This essay is part of the Cardozo Arts and Entertainment Law Journal’s symposium issue revisiting the Ninth Circuit’s now fifty-year-old copyright decision in Roth Greeting Cards v United Card Co. Roth famously pushed a holistic ‘total concept and feel’ approach to assessing similarity between the parties’ works, as opposed to a dissective one that would analyze the works’ individual components. While Roth itself was a case about visual works, courts over the last two decades have imported its total concept and feel standard into music cases. That approach has become a common target for critics of today’s music-infringement litigation trends. I argue here, however, that Roth’s effects in these cases is largely benign. Whatever problems the total concept and feel test creates in infringement doctrine generally, in music cases specifically it’s nowhere near as bad as it’s often portrayed. This part of the infringement test simply isn’t doing all that much in these cases to begin with. If we were designing the music-copyright system from scratch today, perhaps we wouldn’t affirmatively choose to include this standard in the infringement calculus. Yet the fact that it’s ended up there turns out to be surprisingly inconsequential. Instead, if you want to tinker with a doctrinal apparatus that’s likely to have a significant effect on case outcomes, look in the opposite direction. Not to lay observer-oriented concept and feel, but instead to experts’ finely grained technical analyses. Expert dissection is driving these music cases – particularly at the summary-judgment stage – more than the vagaries of feel are.
Fishman, Joseph, Tonal Concept and Feel (May 16, 2021). Cardozo Arts and Entertainment Law Journal, volume 38, no 3, pp 655-70 (2021).