Substantial Similarity of Musical Works: Navigating Different Tests, Recent Court Treatment

While imitation may be the sincerest form of flattery, musical artists do not want to see their creations imitated in someone else's work. There are only so many notes that artists have to design unique musical creations. Further, music often comes from inspiration. As a result, many musical works have common elements.

Copyright protection can attach to "original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device." Works of authorship includes musical works. However, while music and lyrics are both protectable by copyright, not every phrase or portion of a song is copyrightable.

People often think they can compare songs and determine when one artist has copied another. Of course, it's rarely clear cut and the line between imitation and inspiration has vexed the courts for years. Substantial similarity is an essential element of a copyright infringement case. But, tests for substantial similarity used by the courts have not been consistently applied. Whether two musical works are similar requires a case-by-case analysis and reasonable minds differ on whether musical works are substantially similar.

Listen as our authoritative panel of IP attorneys examines the different tests for substantial similarity in musical works. The panel will review recent court decisions addressing substantial similarity in musical works. The panel will offer best practices for disproving substantial similarity.