Supreme Court sings swan song to Led Zeppelin suit

Music legend Burt Bacharach once said U.S. courts are no place to decide music copyright infringement cases. Speaking to a U.K. audience on BBC Radio in 2017, Bacharach said he saw too many tone-deaf juries fundamentally misunderstanding music and judges not getting it right either. (Coauthor Bill Hochberg was also interviewed during this segment of "5 Live -- Up All Night.") But following recent rulings in favor of successful composers and music publishers, including wins for Led Zeppelin and Katy Perry, the maestro may have changed his mind.

At the time of Bacharach's remark, copyright lawsuits against top pop stars had gone viral after a $5.3 million verdict in 2015 against Robin Thicke and Pharrell Williams from a jury convinced and confused that the hit song "Blurred Lines" infringed Marvin Gaye's "Got To Give It Up," notwithstanding that the songs have no melody, harmony or rhythmic sequences in common, only a similar "vibe" that many experts agree is not protectable under U.S. copyright law, even given Thicke's admission that they were specifically trying to write a song with the same groove as the Gaye classic. Some said the jury -- hardly musical scholars -- had the wool pulled over their ears. And the trial judge and appellate panel would not vacate the verdict.

"It's not a perfect science," Bacharach told the BBC's Colin Paterson. "[But] I think what needs to be done is there has to be maybe three, four outstanding experts, musicologists, who can be trusted, who can differentiate and say 'that's derivative, that's not derivative'." Bacharach joins others who have opined that verbal copyright infringement is much easier for non-musicians to judge than the musical variety, where comparisons of relative pitch and rhythmic patterns -- descending basslines, common breakbeats, boogie riffs and the like, not to mention the tricky intrinsic and extrinsic copying tests -- can confound the lines between inspiration and misappropriation, as well as between standard musical gadgetry and stolen musical goods.

As imperfect as the science of musicology is, relying as much on qualitative factors and judgment as anything else, musicologists often disagree on such matters. In addition, centuries of jurisprudence confirm the applicability of the Seventh Amendment's guarantee of the right to trial by a jury of non-expert laypersons to copyright infringement suits for damages. See Feltner v. Columbia Pictures Television, Inc., 523 U.S. 340 (1998).

Setting aside the constitutional impediment to establishing Bacharach's binding tribunal, his sentiment was understandable, at least until recent developments in the 9th Circuit, which give hope to those who are targets of ill-founded claims.

The U.S. Supreme Court's denial of a writ of certiorari in Skidmore v. Led Zeppelin, 20-142, last week untethers not only the dirigible rockers from a dragging copyright infringement suit that threatened to put the skids on their sky high "Stairway to Heaven" publishing income, but it also relieves a music business battered by a bluster of questionable copyright decisions in recent years.

The Supreme Court's red light helps reinforce a 9th Circuit guardrail against controversial copyright decisions that had veered across blurred lines into a copyright car crash, like the "Blurred Lines" case (Williams v. Gaye, 895 F.3d 1106 (9th Cir. 2018)), and more recently the 2019 Katy Perry "Dark Horse" decision, where a jury found that the songstress stole eight quarter notes from a religious rapper, tones that sounded so common and monotonous that a metronome could have made them. Gray v. Perry, 15-05642 (C.D. Cal. Aug. 1, 2019).

The guardrail got reinforced last March, a watershed month in music copyright jurisprudence in California's federal courts. On March 9, the 9th U.S. Circuit Court of Appeals decided en banc to uphold a jury's verdict in favor of the Zeppelin defendants, who were accused of stealing musical elements from a lesser known artist, elements going back to Bach and before. Skidmore v. Led Zeppelin, 2020 DJDAR 2038. Then on March 16, a trial judge, encouraged by the Zeppelin ruling, did what others had feared to do, throwing out the jarring jury verdict against Katy Perry in Gray v. Perry. In that case, U.S. District Judge Christina Snyder found that the musical elements at issue, such as eight even quarter notes, were -- just like the commonplace descending bass line over an A-minor chord in the "Stairway to Heaven" case -- merely musical building blocks that were unprotectible, either alone or in combination, under U.S. copyright law.

This March un-madness in California's federal courts brings a measure of stability and security to successful songwriters and music publishers, who had been disheartened by the "Blurred Lines" verdict in 2015, in which the jury found that one of the biggest pop hits of the time was a rip-off of a Marvin Gaye song decades earlier, even though the two shared no melodic or harmonic unity, but only a "vibe" or "feeling."

The "Blurred Lines" verdict, upheld on appeal, opened a floodgate of frivolous claims and cease and desist letters targeting pretty much any song to hit the Top Ten, including Miley Cyrus' "We Can't Stop," Ariana Grande's "One Last Time," Justin Bieber's "Sorry," and Demi Lovato's "Stars," among many. Half of the songs nominated for Song of the Year at the 2019 Grammys were in copyright litigation, and two of the remaining four were reportedly under cease and desist threat. While a few may have merit, surely not all do.

Bacharach, the multiple Grammy and Academy Award winning composer, whose melodies and harmonies uplifted Hal David's lyrics in treasures like "Raindrops Keep Fallin' On My Head" and "The Look Of Love," was in his prime at a time when music copyright infringement suits were rare and the blurry ones got tossed out quickly. The common wisdom then was that just because two songs had a similar vibe, sounded vaguely like something that came before, or used common musical building blocks, did not a winning copyright suit make, and for good or ill most wouldn't try. Back then you didn't see Bruce Springsteen suing John Cafferty because "On the Dark Side" had a Bruce vibe; or Van Morrison suing Bruce Springsteen because "Spirit in the Night" had a Van vibe; or Curtis Mayfield suing Van Morrison because "Crazy Love" had a Curtis Mayfield influence, and so on.

Composers from Bach to Bacharach felt secure borrowing building blocks, standing on the shoulders of giants who inspired them, much as scientists built on discoveries that came before. When Isaac Newton first wrote that he was "standing on the shoulders of giants" in 1675, no one scorned him for stealing the expression from Bernard de Chartres, who said five centuries earlier that we were all "dwarfs perched on the shoulders of giants ... [so we] see more and further than our predecessors."

But after a silly season of song suits, we may be returning to the tradition of standing on giants' shoulders, borrowing words or music from those coming before, to create something new, useful or pleasurable. And tossing frivolous lawsuits into the docket dustbin may be coming back into jurisprudential fashion thanks in part to the most recent hits coming out of California's Central District and the 9th Circuit.

All this is not to deny the meritorious music copyright infringement cases, including most notably ones involving substantial and original melody lines and lyrics, like the 1976 verdict against George Harrison, whose My Sweet Lord" copied (even though subconsciously, as Harrison testified) the entire verse and chorus of the Chiffons' hit "He's So Fine," or the 1963 Chuck Berry cease and desist letter to the Beach Boys, accusing them of swiping "Sweet Little Sixteen" for their "Surfin' USA," or more recently, Sam Smith's lift of "I Won't Back Down" from Tom Petty and Jeff Lynne for Smith's hit "Stay With Me," or John Legend's "Save Room," which was too close for comfort to the Classics IV's "Stormy." They all had the same melody and harmony. And they all settled long before the dispute got to a jury or appellate panel.

For music creators and companies who were singing "I'll Never Fall In Love Again" about California's federal courts since the discordant "Blurred Lines" ruling, it might be time for "This Guy's In Love With You." 