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Harmony And Its Functionality: A Gloss On The Substantial Similarity Test In Music Copyrights, Sergiu Gherman

Sergiu Gherman

When determining whether two musical works are substantially similar, should the basic harmony in the plaintiff’s composition be deemed protectable under the copyrights law? I argue that it should not, and offer a new paradigm for reevaluation of the role the harmony plays in the substantial similarity test. I argue that the basic tonal-functional harmonic progressions should be unprotectable as a matter of law, because those progressions constitute a song’s functional feature. For example, a twelve-bar blues harmonic progression should be unprotectable not just because of the ubiquitous "public domain" argument, but because of the functional features the harmony possesses. …