Accepted Answer

It's a little more complex than you suggest. Actually, a lot more, and there are definitely copyright risks here.

The question is whether or not the derivative musical composition is "substantially similar" to the original composition. Courts tend to evaluate "substantial similarity" by examining whether a defendant's composition has taken "protectable elements" from the plaintiff's work.

What makes it risky is that there is no "bright line" test (be it "five notes" of melody, "two bars" of music, "one line" of a lyric, etc.) by which to determine "protectability" of what is taken.

The below may be more than you wanted to know, but I am providing for you a summary of the cases, and the most important facts that led the court to determine infringement of a musical composition, or no.

First, the taking of the first six notes of a composition, together with other musical ideas, can constitute copyright infringement.

Second, taking four notes could be infringing if combined with an original combination of other elements from the song. Santrayll v. Burrell, (S.D. N.Y. 1996) (one measure "hook" and repetition of word "uh oh" may be distinctive); Elsmere Music, Inc. v. National Broadcasting Co., Inc., (S.D. N.Y. 1980) (four notes and phrase "I love," which were key to copyrighted song, may be distinctive); Tin Pan Apple, Inc. v. Miller Brewing Co., Inc., (sounds "hugga hugga" and "brrr" in composition sufficient to warrant copyright protection).

Indeed, the taking of an original combination of five individually unprotectable elements can, standing alone, support a copyright infringement claim, even if no aspect of the melody is directly copied. Three Boys Music Corp. v. Bolton, (9th Cir. 2000) (copying of original combination of five individually unprotectable elements consisting of the "title hook phrase," the "shifted cadence," the "instrumental figures," the "verse/chorus relationship" and the "fade ending" sufficient to support a jury verdict of copyright infringement on substantial similarity grounds);

However, the use of a three-bar "melodic variation," a two-bar harmonic progression, and a common phrase was not sufficient to establish substantial similarity.

Similarly, use of a common seven-note sequence also was held insufficient to support a copyright infringement claim because the seven-note sequence was scenes a faire.

The simple taking of three notes from a melody, unaccompanied by other elements attributable to the musical composition, has been held insufficient to support a copyright infringement claim. Newton v. Diamond, (9th Cir. 2004), c(sampling of three notes from sound recording insufficient to constitute copyright infringement in the musical composition); McDonald v. Multimedia Entertainment, Inc., (S.D. N.Y. 1991) (three note sequence could not be protected by copyright because it was a "common and much-used tone in traditional western music"); see also Tisi v. Patrick, (S.D. N.Y. 2000) (copyright infringement claim based on similar key, tempo, chord/harmony structure common to rock music and a guitar rhythm failed because those combined elements not protectable); Intersong-USA v. CBS, Inc., (S.D. N.Y. 1991) (no copyright infringement from taking a descending scale step motif and recurring eight note rhythm because they were "common elements ... found in many other well known songs.");

Similarly, the taking of short phrases alone has been held insufficient to support a copyright infringement claim, even if the phrases are similarly emphasized in two musical compositions. Positive Black Talk Inc. v. Cash Money Records, Inc., (5th Cir. 2004) (use of the common phrase "Back that Ass Up" in musical compositions insufficient to establish substantial similarity for copyright infringement purposes); Boone v. Jackson, (S.D.N.Y. 2005) (common use of phrase "Holla Back" in lyric of two songs insufficient to support copyright infringement claim).




Edited by Joseph Leon on 1/31/2009 at 12:30 AM

Expert:	Joseph Leon
Pos. Feedback:	100.0 %
Accepts:
Answered:	1/31/2009

IP Attorney

General practitioner, including non-scientific IP; practiced 15 years; licensed in 4 states.