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Hot Topics Roundtable: Music Copyright and the "Stairway to Heaven" Case

If You Listen Very Hard, the Tune Will Come to You at Last

Music is an essential part of entertainment today – from the recording industry to movies, television and videogames. Some recent high-profile cases have raised important questions for media lawyers about originality and copyright in music. We asked three experts – David Aronoff, Scott Sholder and Kenneth Freundlich – to discuss this issue with a focus on the pending appeal in the copyright infringement case over Led Zeppelin's iconic rock anthem Stairway to Heaven.

What standards are applied to determine if two music pieces, eg Led Zeppelin's Stairway to Heaven and Taurus's Spirit, are substantially similar? How are Stairway's different elements – e.g. melody, rhythm, lyrics, and recorded sound – treated by copyright law?

Aronoff: To start with, in the Ninth Circuit the courts generally apply a two-part analysis based on "extrinsic" and "intrinsic" tests. The "extrinsic test" examines the objective criteria of the songs at issue – e.g., the melody, harmony, rhythm, beat, key, structure, lyrics, etc. – to determine if the defendant's song is substantially similar to original protectable elements of the plaintiff's allegedly infringed song. Unprotected material in the plaintiff's song, such as scenes-a-faire, stock elements and unoriginal material, is filtered out of the comparison. The "intrinsic test" examines whether an ordinary, reasonable person would subjectively find the total concept and feel of the two songs to be substantially similar. The extrinsic and intrinsic tests both must be satisfied for a plaintiff to prevail. Additionally, some decisions in the Ninth Circuit modify the "extrinsic test" by holding that a "combination" of otherwise unprotected musical elements in the plaintiff's song can be protected if they are selected and arranged in an original manner. Several cases hold that such "selection and arrangement" copyrights are "thin" and can only be infringed by "virtually identical" copying, but other cases suggest that "substantial similarity" is all that is required. In addition, when the purported infringement is based on fragmented literal copying rather than non-literal comprehensive copying, a finding of liability in the Ninth Circuit generally requires the defendant's "exact or nearly exact" copying of a musical element that is a qualitatively important component of the plaintiff's work. Further complicating matters, several Ninth Circuit music cases hold that there exists an "inverse ratio rule" under which proof of similarity is lowered when the defendant's level of access to the plaintiff's song is high. This so-called "rule" has been criticized by some courts and commentators. Finally, in cases where the defendant cannot be shown to have "access" to the plaintiff's work – i.e., a reasonable opportunity to copy it – infringement can only be shown by "striking similarity." This requires similarities that are so unusual, noteworthy and/or pervasive that they preclude even the possibility of independent creation.

Other Circuits often approach substantial similarity in a different manner.

Freundlich: In New York (Second Circuit), the test for substantial similarity is the "ordinary observer test." This test, in the context of a lawsuit alleging infringement of a musical works, requires that the plaintiff prove that defendant wrongfully appropriated the plaintiff's song by taking from the plaintiff's song so much of what is pleasing to the ears of a lay listeners, who comprise the audience for which such song was composed. The plaintiff must demonstrate that substantial similarities as to the protected elements of the song would cause an average lay observer to recognize the alleged infringing copy as having have been appropriated from the plaintiff's song. Although substantial similarity in the Second Circuit is usually a question of fact for the jury, the Judge can rule against the plaintiff as a matter of law if the alleged similarity concerns only noncopyrightable elements or where no reasonable jury—looking at the copied protectable elements—could find that the two songs are substantially similar.

The important commonality between both tests is that only protectable elements should be considered in the substantial similarity analysis.

It is worth pointing out that the District Court Judge in the Ed Sheeran case—currently pending in a New York federal court—recently put off a jury trial in that matter pending the outcome of the en banc Ninth Circuit Court of Appeals proceedings in the Led Zeppelin case. This is perhaps an indication that the rulings from the Ninth Circuit concerning how to handle similarity in unprotectable elements may play a key role in music copyright cases pending in the Second Circuit.

Sholder: Regardless of the applicable test, any or all of the various elements of a song could be treated as protectable if they exhibit a minimum threshold of originality. This is a very low bar that excludes ideas, abstract concepts, and the basic building blocks of music. For instance, a basic scale or rhythm is not copyrightable, but an independently created arrangement of notes in an original way is. Melody and lyrics are more likely to be subject to copyright protection because they go beyond the mere stock elements that comprise any song, and the necessary elements that inform any particular genre (more on that below).

