AMONG THE MATTERS great and small that occupy the justices of the Supreme Court is a dispute over whether a song called "Stuck on You" sounds a lot like another song, "Somebody's Got to Love Her." That may not strike you as a matter of earthshaking consequence, but it certainly is one to the composers of the songs and to a lot of other people in that general line of creative work. It is a copyright-infringement case; at stake is not only money but also the litigants' reputation for honesty and talent.
"Stuck on You" was written in 1983 by the well-known Lionel Ritchie and was an immediate hit. Two years later, out of the blue came Gene Thompson, a songwriter who claimed that Mr. Ritchie's work was so similar to his own unpublished "Somebody's Got to Love Her" as to infringe his copyright. The case came to court in California, and after U.S. District Court Judge James Ideman had heard both tunes, he ruled that there was no substantial similarity of ideas and expression between the two and dismissed the suit. He felt so strongly that he even ordered Mr. Thompson to pay Mr. Ritchie $34,000 in lawyer's fees and court costs. However, the U.S. Court of Appeals for the Ninth Circuit reversed, ruling that the critical determination of whether or not these songs were alike must be made by a jury, not a judge. "We feel the ears of the court must yield to the ears of the jurors," the court admonished. On Tuesday, the Supreme Court refused to hear an appeal of this decision. So the ruling of the Ninth Circuit prevails, at least in that circuit.
The temptation is to make jokes about the choosing of a jury in such a case, lawyers seeking out the tone-deaf and so forth. But the down side of the ruling is real. There now seems to be no way to avoid a full-blown and very expensive jury trial in this kind of copyright case. Here both courts below expressed the view that there was very little similarity between the two songs, but it appears that there's no way the case can be quickly resolved.
Why isn't there an easier, more objective way to evaluate these copyright-infringement cases? Surely in this computer age it is possible to calculate the frequency of melodic repetition, for example, or the incidence of certain rhythmic patterns and to set a standard by which to judge similarity. There is, of course, something distasteful and hardhearted about analyzing a song as if it were a piece of metal. But perhaps that's the best way to protect artists against both copyright infringement and nuisance lawsuits.