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These all get to the same difficult problem in copyright law: Where do you draw the line between originality and a mere scènes à faire (or “commonplace expression” as that term is used in the jury instructions)? Let me define these terms, so you can see why this is such a vexed question. Songwriters will write worse songs because they’ll be afraid of infringement.Only “top-line” melodies are protectable in music (with the implication that everything else is a “building block.”.There are many similar beats, some of which are pretty old.You can’t “own” a beat because it’s a “building block” of music.This argument is expressed in several ways, some of which were even featured at trial. Most of criticism focused on the copyrightability of the underlying composition’s “beat,” which musicologists call an “ostinato,” i.e., a repeated element (that, to my mind anyway, underpins the song’s other elements, like melody). The Problem With Protecting Short Phrases Isn’t this significant, and if so, why didn’t the court just find that the “beat” in question just wasn’t original enough to be copyrighted? To my mind, that’s what the case should be reversed on.īut something else has been bothering me: the “beat” in “Dark Horse” sound like the “beat” in “Moments in Love,” a hugely influential song from “my” era of music (i.e., around 1984). focused on the very thin evidence of access. My main post on the “Dark Horse” case 1 Which, remember, is way too early because the post-trial motions are still pending.