Tuesday, August 3, 2010

This Too Shall Pass

Although I was aware that George Harrison had been found guilty of plagiarizing "My Sweet Lord," I confess I've never investigated the details of the case.  So thanks for the link to Judge Owen's opinion in that case. 

I think you are right that Judge Crabb misused that case.  In fact, she seems to use the trial-lawyer trick of the "overly broad and out-of-context paranthetical synopsis."  In her synopsis, which you quote, she boils the "My Sweet Lord" holding down to:  "George Harrison had access to tune he used for 'He’s So Fine'; therefore, even if copying was subconscious, it amounted to infringement."  In Judge Crabb's opinion, "access" clearly means "had at his disposal."  That is, since Holguin surely knew about the existence of the old Spawn issues (if not their content), he had "access" to them.  But the "access" Judge Owen was talking about was of a different kind altogether:
What happened? I conclude that the composer, in seeking musical materials to clothe his thoughts, was working with various possibilities. As he tried this possibility and that, there came to the surface of his mind a particular combination that pleased him as being one he felt would be appealing to a prospective listener; in other words, that this combination of sounds would work. Why? Because his subconscious knew it already had worked in a song his conscious mind did not remember. Having arrived at this pleasing combination of sounds, the recording was made, the lead sheet prepared for copyright and the song became an enormous success. Did Harrison deliberately use the music of He's So Fine? I do not believe he did so deliberately. Nevertheless, it is clear that My Sweet Lord is the very same song as He's So Fine with different words, and Harrison had access to He's So Fine. This is, under the law, infringement of copyright, and is no less so even though subconsciously accomplished.
(footnotes omitted, emphasis added).  Harrison's "access" was not abstract or imputed -- it was subconscious:  knowledge of "He's So Fine" actually resided in his own mind, he just wasn't aware of it.  This is different from the speculative "access" that Holguin had to the Spawn issues with Angela in them.

That said, it seems to me that this lower level of access should suffice at least to let discovery go forward.  In other words, it may be that speculative or imputed "access" isn't enough to actually prove copying, but it is enough to let the plaintiff look for evidence of actual "access" in the form of actual (even subconscious) knowledge about the prior character.  Moreover, ultimately I agree that the similarity among the characters is fishy enough to warrant discovery, particularly given the history of the case.

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