Category: Copyright

Blurred Lines in More Ways Than One – Part I

In what may be the most aptly named copyright case in recent history, “Blurred Lines” (properly Williams v. Gaye) is generally viewed as a mistake that many composers and songwriters fear will have a chilling effect on the craft of music-making. The headline complaint is that the outcome thus far asserts copyright protection for musical style, and, if true, this would certainly be harmful to the promotion of expression.

As attorney and law professor Rick Sanders opines in his blog, this case has such an unusual fact pattern—he calls it a perfect storm—that it may not be quite the precedent many fear. This opens up a much broader discussion about the legal processes for finding infringement, which I’ll do my best to summarize Part II.

To recap, in 2015, a jury awarded the Marvin Gaye estate $5.3 million in damages plus a 50% share in all future sales of the Robin Thicke/Pharrell Williams song “Blurred Lines,” finding that it infringed Gaye’s 1977 hit “Got to Give it Up.” Last month, the Ninth Circuit Court of Appeals denied a retrial, and counsel for Williams and Thicke last week filed for an en banc rehearing. Attorney Kathleen M. Sullivan notes in her brief that California’s Ninth Circuit is the “nerve center of the Nation’s creative industries,” thus its rulings on copyright are of particular significance.

In her appeal, Sullivan leans substantially on the district court’s failure to conduct proper analysis before “Blurred Lines” was presented to a jury. She writes …

“… the district court’s failure to make an objective comparison of the works before proceeding to  jury trial resulted in a trial where the jury was subjected to a mystifying haze of musicological obfuscation in which the Gayes’ expert found “implied” musical elements that were not notated in the lead sheet and ‘shift[ed] and invert[ed] the pitches’ in the songs in ‘a feat of musical gymnastics well beyond the skill of most listeners.’”

In part, Sullivan is quoting the strongly-worded dissent in the Ninth Circuit’s current holding, written by Judge Nguyen, which argued that the two songs are “objectively dissimilar.” In essence, the dissenting view argues that the district court should have been able to reach this conclusion as a matter of law and, thus, the case would never have gone to trial. Hence, Sullivan’s most quotable statement expressing the nature of concern among songwriters and composers …

“If a copyright holder can now get to a jury simply by proffering an expert to opine that a song’s elements are substantially similar to an accused song, without any objective comparison by the court, no musical work is safe from the prospect of copyright liability.”

Further, Sullivan asserts that the majority in the Ninth Circuit holding erred by applying a “broad” standard of protection to musical compositions. She states that this is both a contradiction of precedent and an error of law for two reasons: first, that no particular medium should be singled out for “broad” protection; and second, that the diversity of musical compositions may depend more than any other on “thin” copyright protection. “If anything, music is composed from indispensable, commonplace elements more often than other genres [she means categories] given that there are only 12 notes in the Western musical scale,” Sullivan writes.

That argument gets to the crux of the challenge in a case like Williams, especially because it went all the way to trial by jury, which is actually quite rare in copyright cases. In general, one does not need professional experience in law or music to know that all songwriters are working with the same set of common elements—notes, chords, time signatures, etc.—and that within any given musical genre, one work can sound a lot like a precedent work without the second actually copying the first.

Copyright is supposed to protect individual expressions but not ideas or facts; and in music, common elements, and even some standard arrangements of those elements, are generally viewed as ideas and facts (i.e. unprotectable). But when two musical works are quite similar, where does a court look for infringement; and even more unpredictably, how is a jury instructed to look for infringement?

As Rick Sanders states in his blog, what makes Williams most unusual was the fact that Robin Thicke so openly conceded that “Blurred Lines” was inspired by “Got to Give it Up.” This testimony feeds a doctrine known as the inverse-ratio rule, whereby the more one can prove the new artist had “access” to the precedent work, the less one must demonstrate similarity between the two works. More on this topic in the next post, but suffice to say that “access” is not generally easy to prove, and Thicke was an atypical witness by admitting that he was all but trying to mimic Marvin Gaye’s song. Add to this the evidence from the Gayes’ musicologist explaining the technical similarities between the two works, and the jury’s conclusion makes sense for us regular folks who can imagine being in their seats.

