Overview

 

The objective of this resource is to make universally available information about music copyright infringement cases from the mid-nineteenth centur​y forward.  The Purpose page gives a thumbnail description of each area of the project's resources.
 
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Recently...

¶ On March 22nd 2018 the Ninth Circuit released its predictably regrettable opinion in which a majority of the panel of three judges upheld the District Court’s judgment, which was based on a jury’s verdict, that Robin Thicke and Pharrell Williams were liable for copyright infringement. The majority opinion implies a tacit realization on the part of the authors that the lower court jury verdict was a travesty. But, in an affected endorsement of the integrity of jury determinations, the majority rolls out an array of legal procedural obstacles to overruling the verdict and the lower court that accommodated it, along with flimsy bromides like “music is not confined to a narrow range of expression” to justify its deference to them.

In her trenchant dissent, Judge Jacqueline Nguyen (apparently the only musically literate member of the panel) eviscerates the Gaye’s expert testimony of musical similarities. She correctly concludes that the obvious lack of similarities should have prompted the trial court to grant Thicke’s motion for summary judgment. (Doing so would have ended the dispute, preventing it from metastasizing as it did into a disgraceful bid to win the sympathy of musically illiterate jurors by using irrelevant derogations about the personalities of the parties.) Moreover, says Judge Nguyen, even if the dispute were allowed to be tried, the same absence of similarities between the songs should have prompted the court to render a judgment in favor of Thicke as a matter of law because Gaye’s claim could not survive the initial extrinsic test for similarity.

Judge Nguyen wraps up with a stinging fillip: “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.” The majority devotes nine pages of its opinion to rebutting Judge Nguyen’s arguments. It claims that Judge Nguyen’s conjectures about the inhibiting consequences of its extending copyright in musical works to cover stylistic elements are “unfounded hyperbole”.

In footnote 27 the majority gives a confused and confusing justification for this response based on the fact that “[u]nlike the 1909 Act, the current copyright regime…. protects ‘works of authorship’ fixed in ‘sound recordings’.” But the fact that it is now possible to obtain copyright for the recording of a particular performance of a musical work doesn’t change the quantum of the separately protected expression in the musical work. And, even if the majority confusedly alludes to the fact that the current copyright statute permits the registration of musical works that are fixed in an audible formats, only the original and quantifiable musical expression that can be extracted from the audio recording of a performance is protectable as the underlying musical work. Elements like regional accents, volume, articulation, instrumentation, and stylistic attributes of particular performers (regardless whether they are also the authors of the works being performed) – captured in sound recordings are independently copyrightable, but the protection only extends to that particular recording of the performance, and not the stylistic elements themselves. 

 

¶ On January 24th a bipartisan group of U.S. senators introduced the Music Modernization Act, which addresses a longstanding claim by songwriters that they have been shortchanged by the application of the existing mechanical licensing scheme for musical works in the era of digital distribution. In what some see as a last-ditch effort to wring the greatest possible payout from deep-pocketed new music distributors, Wixen Music Publishing recently sued Spotify for $1.6 billion based on alleged infringements that occurred prior to the date on which the Music Modernization Act will likely take effect. (Wixen's purpose and utility is elusive: it doesn't "publish" music; it appears to be simply a paralegal "administrator" of songwriters' copyrights.) Lawyer/musician Niall Fordyce, a contributor to this site, provides another take on this lawsuit in this piece he wrote in connection with a Bloomberg Law article on the pending legislation.

On 6 October 2017 the Ninth Circuit in Pasadena held oral arguments in Pharrell Williams and Robin Thicke’s appeal to vacate the district court determination that they infringed Marvin Gaye’s “Got to Give it Up” in their song “Blurred Lines”. The Ninth Circuit has posted a complete A/V recording of the session on YouTube:

https://www.ca9.uscourts.gov/media/view_video.php?pk_vid=0000012297.

  Perhaps the most intelligent and incisive encapsulation of the dispute occurred in the exchange between Judge Jacqueline Nguyen and Kathleen Sullivan, who represented Williams and Thicke (~56:00 in the recording). At this point they wonder whether allowing jurors in music copyright infringement disputes to hear recordings of the songs at issue would introduce unprotectable elements associated with performances, rather than the underlying musical works, thereby confusing them and compromising their evaluation of musical similarity.

In March 2017 the University of Colorado Law School and the University's Silicon Flatirons Organization held a conference "Blurred v. Bright: The Changing Analysis of Copyright Infringement in Music." A video recording of the conference presentations and discussions is available here. Some of the presentations will be published as articles in the Colorado Technology Law Journal. Here is a link to a draft of Charles Cronin's Seeing is Believing: The Ongoing Significance of Symbolic Representations of Musical Works in Copyright Infringement Disputes.

¶ Several amicus briefs have been filed in connection with the appeal pending at the Ninth Circuit in which Robin Thicke, Pharrell Williams, et al. seek to overturn the jury verdict and monetary judgment against them in the district court case involving "Blurred Lines". All three briefs support the appellants' position, indicating not only broad concern about the deleterious potential of the jury verdict on innovation in the area of popular music, but also the widely shared view that the jury's verdict was based on personal antipathy towards the appellants, and flawed testimony of the Gaye family's musical experts that the trial judge should not have allowed the jury to consider.

• Amicus brief submitted on behalf of Musicologists by Los Angeles attorney Kenneth Freundlich: PDF

Amicus brief submitted by Public Knowledge, a Washington based public interest group: PDF

Amicus brief submitted on behalf of Songwriters & Producers by Los Angeles attorney Edwin McPherson:  PDF

Amicus brief submitted on behalf of the Institute for Intellectual Property and Social Justice, Rockville, Maryland:  PDF

Amicus brief submitted on behalf of Musicologists/Ethnomusicologists by Detroit & Little Rock attorneys Howard Abrams and Bernard Burk:  PDF

 

Patrick E. Savage, a Postdoctoral Researcher at Oxford University, specializes in comparative study of the world's music. He recently completed his PhD dissertation at Tokyo University of the Arts, in which he discusses how theories of biological evolution may be applied to our understanding of the evolution of musical works. In Chapter 4 he discusses how quantitative measurement of the evolution of melodies over time may inform and predict determinations of infringement in copyright disputes involving musical works. The discussion focuses on the well-known dispute involving George Harrison, as well as the more recent, and much discussed dispute over the song "Blurred Lines". Here is a link to the English language version of the dissertation filed in the Japanese Diet Library:  PDF

 

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To readers using Macintosh computers: Most of the audio and video materials on this site are encoded as Windows Media files (wma). We plan to convert these files to MP3 format to make them more readily accessible on both PC and Mac platforms.  Meanwhile, you should be able to play the wma files using the VCL media player that can be downloaded without charge.

 

 
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"Absolutely wonderful stuff...a unique and irreplaceable service to copyright students and teachers. Bravo"

Robert A. Gorman
Kenneth Gemmill Professor of Law, Emeritus, University of Pennsylvania Law School

 

 

"This is a great contribution to copyright scholarship and teaching."

Paul Goldstein
Stella W. and Ira S. Lillick Professor of Law, Stanford Law School