Harry v. Suzuki

Comment by Shuyu Wang

This case brings us back to the 1930s – the era of jazz, musicals, and swing music. The complaining song, “Boulevard of Broken Dreams” originates from a classic US musical comedy, Moulin Rouge. The plaintiff alleged that the song was brought to Japan during World War II with the US military, and 30 years later was plagiarized by a Japanese composer.

When first hearing the beginning phrases of the two songs, any listener would likely say they are almost identical. Yet if one keeps listening, the two songs develop differently. In its opinion, the Tokyo High Court also recognized such initial similarity. Applying a quantitative analysis, the court compared the first three motifs of the two songs (due to the difference in time signature, the complaining song’s motif consists of 8 bars while the defending song’s motif consists of 16 bars) and acknowledged that the opening notes of the corresponding motifs sound highly similar. If a listener hears a recording that overlays the two melodies, the listener would get the impression that the songs are similar, but only these particular motifs, not the full song. According to a cross-nation quantitative study from the academia, the two songs are only 25% identical in their melodic sequences.[1]

However, the court also pointed out that the similarity it identified does not preclude the possibility of independent creation, especially when a song incorporates idiomatic expression. The appellee’s expert testimony stated that the transition using tones and semitones in the defending song is a common way to compose musical phrases, and there are countless songs written this way. Moreover, the defending song adopted a musical structure commonly heard in Japanese popular songs, which suits the song’s lyrics naturally. Based on such evidence, the Court found it reasonable to conclude that defending song could have been unconsciously created in such way without referring to the earlier complaining song, song (this conclusion was also supported by lack of access inferred from circumstantial evidence).

Independent creation serves as a defense in both Japan and the US, but the instant case raises an interesting question about expert testimony: to what extent should a court rely on expert testimony, especially quantitative analysis, and to resolve what issues? A defendant, naturally, prefers giving more weight to expert testimony that establishes a rebuttal that similar works often result from commonly used techniques without actual plagiarism.

A US case factually similar to the instant dispute is Three Boys Music Corp. v. Bolton, where the jury found substantial similarity between the disputed copyrightable works despite the fact that the defendant’s expert established that the compositional elements were “very common” and could be created subconsciously. However, Three Boys Music involves a common short phrase that’s repeated in both songs—“Love is a wonderful thing.” In Suzuki, on the other hand, the disputed parts occupied over 24 bars in the complaining song and 48 bars in the defending song, granting more room for individual creative expression. Suzuki presents a good deal of quantitative analysis and note-by-note melodic dissection; US courts tend to take such an exhaustive comparative approach in evaluating music copyright infringement claims.

[1] Yuan, Y., Oishi, S., Cronin, C., Müllensiefen, D., Atkinson, Q. D., Fujii, S., & Savage, P. E. (2020). Perceptual vs. automated judgments of music copyright infringement. Proceedings of the 21st International Society for Music Information Retrieval Conference (ISMIR 2020), 23–29. https://doi.org/10.31234/osf.io/tq7v5.

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Tokyo High Court Opinion (Japanese): PDF

Tokyo High Court Opinion (English): PDF [Translated with Google Translation]

Supreme Court of Japan Judgment (dismissing the appeal) (Japanese): PDF

Supreme Court of Japan Judgment (English): PDF [Translated with Google Translation]