Sephirot Theme ( Phase 2 ) sound familiar?

[Andrea]

to the jail with her! :P

Keep it up detective, theres a promotion in your future.

[Theonekitten]

Because denial is a sign of guilt. It sounds similar enough to have drawn some influence from it. That is just me anyway. Only they know the truth.

Someone sounds a bit jaded. Despite your past experiences, there are good people in the world who are clueless and are not lying when they deny knowing something.

[Kabooa]

If we ignore everything about it that's different, the two are exactly the same.

Clearly the work of the Illuminati.

[Kerwin]

If anything there has got to be a positive from this situation. Soken now being informed of the similarities between both songs may even inspire him to really blow us away with his next piece. Just being optimistic.

[dark494]

Forgive me for this, but I have lawyer friends who wanted to comment and inform the masses.

So short answer is, Soken having not known about the PM5k song makes it a much longer, expensive, and difficult case for PM5K to prove. You cannot willfully feign ignorance though, that would actually, if proven, demonstrate intentional or willful infringement which is even worse than unintentional or negligent infringement.

Now, what is trying to be conveyed here is just understanding how American copyright law works sheds a lot of understanding for how this kind of issue works in the first place, even if JP uses different law in some places.

Long answer:

So let's make the assumption that PM5K decides to pursue an infringement action against Soken. The first thing to note is that the action would likely be against Square Enix since Soken is an employee of SE and the song is being used in FFXIV, which is a Square product.

So assuming the action is being brought against Square Enix Holdings Co, Ltd., the first question that needs to be considered is who has jurisdiction to hear the case. I am not 100% certain, but given that the lawsuit would be brought against a JP company, that would likely mean that the Japanese courts would have jurisdiction to hear the case, not American courts.

Now, this leads to the next key point. There is NO such thing as an international copyright. I will repeat that. There is no such thing as an international copyright. There are international treaties dealing with copyrights (ex. Berne Convention, TRIPS Agreement) but these serve two functions. First, agreements like Berne serve merely to state what all member countries view as the baseline components of a copyrighted work. TRIPS serves the important function of according all copyrights equal treatment under the law. This means that a French copyright is entitled to copyright protection in America even if it was created in France. This does NOT mean that French copyright law necessarily governs the case in America.

Japan is a member of Berne and a member of TRIPS so it is bound by those agreements as far as I just explained in that simplified statement.

(More information on Berne and TRIPS can be found on Wikipedia which does a decent job explaining the basics.)

Anyway, the jurisdiction question is important because we need to know which country's laws, which includes statutory and court-created, control on the matter. Now, while I am experienced in American copyright laws, I cannot say the same for Japanese laws. Based on some cursory research I conducted, it would seem Japan awards MORE copyright protection to authors and artists than American copyright law does, which is primarily seen by the fact that Japan includes "moral rights" in the list of enumerated rights.

Now, a couple of things further. Copyright infringement is fundamentally the same claim no matter which country you go to. There are three elements needed to establish a prima facie case for copyright infringement.

1. There needs to be a valid copyright,
2. There needs to be evidence the alleged infringer had access to the copyrighted work, and
3. There is substantial similarity between the allegedly infringing work and the copyrighted work

Granted, I am using American legal language here. The standards in JP may be different, but I believe they are highly similar in this regard at least.

The first element isn't contested here. There's no question PM5K had a valid copyright in their work. The primary questions will come down to access and substantial similarity.

Now, like I said earlier, I am not as familiar with JP copyright law and their case law. What I want to do is demonstrate the analysis as though this were in an American court to highlight how these issues are interpreted and analyzed.

Let's focus first on access. Yoshi just claimed that Soken had never heard "When World's Collide." Essentially, he's contesting access in this case. American courts require there to be "reasonable access" to a piece of music. This is "more than a bare possibility." See "Three Boys Music Corp. v. Michael Bolton". Reasonable access is proven in two ways, either by

1. A particular chain of events linking the two works, or
2. That the copyrighted work was widely disseminated.

Now, in our case here, there likely is no chain, so PM5K would allege Soken had access based upon the widespread dissemination prong. Now, in American courts, there is a doctrine of law since the 1920s that has held there is such a thing as "subconscious copying." The basic idea is that because a song was super popular and widely disseminated, the alleged infringer heard it and subconsciously copied it years later when he/she created the allegedly infringing work. See "Three Boys Corp. v. Michael Bolton".

