On December 4, the renowned guitarist Joe Satriani filed a copyright lawsuit against the British rock group Coldplay. Satriani argued that a substantial part of his original instrumental piece, ‘If I could Fly’, was reproduced in the band’s hit, ‘Viva La Vida’.

Coldplay faced a similar allegation earlier this year. The young Brooklyn band, Creaky Boards, also saw ‘Viva La Vida’ as a substantial copy of their song, ‘The Songs I didn’t write’. Unlike Satriani, Creaky Boards decided not to sue Coldplay. The only recourse the young band sought was to create a widely-circulated video on the Internet. The video contained a modified version of ‘The Songs I didn’t write’ with subtitles explaining the main allegations against Coldplay. In both cases, Coldplay responded that they had not copied any of the songs and that the similarities between the three songs could be explained by a mere coincidence.

Interestingly, Los Enanitos Verdes, a highly successful Latin American rock group, released ‘Frances Limon’ back in 2001. ‘Frances Limon’ has the same catchy tune as the three songs above and its release predates the others. The question is: who copied who?  Or could the four pieces be created independently?

Under Canadian copyright law, proving copyright infringement requires showing that a substantial part of the copyrighted work was reproduced.  Sufficient objective similarity between the songs is one part of the inquiry.  Another crucial inquiry is whether the alleged infringer has consciously or subconsciously copied the work of the ‘original creator’.

The issue of conscious or unconscious copying is a question of fact. However, direct evidence of copying rarely exists and absent such evidence, a court has to rely on objective criteria for determining that copying occured. For example, whether a song melody is distinctive might inform the judge on the probability that a particular song could be independently created. This criterion was used in the English case Francis Day & Hunter Ltd. and Another v. Bron and Another.  There the trial judge had to decide whether a composer of the musical work ‘Why’ had unconsciously copied the main melody of the plaintiff’s song, ‘In a Little Spanish Town’. The trial judge, who was upheld on appeal, concluded that the devices used by the two composers were ‘among the commonest tricks of composition’, which is to be expected from a composer of popular song. Thus there was at least an equal probability that it was a result of coincidence that the composer of ‘Why’ chose these same tricks. As a result, the trial judge held that the plaintiff had not proved on the balance of probability that the defendant consciously or subconsciously copied the plaintiff’s work.

In this respect, if Coldplay can prove that they used ‘the commonest tricks of composition’ to create ‘Viva La Vita’ then they would be very close to proving their case. Some commentators, such as Jeff Miers, have argued that similar to ‘If I could Fly’, ‘Viva La Vita’ relies on a single progression of chords that is widely used in popular music. Miers concludes that if a composer ‘happened upon such progression, the melody practically writes itself'. Thus similarities between ‘Frances Limon’, ‘The Songs I didn’t write’, ‘If I could fly’, and ‘Viva La Vida’ might be a mere coincidence that could be explained by the use of commonly used composition techniques.