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Article
Applying the Fragmented Literal Similarity Test to Musical-Work and Sound-Recording Infringement: Correcting the Bridgeport Music, Inc. v. Dimension Films Legacy
Minnesota Journal of Law Science, & Technology (2013)
  • Mark R. Carter, , J.D., Ph.D., Georgetown University
Abstract
Copyright law simultaneously protects recorded music in two distinct ways. A musical work, i.e. composition, and its sound recording are both copyrightable. Copyright law protects all copyrightable works against unapproved reproduction, i.e. copying. Normally, the substantial similarity standard tests reproduction infringement. A sound-recording sample may be so short as to lack substantial similarity to the musical-work and thus not infringe it. But, Bridgeport Music, Inc. v. Dimension Films chucked substantial similarity to hold the same sample, however short, necessarily infringes the sound-recording re-production right. This disparate copyright protection between musical works and sound recordings of the same sample has led to the “mashup problem” or dilemma. Substantial similarity can be broken into two basic types: comprehensive nonliteral similarity and fragmented literal similarity. This paper proposes a framework for applying the fragmented-literal-similarity test to both musical-work and sound-recording reproduction infringement. First, it describes the framework for musical works based on the innate discretization of musical works as notes. Second, it describes breaking sound recordings into sound snippets and weighs the copied snippets’ quantitative and qualitative values to the copyrighted recording. Third, it outlines applying the framework to Swirsky v. Carey, Bridgeport, and Girl Talk’s sampling recordings.
Keywords
  • copyright,
  • music,
  • sampling,
  • mashup,
  • infringement,
  • Bridgeport,
  • substantial similarity,
  • intellectual property,
  • entertainment,
  • nimmer,
  • Burkan,
  • ASCAP
Publication Date
July, 2013
Citation Information
Mark R. Carter, J.D., Ph.D., Applying the Fragmented Literal Similarity Test to Musical-Work and Sound-Recording Infringement: Correcting the Bridgeport Music, Inc. v. Dimension Films Legacy, 14 Minn. J. L. Sci. & Tech. 669 (Spring 2013), available at http://purl.umn.edu/155461.