COPYRIGHT: From Hell to Heaven? Readers will remember that Led Zeppelin had asked the US Ninth Circuit appeals court to reconsider the original ruling in the “Stairway To Heaven” copyright lawsuit ‘en banc’ to determine some key elements of US copyright law, in the case that involved the allegation that the 1971 classic was a rip-off of the 1968 instrumental song “Taurus” recorded by Spirit and written by the late Randy “California” Wolfe in a case brought by his estate in 2016. This was always a difficult case, and here the courts have battled to differentiate between the actual song – and the basis of the claim was that the song was copied – as opposed to the two sound recordings which were never part of the case – but of course to most people were relevant to the case.
One key facet of the case was that under US copyright law a songs is only protected in the form it is registered with the US Copyright Office. And for older works, that would be the sheet music representation of the song – and so it’s the sheet music representation that matters.
At the time of the initial decision in this case, many highlighted the jury’s decision in the ‘Blurred Lines‘ case, where it is arguable that the jury based its decision that Pharrell Williams and Robin Thicke had copied Marvin Gaye’s songwriting contained in his 1977 hit ‘Got to Give It Up‘ into their hit song ‘Blurred Lines’, based on a comparison of the two sound recordings rather than the actual songs – and to be frank when the sound recordings were compared they were (very) similar – at least in the ‘feel or in the ‘vibe’. However, it should be noted that in neither case were the sound recordings played side by side in the court, despite both legal representatives for both Wolfe’s and Gaye’s estates wanting this to happen.
As the cases progressed, nany were concerned that the basic building blocks of songwriting were being over protected – and many in the songwriting community were concerned that the wrong decision here would “cause jurors to find infringement just because the same unprotected elements are present, upsetting the ‘delicate balance'” between copyright protection and the freedom of music creators to employ common techniques and musical elements when composing music”.
In June of 2016 the Californian jury was asked to consider the claim. The jury noted that there was a good chance Robert Plant and Jimmy Page had heard the Taurus song before they wrote Stairway to Heaven, but found the two songs not to be sufficiently similar. Subsequently the jury found in favour of Led Zeppelin, holding that there was no infringement.
In March 2017, the Wolfe’s Estate went on to appeal this ruling. In the Estate’s appeal it was claimed that the jury were not correctly directly by the judge. But the appeal again raised that issue that in US copyright law, only those elements which are registered are protected, meaning that the Taurus song’s sheet music was protected and not the latter recordings of the same.
Initially, the Ninth Circuit court of appeal sided with the Estate, holding that the judge had made errors in relation to ‘copyright technicalities’. This meant that the June 2016 ruling in favour of Led Zeppelin was overturned and the claim was to be re-heard. The Estate explained “We are proud that three esteemed jurists from the Ninth Circuit recognised the battle that we fought and the injustice that we faced.”
Led Zeppelin then requested the Ninth Circuit Court of Appeal reconsider the decision made in favour of the Estate. It is argued that overturning the decision at first instance will interfere with the ‘delicate balance’ between copyright and music freedom.
Peter Anderson, for Led Zeppelin, has been quoted as arguing that “substantial evidence supports the jury’s verdict and [the] appeal has absolutely no merit.” The ‘copyright technicalities’ referred to relate to the interpretation of the law when interpreting common elements in two songs. There is an argument that simply because two songs share common elements there cannot be copyright infringement, whereas on the other hand, it could be argued that the way in which the element has been use in the first song and featured in the second could constitute an infringement.
Led Zeppelin were of the firm opinion that unless the Ninth Circuit’s decision is correcteded, it will “allow a jury to find infringement based on very different uses of public domain material”. Led Zeppelin went on to argue that the ruling was of “exceptional importance not only to music, but all creative endeavours, and en banc review is necessary to avoid the widespread confusion the panel decision will create”.
In an amicus brief that Analysed the ‘thin’ copyright provision in the US, the US Department of Justice, giving reasons akin to that of the trial judge, sided with Led Zeppelin in the case. The DoJ’s amicus brief explained that the Ninth Circuit was wrong to overturn the finding of the lower court which stated the compared compositions were sufficiently similar for copyright infringement. The U.S. government explained that “even if deposit copies do not capture all details of a composition, they generally include the elements of a song, such as the melody and lyrics, that are of most importance to the copyright owner. Failure to incorporate elements such as these in the deposit copy would reflect a failing on the part of the copyright owner or its agent, not an insurmountable obstacle imposed by the statutory scheme.” The Amicus Brief argued that the only similarity between the allegedly infringing work and the original is the selection and arrangement of two basic musical elements: an A minor chord and a descending chromatic scale. These have argued to not substantially be the base of the challenge as a small standard selection and arrangement gets a fairly thin copyright protection due to the “creative” standard of originality being prevalent in the United States. A total of 123 musicians and recording artists joined in, publicly supporting the British rock band in their arguments saying that unless the Ninth Circuit reversed the decision it would set a dangerous precedent that would be hugely detrimental to songwriting and an assumption that “trivial and commonplace similarities between two songs could be considered to constitute the basis for a finding of infringement” and that this would confuse artists, stifle creativity, and result in “excessive and unwarranted” litigation by artists and lawyers seeking to profit from ambiguities in the law.
