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.

  • Lax Danja House

    Unintentional infringement does happen relatively often. Most musicians understand that it happens and don’t go presume they’ve been ripped off.

  • LAKingsin2009

    Good info.

    If the audience test carries the day, I have to believe JS is in good shape. What exactly though is meant by ‘without suggestion’ in the audience test? Isn’t it already a supposition that someone, in this case JS, is suggesting that the two compositions are similar? Also, I think that, as you note, the ‘substantial’ aspect is key. And that x and y are substantially similar doesn’t exactly seem to be a judgment that is based solely on musical similarity.

    Regarding the finite point, the english alphabet is finite and I don’t think anyone has unknowingly duplicated another’s novel yet. I know the comparison is far from perfect, and that JS isn’t claiming that an entire song was copied, but 12 distinct notes (plus the fact the notes are spread over time) allows for a lot of different combinations.

  • Anonymous

    The thing is, both tracks have THE SAME MELODY. And they sync up together nearly perfectly. That’s one hell of a coincidence…say what you will of the generic-ness of the material, when i first heard the Coldplay song, I found it to be not as Coldplay-ish (bland) than their previous hit singles.

  • Lax Danja House

    But there are 3 notes and 2 seconds of audio that are similar, and even so they’re not played at the same tempo. It is not much to go on for me, especially when those notes are suggested by the chords. If Satriani’s melody was completely unconventional, there might be a case, but it is very straightforward (not that that’s a bad thing.)

    I’d be worried about the audience thing though. It doesn’t seem particularly empirical.

  • MTS

    Thanks for the breakdown! Is Satriani’s version actually original, however? As John points out, there are only a finite number of pleasing chord progressions. Wouldn’t 50+ years of popular music recycling itself multiple times over, combined technology, and other postmodern gobbeldygook, dictate that nothing is actually original?

  • John P Strohm

    @MTS: Regarding originality, the originality threshold for copyright protection is very low – the 1991 Supreme Court case Feist v. Rural Telephone Service Co. articulates the standard. The court held that arranging factual data (names and telephone numbers) in alphabetical order does not meet the requirement; however, anything that shows a minimal amount of creative effort will pass this very low threshold. That’s why I said it’s a given. There is no novelty requirement, such as in patent law.

    Nevertheless, Coldplay could bring in an expert and show that the notes that Coldplay allegedly copied are common elements. For example, in Griffin v. J Records, the plaintiff claimed a seven-note sequence from her song was appropriated for the song “Dance With My Father” by Richard Marx and Luther Vandross. The defendant was granted summary judgement because the plaintiff did not present evidence to rebut the expert witness who demonstrated that the seven-note cascading and descending sequence is also ripped off from Beethoven, Bach, The Beatles, and The Left Banke, among others. Therefore it is what is known in copyright lexicon as “scenes a faire” – an element that is common to the genre and therefore not subject to protection, such as the twelve-bar-blues mentioned above.

    In the discussion of this matter I’ve noted many people saying that the two songs also sound like something else. That could actually provide a compelling defense.

  • janine

    Despite the fact that there’s a finite number of chords and melodies suggested by those chords, there’s enough rhythmic variation to make the same succession of notes sound completely different. Removed from its rhythm and pacing, chords and melodies that are supposed to be a particular song could be any song (or no song at all). There’s a million ways to play C, G, F, G. Even with decades of popular music behind us, there’s always evolution in people’s rhythm, too: how we dance, how we like to hear it, etc. My point is I’m not surprised there isn’t more accidental infringement. It’s not completely inevitable.

    Look what you can do with a blues progression:

  • sicksteanein

    You mention the twelve bar blues example. I would say that the chord progression in question (C D G Em) is a pop music trope itself. Is there precedent for other such cliched progressions (especially in pop)? C G Am F comes to mind as does the old doo wop standard C Am F G.

    I hope Coldplay gets the musical expert testimony on this matter or this will be a pretty harsh precendent.

  • John P Strohm

    Any four-chord diatonic chord progression has been used before. I’m assuing it’s in G, which would make it IV – V – VI minor – I. A good expert could come up with many examples for the harmony, and the melody seems simpler than the one in Griffin. I personally would find it fascinating to hear an expert’s analysis of the passage in question.

    Before becoming the Idolawyer, I was a professional musician and songwriter. I’ve had the experience many times of sitting down and writing a song or part of a song to my great excitement to later discover that it’s actually some ELO song I loved in 6th grade or something. I promise you, every professional songwriter lives in terror of having something slip by everyone and make it to a record – such as George Harrison’s My Sweet Lord.

    As an aside on My Sweet Lord (held to have infringed the Chiffons “He’s So Fine”), that’s an obvious one to me for substantial similarity, but when I play it for my entertainment law students I get a lot of puzzled looks. Non-musicians are thrown by the wildly different arrangements and often have trouble focusing on the protectable elements of the melody and harmony.

  • Anonymous

    Just BTW, as sicksteanein says, the Coldplay progression is IV V I vi. The Satriani progression isn’t- I’m listening at work without access to an instrument, but it sounds like primarily a 2 chord progression, ii I, or vi V, repeated. A portion of the initial melodies are the same or similar, but the underlying progressions are different. Also BTW, the overlaid versions shown on the video example have been modified to match keys and tempos–the originals are in different keys and speeds (Coldplay in G, Satriani in A or D? Someone at home with a guitar or piano–or perfect pitch!– can confirm).

  • John P Strohm

    @kabosh: My error – I mis-read the previous post. I don’t think that sort of digital manipulation would be allowed as evidence.

