Subconscious Copying and Cryptomnesia in Copyright Law: A Comprehensive Overview
Introduction
When listening to two songs with almost identical rhythms, chord sequences, and melodies, most people would assume that the newer song was copied from the older one or that the composer had obtained permission from the copyright owner of the original song. But what if the situation is not that straightforward? What if the similarities between the two pieces of music are purely coincidental? This blog explores the concept of subconscious copying, also known as cryptomnesia, and its implications in copyright law.
What is Cryptomnesia?
Cryptomnesia is a psychological phenomenon where an individual recalls a previously learned piece of information but believes it to be an original creation of their own. This term was first used by Swiss psychiatrist Théodore Flournoy to describe how a spiritual medium claimed to receive information from spiritual dimensions, which was actually stored in her subconscious. Carl Gustav Jung later expanded on this concept in his studies.
Empirical experiments, such as those by Alan S. Brown and Hildy E. Halliday in their 1991 article “Cryptomnesia and Source Memory Difficulties,” revealed that individuals often recall learned ideas incorrectly, mistaking them for their own original thoughts. This phenomenon can lead to significant legal issues, especially in copyright law, where the independent creation of works is a core principle.
Cryptomnesia and Copyright Law
The U.S. Copyright Law aims to balance public benefit with the rights of authors by protecting original expressions of authorship. According to the U.S. Constitution (Article 1, Section 8, Clause 8), Congress has the power to promote the progress of science and useful arts by granting authors and inventors exclusive rights to their writings and discoveries for limited times.
For a work to be protected under copyright law, it must be an original expression fixed in a tangible medium. The U.S. Copyright Act specifies various categories of works that can be protected, including literary, musical, dramatic, and audiovisual works.
Originality is crucial for a work to qualify for copyright protection. A work must result from an independent creation process and include the creator’s own creative contributions. The standard for originality is relatively low, as seen in cases like Magic Marketing Inc. v. Mailing Services of Pittsburgh Inc. However, it must still involve some level of creativity to avoid granting monopolies on ordinary productions.
Copying vs. Independent Creation
Understanding the distinction between copying and independent creation is pivotal in grasping the intricacies of copyright law. Section 106 of the U.S. Copyright Act grants authors the exclusive right to reproduce their works, among other rights. This means that any unauthorized copying constitutes infringement, giving the copyright owner grounds to pursue legal remedies against the infringer. However, when the copying occurs subconsciously, the situation becomes considerably more complex, challenging the legal principles of independent creation.
Subconscious copying, also known as cryptomnesia, occurs when a person unknowingly replicates a piece of work they have encountered before, believing it to be their own original creation. This phenomenon complicates the defense of independent creation, as it blurs the lines between intentional plagiarism and unintentional reproduction. The legal system must then determine whether the similarities between two works are a result of conscious effort or an unconscious process.
Burden of Proof
To successfully claim independent creation in the face of a copyright infringement accusation, the defendant must provide substantial evidence. This evidence can include:
- Detailed Production Records: Documenting the creative process can demonstrate that the work was developed independently. These records might include drafts, notes, revisions, and timestamps showing the evolution of the work.
- 2. Witness Testimonies: Statements from collaborators, colleagues, or anyone involved in the creation process can support the claim of independent creation. Witnesses can attest to the defendant’s workflow and creative practices, providing an external validation of the independent creation claim.
- Expert Analysis: Sometimes, expert testimony from a professional in the field can help distinguish between common tropes or themes in the genre and genuine instances of copying. An expert can provide insights into the creative process and the likelihood of independent development.
Despite these evidentiary supports, courts often find it challenging to differentiate between subconscious copying and genuine independent creation. The primary difficulty lies in the inherent subjectivity of the creative process and the subtlety with which subconscious memories can influence new works.
Access and Similarity
Two critical factors in these cases are access and similarity:
- Access: If the defendant had access to the plaintiff’s work, even if it was years before, it increases the likelihood that subconscious copying occurred. Access can be established through various means, such as having attended the same events, being part of the same industry circles, or having the work publicly available in a way the defendant could have encountered it.
- Similarity: The degree of similarity between the two works is scrutinized. While some similarities can be attributed to common themes or public domain elements, striking resemblances in structure, melody, phrasing, or other specific elements can lead to a presumption of copying. The greater the similarity, the harder it becomes to argue that the creation was independent.
The Legal Dilemma
The legal system aims to protect the rights of original creators while also acknowledging the complex nature of human memory and creativity. In cases of subconscious copying, courts must balance these interests carefully. On one hand, they strive to uphold the integrity of copyright protections to ensure creators’ rights are not undermined. On the other hand, they recognize that human cognition is not always within our control, and unintentional copying can occur.
Courts often lean towards treating subconscious copying as equivalent to deliberate copying. This approach is driven by the need to maintain a clear and enforceable standard in copyright law. Allowing subconscious copying as a defense too readily could create loopholes and weaken the protections afforded to original creators.
Important Cases of Subconscious Copying
Several notable cases highlight the complexities of subconscious copying in copyright law. To illustrate, the case involving George Harrison’s song “My Sweet Lord” and The Chiffons’ “He’s So Fine” is a classic example. Harrison was found to have subconsciously copied the earlier song, leading to a ruling against him despite his lack of intentional infringement.
Another example is the case of Bright Tunes Music Corp. v. Harrisongs Music, Ltd., where the court ruled that subconscious copying still constituted infringement. These cases demonstrate the courts’ tendency to treat subconscious copying as equivalent to deliberate copying, emphasizing the protection of original works.
Conclusion
Cryptomnesia presents a unique challenge in copyright law by blurring the lines between independent creation and copying. While subconscious copying can occur without intent, the legal system generally treats it as an infringement to uphold the integrity of copyright protections. As our understanding of the human brain and memory continues to evolve, so too might the legal interpretations of cryptomnesia and its impact on intellectual property rights.