The Ninth Circuit, sitting en banc rejected the Estate’s criticism of the judge in the original jury case and reinstated that court’s ruling in Led Zepplins’ favour. The court agreed that the trial judge was right to not allow the sound recording of ‘Taurus‘ to be played alongside ‘Stairway to Heaven’: “The scope of the copyright in the … work was defined by the deposit copy, which in the case of ‘Taurus’ consisted of only one page of music” and “Accordingly, it was not error for the district court to decline plaintiff’s request to play sound recordings of the ‘Taurus’ performance that contained further embellishments or to admit the recordings on the issue of substantial similarity”.
The Ninth Circuit also looked at ‘the inverse ratio rule’: when weighing the similarities between songs and whether a song os sufficiently similar to another to constitute copyright infringement, the jury (or court) can consider what (if any) evidence there is that the defendant had access to the song they allegedly plagiarised, with the rule setting out that with a stronger the case for access, there will be a lesser need to prove absolute similarity. However, in the ‘Stairway’ case, the judge at the trial did not explain the inverse ratio rule to the jury before they began their deliberations, much to the annoyance of the Wolfe estate. Here the en banc panel looked again, and whilst it was clear there were some precedents that had applied the rule, the use was not consistent and indeed was sporadic. And now the appeals court ruled that the judge in the original case was correct to not explain this principle to the jury. The court was of the opinion: “Because the inverse ratio rule, which is not part of the copyright statute, defies logic, and creates uncertainty for the courts and the parties, we take this opportunity to abrogate the rule in the Ninth Circuit and overrule our prior cases to the contrary”.
Jeff Brown, an IP and entertainment attorney at US law firm Michael Best, told CMU Daily that “the appellate ruling is significant – not only for Led Zeppelin and the decades running rock debate over whether Led Zeppelin’s ‘Stairway To Heaven’ opening riff copied Spirit’s song ‘Taurus’ – but for the impact this ruling will have on future copyright infringement claims involving songs and other creative works”.
As well as rejecting the inverse ratio rule which, Brown said, “had the effect of establishing a lower burden to prove infringement of a popular work”, Brown pointed out that the court also stated that “we have never extended copyright protection to just a few notes – instead we have held that ‘a four-note sequence common in the music field’ is not the copyrightable expression of a song”. Conclusions like that, Brown added, means “this ruling might serve to tame plaintiffs who had taken encouragement from the ‘Blurred Lines’ decision”.
According to Law360, the Estate’s lawyer, Francis Malofiy, has said that he and his client are “evaluating our paths forward”, adding “this fight is by no means finished”. “The en banc panel decision is contrary to the law” … “and enforces incoherent and imaginary technicalities instead of allowing the songs at issue to be compared on the merits. Copyright law suffers as a result of this opinion”.
Reflecting on the words of Jeff Brown above, where does that leave the Blurred Lines decision? I have made no secret of my opinion that the decision in the case is wrong.
In the Blurred Lines case, the Gayes’ expert musicologist had studied the sheet music and sound recordings of the two works and identified eight “substantially similar” features which “surpass the realm of generic coincidence.” The Gayes argued that it was improbable that a third-party work would contain all of these features in a “similar constellation.”
I preferred the pre-trial analysis of the independent musicologist Professor Joe Bennett. Looking at the basslines, Professor Bennett said: “When compared note for note like this, the dissimilarity is obvious. These basslines use different notes, rhythms and phrasing from each other. They’re even taken from different musical scales. Thicke’s bass notes are all taken from the mixolydian mode; the Gaye baseline is based around the pentatonic minor scale.”
In response to the claim that Blurred Lines copies the Gaye bassline, Professor Bennett said: “If this is true, and Thicke’s team actually “copied the bassline,” then they changed most of the pitches, moved lots of notes around, and deleted some notes. Or put another way, they wrote an original bassline.” When it comes to the use of cowbells, Professor Bennett suggests: “Thicke’s cowbells (actually a cowbell and another percussion instrument that sounds more like an electronic clave) syncopate on the 16th notes (a semiquaver groove); Gaye’s song is very clearly an 8 groove. The only similarity is that each riff plays the first three 8th notes (quavers) of the bar.”