  • Anonymous

    @John P Strohm:
    No, your points are still apt. The melodic similarity is still there, despite the different keys and progressions– the melodies just sit over different changes.

  • Anonymous

    I hope Satriani doesn’t agree to settle out of court-I want this to go to trial so badly to illuminate the problem of cheating and plagiarism. He may lose in court, but if he agrees to settle out of court Coldplay WINS. Money is no object for those people.

  • John P Strohm

    @kabosh: My error on the progression – misread the comment. The Youtube video is apparently manipulated – and manipulative. It won’t be presented that way to the jury.

  • John P Strohm

    Sorry, all, to post substantially the same comment twice. For some reason it didn’t show up at first…

  • anumberofnames

    I’m surprised that no one has mentioned Marty Balin’s “Hearts.” I think it’s much more plausible that Balin influenced both Satriani and Coldplay than that Satriani influenced Coldplay.

  • Lucas Jensen

    @John P Strohm: You were a professional songwriter and musician? John, you are being modest.

  • John P Strohm

    @Lucas Jensen: really? I thought I was stretching the truth a little.

  • ilovealias4ever

    There are some really great points here.

    One that I noticed wasn’t mentioned – but does come under the umbrella of ‘unintentional infringement’ – was the fact that a little New York band, “The Creaky Boards” also used a similar melody in their song, ‘The Songs I Didn’t Write’.

    If a virtually unknown band has discovered the same tune, as well as a ‘guitar legend’ and the Biggest Band in the World, how does it not represent the fact (to Satriani and others) that it could actually be pure coincidence?

    If three artists – who are not linked in any known way – have come up with a similar sound, I think it’s going to be hard to pin an infringement stamp on Coldplay’s front.

    But then, of course, all of [i]that[/i] comes down to this obviously flawed ‘audience test’ system, the arguments put forth by each legal entity, and the ‘similarity’ etc. – and all that, again, is still reliant on whether or not the case even goes to trial.

    I agree with sstendhal, I really don’t want a settlement to take place out of court.

    For starters, I believe Coldplay are in the clear – coupled with the above argument, Chris Martin wrote a letter to German band, “Kraftwerk”, asking for permission to use a riff from their song, ‘Computer Love’ in their own, ‘Talk’; I don’t see why he wouldn’t pay a well known guitarist the same courtesy…

    Same goes with their recent use of ‘Life Through the Veins’ by Jon Hopkins on their latest release, “Viva La Vida or Death And All His Friends” – personally, I had never even heard of him before Coldplay used his music, so I don’t see him as this well known performer; but I do think that Joe Satriani is the bigger artist.

    Chris Martin and the rest of the band have too much integrity to ‘steal’ from other musicians. They have never hidden the fact that they believe it is important to ‘prove themselves’ worthy of their job, that they are always trying to better themselves, to create something new and fantastic, and original. Copying/stealing, whatever, from someone else would be terribly contradicting, and extremely uncharacteristic of them.

    And secondly, going to trial will hopefully shed some new light on the problem of music plagiarism, and set a new precedent for future copyright infringement cases.

  • John P Strohm

    @porkchops: heh, yeah, old home movies with my ex-girlfriend.

    In a recent Pitchfork review of Juliana’s latest, the writer declared The Blake Babies not to be as important as The Pixies or Mission of Burma, so I’d assumed that was the last word on the subject.

    That song’s a good example of a song I wrote that I worried for a long time was probably unintentionally ripped off from somewhere. That’s the danger of trying to write catchy pop songs. How many melodies can you sing over a I-IV progression?

  • Richaod

    @kabosh: the perfect pitch dictates that Satriani’s in D, Coldplay in D flat.

  • Anonymous

    @John P. Strohm: Sure, just another member of some little college band that helped open the floodgates on an obscure movement known as the alt rock EXPLOSION of the 90′s, right??

    Nothing to write home about, I guess!

  • Anonymous

    @John P Strohm: Yeah, well, that review kind of missed the mark in a lot of ways anyway, so I wouldn’t worry much about your legacy – either with the BB or the “welterweight” (?!) Lemonheads…

    Back on topic, I think your point about musicians (and esp. songwriters) recognizing similarities more often than a typical audience is very important when it comes to deciding these cases.

    Since the value of a song like Coldplay’s is directly correlated to the impression it makes on an audience, should the reasonable person/audience impression test be given more weight that the “expert analysis.”

    I mean, an expert could go on all day about how similar to compositions are but if the general audience can’t hear it until it is pointed out to them in excruciating detail then isn’t that rather indicitave that they’re not all that similar after all?

    As for My Sweet Lord, that case had to be a slam dunk because He’s So Fine is a song that EVERYBODY had heard – a giant hit – and it’s the same song pretty much all the way through, so that’s kind of one extreme.

    The Coldplay case is more of a gray area I suppose, but the rights to their songs are so incredibly valuable that they have no choice to fight it or they’d open themselves up to a cottage industry of claims. I can see a lawyer on TV doing the ad: has YOUR song been ripped off by Coldplay? Maybe it has! Go check all your old tapes very carefully and give us a call at 1-800-INFRINGE – we’ll get you the compensation you deserve!

  • John P Strohm

    @porkchops: There are different versions of the audience test that try to address the issue you’ve identified. I may be wrong, but I think the 9th circuit formulation has separate copying and substantial similarity elements – copying can be established by expert testimony, but if copying is found SS is established using the traditional audience test.