March 01, 2017 Feature

Ghosts in the Hit Machine: Musical Creation and the Doctrine of Subconscious Copying

Robert Kirk Walker

©2017. Published in Landslide, Vol. 9, No. 4, March/April 2017, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.

In December 1969, George Harrison, lead guitarist of the soon-to-be-broken-up Beatles, cut his first record as a solo artist.1 A paean to the Hindu god Krishna that blended gospel, folk, and rhythm and blues, the song, “My Sweet Lord,” went on to be the best-selling single of 1971 and Harrison’s biggest hit.2 Unfortunately for Harrison, the song also became the subject of one of the most notorious copyright lawsuits of all time. Soon after the song’s release, Harrison was sued for copyright infringement by songwriter Ronnie Mack, who alleged that Harrison had lifted the music for “My Sweet Lord” from his song “He’s So Fine,” a hit tune released in the early 1960s by the Chiffons.3 What made this case notorious—and still relevant 40 years later—was the theory supporting Mack’s infringement claim: subconscious copying. This once-obscure doctrine has since developed into a powerful litigation tool capable of generating multimillion dollar awards and has formed the basis of numerous infringement cases involving well-known pop songs, including Michael Bolton’s late 1990s soul smash “Love Is a Wonderful Thing”4 and Robin Thicke’s recent dance-pop anthem “Blurred Lines.”5

However, despite nearly a century of judicial application, the line separating unlawful subconscious copying and independent creation—an absolute defense to infringement—remains unclear. In the age of Spotify and Bandcamp, this is more than a philosophical puzzler: when it is possible for artists to distribute their music worldwide at minimal cost, where access to music becomes “essentially universal,”6 and where many songs (intentionally or not) sound alike,7 how courts meaningfully distinguish between legitimate creation and unlawful mimesis is of pressing concern. This article provides a brief history of the subconscious copying doctrine as it has evolved in the courts, explores the tension between subconscious copying and independent creation, and offers a procedural remedy to reconcile these competing doctrines.

No Conscious Memory Required

While somewhat mystifying in name, subconscious copying is relatively straightforward in nature. Under copyright law, it is not necessary to show that a defendant intended to copy from a plaintiff’s work or that the defendant held any “particular state of mind” at the time of copying.8 A defendant’s good (or bad) faith motives are simply irrelevant to the infringement question.9 As such, it is possible to infringe another’s copyrights subconsciously; copies that are made unintentionally are no less actionable than willful duplications.10 In such cases, substantial damages may be awarded even if the defendant had no conscious memory of the plaintiff’s work at the time of reproduction.11

As in all copyright cases, to prevail on a claim of subconscious copying a plaintiff must prove: (1) the plaintiff owns a valid copyright to a work,12 (2) the defendant copied that work (i.e., copying-in-fact),13 and (3) this copying was improper (i.e., copying-at-law).14 Absent direct evidence, courts may infer copying-in-fact by proof that the defendant had “reasonable access” to the plaintiff’s work and that there is “probative similarity” between the protected materials in the works.15 In this context, “probative similarity” refers to similarities that “in the normal course of events, one would expect to arise only by virtue of copying, not by coincidence.”16

Proving reasonable access requires showing that the defendant had “an opportunity to view or copy plaintiff’s work.”17 This usually entails showing either: (1) a particular chain of events linking the defendant to the plaintiff’s copyrighted work,18 (2) that the plaintiff’s copyrighted work has been widely disseminated,19 or (3) that the works bear a “striking similarity” to each other,20 the only logical explanation for which would be copying.21 Access and probative similarity are “inextricably linked,”22 and courts generally will require less proof of similarity when there is greater proof of access, per the “inverse ratio rule.”23 Once copying-in-fact is established, the question becomes whether the works are “substantially similar” at law, meaning (in broad terms) that an “ordinary reasonable person would find the total concept and feel of the works to be substantially similar.”24

