Ghosts in the Hit Machine: Musical Creation and the Doctrine of Subconscious Copying

AuthorRobert Kirk Walker
PositionRobert Kirk Walker is an intellectual property attorney with Axiom in San Francisco, California. He specializes in copyrights, trademarks, publicity rights, and general business issues. He may be reached at rkwalker3@gmail.com.
Pages50-55
Published in Landslide® magazine, Volume 9, Number 4 , a publication of the ABA Section of Intellectual Property Law (ABA-IPL), ©2017 by the American Bar Association. Reproduced with permission. All rights reserved. This
information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
In December 1969, George Harrison, lead guitarist of the
soon-to-be-broken-up Beatles, cut his rst record as a solo
artist.1 A paean to the Hindu god Krishna that blended gos-
pel, folk, and rhythm and blues, the song, “My Sweet Lord,”
went on to be the best-selling single of 1971 and Harrison’s
biggest hit.2 Unfortunately for Harrison, the song also became
the subject of one of the most notorious copyright lawsuits
of all time. Soon after the song’s release, Harrison was sued
for copyright infringement by songwriter Ronnie Mack, who
alleged that Harrison had lifted the music for “My Sweet Lord”
from his song “He’s So Fine,” a hit tune released in the early
1960s by the Chiffons.3 What made this case notorious—and
still relevant 40 years later—was the theory supporting Mack’s
infringement claim: subconscious copying. This once-obscure
doctrine has since developed into a powerful litigation tool
capable of generating multimillion dollar awards and has
formed the basis of numerous infringement cases involving
well-known pop songs, including Michael Bolton’s late 1990s
soul smash “Love Is a Wonderful Thing”4 and Robin Thicke’s
recent dance-pop anthem “Blurred Lines.”5
However, despite nearly a century of judicial applica-
tion, the line separating unlawful subconscious copying and
independent creation—an absolute defense to infringement—
remains unclear. In the age of Spotify and Bandcamp, this
Ghosts in the Hit Machine
Musical Creation and the Doctrine
of Subconscious Copying
By Robert Kirk Walker
Robert Kirk Walker is an intellectual property attorney with Axiom in San Francisco, California. He specializes in copyrights, trademarks,
publicity rights, and general business issues. He may be reached at rkwalker3@gmail.com.

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