​Complaining Work

​Defending Work

Asei Kobayashi

“Dokomademo Ikou” [“Let’s Go Anywhere”]

Audio Recording

Katsuhisa Hattori

“Kinenju” [“Memorial Tree”]

Audio Recording

 

Comment by Shuyu Wang

This case involves an alleged infringement of a popular TV commercial song, “Let’s Go Anywhere” by a TV show theme song, “Kinenju.” The appellants, the copyright owners of the complaining song alleged that the commercial song has been so popular for years that the infringer must have heard and relied on it to create the infringing song. The appellants also argued that such reliance can be inferred from the similarity between not only both songs’ expressions, but also their impressions conveyed to the audience.

 

The Tokyo High Court thoroughly analyzed the songs in this case, rendering a 28-page opinion comparing them. Evaluating the similarity of the expression of the two songs, the court considered the principal constituent elements of a song, including melody, musical structure, compositional technique, rhythm, and harmony.

 

The court used a quantitative analysis to review these elements. For example, comparing the melodies of the two songs, the court noted that 92 out of 128 notes (about 72%) of the melody of the defending song were the same as that of the complaining song. Also, the court parsed the two songs into several musical phrases and found that the transition between phrases was highly similar between the songs, because the first several notes of each phrase in both songs were the same. The court also compared the chord progressions in both songs. For these comparisons, the court relied largely on the parties’ expert testimonies, and reports rendering detailed, element-by-element analyses. An academic quantitative study also reaches a similar conclusion as the court, finding that the two songs are 45% identical in their melodic sequences.[1]

 

The court also recognized that question of similarity between the two songs did not depend solely on mechanical, analytical dissection. When discussing the melodies of the two songs, the court stated that certain compositional techniques can greatly affect the impression of a song on a listener. Specifically, the court found that the use of leading tones in the complaining song creates a “forward-marching impression,” while the use of decorative chords in the defending song renders a softer, more sentimental feeling. And yet, the subjective analysis of the songs’ impression ultimately depended upon the objective analysis of the constituent elements, for which the court conducted a mechanical dissection phrase by phrase, note by note.

 

Such a heavily analytic approach contrasts with that more typically taken by US courts. US federal courts apply a “substantial similarity” test to analyze copyright infringement cases. This test involves two inquiries: probative similarities between the disputed works, and unlawful appropriation. While circuit courts vary in their applications of this test, most are influenced by the Second and Ninth Circuits (New York and California) which hear most copyright disputes involving musical works.

 

The test consists of two parts: an objective extrinsic test and a subjective intrinsic test. Under the modern trend, the objective test often calls for expert testimony for analytical dissection of musical works. There is no standard way to dissect a song, and the common constituent elements courts consider include melodies, words, tempos, chord changes, basslines, generic styles, etc. These musical elements are commonly considered in both US and Japanese cases like this one.

 

After establishing that the disputed works are objectively similar, a court needs to further decide whether the objective similarities imply unlawful appropriation. Many US courts use an “ordinary observer” standard for this determination, and have the jury decide whether works are intrinsically similar. US courts give much deference to juries and do not second-guess their verdicts. This is very different from the Japanese judicial system, where the fact-finding of civil cases is conducted by judges.

 

Such difference in two countries’ judicial systems results in different methods of approaching the issue of “intrinsic similarities.” In the US, most federal circuits have declared that expert testimony is irrelevant for the intrinsic test, and a landmark case announcing this principle is Arnstein v. Porter from the Second Circuit. In contrast to this approach, this Japanese case relies on expert testimony for both the extrinsic and intrinsic tests.

 

The Tokyo High Court found infringement, because the few creative expressions in the defending song do not outbalance the similar musical elements between the songs. The court held that those who listened to the defending song could directly feel the essential protected expression of the complaining song. If the case had been decided in a US court, it is possible that the result would have been different, since there is no fixed standard to measure how much the objective similarities would affect the jury’s subjective perception to the disputed works (an illustrative example of how a court conducted extrinsic analysis but then deferred to the jury to make the final factual findings: McDonald v. West). Under the existing case law, it is safe to say that in the US, the quantitative similarities between musical works are significant, but less determinative than in Japan for reaching a conclusion of copyright infringement.

 

Following the conclusion of the lawsuit, Hattori, the defendant, resigned from the board of directors of the Japanese Society for Rights of Authors of Music, and the defending song “Kinenju” was no longer broadcast with the TV show. Kobayashi, the plaintiff, also sought a termination of licenses of Kinenju to schools and other organizations, making it virtually impossible to perform the song in public.

 

[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]