West Virginia Law Review

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This article explores the use of Artificial Intelligence to help define the existing test for copyright infringement for musical works. Currently, the test for copyright infringement requires the jury or a judge to determine whether the parties' works are "substantially similar" to each other from the vantage point of the "ordinary observer." This "substantial similarity" test has been criticized at almost every level due to its inconsistent nature. Artificial Intelligence has evolved to the point where it can be used as a tool to resolve many of the current issues associated with the "substantial similarity" test when it comes to musical works. Specifically, courts would no longer have to rely on a battle of the experts or the use of lay observers to determine if a work is substantially similar to another work. Artificial Intelligence can be used to help establish copyright infringement in a way that is both less biased and more fact driven. Additionally, Artificial Intelligence algorithms could strengthen the notice function of copyrights by allowing alleged infringers a means by which to check ex ante if their work could be infringing.

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