Re: copyright under stress

On Wed, Jun 14, 2000, Ransford Pyle <pyle[_at_]mail.ucf.edu> wrote:
>
> On 06/13/2000, James Brennan <brennandot[_at_]prodigy.net> wrote:
> >
> > On Mon, Jun 12, 2000, Robert Cumbow <rcumbow[_at_]grahamdunn.com> wrote:
> > >
> > > On Fri, 09 Jun 2000, Tim Phillips <hrothgar[_at_]telepath.com> wrote:
> > > >
> > > > In music, the doctrine of "unconscious infringement" makes even
> > > > original songwriting chancy, as Jerome Kern and George Harrison
> > > > discovered to their rue.
> > >
> > > I know the Harrison case. What was the Kern case?
> >
> > Was it Jerome Kern? Could have been. It was a famous early
> > 1900's composer who admitted that he had heard the original work
> > and sub-consciously, without realizing its source, included it
> > in his work. Anyway, I thought that the cases stood for the
> > proposition that copying even "unconscious copying" was
> > infringement.
>
> I remember an instance (a case or hypothetical I don't recall)
> long before I was seriously interested in IP where a songwriter
> was accused of stealing a melody. Proof was difficult but the
> other songwriter's song seemed one that the accused would almost
> certainly have heard. The defense goes something like this: "I
> didn't steal it. I don't remember hearing it. If I did, perhaps
> unconsciously I remembered it and I thought it was my own. But,
> anyway, you stole it from Hoagy Carmichael (remember him?), who
> took it from Gilbert and Sullivan (I'm straining), who got it from
> Mozart, based on an old German folksong." Hard to prove? Sure,
> but what if you can show such a chain? Not being a musician, I
> wonder when a sequence of notes is an 'idea' and when it is an
> 'expression.' I know most will reject such a thought but it
> strikes me as germane.

It is germane, and it's been applied by courts. I can't give cites but I'm sure others on the list will. One of the defenses to a claim of infringement is that both the plaintiff and the defendant actually copied the work from a third, older source. When a "chain" of sources or similar works can be traced, sometimes a court will find that the alleged work has become public domain, or is unprotectable because of the scenes a faire doctrine -- meaning that that particular work is a "standard" element of certain kinds of works -- or that it simply does not meet the originality requirement.

Robert C. Cumbow
 Graham & Dunn PC
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