I do not know if JP has adopted the "subconscious copying" access standard American courts have. Therefore, I cannot say one way or the other. Regardless, SE can make the argument that perhaps PM5K was only widely disseminated in the United States and never made it's way to Japan. Therefore, Soken never would have had even subconscious access to the music. If two works have evidence that they were created independently of each other, then the two works, no matter how similar, are not infringing. If access does not exist, a claim for infringement dies. A prima facie case requires evidence of ALL the elements. If any one is missing or lacking, the case is dismissed.

Now, let's assume access does exist. That brings us to this substantial similarity question: Just how similar is "substantially similar?" Courts have struggled to create a clear definition to this term. This is in part because judges don't want to put themselves in the position of being artistic critics who get to determine what works meet the thresholds.

The general policy in America is to grant more copyright protection rather than less. I am unsure if this policy is the same in Japan. It very well may not be, as America's wide use of copyright law is often cited as being one of the novel and extrinsically powerful aspects of American copyright law and part of why American copyrights are so dominant even in foreign countries. (See the EU and the recent push to enact a more uniform online music royalty system).

Let's start with the words though. It is not enough for a work to be similar, it must be SUBSTANTIALLY similar. Additionally, note that the language in American law is not "nearly identical." Thus, the works must be more than merely similar but not nearly identical.

To drive home just how variable this question of similarity is, consider the fact that just about every Circuit Court of Appeals has its own test for what "substantial similarity" means. Some circuits have used the "ordinary observer" test (see the Second Circuit). This test basically asks if an objective, ordinary person would believe the allegedly infringing work appropriated the original copyrighted work. Put another way, would our ordinary observer overlook any discrepancies as minor such that he would consider them the same work? The ordinary observer test is used in the First, Second, and Third Circuits. It looks at whether the works are so similar as to conclude that the infringer took a "significant" portion of the original when creating the infringing product. It is important to note, under the ordinary observer standard, it is assumed the observer is NOT looking for discrepancies, and instead is just listening to the two works

As if to make this even more confusing, similarity can be used to prove access. The more similar the work, the more likely a court and jury can infer that the infringer had access to the original work.

Unfortunately... it helps us very little in this debate. On the one hand, it's hard to call anyone on the internet objective on this matter. Most are fans of SE and there are definite concerns of bias. Second, even assuming objectivity, we see a wide array of people making statements of similarity or no similarity within the topics themselves.

Anyway, the Ninth Circuit created a rather bizarre test called the extrinsic/intrinsic test for analyzing similarity. The Ninth, Eighth, and Fourth all use some variant of the extrinsic/intrinsic test. The idea is that the court first looks at extrinsic or objective factors. In the context of music, this asks questions such as what the instrumentation was, the subject matter of the songs, and the setting in which the song was used. Court compare these extrinsic ideas to see if the ideas are substantially similar. If the extrinsic ideas are deemed substantially similar, then the court moves on to an intrinsic evaluation, which is purely subjective.

The intrinsic test focuses on the "total concept and feel" of the two copyrighted works to determine if they seem to be substantially similar overall. Expert testimony is not permitted to prove intrinsic but is for extrinsic. In our case here with SE and PM5K, that would mean we'd do the extrinsic analysis first. So we'd look at the instrumentation, the genre of the music, the setting of the music, and the subject matter of the songs, etc.

Based on that alone, I'd venture to make the argument that the extrinsic ideas are not necessarily similar. The setting for one is consumable music, the other is for a boss fight in a video game. The subject matter, based upon the lyrics, are also different. The instrumentation also differs in some ways (Soken uses more electronic elements). Both are industrial rock though. While experts can testify, there is still a certain degree of subjectivity to determining the similarity.

