by Judith Beth Prowda and Judith Greenberg Finell
From the New York State Bar Association Entertainment, Arts and Sports Law Section Journal, Fall/Winter 2002, Vol. 13, No. 3.
No artist — visual artist, writer, or composer — creates in a vacuum. Earlier works generally serve as points of departure from which a later artist makes a leap of imagination to create a wholly original work. The history of visual art is replete with examples of artists borrowing themes and styles from one another. The influence of African sculpture and masks on Picasso’s early work, for example, has been well documented. Yet this is hardly new. Manet’s famous impressionist painting, Le Déjeuner sur l’Herbe, was derived from a Raphael-like engraving of classical deities made three centuries earlier. Those figures, just as derivative, stemmed from sources dating from ancient Roman art.
Similarly, a composer of music, like a visual artist, “inherits a usable past and acts by intuitive vision. The product of his vision builds on a stylistic heritage, has a style and import of its own and bequeaths an altered heritage.” Many composers have adopted similar melodic fragments in their works. American composer John Cage, to many the quintessential musical anarchist, explored randomness in music with the throw of the dice — a technique used by Mozart in the early 1800’s.
Style in the Visual Arts
In recent years, courts have grappled with the concept of style in the visual arts, applying copyright principles to decide whether works are substantially similar, which is required in order to prove copyright infringement. The fair use doctrine, codified in Section 107 of the Copyright Act of 1976, is an affirmative defense to copyright infringement. The doctrine is an equitable rule of reason, which permits the use of another’s work in a reasonable manner. The four non-exclusive fair use factors to be considered are:
- The purpose and character of the use, including whether that use is of commercial nature or is for non-profit educational purposes;
- The nature of the copyrighted work;
- The amount and the substantiality of the portion used in relation to the work as a whole; and
- The effect of the use on the potential market for or value of the copyrighted work.
Steinberg v. Columbia Pictures Industries was a case involving a well-known cover of The New Yorker magazine presenting the myopic view of New Yorkers toward the rest of the world. The court did not protect the artist’s “hallmark” graphic style as such, but found that “style is one ingredient of expression.”
Since the 1994 landmark Supreme Court case, Campbell v. Acuff-Rose Music, Inc., courts have increasingly applied the concept of “transformative use,” in balancing society’s competing interests (i) on one hand, to provide authors with economic incentives to create, and (ii) on the other hand, to permit limited productive uses of their creations. By “transformative use,” the Supreme Court was referring to a use which is “productive and [uses] the quoted matter in a different manner or for a different purpose from the original.”  The Supreme Court noted that in applying the fair use factors, the degree to which a defendant’s use is transformative is a crucial, but not determinative, consideration.
In a pre-Acuff-Rose decision, Rogers v. Koons, sculptor Jeffrey Koons was inspired by a picture postcard of a couple holding eight puppies and created a sculpture of the same subject matter for a 1988 exhibition entitled Banality Show at a New York gallery. Koons put forth a fair use parody defense, but the Second Circuit, applying the then current fair use analysis, found that “it is not really the parody flag that [Koons was] sailing under, but rather the flag of piracy.” It is interesting to speculate whether a court deciding Koons today might find that Koons’s sculpture was a fair use parody in light of Acuff-Rose — first because Koons’s sculpture appropriated elements of Rogers’s photograph in order to make a point about the banality of modern life, and second, because Koons’s sculpture serves a different market than that of Rogers’s photograph. Moreover, under Acuff-Rose, the fact that Koons created an expensive work of art no longer carries a presumption against a fair use finding.
Trademark law has also proved to be a novel alternative to copyright law in protecting artistic style. In Romm Art Creations v. Simcha International, Inc. a New York District Court gave the Lanham Act an unusually broad interpretation, finding that the law of trade dress protected a visual artist’s style. Copyright law was not even addressed. Describing the application of trademark law to art as “a rarely visited area of the law,” the court held that the defendant’s limited edition prints and fine arts posters were “inherently distinctive” in reflecting the visual artistic style of the plaintiff’s artist, and that there was a likelihood of confusion. Style, as such, was protected as trade dress. The court found that there was secondary meaning in the “unique and distinctive style and appearance” of the plaintiff’s artist and that the works by the defendant’s artist were “slavish imitations” While Romm Art has been rejected by other jurisdictions, it has been discussed by some courts without disapproval, and continues to be cited in other cases and secondary sources.
