FRE-Bird: An Evidentiary Tale of Two Colliding Copyrights
Daniel Abowd
Note

  The full text of this Note may be found here.

30 Fordham Intell. Prop. Media & Ent. L.J. 1311 (2020).

Note by Daniel Abowd*

ABSTRACT

[S]

ound recordings are not musical compositions. Sound recordings embody musical compositions. Thus, when sound recordings appear in musical composition infringement trials, they do so as an imperfect facsimile of the composition they actualize. As a result, they can confuse and mislead juries tasked only with evaluating the similarity of the underlying composition. On the other hand, music is an aural medium: how can juries be expected to compare two songs without listening to their commercial embodiments?

Several recent cases have hinged on the admissibility of sound recordings in composition infringement trials. In doing so, they have implicated three fundamental questions: (1) Where does composition end and sound recording begin? (2) How has the evolution of creative and business practices in the music industry complicated the formerly tidy separation of composition and performance/recording? (3) What are the policy implications for courts defining “composition” more broadly or more narrowly, and how do these interact with the underlying policies governing sound recording evidentiary decisions?

This Note targets a seemingly simple question: how should courts approach the use of sound recordings in composition infringement trials? Any thorough answer, however, must grapple with the many underlying creative, industry, and public policy complexities that bear on that debate. Thus, this Note necessarily traces the historical convergence of composition and recording in creative, industry, and judicial contexts. It then discusses the underlying policy arguments that favor and oppose the unrestricted use of sound recordings in composition infringement trials. Finally, it marshals all of this context into a proposed “Triad” judicial framework that explicitly links a court’s inquiry into the “compositionality” of a recorded element to litigants’ burdens in seeking to admit, or preclude, that element as evidence of substantial similarity among compositions.

* J.D. Candidate, 2021 (Evening Division), Fordham University School of Law; M.A., 2014, New York University; B.A., 2011, Cornell University. Thank you to Professor Hugh Hansen and his staff at the Emily C. & John E. Hansen Intellectual Property Law Institute, particularly Soban Ahmed, Yuan Yuan Wang, and Rilana Wenske, for their guidance. Thank you also to Professors Olivier Sylvain, Kristelia García, Joseph Fishman, Pamela Samuelson, Sepehr Shahshahani, Janet Freilich, and Ron Lazebnik for their comments and suggestions. A special thank you to my editor, Claire Abrahamson, for her wisdom, and to the staff and editorial boards of both the Fordham IPLJ and the Fordham Law Review for their encouragement and assistance. Finally, a profound thank you to the Royalty Network team, particularly Frank and Kathy, for their support, and to my family and my wife, Naina, for their love. Disclosure: the author is employed as Vice President—General Manager at The Royalty Network, Inc., a music publisher that represents a portion of the work “Thinking Out Loud” in certain territories, on behalf of songwriter Amy Wadge, and is tangentially involved in its surrounding litigations. All views expressed are the author’s own and do not reflect the opinions of The Royalty Network, Inc., its clients, or its affiliated songwriters.