuit determined that the Lay Listener test would be appropriate to determine if a lay listener believed there was unlawful appropriation. The court decided the issues of unlawful appropriation, dissection and expert testimony were irrelevant. In the case of Arnstein v. Porter, Plaintiff alleged that defendant copied several of his compositions.
After listening to the compositions the court determined that there are similarities sufficient for a jury to infer that they did not result from a coincidence. The Court resolved that if the jury believed the similarities did not result from a coincidence, the plaintiff’s legally protected interest is his potential financial loss. The court prohibited expert testimony because they are not the intended audience and thus their opinion is inapplicable in a substantial similarity test.  The implications of the decision in Arnstein v. Porter, has resulted in the “exclusion of expert testimony in the “substantial similarity” analysis and has been adopted by other circuits.
The Arnstein v. Porter standard is unfair and should not be used. Although determining if two songs are substantially similar is generally a fact to be determined by the jury, the lay listener test allows jurors to compare music by ear. However, this test may fall on deaf ears. An experiment was conducted to determine if lay people could understand the criteria for finding of substantial similarity. The result was lay people could not determine if the songs were similar. The experiment suggests there is a need to give juries the information to make an informed decision.
The 7th Circuit Element Analysis in the 2012 Stronger Case Makes the Most Sense but Still Has Some Flaws
In 2012 the 7th Circuit had a case brought by plaintiff Vincent Peters, also known as Vince P, against Kanye West for the song Stronger. The 7th Circuit admitted that the standard for copying is “surprisingly muddled” especially when there is no direct evidence of copying. After outlining other circuits’ tests and decisions the 7th Circuit was unimpressed by all these confusing codifications.  It chose to go back to an element-by-element analysis and created its own test: (1) Opportunity to copy and (2) evidence of similarity. The court found that West had the opportunity to copy Vince P’s song. In the statement of the facts, Vince P had sent a copy of his disk Stronger to business manager Monopoly who had a close relationship with West.
As for the evidence of similarity, first, the title is used in the hook of the song, or the popular passage of the song, and uses an aphorism coined by Friedrich Nietzsche, “What does not kill me, makes me stronger.” This 19th Century phrase was a quote from Nietzsche and was published in the “Twilight of the Idols” in 1888.  In Vince P’s “Stronger”, this phrase was not protectable original expression, since he is not the original author and the phrase had been repeatedly used in other songs. The court noted that the phrase is also used in another popular song by Kelly Clarkson also entitled, “Stronger”. Thus, this common saying is not protectable original expression.
Second, Vince P claims West’s song copied the rhyme pattern he uses in his hook. However, the court dismissed this claim since under 17 U.S.C.A. § 102 (West), Copyright protects actual expression, not methods of expression. “Just as a photographer cannot claim copyright in the use of a particular aperture and exposure setting on a given lens, no poet can claim copyright protection in the form of a sonnet or a limerick.” Vince P cannot claim copyright over a particular rhyme scheme or structure.
Thirdly, use of English model Kate Moss by name, in two different songs entitled “Stronger” was not copyright infringement, since model’s name, is in the public domain, using her name is not subject to copyright protection. The two songs contained different lines about the supermodel, and analogizing to models as shorthand for beauty was commonplace in current society.  In Vince P’s version of the song he had the following lyrics in his verse, “Trying to get a model chick like Kate Moss.” While in Kanye West’s version of the song the following lyrics are being accused as infringing, “You could be my black Kate Moss tonight.” The lines are completely different and analogizing models as shorthand for beauty is commonplace in society.
The 7th Circuit’s final decision, that even though Kanye West’s song “Stronger” and Vince P’s version contained similar hooks, shared a title, and both referenced Kate Moss by name, the two songs shared only small cosmetic similarities which, even in combination, were insufficient to warrant finding of copyright infringement. By utilizing a two prong test (1) Opportunity to copy and (2) evidence of similarity, the 7th Circuit used an elemental analysis to determine if a song is infringing another musical composition’s copyright.
The Other Circuit Courts Should Adopt a 7th Circuit Analysis With Some Minor Adjustments
By using this simple analysis we can over curtail unnecessary copyright litigation and create a simpler and less “muddled” analysis for other courts to follow. For example, a recent controversial and highly publicized copyright infringement case in the news is the Estate of Marvin Gaye claiming that Robin Thicke violated its copyright in the song “Got to Give it Up.” The Defendants claim that the Plaintiff incorporated and used the composition “Got to Give it Up” in “Blurred Lines.” The basis of the claim is Blurred Line’s melody and “feel” is the same as “Got to Give it Up”. This is the danger, the Robin Thicke song could catch as infringement, but not without expanding the law to become too broad to allow Marvin Gaye to copyright an entire genre of music. Plaintiffs argue that the basis of Defendant’s original claim does not meet the requirements for copyright infringement since “being of a ‘sound’ is not protectable. The intent in producing ‘Blurred Lines’ was to evoke an era. In reality, the Gaye defendants are claiming ownership of an entire genre, as opposed to a specific work.”
