Robert A. Jacobs

Manatt, Phelps & Phillips LLP

Los Angeles

Copyright, trademark litigation

Jacobs provides advice and litigation services to musicians, producers and companies in the entertainment industry in high-profile copyright and trademark disputes. As leader of Manatt, Phelps & Phillips' entertainment litigation practice, Jacobs often explores new and untested legal areas.

For the producer and DJ Marshmello, Jacobs is defending a copyright lawsuit filed by Artem Stoliarov, known as Arty, that claims Marshmello's 2018 hit "Happier" was plagiarized from Arty's 2014 remix of One Republic's "I Lived."

The complaint alleges the works share nearly the same compositional progression in the melody. Jacobs' clients in the case -- along with Marshmello -- include the recording artist Bastille and the producer Steve Mac. Stoliarov v. Marshmello Creative LLC, 19-CV03934 (C.D. Cal., filed May 6, 2019).

The complaint seeks actual damages, profits and "a running royalty on all future exploitations of 'Happier' following judgment in an amount to be determined." The song went double platinum, peaking at No. 2 on Billboard's Hot 100.

The case raises a novel issue.

"He's suing over a remix," Jacobs said of the plaintiff. "The industry practice is that you get nothing in terms of ownership or royalties in a remix situation, usually just a flat fee. And he signed an agreement that says just that."

"But he's got a clever argument: even though he signed the agreement, he claims it doesn't apply to individual elements in the remix," Jacobs added. "He claims rights to ownership in a drop, which is a slang term for an uplifting section of the melodic windup. He inserts that, and accuses 'Happier' of using a similar drop which infringes his."

As Arty's complaint put it, "it was only the original compositional elements that Arty added to the underlying composition 'I Lived' that were willfully copied by Defendants note for note and became the most recognizable and important part of the Infringing Work."

The issue is important to the industry, Jacobs said.

"It the court went his way," he said of Arty, "it would create a lot of uncertainty. It would upend the business."

As a side issue, several of the defendants live in the U.K., where U.S. copyright law does not apply, Jacobs added. Discovery has just begun in the matter, but Jacobs' defense appears likely to include reliance on the fair use doctrine.

Jacobs said the litigation practice group at Manatt's Los Angeles offices often has music wafting through the hallways, so he's in tune with colleagues when he ponders defenses in cases like Marshmello's.

"I'm listening to his music as I'm driving, and at home and in the office," he said. "Different things occur, and as soon as I can I'll see whether the thought of the moment fits with the music."

-- John Roemer