Where does one draw the line between the expression in a work of art, which is protected by copyright, and the idea, which is not protected? To what extent does a second artist need to transform the style of an earlier work in order to avoid infringing the style of the first artist? Steinberg is unique in that the defendant copied not only Steinberg’s “hallmark” style, but also his subject matter. In a post-Acuff-Rose era, would a representation of a myopic perspective be substantially similar if a second artist produced a scene of another city? What might be the outcome if the work were in a different medium, as it was in Koons? Abstract works of art, especially, defy separation into “idea” and “expression.” Would Jackson Pollock’s legendary dripping technique or controlled randomness of paint on the canvas be considered an idea or expression? Would a canvas painted in only white by a minimalist artist be protected?
Style in Music
Applying copyright principles to musical style may be even more challenging than to visual art. Musical style refers to the characteristics that a particular musical work shares with other works in the same genre or category. Style is distinguished from content in music in a way similar to (i) the manner in which something is said (style) as opposed to (ii) what is being said (content). Because most music is non-representational in nature, this distinction is difficult to sustain or experience. Aside from dramatic works and lyrics, music is an abstract art form, leaving the lay-listener with nothing concrete to study or observe after the sounds have faded away. Consequently, musical plagiarism may be seen as more difficult to prove or defend than art plagiarism, in which the visual evidence can be seen and scrutinized by a judge or jury. In other words, for most laymen, music is heard but not seen.
Related to the idea/expression dichotomy in copyright law, the distinction between style and content in music is an important, though often difficult, one to make. Style can have multiple meanings in music. Like style in art, it can refer to an historical era, a geographical location, and a genre. Style can also describe an individual composer or even one particular work by that composer. The norms established by musicologists to describe a particular style can only be discovered through careful study of individual works and observation of their shared qualities.
As in the case of visual artworks, it can be difficult to distinguish the idea from expression in a musical composition. To a music listener, the line between content and style is blurry, and often indistinguishable. One reason may be the way in which music is experienced. Many elements occur simultaneously while a musical work is being heard. It may be difficult to isolate particular elements in the music in order to determine whether two musical works are substantially similar in content as opposed to style. In comparing two musical works, there can be a great many similarities that are not necessarily due to copying, but rather are dictated by the shared style of the works, analogous to comparing paintings in the cubist style by Braque and Picasso. It is therefore critical to establish whether the similar material is generic or individualistic in nature. Confusion sometimes arises in music because the key elements for determining style and content are the same.
The main elements of musical compositions are: Melody (pitch plus duration), harmony (chords), structure, form and lyrics, if any. The way in which these elements are used determines style, yet the specific elements themselves also determine content. To illustrate, the actual pitch and duration of each melodic note and the succession of melodic notes determine the melody of a musical work. Melody is only one element of the music’s content. But the composers’ choices in selecting these notes are often dictated by the tradition of the style that they have adopted.
For example, in the song “Jingle Bells” in the key of C major, the first three phrases contain the pitches: (i) E-E-E (ii) E-E-E (iii) E-G-C-D-E. These pitches, and their duration, constitute the melodic content of the opening three phrases of the song, set to the words: (i) “Jingle bells” (ii) “Jingle bells” (iii) “Jingle all the way.” Similarly, the chord that accompanies these pitches, which would be, in the key of C major the C major chord, constitutes the harmonic content of the phrases. The structure of the song is determined by how many sections the song contains, and whether these sections contain repeated or differing material. In the case of “Jingle Bells,” the specific structure is an alternating verse and chorus (refrain) section. While this structure is specific to this song, it derives from the tradition within popular songs of alternating verses and choruses. The lyrics are also part of the content here, but their combination, selection, and even subject matter, are dictated to some extent by the traditional style of Christmas carols shared with hundreds of other songs within the genre. This song exemplifies the marriage of style and content that challenges attorneys, judges and juries when the need arises to interpret and identify similarities between musical works.
Sometimes the musical content and the process by which it is created are so merged as to be indistinguishable from one another. An extreme example of this phenomenon is a work entitled “4’33”” by the American experimental composer John Cage, who died in 1992. In his endeavor to achieve ultimate freedom in musical expression, Cage produced this piece in three movements, intending that no sounds be produced. Cage wrote his piece after an experiment in soundproofed chambers at Harvard in which he tried to produce pure silence. Realizing that this was impossible, Cage focused instead on the sounds that fill the void, even if the only sound is that of a person’s heartbeat. The composition requires a performer — usually a pianist, though not specified by Cage — to sit quietly with an instrument for 4 minutes and 33 seconds. At its premiere in Woodstock, New York on August 29, 1952, pianist David Tudor signaled the beginning of each movement (three silences of 30, 143 and 100 seconds) by gently opening and closing the piano lid. Subsequently, Cage composed another “silent” piece, “0’00”,” presented for the first time in Tokyo in 1962. Any sounds, noises, coughs, chuckles, groans and growls produced by the listeners were regarded as integral to the piece itself, so that the criticism leveled that one could not discuss what could not be heard was invalidated by the uniqueness of Cage’s art. Is this content or concept? Idea or expression? Where does one draw the line between content and style, idea and expression, in music?
