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Owning It

Can you unconsciously copy someone else's art?

Updated: Dec 17, 2021

What Copyright Laws say about 'Subconscious Copying'



Image courtesy of Miguel Á. Padriñán via the Pexels license. Available at: https://www.pexels.com/photo/close-up-shot-of-keyboard-buttons-2882463/.


The answer is: Yes. Read on to find out more.


Copyright Act 1968 (Cth) grants creators exclusive rights in their creations including the right to reproduce their work.


This creates a market that encourages innovation.


The concept of subconscious copying was originated by Judge Hand in Fred Fisher Inc. v. Dillingham. In this case, although it was established that the defendant did not consciously copy the plaintiff’s song, Judge Hand determined that there could be no other explanation for the similarity but that the defendant had subconsciously copied.


In the further case of Arnstein v Porter, the court stated that there are two elements needed to establish such infringement. The first is that there must be evidence that the defendant had access to the copyrighted work. Secondly, works need to be substantially similar.


The cases have generally said that there must be a reasonable possibility of viewing the earlier work—not a bare possibility. If the plaintiff’s work was widely disseminated this can help prove that point.


The Australian position


While Australia has not yet dealt with an explicit case of subconscious copying in the music industry, the idea has been considered.


The first judicial statement in Australia in relation to the idea of subconscious copying was in a case involving confidential information. In Talbot v General Television Corp, it was said that a person may subconsciously use [past] information …. [of] which he has no conscious recollection.


In S W Hart & Co Pty Ltd v Edwards Hot Water System, the High Court said that there needs to be a sufficient degree of objective similarity, a copying of a “substantial part” and a causal connection between the plaintiffs' and the defendant's work.


What is a substantial part when it comes to unconscious copying?


In terms of the meaning of “substantial part”, this is generally contingent on the quality of the copyrighted work. A general rule, the simpler (or unoriginal) the work, the greater the degree of taking that is needed before the substantial part test can be satisfied.


In EMI Songs Australia Pty Ptd v Larrikin MusicPublishing, also known as the Downunder case, the judges stressed that ‘substantial part’ is a question of quality more than quantity. For more about this case go to: https://www.google.com/search?q=sharon+givoni+music+men+at+work&rlz=1C1CHBF_en-GBAU887AU887&oq=sharon+givoni+music+men+at+work&aqs=chrome..69i57j69i64.7209j0j4&sourceid=chrome&ie=UTF-8 .


The-Katy-Perry-Case


The case of Marcus Gray, et al. v. Katy Perry, et al (‘Perry’) revolved around Christian rapper Marcus Gray’s accusation that Katy Perry and her team had plagiarised the underlying beat in his record ‘Joyful Noise’ in her song, ‘Dark Horse’.


To listen to the song Dark Horse click here:



To hear the song Joyful Noise, click here:

https://www.youtube.com/watch?v=gWDutcDfS_s


Katey Perry said that she had never heard the plaintiff’s music ‘Joyful Noise’. The court considered two overarching questions:

1) Did the defendants have ‘access’ to the plaintiff’s work? (The song was written by Marcus T. Williams-Gray, Lecrae Moore, Emanuel Lambert, Jr.).

2) Were the two works ‘substantially similar?’

How important is your ability to access the song in copyright infringement cases relating to music?


The courts have generally said that even if a song is remote, this is irrelevant so long as access is possible.


This is significant as now anyone can have access to nearly every song released in the public domain. In Perry, access was considered by the court to be established if “the plaintiff’s work had been widely disseminated”. If there was a “reasonable possibility that the defendants had the chance to view the protected work” this was also considered.


Despite the fact that ‘Joyful Noise’ was not commercially successful, the court found that Perry had access. ‘Joyful Noise’ had been played over a million times on YouTube and MySpace.


Where the musical compositions too similar? Joyful Noise’ versus Katy Perry


The two works were considered to be ‘substantially similar’ as they both featured a minor mode 8 figure ostinato with overlapping rhythm, pitch, and timbre, both using a synthesised sound to create a “pingy” artificial sound in the beat.


The court also had to consider whether there was a causal connection between the works. This is because if you write or compose a piece of music independently without copying, this is allowed.


However, this was ultimately satisfied as one of original composers of the Katy Perry song admitted to having sung relevant extra bars of the plaintiff’s song when performing.



Perry had to pay $2.78 million as a result of the case.


What is wrong with the theory of unconscious copying? What can we say about the process of creating music?


There have been criticisms of this theory because it relies on the idea that every author brings something completely new into existence, which rarely is the case. The alternative argument is that every new work, whether music or art, is a derivative of preceding works.


Creativity in reality is a collective, rather than emanating from a single author.


There is also the issue that creators tend to seek inspiration from and pay homage to, the creative works of others. Art is the result of everything that an artist hears and experiences, even if they are unaware of it.


All these things said, what is clear from the cases is that subconscious copying may infringe copyright.


Provided the test of causal connection is satisfied, an intention to take advantage of the labour of another is not required in order for an action for copyright infringement to be sustained.


Whether this is right or wrong, one thing is for certain… the law in this area will not change anytime soon.


The author wishes to acknowledge Eugiene Smith who assisted with the writing of this article.


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