The “Blurred lines” music copyright case went wrong because courts are not using modern “abstraction-filtration-comparison” AFC tests.
Copyright covers creative expression but not ideas or information. Many copyrighted works, however, are a mixture of creative expression and ideas/information. And what about fair use? This mixture gives courts headaches, and as a result, copyright litigation can be unpredictable.
For software copyright infringement cases, courts tend to use an “abstraction-filtration-comparison” (AFC) test. These tests were first introduced in the 1992 “Computer Associates v. Altai” case. For this test, the court (i.e. the judge with expert help) first “abstracts” (analyzes) the work. The court determines what parts are “expression” (copyright protected). The judge also determines what parts are ideas (copyright ineligible). Then the court removes (filters out) the ineligible idea portions. If there are questions about what remains, the court can give the remaining “expression” portions to a jury to decide.
This test puts a lot of responsibility on the court to get things right. It is hard to perform in practice, but at least it makes some sort of logical sense. Throw out the ineligible stuff, and just look at the rest.
Copyright AFC tests came from the earlier “Scènes à Faire” (Scenes a Faire) concept. The legal system uses this concept for literary and movie copyrights. If you want to write a Western novel or film, then you need horses, guns, salons, bandits and the like. These are essential ideas,. The court would toss these out in a copyright case involving a Western theme.
Unfortunately, copyright law has blurred lines as well
So what went wrong in the recent “Blurred Lines” music copyright infringement case? The song admittedly tried to capture the party atmosphere of Marvin Gaye’s earlier “Got to Give it Up” song. But the lyrics and music were quite different. Both had party noises and “cowbell”, but these were different party noises and different cowbells. In fact, Marvin Gaye’s copyright was for sheet music that didn’t cover party noises and cowbells at all.
The problem is that outside of software, older tests, such as “objective substantial similarity” and “total concept and feel” are still being used. These older tests blur the distinction between creative expression and ideas and rely on an unskilled jury to magically sort things out.
To somewhat simplify the “Blurred Lines” case, the jury listened to music. This music contained a mixture of creative expression (different lyrics and music) and unprotected ideas (generic party noises and cowbell). Was this correct? Another big problem: the jury instructions did not tell the jury to try to distinguish between creative expression and copyright ineligible ideas.
So, not surprisingly, the jurors found infringement; most likely because both songs contained party noises and cowbell. Never mind that these were not covered by copyright and that as far as the actual copyrightable lyrics and music went, the two songs were quite different.
This case was appealed, but to no avail. Various copyright experts have suggested a way out of this mess. Expand the use of the copyright AFC test from computer software to other types of copyright cases as well. Unfortunately, the law works slowly. Until then, go easy on the cowbell at parties.