Recent Copyright Law Decisions Have the Industry Jammin’

The entertainment industry is no stranger to copyright law, but three recent federal court decisions may just throw things for a loop.

Earlier this summer, the Fourth Circuit clarified the “substantially similar” test, which is used to determine copyright infringement. David Copeland, a singer and songwriter, alleged that Justin Bieber and Usher’s song, Somebody to Love, was a ripoff of his own song. In considering whether the two works were “substantially similar,” the Fourth Circuit applied a two-part analysis: whether the works were “intrinsically” (in other words, subjectively) similar and whether they were “extrinsically” (objectively) similar. Although the extrinsic analysis often involves scholarship and expert analysis, the subjective analysis is based on the general audience’s perception. The Court found that both songs had an identical chorus, or “hook.” Since the hook is typically the most memorable part of any song, the Court concluded that a jury could reasonably find the two songs substantially similar and remanded the case back to the lower court. The case could go to trial as early as next year.

The Ninth Circuit, meanwhile, has weighed in on an eight-year-long battle involving the extent of copyright holders’ claims over copyrighted material. In 2007, Stephanie Lenz sued Universal for directing YouTube to take down a 29-second video clip of her son bobbing to Prince’s Let’s Go Crazy. Universal asserted that the clip infringed Prince’s music copyright. Section 512(c) of the Digital Millennium Copyright Act (DMCA) allows service providers, like YouTube, to avoid copyright infringement liability if they timely remove or disable access targeted content after receiving a takedown notification about the content. Notoriously known as the “dancing baby” case, Lenz’s claim alleged that Universal did not evaluate whether the uploaded video’s use of Prince’s song qualified as “fair use” before targeting it for takedown. The Fair Use Doctrine permits the use of copyrighted material in certain situations, such as parody, news reporting, or incidental use, based on application of a subjective, multi-part test. Although the DMCA does not explicitly require fair use analysis prior to issuance of a take-down notice, the Ninth Circuit held that “fair use is not just excused by the law, it is wholly authorized by the law.” According to the opinion, the DMCA requires copyright holders to consider fair use before sending a takedown notification, or face liability under the statute. This could change completely many large media companies’ anti-infringement campaigns – most of which have an automated element – since the highly subjective fair use analysis can’t be performed by a computer.

Finally, the United States District Court for the Central District of California ruled that the “Happy Birthday” song now belongs to the public. After a class action suit challenged Warner/Chappell Music’s rights to the song, Judge King determined that the original copyright covered the song’s piano arrangement, but not the lyrics, and that the whole work has since fallen into the public domain. While the ruling serves as a fun law school case-study, it also has serious business implications for Warner/Chappell Music. Since acquiring the copyright in 1988, the company has profited significantly through commercial licensing of the song – to the tune of almost $2 million a year. Judge King’s ruling may now provide an avenue for the licensees to retrieve their money back. A Happy Birthday indeed!

With a number of other major copyright cases making their ways through the courts this year, even more changes may be on the horizon, so stay tuned for more industry updates.

Sara Almousa is a law student at the George Mason University School of Law and a law clerk at the firm of Berenzweig Leonard, LLP.

Judge Modifies Verdict in “Blurred Lines” Lawsuit

In March, a jury awarded Marvin Gaye’s children nearly $7.4 million after rendering a verdict that singers Robin Thicke and Pharrell Williams plagiarized Gaye’s 1977 hit “Got to Give It Up” to create “Blurred Lines,” the longest-running number one single of 2013.

Now, a federal judge has modified the verdict, trimming more than $2 million off the singers’ liability, but also giving Gaye’s family 50% of the song’s future royalties. Thicke and Williams both sought a new trial, and Gaye’s family moved for an injunction that would have blocked sales and performances of Blurred Lines; all three requests were denied, with the judge instead arriving at what he perceived to be the more equitable conclusion of reducing infringement damages while providing Gaye’s estate with a share of future profits.

Thicke and Williams, who each earned more than $7 million apiece on “Blurred Lines,” claim to have written the song independently, but Gaye’s estate argued that a number of distinct elements from “Got to Give It Up” were used in “Blurred Lines.” It was ultimately left up to the jury to determine whether the defendants infringed upon Gaye’s copyright or simply emulated the sound of Gaye’s work. The jury concluded that “Blurred Lines” infringed on Gaye’s copyright, leading to a great deal of debate regarding the distinction between plagiarism and mere influence of another song or genre.

It is important to note that certain aspects of a musical composition are protectable by copyright, such as particular arrangements of notes and harmonies, while others are not, such as style, feel, or the timbre of a certain combination of instruments. In this case, it would be naïve to believe that Gaye’s “Got to Give It Up” did not influence Thicke and Williams in crafting “Blurred Lines,” but copyright protection is not intended to extend to mere influence. While particular expressions of musical ideas can be protected, the ideas themselves, such as, for example, pairing an electric piano and a cowbell with a disco beat, cannot. These important points seem to have gotten lost in this case.

The judge’s willingness to modify the verdict while also denying the parties’ motions for a new trial serves to highlight the controversy surrounding the court’s initial decision. On its face, “Blurred Lines” simply doesn’t infringe on Gaye’s “Got to Give It Up,” an opinion that appears to be extremely prevalent among those with musical training. This recent development may be a recognition of that fact, while still attempting to give some teeth to current copyright protections. Either way, it will be interesting to see whether the chilling effect on songwriting that has been forecast by some in the industry will play out.

