IP & Art

Musical works are basically composed of melody, rhythm and harmony which are the three main elements. These elements are properly arranged under a series of systems and orders to form a musical work with originality. Music goes through the process of writing, composing, and arranging, and is usually completed with electronic techniques added. do.

If so, how will the copyright infringement part of a musical work be judged? Generally, copyright infringement goes through the following three steps. First, the original work must be a legitimate work. And the allegedly infringing work must be made “based on” the original work. The word “according to” here is a rather vague and difficult term. In other words, in relation to or directly to the original work. It has to be built on either direct or indirect basis. This is because even if the two works are completely identical or similar, a copyright infringement problem cannot arise if the work suspected of infringing is made completely independently without seeing or hearing the original work. 

Finally, “whether or not they are substantially similar”. These three requirements themselves do not appear to be very complicated, but the problem is that it is not easy to judge them properly in an actual case. Therefore, the basic concepts to keep in mind are ideas and expressions. Ideas are in the realm of everyone's sharing, so no matter how original they are, they are not otherwise protected or subject to copyright infringement. Expression is the embodiment of an idea, and unlike an idea, it is subject to copyright law. Therefore, in the review stage, it is most important to determine whether a similar part is an idea area or an expression area. However, in practice, it is very difficult to distinguish between them.

If a music copyright holder wants to claim copyright infringement against the other party, he must first assert that his or her work is a legitimate work with originality and that the other party's work was created "based on" his or her original work. He/she should allege and prove further that the two works are substantially similar. Then,  the opponent will be able to react in the opposite direction and counterattack. In other words, first of all, the objection that the original work is not a legal work and especially similar parts is limited to the domain of ideas, and otherwise there is no originality.

In addition, the other party may assert that the original work has codes and melodies that have been frequently used in other works, etc. at the time of creation or before that. It is most effective if he/she can prove it. Therefore, it is necessary to examine the possibility of claiming that the original work is not original because it is a kind of "idiom" based on the use of the general public. Furthermore, evidence to support this claim must be presented. Before the original work is created, it is necessary to analyze the data to see if it is possible to present the concrete evidence along with the claim that similar creative elements exist in oral songs or have already been used in world-known music. In actual dispute cases, there are surprisingly few cases in which such claims were made with relevant evidence and the other party actually prevailed.

Afterwards, the section “based on the original work” should be emphasized only the presenting fact that the original work has been exposed to the public and, as a result, there is a possibility of access to the original work on the side of a person claiming copyright infringement.  It is helpful if you can prove and claim that there was a special circumstance that the other party could not access the original work. On the other hand, it may be possible to present the special circumstances in which the original work was not accessible due to long-term stay in remote areas, etc., together with supporting materials. Of course, countering this is not an easy part in many respects, but...

Then, in “substantial similarity”, the actual similarity in the area of expression, not the idea, is important. For reference, musical instrument composition and music form are considered non-creative domains. In other words, it becomes the realm of ideas. Therefore, even if there are novel and original elements in this area, it is difficult to see that they are merely ideas and otherwise have no great legal significance. Therefore, in the two works, the parts that need to be compared with each other in terms of "substantial similarity" in detail will be the creative elements such as melody, lyrics, and rhythm. For the reasons explained above, even if there are a lot of similarities in the area of ideas, the court will never regard them as copyright infringement. In other words, it is because the idea is that it contributes more to the development of human culture by sharing ideas with the public rather than monopolizing them by a specific person.

And the viewpoint of judging "substantial similarity" is judged from the point of view of a general consumer, not an expert. Part of the degree of similarity was analyzed in terms of both quantity and quality and is judged.  In other words, it is important how many quantitatively similar parts are, and furthermore, the proportion or role of similar parts in the whole is equally important. This is because it is important whether or not the part falls under the climax and the degree to which it is felt in the overall appreciation of the musical work. Therefore, detailed quantitative and qualitative comparative analysis is required in each part of melodies, chords, and rhythms, which are essential elements for a musical work. Even if there is a code that seems similar to the other party, the code is actually different. It is important to demonstrate that other composers have similarly commonly used it. Therefore, an argument to the effect that these codes, etc. are already in an area shared by the public can be a very advantageous argument. Of course, in making such a claim, it is necessary to provide concrete evidence on which he/she can actually prove it. 

As you know, judging copyright infringement in a musical work is not  simple. However, in preparation for disputes related to this, it is necessary to properly understand at least the basic principles of music copyright in advance. And it is because it is more efficient than anything to respond to disputes in the state of understanding the basic legal principles. And in case of an actual dispute, it is more important to present objective evidence to support this rather than repeating only one's abstract arguments. .

In recent years, as music works have become more and more digitized, it is necessary to pay attention to whether there is a problem of copyright infringement even when the general public uses music works online. For example, in the case of temporary reproduction to enjoy online music works, fair use may be claimed as private use. However, in the case of downloading even for the same purpose, the possibility of copyright infringement is high. Therefore, basic understanding of copyrights related to music works is a prerequisite for ordinary people, not to mention those engaged in music, even in their daily lives.