It would seem unlikely that one could secure copyright of the musical note A 440 (for example). Generally, more complex sounds (music, sound effects) are complex permutations, mutations or compositions of other, more basic sounds.

We also know that a sound is essentially a vibration of air. The sound exists at different states (when it is "played", when it is "composed", when it is "heard" and at other times and in other states). The same sound frequency will be slightly different in each of these states. For example, if you listen to a piano being played, the sound is different 1 inch from the Piano than it is 100 metres from the Piano.

The question then becomes how complex does the sound have to be for it to be copyrightable and what is it that you are securing? Are you securing the sound as it is played or as it is heard? How mutated or composed does a note (such as A 440) need to be before it is copyrightable?

Does the law take a scientific approach to trying to answer this question or has it been largely built on broad, casually accepted defintions of 'music'? i.e A lawyer thinking that something sounds enough like something else to be the same ...

Further does the law break sound down into lower constituent parts when attempting to answer this question? i.e What is the Frequency of the sound, the waveform of the air vibration, the pitch, the timbre, the sonic texture? etc. Is there a definitive list of lawfully mandated measurements which would be used to determine the 'uniqueness' or 'similarity' of a sound?

(Feel free to answer the question in relation to the law in the country in which you reside)

  • 1
    I believe there is similar work on what amounts to an original work for written word (after all, you can't copyright a single letter, or even a single word, usually).
    – JAB
    Mar 20 '18 at 15:47
  • 4
    Not a full answer, but copyright only apply to fixed works, so the sound would have to be recorded, written as sheet music, or described by its waveform - it's certainly not possible to copyright a sound as it's heard by itself, since that has no permanent trace. Mar 20 '18 at 16:36
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    @NuclearWang it seems to me that that is precisely the answer to this question. One can copyright a written description of a sound, for example a musical composition, or a recording of a sound, but not the sound itself. Jordan: D major (which denotes both a chord and a key, but which is not a musical note) cannot be protected by copyright for several reasons, covered by user6726's answer, although a particular recording of, for example, a D-major chord, or a particular orchestration of one, might be subject to copyright protection.
    – phoog
    Mar 20 '18 at 17:00

As for the subject matter (what can be protected), amplitude, frequency, harmonic pattern, duration etc. are all physical facts, and there is no protection for physical facts. The basic requirement is that the thing protected must be "creative". Once you have a creative composition (assuming it is a composition, where infringement is harder to establish), the question arises whether a particular other composition infringes, or is an independent creation deserving its own protection.

Again, the law does not deal in technical acoustic properties, and "similarity" is dealt with in an essentially subjective manner. The find of fact, who is an ordinary observer, has to weight all of the evidence and decide whether there is substantial similarity (or striking similarity) which could be evidence of infringement (substantial similarity is not against the law, copyright infringement is). Both parties to the litigation will present testimony supporting their contention and refuting the others' contention. At some point, one side is likely to introduce expert testimony to the effect that there are only so many possible melodies, which if persuasive can overcome a feeling that two compositions are rather similar.

The law only addresses the logic of that judgment, and not the scientific facts. For example, in the case of Testa v. Janssen, the legal premise is set doen that "proof of direct access is unnecessary where striking similarities between two works are present". HOw then do you know if there are striking similarities?

To prove that similarities are striking, plaintiffs must demonstrate that "such similarities are of a kind that can only be explained by copying, rather than by coincidence, independent creation, or prior common source." Stratchborneo v. Arc Music Corp., 357 F. Supp. 1393, 1403 (S.D.N.Y.1973)

citing a previous ruling on that point. Ultimately, the courts cannot not dictate a scientific procedure for making that determination.

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