There are thousands of songs based on identical or nearly identical musical structures – for instance "Louie Louie" and "Wild Thing" or a classic "blues." How do we evaluate meaningful differences?

Sholder: There are only so many ways to express an idea (and ideas are not copyrightable). Playing blues requires specific notes or chords to be played in specific sequences for specific reasons; in other words, there is not an unlimited number of ways to make a pure blues song. Likewise, certain genres of heavy metal will inherently include elements like distorted minor guitar chords, tremolo picking, and double-bass drums, but those are not, themselves, copyrightable; they are merely signature elements of a musical genre. These "stock" components are considered "scenes a faire," which basically means they are fair game because they are necessary elements of a particular form of expression.

Evaluation of the differences between songs can be difficult, but this is where the two-step analysis comes in, at least in the Ninth Circuit as it relates to the Led Zeppelin case. Once the basic tropes of a song are stripped away – by the court and typically with the assistance of an expert witness – a fact finder can compare the boiled down original expressions side by side. Think of it as sifting away the sand to try to find the gold. The gold nuggets are the original riffs, phrases, lyrics, or arrangements, and those are the pieces of evidence that will decide the case.

Aronoff: Certain musical motifs have been used so ubiquitously over the course of many years that they are not original and are generally considered to be in the public domain. For example, the classic I-IV-V-IV chord pattern, which is the readily recognizable basis for "Louie Louie," "Wild Thing," "La Bomba," "Twist and Shout," "Get Off My Cloud," and many other songs, is often said to be unoriginal and unprotectable. That said, although the chords of a new I-IV-V-IV based song might be largely unprotectable as a composition, the song could still be protected as to any new and original expressive elements that are added to the chords. Thus, song lyrics and any material new original musical embellishments, such as a distinctive extended guitar solo, that are added to the basic I-IV-V-IV chords would be subject to copyright protection. In addition, a new I-IV-V-IV song would also be subject to protection as a sound recording copyright. Thus, distributing such a recording without a license, or digitally copying and using the recording without authorization, for example in a TV commercial or motion picture soundtrack or as a sample in another song, would be infringing.

Freundlich: This depends on what you mean by "musical structures." More rigorous terminology is required than that. The musicologists I represent believe that without substantial similarity in melody, there should never be infringement. As I wrote in my brief on their behalf in the pending Led Zeppelin en banc proceeding in the Ninth Circuit, musical works are built from a common vocabulary of fundamental elements like pitch, duration, meter, key and timbre. Using these basic elements, composers build more complex structures like chords and melodic and rhythmic motifs, which they further develop and combine to create the rhythmically structured melodies and underlying harmonic progressions that constitute the original backbone of a musical work. The most important parts of a musical composition are its melody, harmony, and rhythm.

One of the basic tenets of copyright law is that copyright protects originality of expression. So, the question regarding your example above – the classic "blues" - you are referring to is something that is so ubiquitous and elemental that nobody gets to claim it as their own. Consider the 1-4-5-1 progression that you hear in a plethora of 50's era songs. Nobody would claim that the chord progression there may be monopolized by any one songwriter.

The descending bass line similar between "Stairway to Heaven" and "Taurus" is another example of a commonplace elements that indeed is traceable to the Baroque period of music and appears in so many other compositions since then including Purcell's "When I am Laid in Earth" (Dido's Lament) (1689) to Chopin's "Prelude in E minor" (1839) through Vic Dana's recording of "More" (1963) and the Sherman Brothers' "Chim Chim Cher-ee" (1964) and Beatles' "Michelle" (1965). This commonplace descending bass also implies how unoriginal is the chord progressions that typically supports it.

What's the role of the jury in the Zep trial and should they get to hear the recordings at issue?