If a plaintiff can show reasonable access and probative similarity, the court will presume copying-in-fact, and the burden shifts to the defendant to show that he or she did not copy from the plaintiff’s work.25 This presumption of copying may be overcome by, among other things, proof of independent creation, which is an absolute defense to copyright infringement.26 Unlike patent law, under copyright law creating a work that is extremely similar—or even identical—to a preexisting, copyrighted work is not prohibited if an author “independently arrive[s] at the precise combination of words or notes which have been copyrighted.”27 In other words, even if the protected expression in two works is identical, if the defendant did not copy from the plaintiff then no liability will attach.28

In most subconscious copying cases, access is established based on the widespread dissemination of the copyrighted work,29 and probative similarity through musicological analysis. The fight then becomes whether the defendant can prove independent creation and that these similarities arose from coincidence rather than copying.

“His Memory Has Played Him a Trick”

Judge Learned Hand originated the subconscious copying doctrine in the 1924 case Fred Fisher, Inc. v. Dillingham.30 In this case, the plaintiff owned a copyright in a musical composition called “Dardanella.”31 The defendant, the world-famous musical theatre composer Jerome Kern, authored a piece called “Kalua,” which was featured in one of his operas. Both compositions contained a reoccurring musical phrase (an “ostinato”) that the court found to be “exactly alike.”32 The court also found that the defendant had access to “Dardanella” prior to writing his own composition; according to the court, “Dardanella” was a popular enough song that the defendant, as a professional musician, would have known it.33 The court then considered, but ultimately rejected, the idea that the defendant had been inspired by an earlier work that predated both “Dardanella” and “Kalua.”34 As such, the court found that the defendant copied the ostinato from the plaintiff’s work.35

The Fred Fisher court acknowledged that this infringement was likely unintentional, but held that this fact had no bearing on the outcome of the case.36 Rather, “[o]nce 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 his memory has played him a trick.”37 However, the court found it “absurd to suggest” that the plaintiff had suffered an injury as a result of this invasion, and because the court felt that the case was a “trivial pother” involving hurt feelings rather than substantial harm, it awarded the plaintiff only $250, the statutory minimum damages at the time.38 In Judge Hand’s final assessment, the Fred Fisher case was both “an interesting point of law” and “a waste of time for every one concerned.”39

Fifty years passed before the next big case dealing with subconscious copying. This case, the most famous in the doctrinal line, pitted George Harrison of the Beatles against the composer of the early 1960s pop hit “He’s So Fine,” made famous by the Chiffons.40 There, the court found that Harrison’s 1970 composition “My Sweet Lord” contained two recurring musical motifs that were substantially similar to “He’s So Fine.”41 While the recorded songs were remarkably different—the Chiffons’ a catchy doo-wop tune; Harrison’s a gospel rock hymn—the court nevertheless found that the underlying musical composition was “the very same song.”42 On the question of access, the court found that Harrison had access to “He’s So Fine” based on the popularity and wide distribution of the Chiffons’ recording, which was number one on the Billboard charts in the United States for five weeks in 1963.43

In his defense, Harrison claimed that he and a cowriter had developed “My Sweet Lord” independently and did not knowingly copy from “He’s So Fine.”44 The court agreed, but nevertheless found that “My Sweet Lord is the very same song as He’s So Fine with different words, and Harrison had access to He’s So Fine. This is, under the law, infringement of copyright, and is no less so even though subconsciously accomplished.”45 However, unlike in Fred Fisher, the court did not find that this infringement was a “trivial pother” that deserved only the statutory minimum damages. Instead, a bench trial on the issue of damages was ordered, and in 1981 the plaintiff was awarded $1,599,987.46

