COPYRIGHT INFRINGEMENT AND THE SCIENCE OF MUSIC MEMORY: APPLYING COGNITIVE PSYCHOLOGY TO THE SUBSTANTIAL SIMILARITY TEST

摘要

Under United States Copyright Law, an owner of a copyright may bring an action when his or her work has been unlawfully copied. In order to prevail in such an action, the owner must prove that the defendant copied his or her work and that the degree of copying was enough to make the works substantially similar to one another. This concept of substantial similarity remains largely undefined and is left entirely to the fact finder to determine. The test for determining whether or not improper appropriation has occurred is vague and difficult for juries to properly apply. When considering whether a songwriter has improperly appropriated the song of another, fact finders currently assess "substantial similarity" by looking at the entirety of each song at issue and then doing a song-by-song comparison instead of breaking the songs down into elements to determine similarities.