But for copyright attorneys and scholars, Williams v. Gaye actually touches several doctrinal nerves—namely that there is no uniform test for infringement; that the two main circuits (the Ninth and the Second) apply slightly different analyses; and that the process of testing for infringement in one medium, like literature, does not so easily apply to another medium, like music. All of this funnels into questions about what kind of evidence should be presented to a jury, or even whether it is rational—the Seventh Amendment notwithstanding—for juries to preside in copyright cases at all.

Based on the tone and rhetoric employed by the anti-copyright forces, I sense a bias that being pro-copyright is seen as equivalent to being pro-plaintiff in nearly all litigation. Whether that bias truly exists, I can say that I don’t personally know many copyright advocates who are pleased with the outcome in “Blurred Lines,” to say nothing of the composers and songwriters concerned that finding for the Gayes grants too broad a protection to elements that should be unprotectable.

Having said that, though, two scholars I admire greatly, Lateef Mtima and Sean O’Connor, take a very different view that the evidence presented in Williams is not only consistent with copyright law, but also represents an important reversal in a longstanding tradition of white musicians appropriating the musical styles of people of color. In an editorial for The Seattle Times, they write …

“While music copyright cases up to the mid-20th century often focused on catchy melodies, contemporary cases consider harmonic and rhythmic elements as well. The older view derived from a white, European — often ‘high brow’ — approach to music. This marginalized the influential harmonic and rhythmic innovations of artists of color from jazz on through rock and hip-hop. While black artists complained about these issues for decades, it is only when the tradition of white misappropriation of black musical innovation is threatened that the system comes under thunderous scrutiny.”

What Mtima and O’Connor are alluding to in a copyright context is the subjective aspect of testing for infringement; and this is where doctrine gets especially complicated, even without adding the emotional element of race to the narrative. Most copyright experts agree that infringement can occur beyond the scope of literal copying, and this generally translates into a doctrine of perception—i.e. how an ordinary listener, viewer, reader would perceive the allegedly infringing work. In theory, this is where a jury adds the element of justice into an otherwise subjective equation.

To Mtima and O’Connor’s point, in Williams, they see an important shift in understanding non-literal copying (i.e. Marvin Gaye’s style) and view this shift as resetting some balance in copyright protection for the contributions of people of color, which have unquestionably been commercialized by white artists. They state …

“The older focus on literal melodic copying systematically disfavored artists of color, Relying on this presumed exclusion of harmonic and rhythmic elements, record companies perennially promoted white artists from Elvis Presley to Iggy Azalea who could perform songs imitating artistic innovations of black artists.”

This is a fascinating line of inquiry from a historic, artistic, and social-justice perspective, though it may further muddy the waters, so to speak, in the broader debate as to how courts should test for infringement. Or perhaps it will provide a useful new context for settling some of these longstanding challenges. In a follow-up post, I’ll do my best to boil that debate down to a digestible narrative, but fair warning—it is a narrative with many blurry lines of its own.

Whatever the Response to the Facebook Fallout, Don’t Blame Copyright

Attorney and journalist Charles J. Glasser published an editorial  in The Daily Caller titled: Mind Manipulation? No, Censorship By Copyright is The REAL Threat to Elections.

The irony of that misleading headline, which does not truly reflect the substance of Glasser’s article, is that it reinforces a general bias about copyright (i.e. that it is censorship) for the simple reason that many people will not read past the headline itself. Thus, even before we get to the article, Glasser has, ironically enough, proven that the “mind manipulation” issue (though I wouldn’t call it that) is a legitimate problem.  He believes otherwise, stating …

“I have serious doubts about the veracity about “mind control” conspiracies favored by the progressive left that assumes Americans are not autonomous actors or are in fact stupid, gullible hicks who simply can’t be trusted to think for themselves.”

I’ve expressed a similar sentiment on this blog but take a different view that people across the political spectrum are both autonomous actors and stupid, gullible, hicks who can’t be trusted to think for themselves because everybody is, to some degree, susceptible to impressions made by words and pictures. If this were not the case, advertising simply would not work. But it does.

