I was reading an academic paper the other day, and it began:
You are just as qualified as any expert to make a judgment and have a feeling or a response to any work of art. – Bill Viola
And I’m like, “No, you aren’t. Sure, for certain kinds of judgments, but not any judgment. Musically untrained laypersons, and most musicians too, are not as qualified as experts to make a judgment about the originality or protectability of a musical work. It’s not remotely close.”
Is it? Alright, here we go.
Making that judgment is only one component of my function as a forensic musicologist. Just as important is my ability to explain and maybe persuade a layperson juror or judge about the extrinsic aspects of a copyright question. It’s their job to take that and arrive at a finding.
In the ninth circuit, the judgment, feeling, and response of the non-expert observer gets its day in court. We call that the intrinsic test; a terrible idea, I could argue, and I will in a minute. The Ninth Circuit wants a subjective look at similarity in total concept and feel, and wants the ordinary observer to weigh that.
But before the intrinsic test, usually, the courts want the extrinsic test, where they rely on someone like me to talk about boring notes and stuff. I’ll opine as to whether the notes in common between two works are indicative of copying, and if so, the copying of elements original to and protectable by the earlier of the two works, and to such a degree that society should think it’s wrong — that infringement has occurred.
But infringement itself isn’t really my purview. Infringement is for the court to decide. The court is more qualified than I to make a judgment and have a feeling or response with regard to whether the observations of laypersons should carry as much weight as those of expert witnesses. But, I have my opinions.
Theirs might be that if my analysis falls in a forest and there’s nobody there to endure hearing it, that’s pretty irrelevant. Perhaps an argument can be made that the listener’s perception is where real infringement lies.
But it’s not.
I was reminded just yesterday that Elvis’s “I Can’t Help Falling In Love With You,” was based on an old French melody, Plasir d’amour. And so I went back and listened. It’s based alright. Lyrically, well, Plasir is in French and my French outside of a wine shop is not great, but according to Google translate, there are no words in common, nor really is the sentiment the same, though they’re both about love, and in both there’s the idea of comparing the inevitability and permanence of one’s devotion to tributaries. But the music is less the same than I’d wager a layperson would be inclined to think.
Here, listen to both.
How alike do you find them? How cause and effect? These are regarded as very similar works, but since the earlier work is 200 years old and, therefore, public domain, it’s just one more example of appropriation of the classical repertoire.
But suppose it was not. For you lawyers out there… I think Swirsky found that 7 notes might be protectable, but Newton found that three notes were de minimis. And Newton was a sampling case, so those three notes were a contextually rich three.
Well, Elvis has the four notes, “But I can’t help,” in common with Plaisir, and like Plaisir, they’re accompanied by a couple of chromatically descending bass notes, but not the same descending notes. The three chords that accompany “I Can’t Help” are not the same as in Plaisir.
Plasir is: D/F# G7/F C/E
Elvis is: F E7 Am
To boot, of all the series of notes that we consider unprotectable and public domain, nothing beats scales. Scales are building blocks. And F#, F, E, is a chromatic scale, not that it should matter much since Elvis doesn’t employ any of the three.
But the melody to “But I can’t help?” Yep, that’s “Sol La Ti Do,” scaling as all get out. And “Love with you,” well, those three notes are the same, and their accompanying harmonies are the same as well, but the melody notes are Mi, Re, Do, just a downward Do Re Mi scale.
If I were looking more deeply at the differences in harmony, I might consider relative equivalence arguments around the different harmonies. But they’d remain different.
See if you care! Listen to both. They’re frequently interpreted as essentially alike. But they’re essentially unalike on paper. Is that where the truth lies?
There’s another factor here though. Laylisteners are persuaded by elements that copyright adjudication seeks to ignore. We do not protect all musical elements to the same degree. But when a layperson hears two songs that contain, let’s say, somewhat similar notes, but identical instrumentation as in the case of Stairway To Heaven vs. Taurus where the similarity was in the acoustic guitar picking part. The jury was not allowed to hear those recordings. The suit was argued using the sheet music to Taurus. One argument in favor of not letting juries hear recordings of songs being discussed, as was the case in Let’s Get It On vs Thinking Out Loud as well, is that laypersons will hear greater similarity than is really there and will incorporate unprotectable features such as instrumentation in their calculus.
Whether that’s good or bad depends on your broader opinions regarding copyright and for that matter questions about the morality of appropriation.
To my knowledge, the authors of Can’t Help Falling In Love have not copped to any of this. (If you know differently, tell me.) But what if I place them in the conservatory with the candlestick thusly:
From Plaisir d’amour:
“Tant que cette eau coulera doucement
Vers ce ruisseau qui borde la prairie,
Je t’aimerai, te répétait Sylvie.
L’eau coule encore, elle a changé pourtant.”
Google translate says that's:
"As long as this water flows gently
Towards this stream which borders the meadow,
I will love you, Sylvie repeated to you.
The water still flows, but it has changed."
It’s not quite the same allusion, but we have metaphors and similes to tributaries in both! In Plaisir d’amour, the water symbolizes how enduring her love will be, but that love is variable — while the water still flows, it has changed. Plaisir is a sad song. In Can’t Help Falling in Love, the river flowing “surely to the sea” is about this particular love’s inevitability. It’s “meant to be.”
But conservatories and candlesticks here are ideas, and ideas aren’t protectable either.
So here I am, saying these two works are NOT substantially similar. It’s just a few notes, scale-wise ones at that, with mostly different harmonic contexts. And that’s it for extrinsic similarity. There are no lyrics in common. Just a Re-Mi-Do, and a Sol-La-Ti-Do sung (except that “sol”) to notes all the same one measure in duration.
Where’s truth? Extrinsic or intrinsic?
