The Idolawyer On Whether Or Not Coldplay Can Fly Away From Joe Satriani’s Lawsuit
It appears that Coldplay doesn’t plan to make nice with Joe Satriani by settling his infringement claim quietly; therefore, the matter will likely be decided in court. I’ve noted some armchair analysis of this matter has already occurred in the comments on this site, so I thought I’d provide a very brief legal framework for infringement suits regarding the copying of songs.
As a preliminary matter, keep in mind that songs and recordings have separate copyrights; Joe is alleging that Coldplay infringed his song, not his recording (as would be the case had Coldplay included an uncleared sample of Satriani’s recording in its recording, which would also infringe the copyright to the underlying song). Infringement of a recording may require a different analysis, including the fair use analysis discussed on my earlier post.
The infringement analysis applied by courts is, of course, unpredictable and rather cloudy; accordingly, potential litigants are leery of putting the decision in the hands of a fact finder. Assuming that Joe and his publisher legitimately own the copyright to “If I Could Fly,” assuming the song meets the minimal criteria for originality (a given), and further assuming that he has no direct evidence of infringement, the court will apply the following two-step inquiry: (1) whether the defendant had access to the plaintiff’s song prior to creation of “Viva la Vida”; and (2) whether the work of the alleged infringer is substantially similar to “If I Could Fly.”
The plaintiff is not required to show direct evidence of access; however, the plaintiff must establish substantially more than the bare possibility of access. If the work is widely disseminated to the public, then access may be presumed. If the plaintiff can establish a particular chain of events by which the alleged infringer may have gained access, then access may be imputed. If the works are strikingly similar, then the plaintiff will have a lower threshold to establish access; conversely, if access is clearly established, there is a lower threshold for similarity. The passage of time between the time the defendant likely had access and the time of creation is generally not a mitigating factor.
Mr. Satriani will likely make the argument that access is presumed because his song was widely disseminated, which requires a quantitative analysis. If Coldplay were the plaintiff, access would likely be imputed on the basis of millions of albums sold. Mr. Satriani has had a lesser degree of commercial success, therefore it’s difficult to predict the outcome of this inquiry. For example, in Rice v. Fox Broadcasting Co. (Ninth Circuit, 2003), a videotape that sold 17,000 copies was not widely disseminated, though the weight of evidence, including the sales figures and certain plausible events suggesting access, satisfied the court.
Once the plaintiff has established access, he is not required to prove that the works are identical. “Substantial similarity” exists between no similarity and literal similarity. With respect to a musical composition, similarities must at minimum be more than a brief or commonplace musical reference or motif. For example, a typical 12-bar blues chord progression would not be protectable in and of itself because such a progression provides the basis for so many existing compositions. Courts often apply the so-called “audience” test to determine substantial similarity with regard to musical compositions.
The audience test is comparable to the “reasonable person” test in tort law—it relies on the spontaneous and visceral reaction of the typical audience for the works at issue. If the audience detects similarity without suggestion, then the works are likely substantially similar. The audience test has been criticized, and the various circuits have unique formulations of the test. Courts also often allow consideration of expert testimony such as analysis by musical experts. The substantial similarity analysis often includes a value judgment, which is a determination of whether the value of the original work is harmed or the labors of the original author are appropriate by the infringer.
This article barely scratches the surface of this complicated and sometimes unpredictable legal doctrine. I’m personally amazed that unintentional infringement doesn’t occur more often among pop songwriters. It seems that the number of potential combinations of chords and melodies within pop music is finite; within such a limited format it seems inevitable that writers would arrive at the same combinations independently. It’s surprising that all possible ear-pleasing combinations of notes and chords have not been exhausted in the 50+ years of the rock era. By the same token, many aspects of pop songwriting are so commonplace that they could not reasonably be considered proprietary; the inspiration that is protectable under copyright is a relatively small portion of the overall composition. Nevertheless, under the existing methodology and with the assumption of access, the gut reaction of the likely audience is largely determinative in these matters.