By: Ian Robertson
The Constitution’s Copyright clause allows authors to secure the exclusive rights to their work in order to “promote the Progress of Science and useful Arts.” However, the music industry has seen an influx of copyright lawsuits that attack creators and exploit the constitutional principle of protection for progress. This particular brand of lawsuit is not about protecting artists, but about the pursuit of money at the cost of creativity.
2019 saw several high-profile music copyright cases. While litigation is nothing new to copyright,some recent cases have a decidedly more dubious essence than landmark cases such as Bright Tunes v. Harrisongs or Campbell v. Acuff-Rose Music, Inc. Hall v. Swift and Skidmore v. Led Zeppelin essentially turn on short musical or lyrical phrases. What makes these, and similar cases, different is that they possess a quality of contrivance.
In Hall v. Swift, the plaintiff claims that Taylor Swift stole his original line “Playas, they gonna play / And haters, they gonna hate” with her chorus “cause the players gonna play, play, play, play, play / And the haters gonna hate, hate, hate, hate, hate.” Four years earlier a district court tossed out a lawsuit against Swift where the plaintiff Jesse Braham claimed the song infringed on his original line “Haters gonna hate / players gonna play.” Yet, according to the Copyright Office, short phrases cannot be copyright protected in the first place. Adding to the spurious nature of these suits is that few rational listeners could manage to mistake these songs for each other.
Led Zeppelin faced a similar challenge brought by the estate of a late guitar player, claiming that Stairway to Heaven infringed on his song “Taurus.” While this case relates to music rather than lyrics, its elements are familiar. At trial, music experts were brought in to compare the first four measures of the two songs, essentially to determine whether three notes on a descending chromatic scale is protectable by copyright law. Such an inquiry is not dissimilar to asking whether painters must use different shades of blue when painting the sky, or else face the consequences of copyright infringement.
Nonetheless, creative legal challenges continue to arise. There are currently lawsuits against Kendrick Lamar and the Weekendas well as the family of the late Juice WRLD with familiar suspect motivations. The fate of these cases is yet to be determined; however, sentiment among artists and lawyers may be changing. Recently, a musician and lawyer, together with two programmers, used an algorithm to “generate every possible melody in an attempt to end music copyright lawsuit claims.” Their reaction highlights what borders on comical about this litigation, which involves music experts to testify on technical minutiae and what is sufficiently “substantially similar.” If this algorithm has any real-world consequences, it is almost certain to incite litigation. But, perhaps this litigation would serve to highlight what is becoming of a copyright law that, since its inception, has been meant to “promote progress.”
U.S. Const.art. 1, § 8, cl. 8.
See, e.g., Jon Caramanica, It’s Got a Great Beat, and You Can File a Lawsuit to It, N.Y. Times(Jan. 6, 2020), https://www.nytimes.com/2020/01/06/arts/music/pop-music-songs-lawsuits.html.
See Amy Wang, How Music Copyright Lawsuits Are Scaring Away New Hits, Rolling Stone (Jan. 9, 2020), https://www.rollingstone.com/music/music-features/music-copyright-lawsuits-chilling-effect-935310/; David Brown, Danger Mouse’s ‘Grey Album’ Could Never Happen Today. Here’s Why That’s a Shame,Rolling Stone(Feb. 26, 2020), https://www.rollingstone.com/music/music-features/danger-mouse-grey-album-jay-z-beatles-history-957198/.
Eddie Mullan, Nine Most Notorious Copyright Cases in Music History, BBC (June 5, 2019), https://www.bbc.com/culture/story/20190605-nine-most-notorious-copyright-cases-in-music-history.
See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994); Bright Tunes Music Corp. v. Harrisongs Music, Ltd., 420 F. Supp. 177 (S.D.N.Y. 1976); see also Jordan Runtagh, Songs on Trial: 12 Landmark Music Copyright Cases, Rolling Stone(June 8, 2016), https://www.rollingstone.com/politics/politics-lists/songs-on-trial-12-landmark-music-copyright-cases-166396/2-live-crew-vs-roy-orbison-1994-61175/.
See Hall v. Swift, 782 F. App’x 639, 639 (9th Cir. 2019); Skidmore v. Led Zeppelin, 905 F.3d 1116 (9th Cir. 2019).
Braham v. Sony/ATV Music Publ’g, No. 2:15-cv-8422-MWF (GJSx), 2015 U.S. Dist. LEXIS 155268 (C.D. Cal. Nov. 10, 2015); see alsoMaria Puente, Judge ‘shakes off’ lawsuit against Taylor Swift … by quoting Taylor Swift, U.S.A. Today(Nov. 12, 2015), https://www.usatoday.com/story/life/music/2015/11/12/judge-shakes-off-lawsuit-against-taylor-swift-quoting-taylor-swift/75659710/.
u.s. copyright office, circular 33: Works Not Protected by Copyright (2018), https://www.copyright.gov/circs/circ33.pdf.
See Skidmore v. Led Zeppelin, CV153462RGKAGRX, 2016 WL 1442461, at *1-2 (C.D. Cal. Apr. 8, 2016).
Amy Wang, Led Zeppelin’s ‘Stairway to Heaven’ Goes to Court, Rolling Stone(Sept. 21, 2019), https://www.rollingstone.com/music/music-news/led-zeppelin-stairway-to-heaven-retrial-879298.
Brady Langmann, A New Lawsuit Claims Kendrick Lamar and The Weekend Lifted Portions of a Yeasayer Song in “Pray For Me”, Esquire(Feb. 25, 2020), https://www.esquire.com/entertainment/music/a31095965/kendrick-lamar-the-weeknd-pray-for-me-yeasayer-sunrise-lawsuit-copyright-explained.
Paul Resnikoff, Juice WRLD Surviving Family Members Could Face a $15 Million Copyright Infringement Lawsuit, Digital Music News(Feb. 20, 2020), https://www.digitalmusicnews.com/2020/02/04/juice-wrld-family-members-million-lawsuit.
Anthony Cuthbertson, Musician Uses Algorithm to Generate Every Possible Melody to Prevent Copyright Lawsuits, The Independent(Mar. 1, 2020), https://www.independent.co.uk/life-style/gadgets-and-tech/news/music-copyright-algorithm-lawsuit-damien-riehl-a9364536.html.
U.S. CONST. art. 1, § 8, cl. 8.