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9th Circuit's Acceptance of 'Melodic Reduction' May Change Music Infringement Litigation
In recent years, courts have frequently dismissed music copyright infringement cases at the summary judgment stage, finding that the plaintiff failed to raise a triable issue of fact concerning the claimed similarity between the allegedly infringed and infringing songs. See, eg, Onofrio v. Reznor, 2000 U.S. App. LEXIS 2835 (9th Cir. 2000); Moore v. Columbia Pictures Indus. Inc., 972 F.2d 939 (8th Cir. 1992); Cottrill v. Spears, 2003 U.S. Dist. LEXIS 8823 (E.D. Pa. 2003); Toliver v. Sony Music Entertainment Inc., 149 F. Supp. 2d 909 (D. Ak. 2001).
In a number of cases, the court found the opinion of similarity offered by the plaintiff's expert musicologist ' usually a music professor or otherwise credentialed music scholar ' to be legally deficient or otherwise irrelevant to the applicable legal standards. However, a decision earlier this year from the U.S. Court of Appeals for the Ninth Circuit in Swirsky v. Carey, 376 F.3d 841 (9th Cir. 2004), amended by 2004 U.S. App. LEXIS 17969 (9th Cir. 2004), appears to have expanded the net of music copyright infringement cases that may survive summary judgment. In Swirsky, the court found that a type of expert musicological analysis, commonly called “melodic reduction,” can raise a triable issue of fact concerning similarity. This article will explain melodic reduction and the problems that the Swirsky decision and melodic reduction may pose for defendants in music copyright infringement cases.
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