Aronoff: The jury fulfilled its role by returning a verdict for defendants. After defendants appealed, an initial panel of the Ninth Circuit reversed the judgment, giving plaintiff an unwarranted "do over." However, now that defendants' petition for rehearing en banc has been granted, hopefully the "do over" will be undone. The rehearing en banc has not been set with a firm date, but it is supposed to be calendared during the week of September 23, 2019. As for whether the jury should hear the released recording of Spirit's song "Taurus," the answer is no. Plaintiff sued on the registered copyright in the composition, and the deposit copy (as is often the case) consisted only of sheet music setting forth the basic notes, musical notations and lyrics. "Taurus" was registered for copyright in 1967, but it was not until 1976 that the Copyright Act was amended to allow copyrights in compositions to be registered by submitting a recording rather than sheet music as the deposit copy in the Copyright Office. Thus, the only actionable elements of plaintiff's work were embodied in the registered sheet music. Listening to the recording of "Taurus" – which contained performance elements not included in the sheet music – would have prejudicially influenced the jury's consideration of substantial similarity. Plaintiff claimed, and the initial Ninth Circuit panel surprisingly agreed, that allowing the jury to watch Jimmy Page listen to recordings of "Taurus" should have been permitted on the issue of access (but not substantial similarity) – so that the jury could study Page's demeanor as he listened to "Taurus" and intuit from his expression whether he was familiar with it when he wrote "Stairway to Heaven." But this analysis seems farfetched at best (especially given the abuse of discretion standard applicable to review of trial court evidentiary rulings) because the trial judge had required "Taurus" to be played for Page outside the presence of the jury, and the jury was then allowed to observed his demeanor as he responded to questions about whether he had heard it before.

Freundlich: The jury gets to decide substantially similarity based on the Ninth Circuit law described above which involves an "extrinsic test" and an "intrinsic test." Whether they should hear the recordings is a complex issue. Again referring back to my musicologists' amicus brief in this case's pending en banc proceedings, we argue that the sounds of the instruments chosen for a particular recording of a musical composition can have an outsized effect on a jury's perception of the similarity of two musical compositions by attracting a listener's attention to the performance as opposed to the composition. See Jamie Lund, An Empirical Examination of the Lay Listener Test in Music Composition Copyright Infringement, 11 Va. Sports Ent. L.J. 137 (2012). This underscores the reason why the "extrinsic test" must be rigorously applied to prevent songs sharing unoriginal elements from ever reaching the jury's "intrinsic" listening test, which is by its nature so subjective.

The problem inherent in having a jury hear sound recordings instead of MIDI generated audio containing purely musical information (and not performance and production elements which are arguably not part of the musical composition), is that the sound recordings are not necessarily limited to the musical compositional elements and the additional sound could skew and juries' thinking as to whether the underlying musical compositions which are at issue, are infringing.

One can also argue that the jury in the recent case against Katy Perry found her liable not based on similarities of protectable musical expression, but rather because portions of both songs sounded similar. This outcome is the disturbing result of courts allowing musical experts to mislead jurors on the question of similarity of protectable musical expression by testifying about commonalities of unprotectable elements of musical works like motifs, genres, and sounds. This occurred in the widely criticized Blurred Lines infringement verdict against Robin Thicke and Pharrell Williams several years ago and is also at play in claims pending in the Led Zeppelin case as well as a case against Ed Sheeran regarding Marvin Gaye's "Let's Get it On."

The fact is juries do get to hear the recordings during the "intrinsic test" and this can sometimes be very misleading as to what the musical compositional elements really are versus the production elements which should not be considered in determining substantial similarity between two songs.

This is why I believe judges need to take a much more active role in screening cases at the summary judgment stage, perhaps even with an assist from a Court-appointed musicologist. The Court-appointed musicologist could perhaps evaluate the opposing partisan musicologists' reports for the Court, thereby preventing cases where there is no substantial similarity of protectable elements from getting to a jury.

Sholder: The jury is the finder of fact and its role is to consider and review all the evidence and render an impartial decision based on the facts and the law as instructed by the court. The issue in the Led Zeppelin case is that, on appeal, the plaintiff claimed (and the Ninth Circuit panel agreed) that the trial court had improperly or inadequately instructed the jury with respect to certain aspects of copyright law that could have significantly changed the jury's analysis.

