Musical Infringement and the notion of ‘Thin’ Copyright

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Musical Infringement and the notion of ‘Thin’ Copyright

In 1969, long ago in terms of popular culture, a songwriter and guitarist named George Harrison sat down and began writing a new song. Eventually, this song was finished, and was called “My Sweet Lord.” It was recorded, first by Billy Preston —who had helped Harrison complete the song—and later by Harrison himself. Harrison’s version, once it was released in late 1970, did very well on the charts and in radio airplay. In short, it became a ‘monster hit,’ the most successful single of that songwriter’s solo career.

A legal action soon followed, however. In December 1971, Harrison was sued for copyright infringement by Bright Tunes Music, music publishers who were rights holders of a 1963 single, “He’s So Fine,” which was written by Ronnie Mack, recorded and released by an all-female group, The Chiffons. This suit came to trial in early 1976, and Harrison lost.

In the decades since, there’s been any number of similar suits, where “The New Song” is said to infringe upon “The Old Song.” Some of these succeed – Ray Parker Jr. vs. Huey Lewis and the News (1984) – and some do not – John Fogerty vs. Creedence Clearwater Revival (1985).

Marvin Gaye in Court

Recently, the Estate of Marvin Gaye sued Robin Thicke and Pharrell Williams for copyright infringement, successfully arguing —and prevailing on appeal—that the Thicke and Williams’ recording, “Blurred Lines” contained infringement of the “style” of Gaye’s song “Got to Give It Up” (1977). A dissenting judge who also heard the appeal, Jacqueline Nguyen, wrote in strong contrast, suggesting that the majority finding was both unprecedented and expansive:

“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.

But unless the case goes to the Supreme Court, the appeals court decision is the end of the line on this one.

Perhaps emboldened by success in the earlier case, the Marvin Gaye estate entered the courtroom again over alleged plagiarism of “Let’s Get It On” (1973) by Ed Sheeran in “Photograph.” This case is still in its early stages. And, as Judge Nguyen predicted, similarly conceived cases are being filed.

Beyond the catalog of Marvin Gaye, other notable infringement suits in recent years have been aimed at Bruno Mars, Mark Ronson, Lana del Rey, Miley Cyrus, and so on, following an extension of the same reasoning.

Overactive Copyright Protections?

One starts to feel like everything is derived from everything else, and that, under the existing constructions, these suits will go forth and continue to multiply. I think it might be useful to take a few steps back and reconsider the foundations of this whole line of copyright reasoning. One fundamental rule in copyright is: protection is only available for creative works containing original expression.

So, what’s a (musical) work? That should be easy. A musical composition – the published sheet music — is a work. An arrangement of a specific version of that composition may be a separate, derived work.

But is an individual part, for one instrument, “a work,” for the purposes of copyright? The melody and the lyrics, yes. The lines for the individual instrumental? Not usually. Not to harp on the word itself, but, that’s why they are called “parts.”

Stretching Copyright Thin

Before we get to the point that every new track gets scrutinized for infringement, I think there may be a way out of this Thicke-t, if you will: Apply the concept of ‘thin copyright’ as legal blogger, Dr. Dariush Adl, has recently suggested. Adl writes:

Gaye’s expert opined that a 10-note melodic sequence in “Got to Give It Up,” which the expert defined to as “The Signature Phrase” of the song, was also present in “Blurred Lines.” In support, the expert “identified four similar elements: each phrase begins with repeated notes; the phrases have three identical pitches in a row in the first measure and two in the second measure; each phrase begins with the same rhythm; and each phrase ends on a melisma (one word sung over multiple pitches).” Each of these component elements, arguably as present in each song, is used to achieve an overall effect. The question might be rephrased, Is it the same effect, or a different one?

Thin copyright has its origins in a 1991 case that deemed facts in a list uncopyrightable, with Justice Sandra Day O’Connor famously noting, “The sine qua non of copyright is originality.” Essentially, a list of names or numbers is not original. Courts have embraced and expanded this idea regarding visual arts depictions of animals in their native environments: a salmon jumping out of the water is not original; the way a momma cat carries a kitten is not original. In Satava v. Lowry (9th Circuit, 2003), a case about two similar glass sculptures, the majority held that “Satava possesses a thin copyright that protects against only virtually identical copying.” (Emphasis added.)

What does “thin copyright” mean?

Since the idea of “thin” copyright is not defined in the US copyright statute (Title 17), but appears mostly in various court opinions, it is a little hard to pin down. In a post on the Thompson Coburn blog last year, Mark Sableman used an example of jokes as the sort of works which end up with thin copyright protection:

“Judge Janis Sammartino, of the federal district court for the southern district of California, found “little doubt” that jokes, as creative original works, merited copyright protection. But the nature of jokes makes that copyright thin. In a typical stand-up routine, the joke follows a “two-line setup-and-delivery paradigm.” Each joke begins with a factual sentence — and facts, of course, can’t be copyrighted. Each joke then ends with a punchline. While punchlines are creative, they are confined by the reality that in any situation, only a limited number of possible punchlines would work with the facts and provide mass appeal. Thus, Judge Sammartino concluded, jokes have “thin” copyright protection.”

That gets to the essence of ‘thin copyright’ in the arts, which might also be referred to as “non-protectable elements.” Judges often side with the newer artwork in the visual arts, like the 2017 case (Folkens v. Wyland), in which a visual artist wanted copyright protection for the depiction of two dolphins crossing in the water. In literature, ‘stock characters’ and other elements that show up in many different works are known as scènes à faire. Common tropes like “the hard-boiled detective” or situations like a villain explaining her plot in a monologue, are not ownable; in many cases, they go back to Shakespeare or before.

Why Not Music?

In music, there are many basic elements, such as time, rhythm, and key; and there are many genres. Anyone can attempt to write a “soul” tune, for example, or a blues; they may or may not succeed in writing a good one, but that is aesthetic question, not a copyright one. But it is out of the set of characteristics that make up what we recognize as a soul tune that the new song is comprised. I think it might be better to treat these recognizable attributes as we do scènes à faire, or simply as common genre elements, without asking courts to discern, as the majority in “Blurred Lines” did, some intellectual property interest in a ‘style.’ Style is, I think. a pretty squishy point for millions of dollars to depend on.

On balance, I prefer the reasoning of Judge Nguyen in her dissenting opinion on this case, where she wrote “The majority allows the Gayes to accomplish what no one has before: copyright a musical style. “Blurred Lines” and “Got to Give It Up” are not objectively similar. They 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.” I think that approach, plus the application of the notion of ‘thin copyright’ to the lesser elements of songwriting, would lead to more reliable results, and thus safer, more predictable and encouraging copyright environment for songwriters.

Dave Davis

Author: Dave Davis

Dave Davis joined CCC in 1994 and currently serves as research analyst. He previously held directorships in both public libraries and corporate libraries and earned joint master’s degrees in Library and Information Sciences and Medieval European History from Catholic University of America. Dave is fascinated by copyright issues, content licensing and data. Also, rock and roll music.
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