31 Duq. L. Rev. 277 (1992-1993)
Music Copyright in Theory and Practice: An Improved Approach for Determining Substantial Similarity

handle is hein.journals/duqu31 and id is 293 raw text is: Music Copyright in Theory and Practice: An
Improved Approach for Determining Substantial
Stephanie J. Jones*
Of the three elements necessary to prove copyright infringe-
ment-copyright       ownership, access, and         substantial    similar-
ityl-the last is not only the most important component, but also
the most difficult to define and apply. Copyright ownership is a
statutory formality easily satisfied prior to the institution of litiga-
tion.2 Access is a straightforward proof question that can be dis-
posed of by a showing of striking similarity.' However, no copy-
right action can succeed without a showing of substantial
similarity, making the concept the theoretical and practical corner-
stone of copyright litigation. Unfortunately, substantial similarity
is impossible to define, and nearly as onerous to apply.
The substantial similarity standard is particularly difficult to de-
fine and implement in the litigation of music copyright actions.
Despite numerous attempts, the federal courts have failed to for-
mulate a fully utilitarian framework for determining musical sub-
stantial similarity.
The most realistic method adopted to date is that currently em-
* B.A. Smith College; J.D. University of Cincinnati College of Law; Assistant Profes-
sor of Law, Salmon P. Chase College of Law, Northern Kentucky University.
The author expresses her gratitude to D. Anthony Ricigliano for his kind and diligent
assistance in the preparation of Part III of this article. The author also wishes to thank
Robert S. Freimuth, Esq. and research assistant Matthew Zerbe.
1. Melville B. Nimmer, 3 Nimmer on Copyright, §§ 13.01 - 13.03 (Matthew Bender
& Co., 1990)(Nimmer, Copyright).
2. Registration of the copyright is a mandatory prerequisite to filing a federal copy-
right infringement claim. 1976 Copyright Act, 17 USC § 411 (1992). However, the require-
ments for copyright registration are minimal. Sid & Marty Krofft Television v McDonald's
Corporation, 562 F2d 1157, 1163 n 5 (9th Cir 1977). The registered work need not be new,
but simply an original creation of the copyright owner. See Copyright Act, 17 USC at § 201,
§ 411, § 501(b); Krofft, 562 F2d at 1163 n 5, citing Donald v Uarco Business Forms, 478 F2d
764, 765-66 (8th Cir 1973); Roth Greeting Cards v United Card Co., 429 F2d 1106, 1109 (9th
Cir 1979); Alfred Bell & Co. v Catalda Fine Arts, 191 F2d 99, 102-03 (2d Cir 1951).
3. See, for example Arnstein v Porter, 154 F2d 464, 468 (2d Cir 1946)..

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