Re: copyright under stress

On Tue, 13 Jun 2000, Tim Phillips <hrothgar[_at_]telepath.com> wrote:
>
> In this particular case, I think the decision was wrong. In my
> opinion, a very simple ostinato accompaniment should be considered
> to be a sub-copyrightable public-domain building block of music,
> which anyone should be permitted to copy from anyone else.

Not to get involved in the whole issue, but this comment reminds me that there is strong precedent for the view: in computer programs, there is always the problem of separating the "copyrightable" material from that which is not. In the latter class there are myriad standard ways of doing things that do indeed appear all over the place as "building blocks," and those involved in the process can quickly recognize a particular sequence of code. Experts in music should likewise be able to show that skill, hence (a) the music in question, like a computer program, must have copyrightable features above and beyond those building blocks; (b) any infringement case would need to find features other than those building blocks; but even so, (c) a work derived from an earlier work by adding building blocks is nevertheless a derivative work of the original, and would infringe. (On this latter point, that is to say that a derivative is a derivative, whether or not the changed or added material would itself qualify for copyright protection.)

(A minor to major key change at the end of a song, or ending on a major 7th chord in a jazz song, are so standard that everyone does them -- those are examples of "building blocks.")

Bill Lovell
<wsl[_at_]cerebalaw.com> Received on Thu Jun 15 2000 - 07:27:09 GMT