There are only 12 notes, in so many octaves

LEGAL ENTERTAINMENT

Copyright is a complex area of law that covers a vast number of different types of creative works. As technology advances, the number of types of creative works increase, and in turn so does the opportunity for infringement. Even after over a hundred years, copyright analyses are inconsistent among each type of artistic work, and even more so within the realm of music.

Copyright protects only the artistic expression in a work and not ideas. To infringe on another's copyright, the plaintiff must show the work to be substantially similar to the original, copyrightable expression in their work. At first, this sounds easy enough. However, as the court decisions have demonstrated, the tests used are vague and not uniformly applied. The courts look to two main tests, one looking at copying with unlawful appropriation and the other at the total concept and feel. The first test looks to see if the person can detect similarities between the two songs that are pleasing to the ear so much that it has been copied to the ordinary observer, or that enough of protected expression was copied to cause the audience to immediately detect the similarities without any suggestion from others. The 9th U.S. Circuit Court of Appeals adjusted the test and introduced a two-step test analysis looking at the "total concept and feel." The first extrinsic step analyzes the objective comparison for similar ideas to filter out and then looks intrinsically to the similarity of the protectable expression. (Note this is an extreme surface review of the tests.)

In the past few years, a noticeable trend of increasing copyright infringement cases has emerged in the music industry. Unfortunately, the court analyses have not been helpful in providing a clear picture of what infringement looks like. The dispute that continues to be on all musicians' minds is the "Got to Give It Up" vs. "Blurred Lines" case. The original case was brought by Marvin Gaye's family in 2014 alleging that the overall "feel" and "sound" of the song was infringed on. More specifically, the family argued that the songs had substantially similar features such as the hooks, hooks with back-up singers, and even the core theme. In most, if not all other types of creative works, these features would be considered an "idea." Can you imagine if a writer was sued for copying a murder mystery or romance themed storyline?

Many musicians, songwriters and other supporters of music creation were incredulous when the court found Thicke and Williams infringed on Gaye's 1970s song. Were any of the similarities in the two songs really substantial? Was it the expression or was it the idea? The battle continues as Thicke and Williams have filed an appeal to the 9th Circuit arguing that the similarities found by the jury are only the "groove" or the "inspiration" of the song which is not protectable expression of the work. When compared, the two songs do not have similar melodies, share any lyrics, and even the time signatures are different. Thus, finding the songs substantially similar seems to come out of left field. The appeal brief argues that the jury ultimately decided on the overall "feel and groove" of the two songs rather than any protected expression. The jury basically subjectively decided that "Blurred Lined" reminds them of "Got to Give It Up."

At the end of August, over 200 musicians and songwriters joined together and submitted an amicus curie brief. The 28-page document supports the argument that the "Blurred Lines" decision was based on the copying of inspiration rather than any expression, and if upheld, a chilling effect in creativity will pour over the music industry and lead to unnecessary litigation. If infringing on someone else's music includes the type of hooks, themes or the use of unusual instrumentation, then there is no music left to be made. These elements are the "scène à faire" of the music industry that allows someone to recognize a type of genre. By using some of the core essences of the genre and mixing them into another is what creativity is all about. Bringing the fun hooks from a funk song, into the overall catchy pop song is how new genres of music are created. How someone expresses the inspiration is what copyright protects.

This court decision has left the lines blurred for infringement within the music industry. Taylor Swift, Ed Sheeran and Chance the Rapper, just to name a few, have all recently been sued for copyright infringement. Taylor Swift was sued in 2015 and more recently last month, both alleging that the lyrics of "Shake It Off" infringe on the plaintiff's song. In 2015 Jesse Braham sued for copying of "Haters Gone Hate" and now 3LW is suing for copying of "Players Gon' Play." The judge threw out the 2015 case finding that there was no standing for the claims, and there is no doubt that the second lawsuit will be thrown out for the same reasons. Copying a theme of "players," "ballers" and "haters" is not protectable. Ed Sheeran was sued over his single "photograph." The plaintiffs alleged the song was too similar to Matt Cardle's "Amazing" since the chorus shared 39 notes, using the sheet music as proof. But listening to the songs, is the expression copied or just an idea or groove? The judge let the case go forward, however, it was settled earlier this year with plaintiffs obtaining a percentage of ownership. In September, former jazz musician Abdul Wali Muhammad sued Chance the Rapper claiming that Chance sampled his song "Bridge through Time" without permission. We will have to see if this lawsuit will go through trial or settle out of court.

The range of facts that lead to lawsuits stretches far along the spectrum. The lack of consistency in case decisions are muddling the expectations of artists and lawyers alike on what is copying and what is not. The rise of copyright infringement cases could begin to inhibit the creation of music. Musicians have no certainty whether the influence that they derive from previous icons will be considered copying. Not knowing if the music created is infringing on others will stifle creation especially for smaller artists due to the risk of expensive lawsuits.

Ultimately, music is finite, and the repetition of themes, genres and even note sequences is inevitable. There are only 12 notes, in so many octaves, and not all combinations are pleasing to the ear. Courts need to "unblur" the line of expression in music as they have in other creative areas.