With respect to hearing the songs, the plaintiff wanted to play the sound recording of "Taurus" to see if Jimmy Page recognized it in order to prove access to the work, but also to demonstrate substantial similarity. The court declined the request on both counts. The Ninth Circuit agreed to the district court's decision with respect to the use of the recordings for purposes of proving substantial similarity because, under the 1909 version of the Copyright Act (which would cover both songs at issue), the scope of the "Taurus" copyright was governed by the deposit copy – i.e., the sheet music, not the sound recording (and at that time sound recordings were not protected by copyright). To play the sound recording for the jury when only the musical composition as embodied on paper was at issue would have been unduly prejudicial and potentially confusing. A similar issue arose in the trial concerning Robin Thicke and Farrell Williams' "Blurred Lines"; it seems counterintuitive but at its core makes sense because the sound recording was not subject to protection and was not the subject of the lawsuit.

As to use of the sound recording for purposes of proving access, while the Ninth Circuit found the district court's refusal to be an abuse of discretion, it determined that the error was harmless because the jury found that Led Zeppelin had access to "Taurus" notwithstanding the court's refusal to play the sound recording.

In sum, no, I don't believe the jury should have heard the sound recording, but perhaps there were compromises available. For instance, in the "Blurred Lines" case the trial court had allowed Robin Thicke to play, live in court, piano medleys of certain songs, including snippets from the compositions at issue, so hearing Jimmy Page play guitar in court would not have been unheard of (and certainly would have been a treat for all in attendance).

What is the difference between an infringement claim for a musical composition versus a claim for infringement of a sound recording?

Aronoff: An infringement claim based on allegations that two songs sound too much alike, such the claim that "Stairway to Heaven" sounds too much like Spirit's "Taurus," is based on the compositions of the songs, that is the notes, melody, lyrics, etc. Such compositions – as embodied in the sheet music containing notes and musical notations and lyrics – have always been protected by copyright. In contrast, sound recordings of compositions are treated differently. In fact, sound recordings historically were not even protected by copyright. Instead, they were protected under state law, and many states passed statutes against bootlegging or pirating of music records. Thus, claims based on the unlicensed sale, distribution, copying or other use of a plaintiff's sound recording had to be redressed under state law, if at all. It was not until 1972 that Congress, in an amendment to the Copyright Act, recognized that recordings are creative works entitled to copyright protection. However, that amendment was not retroactive, so pre-1972 sound recordings were not copyright protected until the passage of the Music Modernization Act in 2018 – which extended most federal copyright protections to pre-1972 sound recordings.

Freundlich: The musical composition claims should be limited to the musical compositional elements which are not necessarily expressed in the sound recording which contains other elements as discussed above that can in fact confuse a jury determining similarity of musical compositions.

A sound recording infringement usually takes the form of sample, i.e., when the actual recording of the song is incorporated into another work. And the case law seems clear that the tiniest sample can result in a cognizable claim of infringement. This is not as difficult to determine and does not involve the pernicious problems juries face when determining substantially similarity of musical works.

Sound recording infringement cases would focus more on the technology of the sound recording and involve experts on audio engineering to determine forensically if the sound recordings are the same or if one is a re-record, which under U.S. Copyright law would not be an infringement of the sound recording (but may be an infringement of the underlying musical composition if the appropriate compositional licenses were not obtained).

Sholder: Every piece of music has two distinct copyrights – think of it as a two-layer cake. One copyright (the bottom layer of the cake) covers the musical composition, including the notes, chords, and lyrics as written by the songwriter. The top layer of the cake covers the specific recording of the performance of those underlying notes and lyrics. Each layer is protected independent of the other, and while musical compositions have always been protected, sound recordings were not subject to any level of copyright protection until 1972.

Normally the songwriter or music publisher owns the rights to the composition layer and the record label owns the copyright in the sound recording layer (there are of course many permutations of this structure depending on who wrote the music, whether the songwriter is also the recording artist, etc.). Each respective owner would assert the rights in their designated layer. So, in any given lawsuit regarding an allegedly infringing song, the plaintiffs could include music publishers as well as record companies if the allegation is that both the composition and sound recording are infringing, depending on the age of the song. For older songs like "Stairway" or Marvin Gaye's "Got to Give It Up" (the subject of the "Blurred Lines" case), the sound recording won't be at issue, hence the dispute over whether to play the recording or rely solely on the lead sheet or sheet music.

Another wrinkle not directly related to the Zeppelin case is that, while plaintiffs may sue for infringement of both the composition and sound recording when it comes to unlawful reproduction or distribution, the issue of unauthorized public performances is more limited. Musical compositions have always enjoyed a public performance right that is exclusive to the copyright holder, but not sound recordings. Sound recording copyright owners only received public performance rights in 1995, and only with respect to certain digital transmissions. In other words, when a song is played on a traditional AM/FM radio, the songwriter is paid but the record label and performing artists are not.