The final major case in the subconscious copying line was heard in 1994. In this case, a jury found that Michael Bolton’s 1991 hit “Love Is a Wonderful Thing” infringed the copyright of an obscure 1964 Isley Brothers’ song of the same name,47 and awarded the plaintiff $5.4 million in damages.48 In their defense, Michael Bolton and his codefendant claimed to have never heard the Isley Brothers’ song and presented evidence the Isley Brothers’ song was not widely disseminated: it did not make the Billboard Top 100 for even a single week, and was never released on an album until 1991, a year after Bolton’s song was written.49 In its opinion, the Ninth Circuit expressed skepticism at the plaintiffs’ “twenty-five-years-after-the-fact-subconscious copying claim,”50 and noted a “more attenuated case of reasonable access and subconscious copying than [the “My Sweet Lord”/“He’s So Fine” case].”51 Nevertheless, the appellate court affirmed the jury’s finding, stating that it was “entirely plausible that two Connecticut teenagers obsessed with rhythm and blues music could remember an Isley Brothers’ song that was played on the radio and television for a few weeks, and subconsciously copy it twenty years later.”52

The Blurred Line Between Subconscious Copying and Independent Creation

While subconscious copying could theoretically apply in any type of copyright claim, in practice courts have almost exclusively applied it in cases involve musical works.53 Some scholars have posited that this is due to inherent limitations in music that naturally give rise to similar compositions.54 Mathematically, the 12-note Western scale offers nearly limitless melodic and harmonic possibilities. However, in practice “only a small number of these combinations will be aesthetically pleasing . . . . Aesthetic convention and the limits of the human ear impose substantial constraints on invention and variety in musical composition.”55 Such repackaging of existing musical phrases and progressions is common to all types of music. Take, for example, the chord progression in George Gershwin’s jazz standard “I Got Rhythm.”56 This pattern, known to musicians simply as “rhythm changes,” forms the basis of numerous other jazz compositions, including those by legendary musicians like Duke Ellington, Charlie Parker, Lester Young, Dizzy Gillespie, and Thelonious Monk.57 In addition, neurological research suggests people have a natural inclination to remember musical phrases over long periods of time and that this inclination far exceeds our capacity to remember other forms of media;58 it is far more likely that a composer will confuse a tune heard years before for a new idea than someone will inadvertently plagiarize Borges or repaint a Braque. If these musicological theories are correct, then what is the substantive difference between one composer utilizing his or her musical knowledge of “combination[s] of sounds [that] would work”59 in an original composition and another composer who is merely copying?60

As technology has eliminated nearly all barriers to the distribution of creative works, “reasonable access” increasingly becomes a foregone conclusion,61 leaving only substantial similarity at issue in the infringement inquiry. In such cases, it is unclear whether a meaningful distinction can be drawn between a new song that coincidentally sounds like an existing work and a new song that subconsciously copies that same work. Copyright defendants thus face a terrible conundrum: how do you disprove an alleged act of your unconscious mind? What evidence could you put on to show that your subconscious was not copying?

For example, in the “My Sweet Lord” case, the court states that neither Harrison nor his cowriter were “conscious of the fact that they were utilizing the He’s So Fine theme,” and that

the composer, in seeking musical materials to clothe his thoughts, was working with various possibilities. As he tried this possibility and that, there came to the surface of his mind a particular combination that pleased him as being one he felt would be appealing to a prospective listener; in other words, that this combination of sounds would work.62

Described in this way, Harrison’s songwriting process would seem to epitomize independent creation: a songwriter works through various musical combinations until he or she arrives at the one that matches the aesthetic ideal in his or her head. But, according to the court, Harrison’s subconscious was not actually creating, and the reason he knew this combination of sounds would work is because “his subconscious knew it already had worked in a song his conscious mind did not remember.”63 So, what felt like independent creation to Harrison was actually just copying from memory.64

This analysis implies that whatever evidence Harrison put on to show his creative process could equally have been used to demonstrate copying, because to his conscious mind they would seem the same. As such, for Harrison to prove independent creation of “My Sweet Lord” and defeat the presumption of copying,65 he would have needed to show what his subconscious mind already knew or didn’t know at the moment “My Sweet Lord” was written. This is logically incongruous, as anything contained in the subconscious exists in the part of the mind that a person is not aware of.66 There is no way Harrison could have consciously known his subconscious mind, and whatever evidence he might have provided of its creative workings might equally support the opposite conclusion of copying.

