Tag: infringement

Blurred Lines in More Ways Than One – Part II

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:

Proving Copying

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.

Proving Infringement

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.

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.