TI joined Williams and Thicke in a statement saying the ruling “sets a horrible precedent for music and creativity going forward.” Their attorney, Howard King, said the verdict “affects the creativity of young musicians who hope to stand on the shoulders of other musicians.”
In the wake of the the Led Zepplin decision there have been three interesting decisions, all of whcih seem to show that the US judiciary are moving to distance themselves from the decision in Blurred Lines.
In the immediate aftermath of this new decision, a federal judge in Los Angeles handed a major victory to Katy Perry, overturning a jury’s verdict that found Perry and her collaborators had copied the 2013 hit “Dark Horse” from an earlier 2009 Christian rap song. Whilst it was claimed that Katy Perry and her collaborators might possibly have heard the earlier track ‘Joyful Noise‘ on YouTube, U.S. District Judge Christina A. Snyder said in her decision that the disputed section of the rap song, “Joyful Noise” by rapper Marcus Gray was not distinctive enough to be protected by copyright as the jury had found: “It is undisputed in this case, even viewing the evidence in the light most favorable to plaintiffs, that the signature elements of the eight-note ostinato in ‘Joyful Noise’ is not a particularly unique or rare combination,
Next, in the in the ongoing dispute over Ed Sheeran’s ‘Thinking Out Loud’, the judge overseeing the dispute, Louis L Stanton, who had previously paused the litigation pending the Ninth Circuit appeals court judgement for Stairway to Heaven has said that his current thinking was that the claimants in this case would not able to play some or all of the recording of their song ‘Let’s Get It On’ in court, reflecting the opinion of the Ninth Circuit clearly stated that “the scope of the copyright is limited by the deposit copy”.
And this was followed by a third decision in the lawsuit relating to ‘You Raise Me Up’, the song origially performed by Secret Garden that was made famous by Josh Groban and Westlife covers in the mid-2000s. The Norwegian songwriter behind ‘You Raise Me Up’, Rolf Løvland, was accused of plagiarising a 1977 song called ‘Soknudur’ written by Icelandic singer-songwriter Johann Helgason. When the lawsuit was filed in 2018, it was reported that Helgason and Icelandic collecting society STEF had analysed the two works and concluded they were “97% alike”. Interestingly Hegason hired musicologist Judith Finell who provided testimony on behalf of the Marvin Gaye estate in the ‘Blurred Lines’ trial. But the judge overseeing the new lawsuit attached little significance to Finell’s evidence comparing ‘You Raise Me Up’ to ‘Soknudur’ with Variety reporting the judge saying: “The Finell reports fail to describe reliable principles and methodology, fail to apply such principles and methodology to the facts, and fail to properly apply the extrinsic test, rendering the reports unreliable, unhelpful, and inadmissible” ….. “Finell considers notes to be similar even when they appear in different places in the songs’ melodies. Finell offers no justification for this technique of considering notes to be similar despite different metric placements in the melody” and “Finell opines that ‘identical pitches found in succession in both songs’ are similarities, but then admits that there are intervening pitches between some of these notes. Again, there appears to be no justification for deeming notes to be consecutive when in fact there is an intervening note between them”.
In a famous British Comedy sketch on the Morecame & Wise Show, British comedian Eric Morecambe, in tuxedo and tails, approaches the grand piano and waiting orchestra to apparently perform Greig’s Piano Concerto in A Minor with famed conductor Andre Previn. As as the introduction builds Morecambe then launches into a cheeky little tune much to the horror of an astonished Previn who remonstrates with Morecambels saying “You’re playing all the wrong notes”. Morecambe responds with “I’m playing all the right notes – but not necessarily in the right order”. Yes indeed, it’s a different song !
The jury in the Blurred Lines case decided that Robin Thicke and co-writer Pharrell Williams should pay nearly USD7.4 million in damages. Whilst this was reduced after an appeal to $5.3 million, the Gaye family still receive 50% of the songwriting royalties from Blurred Lines on an ongoing basis. But the case points out the difficulty courts have in determining the difference between “inspiration” and “appropriation” – it has always been a blurred line. Indeed the appeal to the Ninth Circuit resulted in a with a scathing dissent from Circuit Judge Jacqueline Nguyen who was openly critical of the majority and said that the Marvin Gaye Estate had been able to “accomplish what no one has before: copyright a musical style.”
