Entertainment, Arts, and Sports Law Commons^™

Copyrighting Compositions: How Inconsistencies Within The Circumstancial Evidence Analysis Affects Musical Composition Copyright Infringement Plaintiffs, Stephanie Stern

Brooklyn Journal of Corporate, Financial & Commercial Law

To resolve a musical composition copyright infringement case, courts employ the circumstantial evidence analysis. This analysis involves assessing whether the two works are substantially similar and whether the defendant had access to the plaintiff’s copyright-protected work. Despite efforts to keep pace with the rapidly changing world of music creation, these tests have fallen behind: circuits are split with respect to the way they determine substantial similarity, and courts have failed to update the access requirement in the age of the internet. Additionally, courts must adhere to the rules of either the 1909 Copyright Act or the 1976 Copyright Act, depending …