In less extreme cases, musical rhythm depends on silences as well as sounds. Rests between notes are as much part of the expression as are the notes themselves, and rests can add drama to music. In the case of syncopated Latin dance music, for example, the rests have a powerful presence. Few would argue that the rests deserve less protection than the tones in the context of a melodic line. Other works by Cage and his followers involve throwing dice to determine which pitches, rhythms and sections are being performed in compositions referred to as “chance” or “aleatoric” music. In this music, the process becomes the idea, but the idea becomes the content. Perhaps the sheer randomness in Cage’s music is analogous to Pollock’s dripping of paint on canvas.
Composers have been using randomness to create their music for centuries. Mozart was credited in 1806 in London with devising “Mozart’s Musical Game,” in which a series of waltzes and other works could be composed by a throw of the dice. Should the music that resulted from this process be defined as an idea or expression? In music that changes each time it is performed, where do the elements of originality and independent creation come in? Is it the idea of the work, for example, the directions to the performers as to the choices offered to them, that is the music itself, or rather is it the sounds that result from their individual choices, ever changing as the work is re-performed? This question often arises in improvisational jazz, where the roles of composer and performer often merge.
If another composer writing after Cage were to write a piece in which a pianist sat on the stage performing nothing for exactly 4 minutes, 33 seconds, would there be a copyright infringement? Arguably so. Would the outcome be different if the later silent work were 4 minutes, 32 seconds (one second shorter than Cage’s piece)? Perhaps. If infringement were found, what would the second composer have appropriated — the style or the content of Cage’s longer silent work? What if the later silent work were only one minute in duration?
That was precisely the issue in a recent controversy involving British pop music composer and producer Mike Batt. In an album of the Planets, a group of eight musicians that performs popular versions of classical music, Batt introduced a one-minute silence as a divider between acoustical and electronic parts, and called it “One Minute Silence” crediting it to “Batt/Cage.” Batt sent this album to the Mechanical Copyright Protection Society (MCPS). MCPS credited the work to John Cage. Batt read a small story in the newspaper and was unhappy about the payment of royalties for silence. In response, Peters Edition, John Cage’s publisher, produced a concert in London last summer, in which the parties performed their respective silent pieces. Discussions continued between Peters Edition and Batt, but the matter never went to court. Both sides gained a great deal of valuable publicity. While Peters Edition received no money directly, Batt made a substantial donation to the John Cage Trust. Subsequently, Batt released a single, entitled “One Minute Silence” and registered copyrights on many other silent compositions, ranging in length from one second to ten minutes, including works that are one second shorter, and one second longer than Cage’s work.
Whether or not Batt’s silence would be considered fair use under Acuff-Rose if this case were brought in the U.S. is an interesting question — one that may not settle the score, but surely one that is bound to generate much noise in the future.
It is ironic that the very laws that protect creative artists and their works are also those that they so often thwart. They really cannot help themselves. For it is in the very nature of the creative personality to break down boundaries, to charge outside the limits and to risk it all for a single moment of expression. As the law rushes to provide yet newer protections and restrictions, creative artists again dare to step outside their protective shield — as they must. And together they edge toward their positions: Creator and protector, reluctant allies teetering on their own exquisite high wire.
 See Ralph E. Lerner and Judith Bresler, 2 Art Law 873 (2d ed. 1997).
 For a scholarly discussion on artistic tradition and appropriation, see the Introduction to H.W. Janson, History of Art (5th ed. 1995).
 About 40 postcards were recently found in Picasso’s archives and exhibited at the Museum of Fine Arts in Houston in a show entitled, Picasso and Photography: The Dark Mirror. The postcards are turn-of-the-century images by Edmond Fortier, a photographer based in Dakar, Senegal. They depict West African women “bare-breasted, alone and in groups, balancing bowls on their heads, arms raised or akimbo,” which influenced Picasso’s works leading up to and including Les Demoiselles d’Avignon. Michael Kimmelman, Photographs that Fed Picasso’s Vision, NYT, 1/11/98, at AR 45.
 Judith Beth Prowda, Application of Copyright and Trademark Law in the Protection of Style in the Visual Arts, Columbia-VLA Journal of Law and the Arts, Nos. 3-4, 269, 276 (Spring/Summer 1995).
 The New Grove Dictionary of Music and Musicians 316 (1980) (from the definition of “style”).
 This view was illustrated at the keyboard by violinist and composer Albert Markov at a meeting of the Fine Arts Committee of the Entertainment, Arts and Sports Law Section of the New York State Bar Association Chaired by Judith Beth Prowda, Mr. Markov played phrases by Beethoven, Tchaikovsky, Rossini, Sarasate and Senaille, demonstrating the same initial four pitches, though in differing rhythms. Judith Greenberg Finell was the speaker at that meeting, addressing the topic, Musical Style or Content? The Ongoing Challenge for Copyright Advisors and Litigators.
