When determining whether two musical works are substantially similar, should the basic harmony in the plaintiff’s composition be deemed protectable under the copyrights law? I argue that it should not, and offer a new paradigm for reevaluation of the role the harmony plays in the substantial similarity test. I argue that the basic tonal-functional harmonic progressions should be unprotectable as a matter of law, because those progressions constitute a song’s functional feature. For example, a twelve-bar blues harmonic progression should be unprotectable not just because of the ubiquitous "public domain" argument, but because of the functional features the harmony possesses. Mass consumers demand the music capable of being emulated by a vast number of people, and they demand the music in which simple harmony is a prominent trait. I argue that protecting simple harmonic material of one composer would hinder the ability of other composers to produce songs with the features demanded by the music consumers market. The idea of harmonic functionality has not been explored in the legal context, and this note offers a novel rationale resting on the acoustical properties of the sound, on the properties that were initially articulated by Pythagoras, later crystallized by Renaissance scholars, and subsequently refined by post-modernist music theoreticians. Lastly, deflecting to the principles of music theory and acoustic perception, I argue that the current expectations from the juries in applying the intrinsic similarity test are unrealistic. I explain that there are too many factors that impair the juries’ ability to determine the intrinsic similarity between two music compositions. All notions are analyzed in the context of substantial similarity test.
- substantial similarity,
- intrinsic similarity,
- functional harmony
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