This susceptibility has nothing to do with intelligence, but it is a more relevant subject now that we acquire news and commentary via social media. We simply cannot read every article shared by every one of our friends, or we would never do anything else. Nevertheless, all those headlines and photos do leave impressions—even subconscious ones that function exactly like advertising. This is one reason why I think Glasser is wrong to outright dismiss the conversation finally being had about “manipulation” via social media—even if there were no party actively seeking to manipulate.

Meanwhile, his headline, feeding the false narrative–perhaps inadvertently–that copyright equals censorship, is a bit overwrought given the article’s central complaint. Glasser asserts that various parties are abusing the DMCA takedown provision for the purpose of censorship, and, in turn, this censorship is skewing the democratic process. Not helping the article’s credibility is the quote from Elliot Harmon of the EFF as stating, “…without fair use protections, people and companies in the public eye could use copyright law to ban coverage that’s critical of them.”

That’s overstating the relationship between criticism and fair use just a tad since a whole universe of criticism exists without appropriating copyrighted works.  In fact, I would argue the most important political criticism — thoughtful, researched editorials about candidates or policies — often don’t rely on fair use at all.  What does rely on fair use are the political ads to which Glasser refers in his article; and while it is perhaps inappropriate that these were removed, political ads are hardly the thinking American’s medium of choice.

Without unpacking each of the examples to which Glasser alludes, we can stipulate that various parties do use, or try to use, DMCA takedown as a means to silence opposition or criticism; and he fairly calls the practice a “pox on both houses,” meaning the left and the right. But I would offer a few caveats about this article.

First, because DMCA is an extra-judicial, sometimes automated, process, it’s going to be misused—either purposely or by accident—by rights holders, by non-rights holders, by users, and by platform owners. It is a 1998 remedy for copyright infringement and OSP liability that, at best, cannot truly respond to the scope of the contemporary internet. It is a unique sub-category of copyright law with its own complex narrative, and Glasser seems to be cherry-picking a small portion of that narrative to justify an article that lodges various unrelated complaints.  He also fails to mention the DMCA counter-notice procedure for restoring material and the fact that there is a path of legal remedy for abuse of DMCA.

Next, Glasser seems to have a personal or political beef with the current response to these data-mining revelations that, whether he’s right or wrong, should not be misdirected as an attack on copyright law. He writes …

“The panic about data-mining is driven largely by the paternalistic, if not authoritarian view that ‘only the right people’ should determine what is read and heard, because after all, those ‘bitter clingers’ are too stupid to have a voice.”

Responding as someone who criticizes ‘bitter clingers’ on the left and the right, I fail to see how this accusation does not imply a much bigger debate that has nothing to do with copyright. It seems that DMCA is being made into a  scapegoat in this regard, which brings me to the most substantive point.

In a society now brimming with equal parts journalism and gibberish, we would need a much larger data set than a few anecdotes to conclude that censorship by DMCA is both rampant and measurably effective in what I will generously call our current “political process.” In fact, Glasser’s own skepticism about data-mining manipulation should also serve to mollify his stated concerns about censorship via DMCA because I strongly suspect that incidents of abuse represent a drop in the bucket among the trillions of information exchanges occurring every day. And if Americans are indeed autonomous actors who can think for themselves, this should counterbalance the silence of a few deleted political ads as easily as Glasser suggests it would counterbalance the alleged “mind control.”  So, whatever he’s truly criticizing, I don’t think it’s copyright.

Black Panther & the American Creative Continuum

When Black Panther opened last month and proceeded to set records at the box office, it just so happened to be 200 years, almost to the day, after Frederick Douglass was born into slavery in Tuckahoe, Maryland. The significance of this particular symmetry might be observed through any number of lenses, including those distorted by presentist emotions, which tend to warp historic narrative. But one truth that unquestionably sits between these parenthetical milestones is a reminder that the progress of American democracy—namely the effort to define and shape its grand promises—has always been literary.