The digital public performance landscape further changed with the passage of the Music Modernization Act in 2018, but that topic is beyond the scope of this discussion.

What is the scope of fair use in music copyright cases?

Aronoff: The scope of fair use has not been fully developed in the case law concerning musical works. Of course, there have been a significant number of parody cases involving songs – such as the Campbell v. Acuff-Rose case involving the Roy Orbison song "Pretty Woman" and the Fisher v. Dees case involving the song "When Sunny Gets Blue." But outside the context of parody, the broader defense of fair use not been a major factor in music cases. In part this is because virtually all defendants in infringing composition cases deny any copying whatsoever, which essentially eliminates the argument that the plaintiff's work was copied for a transformative purpose. Additionally, in sound recording infringement cases involving the defendant's sampling of the plaintiff's work – a context in which copying is sometimes undisputed – instead of relying on fair use many such cases invoke principles of de minimis use to rule for defendants.

Freundlich: This is a question that is hard to answer briefly but I will try.

Fair use is a statutory grab bag of factors which provide a complete defense to acts that would otherwise be considered infringement. It has roots in the First Amendment and Congress' desire to create some exceptions to the Copyright monopoly to assure that copyright law and the First Amendment remain in proper balance.

The U.S. Supreme Court waded into the role of fair use analysis in music in the 1994 case involving Roy Orbison's song, "Oh Pretty Woman," where the Court in a unanimous decision held that parody may constitute fair use. Justice David Souter looked first at the purpose-and-character-of-use prong of the Copyright Act's four-part, fair use test (codified in 17 U.S.C. §107) and wrote: "The central purpose of this investigation is to see ... whether the new work merely 'supersede[s] the objects' of the original creation ... or instead adds something new, with a further purpose or different character altering the first [i.e., underlying work] with new expression, meaning, or message." The marked departure by 2 Live Crew from the Roy Orbison's original "Oh Pretty Woman" made the use a fair use.

Justice Souter based the ruling on a concept of "transformative use" (which is not one of enumerated statutory factors of fair use) to find the 2 Live Crew version a protected parody: "the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use." . . . "While we might not assign a high rank to the parodic element here, we think it fair to say that 2 Live Crew's song reasonably could be perceived as commenting on the original or criticizing it, to some degree" by taking "the naiveté of the original of an earlier day" and rejecting "its sentiment that ignores the ugliness of street life and the debasement that it signifies."

Fair use remains as an evolving counterweight to claims of infringement, but may not play much of a role in any event in cases such as Led Zeppelin, Blurred Lines or Katy Perry where the uses are alleged to be substantially similar and not in any way parodic or otherwise transformative.

Sholder: The topic of fair use could span an entire book. Suffice it to say it is a notoriously gray area of copyright law that sparks a lot of debate and disagreement. However, the law on fair use in the context of music is not particularly developed. The most famous example of a fair use case in music – and the case that set the stage (pun intended) for fair use cases in general in the modern age – was Campbell v. Acuff-Rose Music, a Supreme Court case that dealt with a risqué rap version of Roy Orbison's classic "Pretty Woman." The Court held that 2 Live Crew's crass take on the classic "clean-cut" ballad constituted a parody because it "transformed" the original and didn't impact any legitimate market for the original. Ever since that case, the "transformative" nature of a purportedly fair use has been front and center (with the exception of some more recent cases which are now focusing more on the market harm factor again).

What is the role of experts in music copyright cases?

Aronoff: In the Ninth Circuit, the extrinsic test generally requires analytical dissection of musical works through expert testimony. In other words, the experts will identify and evaluate the objective components of each of the songs at issue – e.g., the melody, harmony, rhythm, beat, structure, lyrics, etc. – to evaluate and compare the alleged similarities and differences. In contrast, under the Second Circuit's approach, no such analytical dissection is proper. Instead, the issue of unlawful appropriation is to be determined by the response of the "ordinary observer." However, in the Second Circuit experts are allowed to opine as to the separate issue of "copying in fact." This turns on whether the alleged similarities between the songs are such that the songs could have been created independently or must have been copied – so experts may opine as to whether the purported similarities arise from the plaintiff's original protectable expression or are based on familiar stock elements or musical scenes-a-faire. In music infringement cases, expert testimony can also be admitted on other issues such as damages and apportionment – i.e., the quantum of defendants' profits that can reasonably be apportioned to the alleged infringement.

