Brianna Rolke
Subconscious Copying
Well known legal minds have agreed that in cases of striking
similarity between two pieces, yet with no intentional copying,
subconscious copying is the only explanation. The question is how can
courts correctly identify these cases while preserving both the
subconscious copying doctrine and the doctrine of independent
creation? Lets explore two famous copyright infringement cases in
Music. George Harrison vs. Bright Tunes and Three Boys Music vs.
Michael Bolton both claimed subconscious plagiarism but the court
found that insu’cient evidence. Harrison and Bolton both claimed they
were not consciously aware of the similarity when writing their song.
The Chi(ons weren’t on Harrisons mind when he picked up his guitar
and starting singing “Hallelujah” over a two-chord progression;
although Harrison freely admitted to the access of the song “He’s so
/ne” unlike Bolton who did not. Harrison tried to settle out of court,
even offering to buy Bright Tunes’ entire catalog but the publisher
insisted that Harrison surrender his copyright. I believe the judge was
unfair in his judgment because after three days of painstakingly
analyzing three notes from motif A and the four or /ve notes from
motif B he couldn’t help but to believe Bright Tunes did own the notes
but he did not understand that Harrison proved to have subconsciously
copied Bright Tunes. Harrison did a good job of presenting the
subconscious doctrine by admitting to access but by saying he was
inspired by the Edwin Hawkins Singers’ version of ‘Oh Happy Day’.
There were a few things Harrison could have not said such as “why
didn’t I realize? It would have been very easy to change a note here or
there and not affect the feeling of the song.” In the end Harrison was
found guilty and had to pay $1,599,987 of the earnings to Bright Tunes.
It is remarkable the way the Isley Brothers attacked Bolton to prove he
had access to their song. The Isley Brothers quoted Bolton from six
years earlier saying to Ronald Isley at a benefit concert “This man
needs no introduction. I know every song he’s ever done.” The
phrasing and melody of Bolton’s hit was almost identical to the Isley
Brother’s song. Bolton appealed the decision but was overruled by the