Now, if the court agreed with me, we'd stop there. If they concluded there was similarity, then we'd move to the intrinsic test. Unfortunately, this puts us back in the EXACT SAME PLACE we are at right now with this debate. Again, the intrinsic test is "is the total feel and concept between the two works substantially similar?" This is, as noted, purely subjective and is going to vary from person to person.

Now for the major kicker. I have no clue how Japan evaluates similarity or what the degree needs to be. I have no clue if they use the ordinary observer test, the extrinsic/intrinsic test, or something completely different. But, I doubt they have a very clear cut answer to what similarity needs to be given that American courts don't have one STILL after decades of jurisprudence.

Lastly, Sampling. Sampling is a practice in which one recording artist will digitally copy and remix sounds from previously recorded albums. This can implicate two copyrights. If the sample contains sufficient originality to stand on its own, then it can be protected. If not or the use is "de minimis" (meaning essentially minimal or barely used), then there is no infringement.

To put this in context, consider if Soken sampled a 6 second bass riff or guitar riff from PM5K's "When World's Collide." If the riff has sufficient originality, then Soken might be liable. If however, it was de minimis, then Soken can sample the song without fear of liability. It is worth noting, the shorter the sample, the harder to prove it's not de minimis. So when people insist "the bass is the same, the drum pattern is the same," that is poor grounds for proving copyright liability. If you really want to claim that a sample violated the original copyright, usually it has to incorporate a very unique feature, such as a distinct flourish or deliberately missed note.

The End.

[Kerwin]

Good gosh Dark... That's a read... But you bring interesting info to the thread. Thanks.
(Although you did repeat yourself in the first two paragraphs :P)
(First four paragraphs to your long answer)

[dark494]

(Although you did repeat yourself in the first two paragraphs :P)

EDIT: I SEE IT

[Noshpan]

That is an incredibly informative post there, Dark494. Kudos on that.

Now, as to the two pieces of music.

Honestly, I've never heard of Powerman 5000 until 3.2 launched. I've never played a single Tony Hawk game because A: those kinds of games don't interest me and B: I've never owned a console other than an Atari 2600, Intellivision and Nintendo systems. However, now that I've heard of the pieces of music in question (When World Collide and Sephiroth Phase 2), there are certainly similarities but, being as I'm not as well versed in the (American) field of copyright, I cannot say if Soken's piece is enough to be classified as infringement (intentional or otherwise). Sadly, I wouldn't be surprised if there ends up being a quiet sneak change to Sephirot's theme that removes it.

Hell, there was once a performer, whom had left their band and went solo, who was later sued by the very band they were once a member of because they were accused of ripping off of the band's work. Judge threw the case out, however. The guy couldn't help the way he sings after all.

[Catwho]

I never once had the impression that the music sounded like that other song. I played tony hawk 2 and that song is still very fresh in my mind.
My first impression on sephirot was that it resembled something I'd hear from a Devil May Cry game. Which also have songs that kinda sound like the Tony hawk 2 song.

That said, people need to realize that the world is VERY large and vast. And that we humans exist in massive numbers. The chances of creating something that is 100% unique is VERY small. As an artist myself, there are moments I drew something. Only to end up noticing that someone else had almost the same idea as me. Heck, if you really look deeply in all forms or art. You'll find MANY simularities to other things. Just some food for thought.

When I was 8 or 9 I thought I had a great idea for a series of novels about kids who turned into animals.

Animorphs came out a year or two later. I WAS SO MAD!

dark494's long and wonderful post brought up a point in my mind - doesn't Soken use a synthesizer almost exclusively in his work? So even if the instrumentation is similar, the instruments themselves cannot be identical because there is no keyboard or guitar or string bass - it's just the synthesizer with vocals overlaid.

[Bladesinger]

For anyone that works within any industry related to music: This kind of thing happens ALOT and really shouldn't be any cause for concern unless someone gets money hungry or vengeful - Folks're making a mountain out of a molehill over this.