Music Copyright InfringementIn 2015, two musicians were found guilty of copyright infringement and were ordered to pay several million dollars to the estate of the artist, whose work their song allegedly resembled. See, e.g., Peter Alhadef & Shereen Cheong, “The Lesson of Blurred Lines,” The Music Business Journal, Feb. 2016. A few months ago, a copyright infringement case against Led Zeppelin’s legendary song “Stairway to Heaven” was not successful in the eyes of the jurors who heard the case. See, e.g., James P. Flynn, ‘”if you listen very hard…’: Stairway To Heaven Verdict May Have Unblurred Lines In Music Infringement Cases,” ILN IP Insider, Jul. 20, 2016. Music copyright infringement cases appear to be on the rise, and the differing verdicts rendered in recent lawsuits may be confusing to attorneys.

Discussion:

What is at issue in current music copyright infringement cases is exactly what plaintiffs must demonstrate in order to prove a violation occurred. The “Blurred Lines” case, which was resolved in November of 2015, generated quite a bit of controversy within the legal community. Instead of focusing on whether the song at issue was deceptively similar in terms of the structure, notes, or sequence of the melody, that case focused on the “feel” of the song, in comparison to an original composition from several decades ago. See, e.g., Peter Alhadef & Shereen Cheong, supra. In fact, the “Blurred Lines” case is unique because “the ruling puts a different spin on copyright law. The court effectively lowered the standard of infringement for musical compositions, making the ‘groove’ of a composition – i.e., the interaction between, say, a bass and a drum in a particular rhythmic pattern– important to its decision-making. The ruling has created anxiety in the songwriting community, which often draws inspiration on grooves. Of course, this more lenient interpretation of music copyright infringement brings on the possibility of added lawsuits against songwriters” Id.

Musicologist expert witnesses argued that the reason “Blurred Lines” infringed upon a prior work was because it had a similar “vibe” or “feeling” to a predecessor’s song. See id. However, the standard of whether a particular work that sounds or feels like it has the same kind of “groove” as another composition has been hard for both attorneys and expert witnesses to grapple with, particularly since the understood standard for copyright violation in the music industry has generally been understood to be much higher. In fact, “A similar feel or vibe…had not so far been interpreted as a violation of copyright law, which maintains that there can be no copyright infringement of an idea, only of the exact expression of that idea. The conventional standard is thus high, for in theory there must be a perfect match-up between melody and rhythm, even down to the same notes (a transposition of a phrase note by note into a different key would still be copyright infringement). Therefore, the verdict in this case was puzzling to the music industry. Similarity leading to an identifiable vibe is not an offense in copyright law.” Id.

As some analysts have pointed out, if the standard applied in the “Blurred Lines” case is applied to music copyright infringement cases as a whole, many consequences may result. Artistic innovation could be stifled, because if an artist can be sued for producing music that sounds like or is reminiscent of another artist (which is nearly always the case, since musicians often produce songs that reflect their own musical influences and mentors), then few artists will be willing to be creative and build upon the “feel” of past masters while still producing something new. See, e.g., Chris Sermones, “Do Music Experts Control Its Future?” Expert Witness Network, Aug. 5, 2016.  If, in fact, the “Blurred Lines” analysis is universally applied, entire genres may be off limits for musicians, as even the creation of a new R & B piece might “feel” like something a previous artist recorded.  However, while the “Blurred Lines” case startled many members of the legal community, it may not mean that future cases will be handled in a similar manner.

In the Led Zeppelin case, for example, the issue was whether the plaintiffs could point to evidence that “Stairway to Heaven” was “substantially similar” to a previous song. See, e.g., id. Moreover, “If a musical copyright infringement claim is strictly confined to the sheet music, claimants have little hope of victory. Be it the Blurred Lines experts or the experts in the Led Zeppelin case, neither was able to successfully point out a substantial degree of commonality.” Id.

Conclusion:

Music copyright infringement cases appear to be on the rise, with even Trinidad & Tobago hearing its first such lawsuit this year. The legal community will need to determine what standard to apply when assessing whether a given composition violates the copyright of another. The “Blurred Lines” case offered one theory, upon which plaintiff’s experts were able to gain a jury’s approval. Subsequent cases appear to be more focused on whether the alleged similarities between songs is quantitative and consists of elements such as identical notes or strings of music. Regardless of which interpretation is adopted by courts, experts in the music infringement industry play a critical role in determining similarities between music and, more importantly, in helping advise jurors as to what kind of similarities should ultimately matter.

 

By: Kat S. Hatziavramidis, Attorney-at-Law