 17 U.S.C. Section 107.
 Steinberg v. Columbia Pictures Industries, 663 F. Supp. 706 (S.D.N.Y. 1987).
 Id. at 712.
 Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994). The Supreme Court found that the 2 Live Crew rap version of Roy Orbison’s “Oh Pretty Woman,” was fair use parody. The Supreme Court remanded the case to the trial court to determine whether or not Luther Campbell had excessively copied protectable elements of Orbison’s original song. The Supreme Court also required a market analysis as to whether or not 2 Live Crew’s rap version harmed the potential market, derivative or otherwise, of the original. Ultimately, the case was settled.
 See Judith Beth Prowda, Parody and Fair Use in Copyright Law: Setting a Fairer Standard in Campbell v. Acuff-Rose Music, Inc., 17 Comm. & the L. 3, at 53 (1995).
 Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105 (1990).
 Acuff-Rose, 510 U.S. at 579.
 Rogers v. Koons, 751 F. Supp. 474, 480 (S.D.N.Y. 1990), aff’d, 960 F.2d 301 (2d Cir.), cert. denied, 113 S.Ct. 365 (1992).
 Id. at 480.
 Acuff-Rose, 510 U.S. at 584.
 Romm Art Creations v. Simcha International, Inc., 786 F.Supp. 1126 (E.D.N.Y. 1992).
 Id. at 1129.
 Id. at 1136.
 Leigh v. Warner Bros., 10 F.Supp.2d 1371, 1382 (S.D.Ga. 1998) (Bird Girl sculpture used in the book and movie of “Midnight in the Garden of Good and Evil” was not protectable because “trademark law should not be used to protect [ ] visual style.”).
 Hoffman v. Kleinhandler, 1994 WL 240335 (S.D.N.Y. May 31, 1994) [No. 93 Civ. 568 (PKL)].
 See Alan J. Hartnick, Is Artistic Style Protectable?, NYLJ, 2/28/00, at 2.
 Judith Greenberg Finell, Using an Expert Witness in a Music Copyright Case, NYLJ, 5/4, 5/11, and 5/18/90.
 “Jingle Bells,” music and words by J. Pierpont, first published under the title, “One Horse Open Sleigh,” on Sept. 16, 1857, by Oliver Ditson & Co., Boston. The song was republished in 1859 under the revised title “Jingle Bells, or the One Horse Open Sleigh.” James Fuld, The Book of World-Famous Music 313 (3d ed. 1985).
 Matthew Connolly, Come On, Feel the Silence, Times (London), 7/30/02, at 2; 16.
 The Concise Edition of Baker’s Biographical Dictionary of Musicians 152-54 (8th ed. 1994).
 Dan Gilgoff, Fifty years ago, John Cage played the sound of silence, U.S. News & World Rep., 8/12/02, Vol. 133, No. 6, at 38.
 “Syncopation” is defined as a deliberate disturbance of the normal pulse of meter, accent and rhythm. It results in a “jerky” uneven rhythm that drives the melody onward. George Gershwin’s “I Got Rhythm” is an example of a syncopated melody. Harvard Dictionary of Music 827 (Willi Apel, ed., 2d ed. 1972).
 Ben Greenman, The New Yorker, The Talk of the Town, Dept. of Derivation, 9/30/02, at 48. There are precedents for this scenario. Frank Zappa made a recording of “4’33”” for which he paid royalties to Cage. Zappa’s point was apparently not whether or not silence can be copyrighted, but whether or not his was actually a performance of Cage’s piece. Monahan, You can’t copyright silence – there’s too much of it about, Daily Telegraph (London), 9/28/02, at 11.
 Telephone Interview by Judith Greenberg Finell with Nicholas Riddle, Managing Director, Peters Edition, London and Executive Chairman, C.F. Peters, New York (10/9/02).
Judith Beth Prowda is Chair of the Fine Arts Committee of the Entertainment, Arts and Sports Law Section of the New York State Bar Association. She is an attorney in New York specializing in copyright, entertainment and art law. She is also a violinist with The Lawyers’ Orchestra of the Association of the Bar of the City of New York. She may be reached at email@example.com.
Judith Greenberg Finell is a musicologist and president of Judith Finell MusicServices Inc., a consulting firm in Scarsdale, New York, a suburb of New York City. Ms. Finell has served as an expert witness and consultant in various litigations involving copyright infringement. She may be reached at firstname.lastname@example.org.
Copyright 2002 by Judith Beth Prowda and Judith Greenberg Finell.