Usually, the burden falls on the defendant to prove independent creation. However, I would argue that, in such situations, it would be more apt for courts to presume that a work has been independently created and to require plaintiffs to offer positive evidence of defendants’ unconscious as part of their prima facie case. Rather than requiring defendants to show what wasn’t going on in their unconscious mind at the time of the alleged infringement (i.e., that they weren’t copying),67 it should instead be the plaintiff’s burden to provide evidence sufficient for the court to infer that the defendant was copying. Put another way, when subconscious copying is alleged, courts should forebear the normal presumption of copying-in-fact (based on reasonable access and probative similarity) and instead should presume independent creation by the defendant, with the burden falling on the plaintiff to negate this presumption.

Providing such circumstantial evidence should not be substantially more challenging than proving criminal mens rea or tortious intent. Take, for example, the evidence presented in the “Love is a Wonderful Thing” case. At trial, a studio work tape of Michael Bolton recording his song was presented.68 On this tape, Bolton asked his cowriter if the song they were composing was actually Marvin Gaye’s “Some Kind of Wonderful.”69 According to the trial court, “[t]his statement suggests that Bolton was contemplating the possibility that the work he and [his cowriter] were creating, or at least a portion of it, belonged to someone else, but that Bolton wasn’t sure who it belonged to.”70 The trial court then goes on to say that, based on the tape, “[a] reasonably jury can infer that Bolton mistakenly attributed the work to Marvin Gaye, when in reality Bolton was subconsciously drawing on Plaintiff’s song.”71 This tape offered evidence of Bolton’s subconscious mind at the time the song was written sufficient for the trier of fact to conclude that copyrighted elements were being subconsciously copied from the Isley Brothers rather than independently created, thus overcoming any presumption of the latter. Admittedly, this is particularly damning evidence: how often do people speculate aloud about possible plagiarism? Nevertheless, it was evidence that was obtainable through discovery,72 and it is likely that in other subconscious copying cases similarly persuasive evidence of a defendant’s unconscious state could be found.

Conclusion

While beneficial as a mechanism for copyright owners to recover for infringements when direct proof of copying is meager, the subconscious copying doctrine also poses significant risks to legitimate creative expression, particularly for musicians. Advances in technology have made it possible for new musical works to be widely distributed at minimal cost. Such technology also increases the likelihood that similarities will be detected between works that otherwise might never be compared. In such instances, can the law distinguish between a mere coincidence and an unconscious appropriation? This epistemological puzzle is more than a “trivial pother”73 and has real consequences—as both George Harrison and Michael Bolton could attest—that courts need to consider closely. Even though such cases are historically rare, new technology presents an opportunity for overzealous plaintiffs to free ride on the later works of others using subconscious copying as their ticket.

Endnotes

1. See My Sweet Lord, The Beatles Bible, https://www.beatlesbible.com/people/george-harrison/songs/my-sweet-lord/ (last visited Jan. 18, 2017).

2. Id.

3. Bright Tunes Music Corp. v. Harrisongs Music, Ltd., 420 F. Supp. 177, 178 (S.D.N.Y. 1976).

4. See Three Boys Music Corp. v. Bolton, 212 F.3d 477, 480 (9th Cir. 2000) (finding copyright infringement based on subconscious copying).

5. Williams v. Bridgeport Music, Inc., No. CV13-06004-JAK (AGRx), 2015 U.S. Dist. LEXIS 97262, at *45–51 (C.D. Cal. July 14, 2015) (discussing subconscious copying).

6. See David Nimmer, Access Denied, 3 Utah L. Rev. 769 (2007) (discussing the doctrine of “access” in light of new technology for distributing creative works).

7. See 2 Paul Goldstein, Copyright: Principles, Law and Practice § 8.3 (1996) (discussing inherent limitations in musical composition).

