Attorney Kathleen Sullivan argues that the majority decision conflicts with precedent that holds courts must "filter out" protectable elements from unprotectable ones in deciding whether a work is entitled to thin or broad copyright protection. Thin protection requires works to be "virtually identical" to establish infringement, while broad protection requires only that they be "substantially similar."
"The panel majority departed from these precedents in setting the breadth or narrowness of copyright protection based upon the medium of expression, as opposed to the scope of protectable elements at issue in the particular case," she writes. "But the panel responded with a sweeping holding that 'the standard of similarity for musical compositions' as a class is 'broad' … thus giving music copyrights supremacy over other forms of copyrighted expression even where (as here) few protectable elements remain after the required filtration."
Sullivan also argues that the decision failed to sufficiently evaluate whether the works are objectively similar enough to give rise to a finding of infringement, and that, given the limited number of notes in existence and the fact that genres of music are defined by their common features, allowing composers to "copyright a musical style" is dangerous.
"Composers have long been free to draw inspiration from previous compositions, and even to copy discrete elements without fear of copyright liability," she writes. "The panel majority's decision threatens to upset the 'delicate balance between the protection to which authors are entitled under an act of Congress and the freedom that exists for all others to create their works outside the area protected against infringement.'"
Finally, Sullivan is concerned about the power this decision gives hired experts.
"Similarly important is the institutional question whether freedom of creative expression should be left to the mercy of jurors' whims and paid musicological experts," she writes. "If a copyright holder can now get to a jury simply by proffering an expert to opine that a song's elements are substantially similar to an accused song, without any objective comparison by the court, no musical work is safe from the prospect of copyright liability."
Read the filing below.
This article originally appeared on The Hollywood Reporter.