Backing Down: Blurred Lines in the Standards for Analysis of Substantial Similarity in Copyright Infringement for Musical Works

• Publication year: 2016

Backing Down: Blurred Lines in the Standards for Analysis of Substantial Similarity in Copyright Infringement for Musical Works

Nicholas Booth

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BACKING DOWN: BLURRED LINES IN THE STANDARDS FOR ANALYSIS OF SUBSTANTIAL SIMILARITY IN COPYRIGHT INFRINGEMENT FOR MUSICAL WORKS

Nicholas Booth^*

Table of Contents

I. Introduction..........................................................................................100

II. Background.............................................................................................102

A. HISTORY OF COPYRIGHT PROTECTION IN THE UNITED STATES................................................................................................... 102
B. FEATURES OF COPYRIGHT PROTECTION........................................ 103
C. COPYRIGHT INFRINGEMENT.............................................................103

1. Elements and Substantial Similarity.................................................103
2. Existence of an Original Musical Work...........................................105
3. Two Separate Copyrights for Musical Recordings...............................105
4. Music Theory....................................................................................109
5. "Blurred Tines" Case.......................................................................116

III. Analysis......................................................................................................121

A. SAM SMITH BACKING DOWN..............................................................121
B. PROBLEMS WITH CURRENT COPYRIGHT INFRINGEMENT STANDARDS FOR MUSICAL WORKS................................................... 123

1. Inverse Ratio Rule.............................................................................123
2. Extrinsic Analysis............................................................................123
3. Burden of Proof.................................................................................125
4. Original Ideas vs. Musical Concepts..................................................125
5. Intrinsic Analysis..............................................................................125

C. PROPOSED SOLUTIONS.......................................................................127

IV. Conclusion.....................................................................................................128

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I. Introduction

Music is a strange art space. On the one hand, it is a seemingly limitless expression of boundless creativity that answers to no one. On the other, music works within a complex set of rules from which even the most talented of musicians cannot escape. These rules are collectively compiled by musicians and scholars alike and are referred to as music theory. Put simply, music theory tells us how music works. It is both a set of instructions and a definitional guide. Any attempts to step outside the boundaries of music theory will invariably lead to an unpleasant-sounding mess of notes or, in some cases, an expansion of those boundaries and an increased understanding of them. This makes music quite unique when compared with other art forms. While music lends itself to a wide range of experimental possibilities, unlike literature or physical works of art, it cannot successfully operate outside of its theoretical framework. This limitation creates unique problems in the realm of copyright law when applied to music. Due to the intractability of the theoretical boundaries within which music operates, similarities and partial replications between musical works are inevitable, especially in the genre of popular music. However, according to U.S. copyright law, infringement can be determined based on the "substantial similarity between copyrighted work and alleged infringing work."¹ While this standard might be workable when applied to other forms of original work, it opens the door to misapplication in the realm of music since it is possible for musical works to borrow from the same musical concepts while retaining their distinct uniqueness. In March 2015, a U.S. District Court for the Central District of California jury ruled that Robin Thicke and Pharrell Williams's song Blurred Pines infringed on Marvin Gaye's song Got to Give It Up, which was written more than thirty years prior.² The jury found that Thicke and Williams's song infringed on Gaye's song primarily on the grounds that the two songs were "substantially similar."³ Around the same time, Sam Smith and Tom Petty reached a settlement wherein Smith agreed to give Petty songwriting credit and pay him royalties for Smith's 2014 song Stay With Me because, allegedly, it was substantially similar to Petty's 1989 hit I Won't

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Back Down.⁴ Neither of the two songs shared the same lyrics, key, tempo, or rhythm; the only similarity between the two songs was the progression.

Because music operates within a set of rules distinct from all other arts, it should be treated differently when considered in the context of copyright infringement. The practice of musical borrowing has been long-standing, and in many aspects has been the driver in the development of music throughout history. One of the primary objectives of music is to appeal to the listener's senses. The principles and ideas of music theory guide the musician as he composes creative musical works. To allow musicians to appropriate and exploit musical theory as a de facto hedge against otherwise legitimate creative practices in order to minimize personal business risk is both logically unsound and antithetical to the objectives and underlying principles of copyright law. "The general purpose of copyright law is to promote the creation of original works of literature, art, music, and drama."⁵ Affording protection to artists for employing certain musical techniques will inevitably produce a chilling effect on other artists and discourage them from creating new works. When deciding on copyright infringement cases in music, courts must strive to better understand and respond to the unique issues intrinsic to music as an art form.

The substantial similarity test used in copyright infringement cases causes problems when employed in the music context. Courts have historically had difficulties distinguishing between the original ideas of artists and musical ideas that exist within the public domain that were created in accordance with the dictates and practices of music theory, and the two are often confused and conflated. When courts issue copyright infringement rulings against artists for borrowing from the same music theory concepts as other artists, they undermine the very reason that copyright law was created in the United States: to incentivize artists to create. Musical artists have been borrowing sounds and ideas from other artists since the inception of music. If our courts continue to issue rulings that have the effect of restricting the creation of new musical scores through the imposition of a standard that requires complete distinctness from any other musical piece, we will soon be living in a world wherein few artists will be willing to even attempt to compose anything new, an outcome that would likely result in a deterioration of profitability in the industry due to a fall in consumer demand. Ironically, the popular music genre would likely

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suffer the most from this chilling effect, since it is within this sphere of the music industry that most copyright infringement cases occur.

The current standard employed to establish copyright infringement in music is far too lenient and allows courts to find infringement where it does not exist, thus running counter to the policy considerations of copyright law in the United States which are primarily aimed at encouraging and incentivizing artists to create. This Note will propose that the U.S. adapt their legal standards for identifying copyright infringement to fit within an appropriate musical context and, further, to distinguish between the original ideas of the artist and musical ideas that derive their existence from music theory, only affording protection to the former.

II. Background

A. HISTORY OF COPYRIGHT PROTECTION IN THE UNITED STATES

The value of the creation of ideas was so important to our country's founders that they incorporated it within the Constitution of the United States.⁶ Article I, Section 8, Clause 8, known as the "Copyright Clause," gives Congress the power "[t]o promote the Progress of Science and useful Arts, by securing for limited Time to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."⁷ "Copyright statutes were originally enacted for literary property."⁸ Even after copyright laws were extended to protect music in 1831, they only offered protection against the unauthorized printing and distribution of sheet music.⁹ It wasn't until 1972, as ideas surrounding intellectual property were evolving, that these protections were expanded to encompass the actual audio recordings of that music.¹⁰ Shortly thereafter, in 1976, Congress started work on the fourth general revision of U.S. copyright law.¹¹ Recognizing that, in order to preserve the value of the useful arts, it would be necessary to afford artists and creators the ability to monetarily capitalize on their work the Copyright Act of 1976 extended the term of protection for works created on or after January 1, 1978 to the life of the author plus fifty years after the author's death.¹² This was extended even longer, to seventy years, with the passage of the Sonny Bono

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Copyright Term Extension Act, also referred to as the "Mickey Mouse Act" in 1998.¹³ Throughout the years, numerous other additions and revisions have been made to the copyright laws.¹⁴ These provisions are collectively codified in Title 17 of the United States Code.¹⁵

B. FEATURES OF COPYRIGHT PROTECTION

Copyright protection gives to the author "exclusive property rights in the work...