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Old 08-03-2019, 12:24 PM
Acsenray is offline
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Join Date: Apr 2002
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Originally Posted by Go_Arachnid_Laser View Post
So, in this case, the question was: did Luke, Martin, Perry, J (but let's face it, more than probably just Luke) made a song with those similarities to Joyful Noise by sheer accident, or did they infringe copyright?
Sampling, or "disguised sampling" is irrelevant to this question.

And what seems to me, having heard the song and the similarities, is that what happened was that Luke literally made a song with the riff from Joyful Noise, and even kept several of the hooks. And he would be hardly the only one doing it, if he did. And then tried to pretend he didn't.
Maybe he did and maybe he didn't.

But you seem to be focused on this as if it's the only question when it comes to infringing a song copyright.

Here are the questions:

1. Does the plaintiff hold rights in an original and creative work of expression that is protected by copyright?

2. What portions or aspects of that work constitute the protected work? <-- This is the important question that is being disputed in cases like this and "Blurred Lines" -- when it comes to a song, what exactly is protected?

Rick Beato and others like him would say "melody and lyrics." The reason that the world of musical composers is up in arms over the "Blurred Lines" case is that it seems to be giving protection to something a lot broader, something that might swallow up a whole genre or style of music, which definitely is not a good thing for songwriters.

For songwriters to be able to work as songwriters at all, they have to be free to use the tools and elements that are used to create, say a blues song, or an R&B song, or whatever. Can you imagine a musical marketplace in which no musician is allowed to sound like another musician?

3. Did the defendant copy any of the protected expression without authorization? <-- Your speculation about "disguised sampling" misses this point. It doesn't matter if the defendant engaged in the process you described unless what was copied is part of the protected work as identified in No. 2.

That someone copied a riff or a portion of a major scale isn't infringement unless that riff or portion of a major scale is itself protectable expression. If a particular melody is protected expression, it's not true that any part or portion of that melody is also necessarily protected.

At some point you cross the line between protected expression and the tools that are used to express oneself in a particular medium. In a written medium, for example, letters of the alphabet, typefaces, single words, names, and short phrases are not protectable elements by themselves, even though they might be part of a larger work that is protected.

And copying is copying. It doesn't matter whether it happened through "disguised sampling" or some other way. What you're missing is that the issue of sampling is relevant only when the plaintiff's expressive work at issue is a sound recording. You can't sample any portion of a sound recording.

So if this was a case about infringing a sound recording, then the question would be whether the defendant's work actually samples the recording. "Disguised sampling" would be irrelevant.

But this isn't a sound recording infringement case. It's a musical work (composition) infringement case. So, the question is whether the defendant copied or not. The mechanism ("disguised sampling"?) by which that copying happened doesn't matter.
*I'm experimenting with E, em, and es and emself as pronouns that do not indicate any specific gender nor exclude any specific gender.