The 'I Know It When I Hear It' Test: Decreasing Overdependence on Sheet Music in Substantial Similarity Cases

Abstract

Courts examine music the wrong way in substantial similarity cases. Both British and American copyright law ask the same question: How much change exists between two contested works? If the court says that the amount of difference between or change from one work to another is “enough,” then Work B might infringe on Work A. However, many courts over-rely on sheet music to determine how different two pieces of music are — which misses the point of music and ignores the fact of the subjective musical experience. Therefore, instead of focusing on sheet music when adjudicating music copyright cases, courts should place greater emphasis on sounds. American courts can modify the procedure surrounding the Krofft substantial similarity test to increase their reliance on sounds. This modified procedure requires the jury to listen to the contested pieces before hearing any expert testimony. It also requires courts to utilize the much-debated Lay Listener Test rather than using a jury of trained musicians and to limit the role of expert players — those who play their music in the courtroom during the proceedings. Additionally, Congress should require sheet music deposit copies that seek to represent sound recordings to fully and completely transcribe all the sounds in those recordings. This Article combines elements that others have proposed in a unique way, as well as offering new procedural ideas. Additionally, this Article links a British case about Baroque music with an American case about classic rock, connecting United States and British copyright law. This Article also advocates leaning into the subjective nature of the individual’s musical experience while treating music equally under the law as other types of cases, such as medical malpractice or products liability.