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Originally Posted by trumpet blower88 The thing that makes this whole issue difficult is that people will hear the music differantly by the way they interpret it. Who's to say that one song sounds like something thats already composed? Now, I agree, to my ears the Gladiator soundtrack does sound an awful lot like Mars, but I'm no judge, and neither is anyone else here. I'm just curious, in a situation like this, who makes the final call and what makes him (or her) so special that their opinion is the one that matters? |
In a trial for copyright infringement, it would be the judge, guided by expert evidence. What makes the judge so special? It's the judge's job!! Most judges would probably admit they are not experts in musicology, hence the need for expert evidence. The judge would give due consideration to the experts, but ultimately it would be his/her job to decide.
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Originally Posted by trumpet blower88 Another thing is, how could one prove (for or against) that they did or did not copy? An example from my AP Music Theory class. For our final project we had to compose a short litle 4 part harmony. One of the kids in the class worked so hard, every day he would come into class, sit down at the piano and go to work with his manuscript paper. He would play a few notes and everyone would notice that the melody he was playing sounded familiar, but we couldn't put our thumb down on what it was. Finaly, the day before it's due, it finaly comes to me; Tchycovsky's Morning Prayer! We compared the scores, and other than the differance in key, it was note for note, perfectly exact for the first 8 bars. We know he didn't copy it, because we saw him work on it every day and he wasn't copying a score. But how would someone go about proving that? The same goes for the opposite, what if he realy did copy it but say he didn't, how could you prove that he did copy it? |
The burden of proof lies with the person alleging that his copyright work has been copied. However, for obvious reasons one can rarely prove copying in the strict sense that the alleged copier sat down with the original on date x and copied part y. Hence the presumption I referred to in my earlier post - if there is sufficient objective similarity between the works (to be decided by the judge, guided by expert evidence), the court will presume that copying took place and the alleged copier will have to prove that he didn't copy.
In the example you cite, assuming the final work is sufficiently similar to merit the presumption of copying, in order to try to prove he didn't copy, the student would give an account of how he came to compose the piece, stage by stage. If he retained drafts as he went along, these would be good evidence of independent origination on his behalf. He could also adduce evidence from his fellow students as to his compositional process. Ultimately, the judge would have to decide who he believes.
Of course, it is highly unlikely that such a trivial case would be brought. In the case of a professional film composer, he may well retain detailed sketches, drafts etc of the stages in the composition process (it is a good idea to do so!!). These may well give a convincing account of how the piece was originated without copying.
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