Joe Satriani and Coldplay, the Chiffons and George Harrison

Today, it has been reported that guitarist Joe Satriani has sued Coldplay, alleging that portions of Coldplay’s “Viva la Vida” incorporate material from Satriani’s “If I Could Fly.” For those (like me) who didn’t instantly know what the suit is about, Youtube has some interesting videos comparing the relevant portions of the songs – comparisons that would probably not be widely available without sites like Youtube. Here’s an example:

http://news.yahoo.com/s/nm/20081205/us_nm/us_coldplay_2

For those wondering what the law says about this kind of suit, it’s easy to state the doctrine. Infringement exists when the defendant copied from the plaintiff’s work an amount of material that renders the two works “substantially similar.” In deciding whether copying exists, courts ask whether the defendant had access to the plaintiff’s work (almost surely the case here) and whether the similarities between the two works are sufficient that, more likely than not, the similarities arise from copying. If copying exists, courts then evaluate whether the works are “substantially similar,” i.e. sound too much alike. Listening to the two works, I must admit that it sounds (as the linked-to Youtube mashup says) “suspicious.”

First appearances don’t look good for Coldplay. Nevertheless, I speculate that a band as well-known and successful as Coldplay would not copy so obviously. Coldplay is already hugely successful, would be discovered if infringing, and has the money to pay a judgment.

So what happened then? I’m thinking that this case is Bright Tunes v. Harrisongs all over again. In that case, the Chiffons sued George Harrison, alleging that “My Sweet Lord” was a copy of “He’s So Fine.” You can hear those two songs together at this site.

The twist to Bright Tunes is that Harrison claimed he did not copy from the Chiffons, and the judge believed him because of testimony that Harrison and his fellow band members improvised “My Sweet Lord” during a recording session. The judge concluded that Harrison must have heard “He’s So Fine” and stored the melody in his unconscious memory. When Harrison began “searching” for a good tune for a new song, the melody from “He’s So Fine” popped into Harrison’s mind, and he did not realize that he was in fact “copying” from the Chiffons. The judge decided in favor of the Chiffons, holding that copying is actionable in copyright whether conscious or unconscious.

The Bright Tunes v. Harrisongs position on unconscious copying is well-entrenched in copyright doctrine, but it has been criticized on the ground that it makes illegal the very process by which most songs are created. Composers choose patterns of notes because they have heard similar patterns in the past and found them pleasing. If that is so, the only thing separating Harrison (and perhaps Coldplay) from being clear of infringement is the coincidence that their unconscious memory delivered them a recognizable tune, instead of one either unrecognizable (perhaps because it’s not well-known) or one cobbled together from snippets of other tunes.

People have sometimes thought that, even if Bright Tunes was wrong, it was unlikely to be reconsidered because another such case might never come along. Interestingly, perhaps the “repeat version” of Bright Tunes has now been filed, and courts may get a chance to rethink whether copyright infringement is something you can do innocently, or whether it’s something that requires some kind of culpable purpose.