8. Perfect 10, Inc. v. Cybernet Ventures, Inc., 213 F. Supp. 2d 1146, 1166 (C.D. Cal. 2002).

9. Fred Fisher, Inc. v. Dillingham, 298 F. 145, 148 (S.D.N.Y. 1924).

10. See Plains Cotton Coop. Ass’n of Lubbock, Tex. v. Goodpasture Computer Serv., Inc., 807 F.2d 1256, 1261 (5th Cir. 1987). However, a showing of “willful” on the part of a copyright defendant may affect the damages awarded. See 17 U.S.C. § 504(c).

11. Three Boys Music Corp. v. Bolton, 212 F.3d 477, 480 (9th Cir. 2000).

12. See 4-13 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 13.01 (2015) (discussing elements of copyright ownership).

13. Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991) (citing Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 548 (1985)).

14. As opposed to copying permitted by statutory exception, such as fair use. See 17 U.S.C. § 107.

15. See Ringgold v. Black Entm’t Television, Inc., 126 F.3d 70, 74–75 (2d Cir. 1997) (stating that “probative similarity” is the better term for the threshold for copying as a factual matter).

16. Nimmer, supra note 6, at 771. Confusingly, courts sometimes say “substantial similarity” instead of “probative similarity,” though the former term more properly refers to the comparison made in the misappropriation inquiry. See Universal Athletic Sales Co. v. Salkeld, 511 F.2d 904, 907 (3d Cir. 1975) (stating that “substantial similarity is not always substantial similarity”).

17. Three Boys Music Corp. v. Bolton, 212 F.3d 477, 482 (9th Cir. 2000).

18. Id.

19. Id.

20. See Baxter v. MCA, Inc., 812 F.2d 421, 423 (9th Cir. 1987).

21. Bernal v. Paradigm Talent & Literary Agency, 788 F. Supp. 2d 1043, 1052 (C.D. Cal. 2010); see also Positive Black Talk Inc. v. Cash Money Records Inc., 394 F.3d 357, 371 n.10 (5th Cir. 2004), disapproved on other grounds, Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154 (2010).

22. Three Boys Music, 212 F.3d at 485.

23. Smith v. Jackson, 84 F.3d 1213, 1218 (9th Cir. 1996). However, the reverse is not true: a weak showing of access does not require a stronger showing of substantial similarity.

24. Pasillas v. McDonald’s Corp., 927 F.2d 440, 442 (9th Cir. 1991) (internal quotation marks omitted).

25. Granite Music Corp. v. United Artists Corp., 532 F.2d 718, 721 (9th Cir. 1976).

26. Three Boys Music, 212 F.3d at 486 (citing Granite Music, 532 F.2d at 721).

27. Fred Fisher, Inc. v. Dillingham, 298 F. 145, 147 (S.D.N.Y. 1924).

28. See United States v. Liu, 731 F.3d 982, 991 (9th Cir. 2013) (citing 4-13 Nimmer & Nimmer, supra note 12, § 13.01).

29. See, e.g., Bright Tunes Music Corp. v. Harrisongs Music, Ltd., 420 F. Supp. 177, 178 (S.D.N.Y. 1976).

30. 298 F. at 147. The doctrine was adopted by the federal circuit courts shortly thereafter. See Harold Lloyd Corp. v. Witwer, 65 F.2d 1, 17 (9th Cir. 1933) (“[A]n intentional copying is not a necessary element in the problem if there has been a subconscious but actual copying.”); Edwards & Deutsch Lithographing Co. v. Boorman, 15 F.2d 35, 37 (7th Cir. 1926) (“One may copy from memory . . . and this may be done without conscious plagiarism.”).

31. Fred Fisher, 298 F. at 146.

32. Id. at 147 (“Not only is the figure in each piece exactly alike, but it is used in the same way; that is, as an ‘ostinato’ accompaniment.”).

33. Id.

34. Id.

35. Id.

36. Id. (“Mr. Kern swears that he was quite unconscious of any plagiarism, and on the whole I am disposed to give him the benefit of the doubt.”).

