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

• Author: Robert Kirk Walker
• Position: 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.
• Pages: 50-55

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

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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.