Subconscious Copying

From George Harrison to Sam Smith, a Song Gets in Your Head and Winds Up in a New Song

Authored by: William Stafford

The Routledge Companion to Copyright and Creativity in the 21st Century

Print publication date:  November  2020
Online publication date:  November  2020

Print ISBN: 9781138999251
eBook ISBN: 9781315658445
Adobe ISBN:

10.4324/9781315658445-26

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Abstract

Infringers of copyright may claim that their music was an independently created work that happens to sound similar. What if they did use elements of the copyright owner’s music without realizing they had done so? This essay examines subconscious copying in music, which can occur when a person retrieves a forgotten memory without knowing it is a memory. Although relatively few cases involving subconscious copying have been litigated, the law is clear. Subconscious copying is copyright infringement; true independent creation is not. The cases that parse this question rest on the need for an author to prove that the alleged infringer had access to the copyrighted work, so that copying could have taken place. It is likely that the number of such cases will increase considerably as music has become more ubiquitous and instantly accessible and we all may have music living in our subconscious. If subconscious copiers are increasingly held liable for copyright infringement, the risk of creating music may discourage some composers from engaging in their craft, which will be at odds with the purpose of the Copyright Act. Laws may eventually adapt to recognize nuances in liability for music that is determined to have been subconsciously copied.

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