Using the standard outlined by the 7th Circuit, the outcome of this case would be the same as it would in my proposed analysis but the 7th circuit’s decision would be too narrow as they only focus on the line melody and the lyrics.
The court would analyze the lyrics to the song and in this instance would find no similarity in either song. While the lyrics of both songs are different, their melody may sound the same but the notes are different. Both songs contain elements that are not copyrightable. For example, both versions have the loud cowbell which is a commonly used instrument, and gives both songs a similar feel and rhythm. Also throughout the song there is talking in the background and both singers sing in a falsetto a lay person may recognize these elements as enough to deem a song “substantially similar” and lead some jurors using the “lay listener test” to become confused. Thus, although the songs may have a similar “look and feel”, there is no infringement and the 7th Circuit would reach this conclusion.
Even though the 7th Circuit and I would come to the proper conclusion, its approach would be too narrow. Distinguishing between the melody and/or lyrics and the contribution of an interesting guitar riff or a song’s rhythmic foundation is arbitrary. The court needs to expand its analysis from simply the melody and lyrics.
For example, the key of both songs are different, Marvin Gaye is in A major and Robin Thicke is in G Minor. The pattern in the introduction of the song is also similar but not identical. In the introduction in the Marvin Gaye track you have Chord A7 for three bars using steady eight notes without rests. On the fourth bar above the A7 chord Marvin Gaye starts singing. Robin Thicke in his introduction transposed from A major to G major and had the basic G major chord similarly but he broke it using eight note rests so it sounds like a syncopation. Robin Thicke used the same tempo in his introduction. He used the three bars like Marvin Gaye but moved from the treble clef to the base clef in the introduction. Gaye had basic three steady bars in treble clef and an eight note base clef in syncopation rhythm over the bar using the tie. The chords are not copyrightable and the rhythm isn’t the same even if the idea is the same. In my opinion Robin Thicke used the leader line from Marvin Gaye and paraphrased it. This is acceptable because he changed parts of it and the threshold for creativity is very low. Here, even though it is musically very similar we are able to copy ideas whether it is percussion ideas or tempos. Changing notes slightly and the key of the song, even if the outcome sounds similar would overcome this low level requirement of creativity. In music you cannot create new notes and musicians are limited in their resources. There are synonyms for words and you can write software code commands in different ways, but there is no synonym for a G note, only a G note.
Part of the issue which courts have been receptive to is that there is only a limited amount of notes available for musicians.  As a result, there are certain common chords which repeat and the court should not limit these. The court is “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.” The court would need to determine how much of a template there is. Is the infringement simply basic and common rhythm in a genre or is it the same song and the arrangement changed? For example, Pachelbel Cannon in D. Certain chords progressions are common and you will find those chords in hundreds of songs. The court needs to look at notes, time, rhythm, chord progression and note values. In other words, it does take a lot to copy a song; simply taking a basic template is not enough and the court is aware there are only so many rhythms and notes musicians can use. It is this combination that makes a song different or similar. This is also why it is important that the court allows the jury to consider expert testimony.
The 7th Circuit two step analysis takes away some of the power from the lay person however, this analysis is straight forward and would create more consistent holdings in regards to musical compositions. Reasserting that the basis a song “feels” or “sounds” or is reminiscent of a “sound” is not a copyright infringement. Copyright is meant to support creativity. Thus far, Peters v. W. supports the theory that if we continue to use a “feel” test for music in conjunction with the “Lay Person Test” in the 2nd Circuit then musicians will be able to claim ownership for an entire genre as opposed to a specific work. Thus, I propose an element-by-element analysis for music where an expert can testify as to the infringing qualities of the music so that a jury can make an informed decision if there is misappropriation or copying-in-fact in a musical composition.
 E. Scott Fruehwald, Copyright Infringement of Musical Compositions: A Systematic Approach, 26 Akron L. Rev. 15 (1992).
 Robert Rogoyski, The Melody Machine: How to Kill Copyright, and Other Problems with Protecting Discrete Musical Elements, 88 J. Pat. & Trademark Off. Soc’y 403, 404 (2006).
 Peters v. W., 692 F.3d 629, 633 (7th Cir. 2012).
 Rogoyski, supra note 2, at 413.
 Similar to the one set in the 7th Circuit but with a few adjustments
 See 17 U.S.C. § 102(a)(2), Bridgeport Music, Inc. v. Still N The Water Pub., 327 F.3d 472, 475 n. 3 (6th Cir. 2003). 2010 WL 2011326.
 Tisi v. Patrick, 97 F. Supp. 2d 539 (S.D.N.Y. 2000).
 Arnstein v. Porter, 154 F.2d 464 (2d Cir. 1946).
 E. Scott Fruehwald, Copyright Infringement of Musical Compositions: A Systematic Approach, 26 Akron L. Rev. 15, 16-17 (1992).
