Brooklyn Journal of Corporate, Financial & Commercial Law


Stephanie Stern

First Page



To resolve a musical composition copyright infringement case, courts employ the circumstantial evidence analysis. This analysis involves assessing whether the two works are substantially similar and whether the defendant had access to the plaintiff’s copyright-protected work. Despite efforts to keep pace with the rapidly changing world of music creation, these tests have fallen behind: circuits are split with respect to the way they determine substantial similarity, and courts have failed to update the access requirement in the age of the internet. Additionally, courts must adhere to the rules of either the 1909 Copyright Act or the 1976 Copyright Act, depending on which governs the specific copyright-protected work. These outdated statutes leave plaintiffs with few ways to get the most important part of any musical infringement case into evidence: the music itself. Accordingly, the circumstantial evidence analysis has historically been applied inconsistently and ineffectively. This Note explores the issues plaguing courts’ current methods and proposes an updated, uniform approach to resolving these cases.