In his Narrative of the Life of Frederick Douglass, an American Slave, Douglass describes his introduction to literacy by Mistress Auld, and the consequent lesson inherent in Master Auld’s rebuke, as follows:

“From that moment, I understood the pathway from slavery to freedom. It was just what I wanted, and I got it at a time when I the least expected it. Whilst I was saddened by the thought of losing the aid of my kind mistress, I was gladdened by the invaluable instruction which, by the merest accident, I had gained from my master. Though conscious of the difficulty of learning without a teacher, I set out with high hope, and a fixed purpose, at whatever cost of trouble, to learn how to read.”

While still a fugitive, Douglass registered this book for copyright in 1845, and it was more than a year later that his friends purchased his freedom from Thomas Auld. This overlap in time, when Douglass owned intellectual property while he was still technically the property of another man, says a lot about the painfully bipolar identity of America, but it also reflects the fact that the evolution of the nation’s literary voice has always been intertwined with broadening the initially too-narrow meaning of American liberty.

As the last of the witnesses to the Revolution were dying off, the first generation of Americans born under the Constitution—most of the population was under 30 circa 1840—inherited the exciting, and often harrowing, task of defining what it actually meant to be American. For some, this entailed reconciling the declarative chutzpah of independence with the many social and political hypocrisies that manifestly betrayed all the beautifully-written hubris of the Framers. And one answer to this dichotomy was the advancement of a national literature.

By the time Douglass published Narrative, a literary revolution was already reshaping the fledgling nation. In an 1837 address at Harvard, Ralph Waldo Emerson called upon America’s next generation to produce literature that shed reliance on the conventions of England. “Our day of dependence, our long apprenticeship to the learning of other lands, draws to a close. The millions, that around us are rushing into life, cannot always be fed on the sere remains of foreign harvests. Events, actions arise, that must be sung, that will sing themselves,” he said in his opening remarks.

Any reader of Walt Whitman’s poetry will note Emerson’s use of the verb sing, and indeed “Leaves of Grass,” first published in 1855, was one of the most famously overt responses to this summoning of national identity through creative expression. Whitman was among the authors—others included Hawthorne, Melville, and Whittier—who coalesced around the newspaper The Democratic Review, founded in 1837 by John O’Sullivan. The mission of the Review was to advance a younger, more diverse, and more expansive vision of democracy through a literature of “original works treating commonplace themes with forcefulness, directness, and dignity,” writes historian Edward L. Widmer in his book Young America: The Flowering of Democracy in New York City.

This was America’s first generational culture clash, in which the Young Americans, as Widmer describes, stood in opposition to an older and more conservative population of Whiggish elites. It was this literary-political agenda that shifted the cultural center of gravity from Puritan Boston and Philadelphia to riotous, diverse, petulant, exuberant, and unabashedly commercial New York.

While a proper schematic of the social and political views among these forces is too complex to describe in a short post,* the emphasis on prodding the American creative voice into its own was intertwined with the general aim of expanding the promise of civil rights and dignity to a plurality of American citizens. “I speak the password primeval … I give the sign of democracy;/By God! I will accept nothing which all cannot have their counterpart of on the same terms,” wrote Whitman, who, interestingly enough, was an advocate of copyright as an engine of democratic principles more than one of economic necessity.

In the narrative of the ever-evolving American voice, we can draw a line from Douglass literally stealing literacy to transcend his captivity to the moment when Mark Twain in a single sentence in Huckleberry Finn simultaneously obliterates moral ambiguity about slavery and asserts the power of vernacular in American literature. “All right then, I’ll go to hell,” says Huck upon his decision not to turn in Jim as a runaway slave. From there, we can draw a long but clear arc to the video review by Danielle Radford for Screen Junkies in which she explains why Black Panther is “black as fu©#.” Because its cinematic language employs a vernacular that is uncommon among Hollywood blockbuster movies.

Yes, Black Panther is just a Marvel action film full of chases and fight scenes and magic, as expected. But that’s why it’s significant. As Radford describes, its subtle choices—the million tiny decisions where film artists are truly at work—broaden the cinematic language in a way that actually reverses her opening declaration. The relevance is perhaps not that the film is “black as fu©#” but that it’s American as fu©#. And it has always been the role of creative artists to write and revise exactly what that means.

*In particular, the subject of abolition among the various factions would require a whole post just to set the stage.