 17 U.S.C. § 102(b); Baker v. Selden, 101 U.S. 99, 104, 25 L.Ed. 841 (1879). Peters v. W., 692 F.3d 629, 636 (7th Cir. 2012).
 See E. Scott Fruehwald, Copyright Infringement of Musical Compositions: A Systematic Approach, 26 Akron L. Rev. 15, 19 (1992). See also Goldberg v. Cameron, 787 F. Supp. 2d 1013 (N.D. Cal. 2011).
 Peters, 692 F.3d at 633.
 Peters, 692 F.3d at 634.
 Id at 635.
 Peters, 692 F.3d at 629.
 See Feist Publications, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 111 S. Ct. 1282, 113 L. Ed. 2d 358 (1991).
 Arnstein v. Porter, 154 F.2d 464 (2d Cir. 1946).
 Id at 469.
 “Expert testimony of musicians may also be received, but it will in no way be controlling on the issue of illicit copying, and should be utilized only to assist in determining the reactions of lay auditors. The impression made on the refined ears of musical experts or their views as to the musical excellence of plaintiff’s or defendant’s works are utterly immaterial on the issue of misappropriation; for the views of such persons are caviar to the general-and plaintiff’s and defendant’s compositions are not caviar.” Arnstein v. Porter, 154 F.2d 464, 473 (2d Cir. 1946).
 See Jamie Lund, An Empirical Examination of the Lay Listener Test in Music Composition Copyright Infringement, 11 Va. Sports & Ent. L.J. 137, 150 (2011).
 Id. at 632.
 Peters, 692 F.3d at 633 citing T–Peg, Inc. v. Vermont Timber Works, Inc., 459 F.3d 97, 111–12 (1st Cir.2006).
 Peters, 692 F.3d at 634.
 Id at 631.
 Id at 629.
 17 U.S.C.A. § 106(1). See also Peters v. W., 692 F.3d 629, 635 (7th Cir. 2012)
 Gary Trust, Kelly Clarkson Returns to Hot 100 Peak, The Wanted Hit Top 10, Billboard, available at http://www. billboard.com/#/news/kelly-clarkson-returns-to-hot-100-peak-the-1006316152 (last visited July 13, 2012). (discussing Stronger (What Doesn’t Kill You), performed by Kelly Clarkson).
 17 U.S.C. § 102(b); Baker v. Selden, 101 U.S. 99, 104, 25 L.Ed. 841 (1879).
 Peters, 692 F.3d at 636.
 17 U.S.C.A. § 102(b). See also Peters v. W., 692 F.3d 629 (7th Cir. 2012).
 What the court seems to be getting at is saying a model is beautiful, no matter how it is said is an idea and “copyright protection is not available for ideas, but only for tangible expression of ideas.” See Peters, 692 F.3d at 636.
 17 U.S.C.A. § 106(1); Peters v. W., 692 F.3d 629 (7th Cir. 2012).
 Complaint of Declaratory Relief, (“Complaint”) at 25, Pharrell Williams et al, v. Bridgeport Music Inc., No.2:13-cv-06004-JAK-AGR, (U.S. Dist. Ct. C.D. Cal. West. Div. Los Angeles), Aug. 15, 2013.
 Id at 8.
 Id at 11.
See Gabriel Jacob Fleet, What’s in A Song? Copyright’s Unfair Treatment of Record Producers and Side Musicians, 61 Vand. L. Rev. 1235, 1237 (2008); Many judges believe that as copyright protection, a “musical work” is comprised primarily of the melody and lyrics.
See Blurred Lines, Robin A. Thicke, Pharrell Williams, available at http://www.azlyrics.com/lyrics/robinthicke/blurredlines.html (last visted Nov. 4, 2013).
 Marvin Gaye, Sheet Music, Got to Give It Up (EMI Music Publishing. 1977).
 Gabriel Jacob Fleet, What’s in A Song? Copyright’s Unfair Treatment of Record Producers and Side Musicians, 61 Vand. L. Rev. 1235, 1272 (2008)
 Marvin Gaye, Sheet Music, Got to Give It Up (EMI Music Publishing. 1977).
 Robin Thicke and Pharrell Williams, Sheet Music, Blurred Lines (EMI Music Publishing. 2013).
 This pattern Gaye uses throughout the piece. Robin Thicke did not use the similar pattern because he did not use a tie over the bar in the base clef.
 See E. Scott Fruehwald, Copyright Infringement of Musical Compositions: A Systematic Approach, 26 Akron L. Rev. 15, 26 (1992).
 However, in this song using a Meltzer metronome the tempo of both songs are the same at moderato but both are not steady. Quarter note = 116-120.
 Allen v. Destiny’s Child, 06 C 6606, 2009 WL 2178676 (N.D. Ill. July 21, 2009).
 Rogoyski, supra note 2, at 404.
 See Lund, supra note 29, at 151.
 Peters, 692 F.3d at 629.