Irrational Copyright Lawsuit Over “Pi Symphony” Gets Sliced–Erickson v. Blake

By Eric Goldman

Erickson v. Blake, 2012 WL 847327 (D. Oregon March 14, 2012). The complaint. A prior ruling in the case transferring it from Nebraska to Oregon for jurisdictional reasons. Techdirt’s coverage (1, 2).

This case could be an instant copyright law classic. It provides a textbook illustration of a critical copyright doctrine (the idea-expression dichotomy), it involves musical principles that everyone–especially students–can relate to, its facts could be easily adapted to a law school exam, and the subject matter provides endless punning opportunities.

Lars Erickson composed the “Pi Symphony” by assigning each numeral 0-9 to a musical note and then playing the notes corresponding to pi’s digits. Read some background on his approach, or watch the video. (In the video, he plays a little “e” as well).

Michael Blake did the same basic thing: he assigned numbers to notes and then played pi using those notes. See his video, “What Pi Sounds Like.” Not surprisingly, because both Erickson and Blake draw from the same source, their outputs have some commonalities.

From a legal standpoint, basic copyright law says no one can copyright either the idea of assigning musical notes to numbers or the idea of playing the notes assigned to a number, whether it’s pi, e, pi in base 8 (which might have made some sense to match the scale), the square root of 2 or the speed of light. The court says:

Pi is a non-copyrightable fact, and the transcription of pi to music is a non-copyrightable idea. The resulting pattern of notes is an expression that merges with the non-copyrightable idea of putting pi to music: assigning digits to musical notes and playing those notes in the sequence of pi is an idea that can only be expressed in a finite number of ways. This does not mean that Mr. Erickson’s copyright is invalid, only that Mr. Erickson may not use his copyright to stop others from employing this particular pattern of musical notes.

But because there are many options for musically implementing the number pi, it’s possible to have a copyrightable expression of that pattern:

What may be protected by copyright is the combination of that pattern with other musical elements: the choice of scale, rhythm, harmony, and embellishments or variation, for example.

Thus, Erickson can have a copyrightable expression of pi set to music, but his copyright is so thin that Blake’s expression doesn’t infringe it:

.Pi Symphony and “What Pi Sounds Like” employ different rhythms, different phrasing, different harmonies, and different tempos….Thus, after the similarities based on unprotected elements of Pi Symphony are set aside, very few—if any—similarities remain. Mr. Erickson’s copyright is therefore “thin” and protects his work only from virtually identical copying….Mr. Erickson’s copyright, which is presumed valid, protects his expression of the musical pattern formed by the digits of pi. But what is original about that expression—the cadence, flourishes, harmonies, structure, and so on—is not virtually identical, or even particularly similar, to “What Pi Sounds Like.”

The court closes the circle by rebuking the plaintiff:

Mr. Erickson’s grievance may be based not so much on any “copying” by Mr. Blake, but rather on the perception that Mr. Erickson’s years of hard work in promoting Pi Symphony were undermined by the sudden popularity of Mr. Blake’s work and the media attention it received….Given statutory law, the Constitution, and Supreme Court precedent, Mr. Erickson cannot use his copyright to stop Mr. Blake from employing the same idea—the transcription of the digits of pi to musical notes.

That’s a thick list of authority telling Erickson to get over it. Plaintiffs, if you’re basically bringing a “sweet of the brow” claim, don’t go pi-ing to the courts. (Sorry, I needed at least one groaner).

The New Scientist story on this ruling.

Note: the judge issued this opinion on March 14. Cute! I love judges with a sense of humor. Happy belated Pi Day!

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