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Three Chords and the Truth Part II

By Peter C. Lemire of

Leyendecker & Lemire, LLC A Colorado Intellectual Property & Business Law Firm

In the fist installment of this article, we examined the case of Bridgeport Music, Inc. V. Dimension Films which surrounds digital sampling. Additionally I put forth the opinion of Peter Gutmann, an attorney who wrote an article in the October issue of IP Law and Business critiquing the decision and ultimately making his case for why music should not be afforded copyright protection. In this installment of the article we will look a bit more at Mr. Gutmann’s reasons why he believes music should not be entitled to copyright protection, as well as an analysis of a famous copyright case involving George Harrison.

Gutmann uses the "independent fixation of the sounds captured in a recording" concept of section 114(c) as a gateway into a fractured and strained reasoning on why music should not be afforded copyright protection. He points out that there are potential pitfalls for the individual relying on 114(c) due to the fact that certain case law exists that could pose pitfalls to the unwary. In particular, he cites the 1981 case of Abkco Music, Inc. v. Harrisongs Music, Ltd., 508 F. Supp. 798 (S.D.N.Y. 1981), aff’d 722 F.2d 988 (2d Cir. 1983).

For anyone who practices copyright or is into the commercial side of music, the Harrisongs case should ring some bells. At heart in this case was the question of whether George Harrison’s 1971 "My Sweet Lord" infringed on the Chiffons 1963 hit "He’s So Fine". The songs in question both consisted of a 2 chord motif of G and C (the II and V chords of the key of F) and a 2nd motif that in the Harrison song consisted of F and Dm (the I and VI chords) and F in the Chiffons song. In particular, the trial court decision and the subsequent appellate court decision stand for the proposition that infringement may be achieved subconsciously. Therefore, no actual intent to copy needs to be shown, just a knowledge of the existing work and a substantial similarity between the two works. The court then assumes that because author had a generalized knowledge of the pre-existing work that the only logical reasoning for the similarities of the works is that the second author was influenced by the work on a subconscious level. In the Harrisongs case, Harrison admitted he was familiar with the Chiffons’ song. Although, even if he hadn’t admitted he was familiar with it, the court seemed all to eager to presume knowledge of the song due to the song’s popularity and the fact that


© 2007 by Leyendecker & Lemire, LLC. All Rights Reserved

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