Mark Avsec, better known to some people as the keyboardist for Wild Cherry (“Play That Funky Music”) and (I have to mention this, because I live in Pittsburgh) Donnie Iris (“Love is Like a Rock”), is an entertainment lawyer in Cleveland, and he’s just published an article in the Cleveland-State Law Review entitled “‘Nonconventional’ Musical Analysis and ‘Disguised’ Infringement: Clever Musical Tricks to Divide the Wealth of Tin Pan Alley.” The piece isn’t on the web, but the citation is 52 Clev. St. L. Rev. 339.
The article is a well-written and thoughtful defense of using expert witnesses to shield genuine music composers from frivolous claims based on arguments that the defendant used compositional techniques to “disguise” the alleged plagiarism. More generally, it fits with the notion that in a variety of places in copyright, the right, true, and fair result is — or should be — what is consistent with some “authentic” discipline or practice. Copyright may not be about deciding “what is art?,” and it has an impossible time trying to sort out “what is original?,” but it does try to decide “who is [or may be] an artist?” with some success. When it comes to “who is [or may be] a publisher?” . . .