It hadn’t really occurred to me until last week that nearly all the cases I happen to have read or written about in the past six years entail obvious appropriations of protected works, usually invoking defenses like fair use. In the digital-tech market, many high-profile lawsuits—especially the ones that may pose an existential threat to copyright—involve new business enterprises trying to exploit copyrighted works by making them available without license. That’s a very different animal from a litigation like Williams v. Gaye (a.k.a. “Blurred Lines”), in which a new creative work is alleged to have infringed a precedent creative work by virtue of similarity between the two.
To date, I’ve been in the majority camp that “Blurred Lines” does not infringe “Got to Give It Up.” I hear inspiration but not copying and want to err on the side of giving musical works very “thin” protection from work to work, acknowledging the fact that all songwriter/composers draw upon the same finite set of raw elements and—in some cases—basic rules of arrangement. That said (and knowing I’m going to get yelled at by some songwriters), I’ve now read the amicus brief behind the editorial by Lateef Mtima & Sean O’Connor, alluded to in my Part I post, and they do make a very compelling argument for affirming the decision in Williams. More on that in the next post.
As mentioned in Part I on this topic, attorney Rick Sanders opines that an unusual fact pattern—most especially Robin Thicke’s own testimony—played a substantial role in the outcome to date; but Williams v. Gaye also emphasizes for many legal experts the absence of a consistent doctrine for identifying infringement. Not only do the two circuits—the Ninth and the Second—that adjudicate most copyright cases follow somewhat different formulae for identifying infringement, but they also create internal splits that contradict their own precedents. Still, without going all the way down that particular rabbit hole, here’s my best attempt at describing the basics in a case like this:
In order to show that a new work infringes a prior work, one must demonstrate that some amount of copying has been done and that what was copied was protectable expression under copyright law. At the same time, the law must not foreclose the possibility—even the likelihood—that two separate authors might independently create two very similar works. If Author B realistically did not know about Author A’s work, he cannot possibly be guilty of infringing that work.
This gives rise to analysis by the courts that weighs “access” to the prior work against the “substantial (or probative) similarity” of the subsequent work to the prior work. In a case where “substantial similarity” is fairly obvious, “access” can be assumed; or in a case where “access” can be assumed, “substantial similarity” need not be so obvious. This is referred to as the inverse-ratio rule. So, in a case like Williams, where “access” to a hit song that’s been in pop culture since 1977 can be assumed, then the bar for “substantial similarity” is a little lower.
Once there is sufficient “access” and “substantial similarity” to infer that copying has occurred, this does not automatically allege infringement unless what was copied is both “original expression” and protected under copyright law. Because a core principle of copyright is that it may only protect expression but not protect ideas or facts, in a case of artist v. artist, the court must separate the expression from commonly-shared ideas or facts between the two works. Identifying this separation can be easier in some media than others and easier or harder from work to work. For instance, as Terry Hart describes, “Maybe because literature is made of language and we’re using language to define the boundaries, people seem to have an easier time separating idea and expression in literary works than with categories like musical works.”
In a musical work, “ideas and facts” encompass those common elements that all composers need—time signatures, notes, chords, styles, and even traditional arrangements of some of these elements, like, say, a standard blues riff. Because no composer may copyright these “facts” of music and because not all of us prospective jurors speak music, that’s where an expert becomes essential to offer an opinion to describe how the facts are brought together to define what is “original” about a particular work and then to show where the composer’s choices have either been copied, or not, by the allegedly infringing work.
Why Not Limit to Literal Copying?
It may be tempting to argue that nothing other than literal copying should ever constitute infringement. But this proposal strikes at one of the underlying balancing acts in copyright law. On the one hand, we want numerous, similar but distinct expressions to coexist without legal conflict, lest copyright destroy its own purpose to promote expression. On the other hand, it is understood that if infringement is limited to literal copying, this can also dilute expression by allowing minuscule changes to existing works that enter the market posing as “new works.”
For example, we really don’t want to provide incentive for an author to simply rewrite Huckleberry Finn in his own words and call it a new novel. But you see what I did there? I switched to a different category of works to present a simpler example. Referring back to Hart’s comment, a musical work is, in a sense, the opposite of a novel because the language used in music is the expression that produces a particular sound. Change the musical language, and this generally produces a whole new work, which would not be the case if a new author were to use his own words to tell a familiar tale about a miscreant boy and a runaway slave traveling on a raft down the Mississippi.
With that in mind, the next post on this topic—and I really didn’t see a three-parter coming—will look at all this in context to the argument presented by Mtima and O’Connor with regard to what constitutes the creative expression that is presented to a jury, and why they see this as a matter of social justice.