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Copyright Concerns In Electronic Music

By Michael R. Graif and Jason Gottlieb

Driven by technical advances in electronic music production, an increasing amount of popular music lacks several traditional markers that courts use to determine whether one song is “substantially similar” to another: melody, harmony, rhythm and lyrics. Instead, the creativity inherent in electronic music centers on the “texture” of the sound being produced. But can a sound texture be protected by copyright? This article provides a road map for lawyers and judges alike to navigate substantial similarity in non-traditional forms of music, with a particular focus on electronic music.

To establish copyright infringement, a plaintiff must demonstrate access to, and copying of, the elements of the work that are original. The U.S. Court of Appeals for the Second Circuit noted in Knitwaves v. Lollytogs, 71 F.3d 996 (2d Cir. 1995), that when a court compares works with both protectible and unprotectible elements, the court's inspection will be “more discerning,” and the court will ask “whether the protectible elements, standing alone, are substantially similar.”

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