"Bright Red Chords"
Comment by Charles Cronin
In his brilliant dismantling of rock music and musicians, Robert Pattison likely had in mind the likes of Will Loomis, plaintiff in this dispute -- and his eponymous band -- when he wrote:
Rock’s electronic instruments are easy to play and accessible to anyone who has the wherewithal to buy a used Fender in a pawn shop. The rock star who is still learning his chords has nothing to fear in the electronic arena where his producer will turn the sow’s ear of his strumming into the silk purse of a 24-track recording… In live performance his lack of skill… will redound to his credit… the audience will take his incompetence first as a mark of his primitive authenticity, second as a mark of his pharmacological heroics, and last as a pledge that the most ordinary mortal can rise to stardom. Pattison, The Triumph of Vulgarity, p.136 (1987).
A lack of awareness on the part of Loomis and other rockers of his ilk of their near-nugatory capacity to create original works of music (as opposed to sound) is problematic when, as here, it leads to an apparently distorted perceptions about authorship and copyright protection. What undoubtedly caught Loomis’s attention was the fact that the songs at issue here may sound similar here and there. But copyright no more allows one to monopolize particular sounds -- other than one’s own recording of them -- than it does ideas, or genres. The songs are also somewhat musically similar, but only in overall format and style; both songs are musically and sonically similar to numerous earlier pop songs in the same genre. Here is a link to a brief recording created by Will Loomis that offers a side-by-side comparison of portions of the two songs.
The district court never reached the issue of similarity between the songs as it found Loomis’s allegations of defendant’s access to his work so attenuated that summary judgment was the appropriate disposition of the matter. Loomis appealed and, in 2016, the Ninth Circuit upheld the lower court's summary judgment in favor of defendants. Apparently defendants were in briefly in Santa Barbara recording songs at the same time plaintiffs were there promoting their song within the local pop music community. The fact that a local radio station broadcast the plaintiffs' song a few times did not, however, constitute "wide dissemination" of the work from which one might infer defendants' access to it. In fact, the court found that the plaintiffs' song was a bit of a flop, with no more than 46 copies of the recording sold. The well-known defendants, the court implies, were not likely to have participated in, or been curious about, the local music scene.
Opinion by Judge Clifton: PDF
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