The Artful Jurist

A friend recently sent me a newspaper clipping of an article about a production of Wicked (the stage musical based on the "prequel" of The Wizard of Oz).  In the article is a trivia quiz about the show, and one of the questions reads: "Seven notes of the show's theme music mimic what song?"  Okay, if you guessed the answer is "Somewhere Over the Rainbow," you can pat yourself on the back for not overthinking the questions and going with the obvious and correct answer.

But in the newspaper's answer key it also stated that "Copyright laws demand that if eight of more notes are used, it would be stealing a song, which is why composer Steven Schwartz stopped at seven."

Really?  Is it just that simple?  Seven notes and you're safe; eight notes and you're sued?  Well, I'd have to take some issue with that oversimplification.

First, I'm guessing that Mr. Schwartz chose to appropriate exactly seven notes because that's the precise number of notes in the song necessary to sing the lyric phrase, "Somewhere over the rainbow... ."  Six notes, and it would be "Somewhere over the rain... ."

Second, there's a federal case in which the court ruled that even as few as four notes could be considered copyright infringement if those four notes constitute "the heart of the composition."  (It's the case of Elsmere Music v. NBC, a case I talk about in more detail in my book, An Artist's Guide to the Law.)

What we're talking about here is a doctrine of fair use known as de minimis, and it's anything but a bright-line rule in terms of exact numbers or percentages.  As with the Elsmere Music case, if the matter goes to court, it's not up to the party appropriating the notes to determine the magic number for what's de minimis.  It's up to the judge.