![]() These are or can be highly creative, but they are not original because they come from outside the creator’s mind. The unfortunately named scènes à faire 4 From a theater term for incidents that naturally follow-this is called “commonplace expression” in the jury instructions-can better be thought of as a toolbox that all creators in a given field have access to. The amount of originality needed for copyrightability is tiny, though appreciable. 3 Feel free to start speculating about the originality of computer-generated expression. And this means that mere hard work isn’t what’s important, but some spark of creativity that only-and I’m struggling here-a human being can produce or appreciate. ![]() This means that the putative creator did not borrow the expression from somewhere else, because otherwise it did not “originate” from the author’s mind. It means that the expression came out of the creator’s 2 Who must be a human being. Originality is the sine non qua of copyright. These all get to the same difficult problem in copyright law: Where do you draw the line between originality and a mere scènes à faire (or “commonplace expression” as that term is used in the jury instructions)? Let me define these terms, so you can see why this is such a vexed question. Songwriters will write worse songs because they’ll be afraid of infringement.Only “top-line” melodies are protectable in music (with the implication that everything else is a “building block.”.There are many similar beats, some of which are pretty old.You can’t “own” a beat because it’s a “building block” of music.This argument is expressed in several ways, some of which were even featured at trial. Most of criticism focused on the copyrightability of the underlying composition’s “beat,” which musicologists call an “ostinato,” i.e., a repeated element (that, to my mind anyway, underpins the song’s other elements, like melody). The Problem With Protecting Short Phrases Isn’t this significant, and if so, why didn’t the court just find that the “beat” in question just wasn’t original enough to be copyrighted? To my mind, that’s what the case should be reversed on.īut something else has been bothering me: the “beat” in “Dark Horse” sound like the “beat” in “Moments in Love,” a hugely influential song from “my” era of music (i.e., around 1984). focused on the very thin evidence of access. My main post on the “Dark Horse” case 1 Which, remember, is way too early because the post-trial motions are still pending. ![]()
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