37. Id. at 148.

38. Id. at 152.

39. Id.

40. Bright Tunes Music Corp. v. Harrisongs Music, Ltd., 420 F. Supp. 177, 178 (S.D.N.Y. 1976).

41. Id. at 178.

42. Id. at 181.

43. Id. at 179.

44. Id.

45. Id. at 180–81 (footnote omitted).

46. See ABKCO Music, Inc. v. Harrisongs Music, Ltd., 508 F. Supp. 798 (S.D.N.Y. 1981). These damages were reduced on appeal. See ABKCO Music, Inc. v. Harrisongs Music, Ltd., 944 F.2d 971 (2d Cir. 1991).

47. That the songs had the same title was of no consequence to the decision, as titles are not copyrightable. See 37 C.F.R. § 202.1(a).

48. Three Boys Music Corp. v. Bolton, 212 F.3d 477, 480 (9th Cir. 2000).

49. Id.

50. Id.

51. Id. at 484.

52. Id.

53. See Carissa L. Alden, Note, A Proposal to Replace the Subconscious Copying Doctrine, 29 Cardozo L. Rev. 1729, 1743 n.83 (2008) (collecting cases regarding subconscious copying, other than those involving musical works).

54. See, e.g., 2 Goldstein, supra note 7, § 8.3.

55. Id.

56. See, e.g., Peter Spitzer, Jazz Theory Handbook 81 (2001) (describing the chord changes involved in “I Got Rhythm”).

57. See Rhythm Changes, MoneyChords, http://www.angelfire.com/fl4/moneychords/rhythmchanges.html (last visited Jan. 18, 2017) (offering an extensive list of songs based on “rhythm changes”).

58. See, e.g., Heidi Mitchell, Why Does Music Aid in Memorization?, Wall St. J., Dec. 30, 2013, http://www.wsj.com/articles/SB10001424052702304483804579284682214451364 (noting that “patients with advanced Alzheimer’s dementia have been known to sing along to a familiar song”).

59. Bright Tunes Music Corp. v. Harrisongs Music, Ltd., 420 F. Supp. 177, 180 (S.D.N.Y. 1976).

60. One possible alternative solution to this problem would be to argue that certain musical phrases, such as “rhythm changes,” have become stock phrases that are not copyrightable under the scène à faire doctrine. See, e.g., Ets-Hokin v. Skyy Spirits, Inc., 225 F.3d 1068 (9th Cir. 2000) (upholding scène à faire as an affirmative defense to copyright infringement). This argument is beyond the scope of this article.

61. See Nimmer, supra note 6 (discussing the doctrine of “access” in light of new technology for distributing creative works).

62. Bright Tunes Music, 420 F. Supp. at 180 (footnote omitted).

63. Id.

64. See id.

65. See Granite Music Corp. v. United Artists Corp., 532 F.2d 718, 721 (9th Cir. 1976).

66. See Subconscious, Merriam-Webster, http://www.merriam-webster.com/dictionary/subconscious (last visited Jan. 18, 2017).

67. See, e.g., Joel S. Hollingsworth, Stop Me If You’ve Heard This Already: The Temporal Remoteness Aspect of the Subconscious Copying Doctrine, 23 Hastings Comm. & Ent. L.J. 457, 473 (2001) (“Is it sound to conclude that one has ‘access’ to his or her subconscious? Is access to a prior work sufficient where that access is long forgotten and at the time of creation of a new work, inaccessible to the creator?”).

68. Three Boys Music Corp. v. Bolton, 212 F.3d 477, 484 (9th Cir. 2000).

69. Id.

70. Id.

71. Id.

72. In this case, the work tape was presented as part of Bolton’s defense, but it presumably would have been available to the plaintiff through normal discovery procedure.

73. Fred Fisher, Inc. v. Dillingham, 298 F. 145, 152 (S.D.N.Y. 1924).

Robert Kirk Walker

Robert Kirk Walker is an intellectual property attorney with Axiom in San Francisco, California. He specializes in copyrights, trademarks, publicity rights, and general business issues.