Freundlich: Experts offer expert testimony about similarities between contested musical works, and whether the similarities are musically significant. In the Ninth Circuit in particular, such testimony assists judges and jurors to evaluate the significance of alleged similarities between two musical works for extrinsic similarity.

The problem with the current system in the Ninth Circuit seems to be that parties can provide partisan expert opinions finding similarities that are not musically significant but providing so much volume that judges are overwhelmed by the battling experts and simply punt the case to a jury rather than engaging in the objective analysis they are tasked with engaging in. District Court Judge Kronstadt's decision in the Blurred Lines case does not reflect much, if any, adjudication the musicological issues, but rather focused on that there were competing views by each side's experts that, the Judge's view, provided "genuine issues" of material fact—and thus a jury question--as to the extrinsic similarity of the works. Simply because there were two differing expert opinions, the case went to the jury where an arguably incorrect verdict resulted.

I believe the time has come to consider asking judges in these cases to appoint a neutral musicologist for the Court – e.g., as a special master – to wade through the thicket and hopefully help judges in their gatekeeping role to weed out unjustified cases before they go to a jury.

Sholder: Music is essentially a foreign language to many people, and sometimes a translator is needed. This is why experts like musicologists are so important in copyright cases. They help the fact-finder understand the significance of various pieces of a musical work and why certain phrases are original (or not) or similar (or not) based on both theory and practice. They also, more generally, can parse the various elements of a song (melody vs. harmony vs. rhythm, etc.) for purposes of an objective comparison.

Expert witnesses are prevalent in Ninth Circuit music cases, which allows for expert testimony during the "extrinsic" similarity analysis. On the other hand, the Second Circuit generally does not allow for expert testimony for purposes of any dissection and analysis, instead relying on an "ordinary observer" standard of substantial similarity and limiting experts to opining on discrete issues like independent creation, scenes a faire, and damages.

What do you think the Ninth Circuit will decide?

Aronoff: It seems highly unlikely that the Ninth Circuit has gone to the trouble of granting rehearing en banc in order to endorse the decision of the initial three-judge panel. As a result, I think the odds are high that the judgment for defendants based on the jury's verdict will be reinstated. That said, it is very difficult to predict the pathway by which the Ninth Circuit will reach this result. On the one hand, by application of Occam's Razor, it can be anticipated that the en banc panel will most likely affirm the district court judgment with a narrow decision that largely relies on principles of invited error by plaintiff as to the jury instructions and no abuse of discretion as to the evidentiary issues. On the other hand, it is also possible (if somewhat less likely) that the en banc panel will issue a sweeping decision clarifying the law of substantial similarity and possibly even rejecting the inverse ratio rule.

Freundlich: I do not like to pontificate on pending cases I am involved in. We are hopeful that whatever the result, it reflects a critical examination of the legal and musicological issues at hand—i.e., what is protectable and unprotectable in music and how judges and juries should view their roles in evaluating alleged music infringement.

Sholder: It's hard to speculate but a majority of the Ninth Circuit's non-recused active judges certainly seemed to think there was something to revisit in the three-judge panel's decision (the en banc panel will consist of 11 judges). En banc review is not granted lightly or often, and Courts of Appeals judges usually won't grant a full review unless there is a serious issue to discuss and consider. Much will depend, of course, on the briefing and argument (and I do not offer any opinion with respect to the substantive issues or merits), but it's certainly possible that the panel could be reversed, and the jury verdict reinstated (Courts of Appeals also are generally hesitant to disturb jury findings).

If Zeppelin loses in the 9th Circuit, how will this change the environment for musicians? Why should media lawyers be interested in this area of law?

