The legal news wires are “rocking” with headlines in music copyright infringement cases. The Ninth Circuit, sitting en banc, found for Led Zeppelin in the “Stairway to Heaven” litigation and euthanized the “inverse ratio rule.” In a connected world of nearly universal access to copyrighted works, a plaintiff must show real plagiarism, not merely plausible similarities.
Soon thereafter Judge Snyder threw out the jury’s verdict that Katy Perry’s “Dark Horse” copied a bass ostinato from Christian rapper Flame’s “Joyful Noise.”
For copyright lawyers this news creates the sort of excitement that NFL fans experience over a tie in the last two minutes of the Super Bowl. It’s a good thing the Bar presentations are on Zoom these days as the debate among the MCLE crowd about how to determine whether songs unlawfully copy one another could devolve into a food fight.
While the erudite debate how to analyze music infringement claims in this new era, I have a simple view of how to predict how likely one is to prevail in a case over unlawful “copying” in a twelve-note four chord environment, where similar patterns have been repeated for decades.
- Gather a mock jury. Play the two songs in question sequentially, then play a mashup of the allegedly similar elements of the two songs. Take a poll: did Song 2 copy Song 1 or not? If you have the time and funds, repeat. This will be a reasonably good prediction of how a jury will decide the case. [Note: the actual juries in the above cases did this on their computers at night even though the judge told them not to and were waiting for the attorneys to stop talking so they could deliver the vote they had already decided upon.]
- Gather a group of attorneys, none younger than 60, the grumpier the better. Repeat the above steps and take a poll. This will be a reasonably good prediction of whether the judge will set aside the jury’s verdict. [Note: there are a few duffers left in the state courts who believe they are there to preserve a jury’s judgment, but I don’t think the federal judges worry about that so much.]
The jury instructions aren’t of much help. The Ninth Circuit pattern instructions inform the jury that the defendant may not “copy” the plaintiff’s work, with little clarifications on how this notion applies to popular music forms. All the instructions that balance the degree of access with degrees of similarity need re-writing after the Led Zeppelin decision.
Judge Snyder did a good job in the Katy Perry case of crafting special instructions on how individual non-protectible elements could, in combination, be protectible. Check those out if you’re looking for good special instructions in a music copyright trial.
But this is heady stuff. People with law degrees and PhD’s in musicology could disagree how to apply these general maxims to the facts of the case.
What is a jury supposed to do with the ten-minute law school course they take at the end of the trial, when the judge reads the few jury instructions that really tell them how to do their job?
See Step No. 1 above. That’s what they do.
Here’s my vote on a few of the famous music infringement cases, in reverse chronological order:
Flame (“Joyful Noise” v. Katy Perry (“Dark Horse”). Flame: Bee-dee-dee-dee-Doo-do-do-do. Katy Perry: Do-de-do-do Do-de-do-do. Give me a break. Judge Snyder got this one right.
Spirit (“Taurus”) v. Led Zeppelin (“Stairway to Heaven”): Sure, the acoustic guitar opening sequences have a similar vibe, but the descending minor chord sequence in “Taurus” was a common riff and Jimmy Page added an ascending high note sequence that created a unique variant. Without Randy California alive to testify how his riff was copied, and with Jimmy Page on the stand showing his original contributions to the Stairway sequence, the jury correctly found for Led Zeppelin.
Marvin Gaye (“Got to Give it Up”) v. Pharrell Williams (“Blurred Lines”). Williams wins a jury of musicologists, as the jury was supposed to compare only the sheet music for “Got to Give it Up” against “Blurred Lines,” which comparison doesn’t show enough copying. However, using Test No. 1, comparing sound to sound, the unprotectible but common whooping and clapping “party” elements of the two songs bring them much closer. I’m not surprised the jury found for Marvin Gaye.
The Chiffons (“He’s So Fine”) v. George Harrison (“My Sweet Lord”). Run “He’s So Fine” through a Xerox machine (see 1970’s for this reference), change the key and words and you have “My Sweet Lord.” George in Heaven, I love you, but how could you?
See you in court.