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Will Coldplay settle out of court?

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Joe Satriani's suing of Coldplay has become one of the hot topics of late 2008. And it doesn't look like it's going away soon.

The latest addition to the online debate is a fine article on the Idolator website where their 'Idolawyer' (clever, yes?) muses on how the case might pan out in court.

You'll have to put aside any prejudice of whose music is 'better' to appreciate this case, but the potential scenarios are interesting.

Idolator's lawyer writes:
"Assuming that Joe and his publisher legitimately own the copyright to If I Could Fly, assuming the song meets the minimal criteria for originality (a given), and further assuming that he has no direct evidence of infringement, the court will apply the following two-step inquiry:

1. Whether the defendant had access to the plaintiff's song prior to creation of Viva La Vida.
2. Whether the work of the alleged infringer is substantially similar to If I Could Fly."

Given that Satriani's Is There Love In Space? album was released worldwide by Sony Music, Satriani's team should have no problem on point 1. As for point 2, a court case could result in an audience test, where a jury will decide if the songs are "substantially similar".

A court case could result in an audience test, where a jury will decide if the songs are "substantially similar"

Idolator's lawyer continues:
"The audience test is comparable to the "reasonable person" test in tort law - it relies on the spontaneous and visceral reaction of the typical audience for the works at issue. If the audience detects similarity without suggestion, then the works are likely substantially similar.

"The audience test has been criticized, and the various circuits have unique formulations of the test. Courts also often allow consideration of expert testimony such as analysis by musical experts. The substantial similarity analysis often includes a value judgment, which is a determination of whether the value of the original work is harmed or the labors of the original author are appropriate by the infringer."

And then, the court will have to identify an "intended audience".

Now, will those be people who know something about music theory? Or people who, in fact, know nothing about theory or even Joe Satriani or Coldplay? (Which could be hard, given the latter's fame.)

"This is really about publishers"

MusicRadar spoke with renowned business attorney Ronald S Bienstock, who has represented Joe Satriani in the past on other matters.

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