Judge Nguyen said: “ ‘Blurred Lines’ and ‘Got to Give It Up’ are not objectively similar” and that the two songs “differ in melody, harmony, and rhythm. Yet by refusing to compare the two works, the majority establishes a dangerous precedent that strikes a devastating blow to future musicians and composers everywhere.”
“While juries are entitled to rely on properly supported expert opinion in determining substantial similarity, experts must be able to articulate facts upon which their conclusions—and thus the jury’s findings—logically rely. Here, the Gayes’ expert, musicologist Judith Finell, cherrypicked brief snippets to opine that a “constellation” of individually unprotectable elements in both pieces of music made them substantially similar. That might be reasonable if the two constellations bore any resemblance. But Big and Little Dipper they are not. The only similarity between these “constellations” is that they’re both compositions of stars.
The case certainly brings up questions of how expert evidence should be viewed by the court: Again and at the end of her opinion Judge Nguyen is critical of the role of the musicologists in this case saying “Admittedly, it can be very challenging for judges untrained in music to parse two pieces of sheet music for extrinsic similarity. But however difficult this exercise, we cannot simply defer to the conclusions of experts about the ultimate finding of substantial similarity. While experts are invaluable in identifying and explaining elements that appear in both works, judges must still decide whether, as a matter of law, these elements collectively support a finding of substantial similarity. Here, they don’t, and the verdict should be vacated.
Noting that “In assessing the similarity of two pieces of music, it’s important to keep in mind “the limited number of notes and chords available to composers and the resulting fact that common themes frequently reappear in various compositions, especially in popular music.” and that “Not all expression is protectable. Originality, the “sine qua non of copyright,” accommodates authors’ need to build on the works of others by requiring copyrightable expression to be “independently created by the author” and have “at least some minimal degree of creativity and that “If an author uses commonplace elements that are firmly rooted in the genre’s tradition, the expression is unoriginal and thus uncopyrightable” Judge Nguyen adds: “The Gayes, no doubt, are pleased by this outcome. They shouldn’t be. They own copyrights in many musical works, each of which (including “Got to Give It Up”) now potentially infringes the copyright of any famous song that preceded it … That is the consequence of the majority’s uncritical deference to music experts.”
Judges Smith and Murguia in the majority countered with :”Our decision hinges on settled procedural principles and the limited nature of our appellate review, dictated by the particular posture of this case and controlling copyright law. Far from heralding the end of musical creativity as we know it, our decision, even construed broadly, reads more accurately as a cautionary tale for future trial counsel wishing to maximise their odds of success”. They are forthright on Judge Nguyen’s dissent: “The dissent’s position violates every controlling procedural rule involved in this case” and they say “The dissent improperly tries, after a full jury trial has concluded, to act as judge, jury and executioner” and “Our decision does not grant license to copyright a musical style or ‘groove'” andthey add “Nor does it upset the balance Congress struck between the freedom of artistic expression, on the one hand, and copyright protection of the fruits of that expression, on the other hand”.
it should be noted that here the Ninth Circuit refused to hear the case ‘en banc’.
To my own mind, you cannot copyright a genre. You cannot protect a ‘feeling’ or a vibe. Anyone can write a heavy metal song. But you cannot do is copy someone else’s heavy metal song. And there are certain building blocks in the composition of songs that songwriters use. Many rock and pop songs follow a similar pattern including the use of verses, a chorus and an instrumental break or chorus. Countless DJ’s used the (beat) ‘drop’ when the crowd’s anticipation is exploited and then all of a sudden a whole new beat explodes straight from the speaker. Drummers and percussionists use the same drum beats, there are basic chord progressions. Surely the common building blocks of songwriting need to be free for all composers to use? But if they are – where does that leave Blurred Lines?
Ben Challis, and with many thanks to Samuel O’Toole (www.lawditmusic.co.uk) for his earlier article on this case.
Williams v. Bridgeport Music, Inc. (No. 13-06004) (C.D. Cal. November 19, 2013))
The Song Remains The same (Ben Challis, 2003) http://www.musiclawupdates.com/wp-content/uploads/pdf-articles/Article-The_Song_Remains_the_Same.pdf
For ‘substantial similarity’ a song has to have at least a spark of similarity http://www.musiclawupdates.com/?p=7748
The ‘Blurred Lines’ Appeal Failed — Now What? https://www.billboard.com/articles/news/8257580/blurred-lines-appeal-pharrell-robin-thicke-marvin-gaye-legal-analysis
US Appellate Court majority rules that ‘Blurred Lines’ DID infringe Gaye classic
10 Common Drum Beats Every Drummer Should Know (by James Kitchen https://beatsure.com/common-drum-beats/
The Morecambe & Wise show with Andre Previn here