Aronoff: The law is already adverse for successful musicians in the Ninth Circuit, so a loss by Led Zeppelin will largely be cumulative. The key development in the Ninth Circuit, in my opinion, was Swirsky v. Mariah Carey, 376 F.3d 841 (9th Cir. 2004), a case that made it very difficult for defendants to win summary judgment, and by implication impossible to win a motion to dismiss, in a music similarity cases. This is quite contrary to cases involving the visual arts and dramatic works, in which summary judgments and motions to dismiss for defendants are routine in the Ninth Circuit. The negative effects of Swirsky were then compounded in the Ninth Circuit by the decision in the "Blurred Lines" case Williams v. Gaye, 895 F.3d 1106 (9th Cir. 2018), which essentially holds that mere stylistic similarities of the kind shared by Pharrell Williams's and Robin Thicke's song "Blurred Lines," on the one hand, and Marvin Gaye's "Got to Give it Up," on the other hand, can be protected by copyright even in the absence of any substantial similarities in melody, harmony, lyrics or other concrete musical components. A win by Led Zeppelin in the Ninth Circuit will be a welcome development, but unfortunately it will not undo the ongoing problems created by Swirsky and Williams.

Media lawyers dealing with entertainment-related claims should have familiarity with the law of music infringement because music is a key component of virtually any type of entertainment programming. I've not surprisingly defended music infringement claims against recording artists and their music publishers and record companies, which are the typical defendants named in such claims. In addition, however, I've also defended music infringement claims alleged against television shows, motion pictures, videogames, and TV commercials. Any context in which music is used regularly can be a target of infringement claims, and because music of one kind or another is used pervasively in virtually all forms of entertainment media, it is useful for media lawyers to be up to speed in this area.

Freundlich: As I wrote in my amicus brief on behalf of my musicologists: if the Ninth Circuit upholds the panel decision to send this case back to trial with a general "selection and arrangement" instruction and no more, i.e., that a selection and arraignment of unprotectable musical elements can be enough for infringement, this will threaten the public domain and cause paralyzing uncertainty for composers. If a jury instruction is given permitting potential infringement verdicts when the similarities are trivial and commonplace, songwriters will be confused as to when originality – and thereby copyright protection – begins and ends. Such an instruction would threaten to eviscerate important elements of the public domain and stifle musical creativity. Given the confined set of common elements available to composers, they would understandably be anxious, fearing unwarranted and frivolous copyright lawsuits.

Composers should be able to freely borrow from the rich tapestry of public domain musical elements. These are not merely theoretical words. This morning I had a conversation with my barista who is a musician, and he expressed how worried he and his friends are because they do not know anymore if what they are writing is based on an inspiration or idea from a prior work and they feel inhibited by this recent flood of rulings calling into legal question how a composer writes music.

Sholder: After "Blurred Lines," the legal environment for musicians was already tense, especially in the Ninth Circuit (i.e., California). Add to this the recent jury verdict finding that Katy Perry copied the underlying beat of a Christian rap song "Joyful Noise" by Flame in her 2013 hit "Dark Horse"; the jury awarded the plaintiff $2.78M in that case. The Zeppelin appeal will also impact still-pending cases, including a $100 million case in New York federal court against singer-songwriter Ed Sheeran claiming that his song "Thinking Out Loud" infringed Marvin Gaye's "Let's Get It On"; that case's trial has been stayed until 10 days after the Zeppelin en banc appeal is decided. A Led Zeppelin loss in the Ninth Circuit would likely perpetuate existing concerns and anxiety among songwriters and musicians who are already worried that they could end up being sued without realizing they had done anything wrong (particularly in light of the longstanding doctrine of "subconscious copying," made famous in the Bright Tunes Music Corp. v. Harrisongs Music case pitting George Harrison's "My Sweet Lord" against the Chiffons' "He's So Fine," and applied by the Ninth Circuit in Three Boys Music Corp. v. Bolton).

Media lawyers should be familiar with copyright infringement cases in the music space even if they don't think they practice in the music space. With the shift from physical music products like CDs to digital streaming services, and the increasing ease with which music can be copied, embedded, and synched with video, music is simply ubiquitous, particularly in digital content. Videos contain background music; podcasts use musical interludes; and social media apps allow video synchronization. Across the spectrum of media platforms, music is there, and even though it is often hypertechnical and complicated, it pays for media lawyers to know the risks involved in order to provide their clients with the most comprehensive copyright advice possible.

David Aronoff is a partner at Fox Rothschild in Los Angeles (and a guitarist in an alternative rock band). Scott Sholder is a partner at Cowan DeBaets in New York. Kenneth D. Freundlich is the founder of Freundlich Law in Encino, CA.

 
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