Frank Gulino is an award-winning composer and attorney with Berenzweig Leonard, LLP. He can be reached at FGulino@BerenzweigLaw.com.

Heroes Held Hostage in Film: How Old Copyright Deals are Getting in the Way of Superhero Team-Ups

In February 2015, the Walt Disney Company ‒ which owns Marvel Worldwide ‒ and Sony Corp. reached an agreement that will permit the enormously popular web-slinger, Spider-Man, to appear in upcoming Marvel superhero movies.  To many Marvel comics readers and Spidey fans, the need for this deal may be quite confusing, given that Spider-Man is a member of the Marvel superheroes team, the Avengers, and first appeared in a comic published by Marvel.  Strange though it may seem, the complexities of intellectual property law ‒ particularly the severability of film and print rights associated with particular superhero characters ‒ make deals like this one a necessity when it comes to characters whose various entertainment rights are held by different companies.

The copyright to a protectable property, like the character of Spider-Man, is actually made up of specific subsidiary property rights, such as print rights (the right to write about Spider-Man in books and comics), digital rights (the right to reproduce or use Spider-Man in digital media), film rights (the right to represent Spider-Man in TV shows and movies), foreign rights (the right to represent or market Spider-Man outside the U.S.) and derivative rights (the right to reinvent or reinterpret the character of Spider-Man).  For this reason, character copyrights are often spoken of in simple terms as a “bundle of rights” or “bundle of sticks.”  For any given copyrighted character, the sticks in the larger copyright bundle (the “film rights stick” or “derivative rights stick”) can be separated out, locked up, or given away by the original owner.

Marvel decided to begin breaking up some of its bundles of rights when it was faced with impending financial collapse in the late 1980s.  To obtain the funds it needed, Marvel lent out some of the sticks associated with characters like Spider-Man, the Fantastic Four, and the X-Men to different entertainment industry players for a certain amount of time.  The rub is that now, in the midst of the present comics industry boom, some of Marvel’s most valuable sticks are still on loan to other industry players.  Sony Pictures, for instance, presently holds the screen rights to Spider-Man, while 20th Century Fox holds the screen rights for the Fantastic Four and X-Men.  This means that while Marvel (and its corporate parent, Disney) retain the right to represent these characters in printed comic books and other media, it can’t put them in movies without getting permission.  This fact has led to such odd moves as Marvel’s recent decision to cancel its popular Fantastic Four comic series and forbid the creation of new X-Men characters in an apparent bid to trip up 20th Century Fox’s screen plans for the Fantastic Four and X-Men franchises.  

Glamorous as it may be, the trade in characters and rights associated with them is a business, and as in all business markets, there is risk in play whenever an original owner decides to give some of its rights away.  Had Marvel foreseen the present superhero culture frenzy back in the 1980s, it might have chosen to license out the film rights to its characters in different ways.  As things stand now, Sony may maintain its grip on Spider-Man for quite some time, since the studio’s lockup on the character’s screen rights is kicked out every time the character is represented in a new film (hence, the multiple reboots the character has seen in recent years).

With entertainment juggernauts like Avengers 2: Age of Ultron and Batman v. Superman on the horizon, the present comics craze shows no signs of slowing down.  As things charge along, expect intricate behind-the-scene legal workings to continue playing a big role when it comes to which characters will hit the big screen, and which may have to wait until the old deals of the 1980s and ‘90s have run their course before they can be used to their full potential.

David Moon is a law clerk with Berenzweig Leonard expecting his J.D. in May 2015. Ryen Rasmus is an associate attorney practicing in the Entertainment and Music Industry Law Group of Berenzweig Leonard.  He can be reached at RRasmus@BerenzweigLaw.com.

L.A. Jury Delivers $7.4 Million Verdict in “Blurred Lines” Lawsuit

A jury has awarded Marvin Gaye’s children nearly $7.4 million after determining that celebrity singers Robin Thicke and Pharrell Williams plagiarized Gaye’s 1977 hit “Got to Give It Up” to create “Blurred Lines,” the longest-running number one single of 2013.

Thicke and Williams, who each earned more than $7 million apiece on “Blurred Lines,” claim to have written the song independently, but Gaye’s estate argued that a number of distinct elements from “Got to Give It Up” were used in “Blurred Lines” and it was ultimately left up to the jury to determine whether the defendants infringed upon Gaye’s copyright or simply emulated the sound of Gaye’s work. The jury concluded that “Blurred Lines” infringed on Gaye’s copyright, and that decision could have a chilling effect on musicians seeking to emulate the sounds of certain artists, genres, or eras going forward.

Certain aspects of a musical composition are protectable by copyright, such as particular arrangements of notes and harmonies, while others are not, such as style, feel, or the timbre of a certain combination of instruments. In this case, it would be naïve to believe that Gaye’s “Got to Give It Up” did not influence Thicke and Williams in crafting “Blurred Lines,” but copyright protection was not intended to extend to mere influence. While particular expressions of musical ideas can be protected, the ideas themselves, such as pairing an electric piano and a cowbell with a disco beat, cannot.

To the untrained ear, the similarity between the two songs may be striking. A musically trained ear, though, may notice that the two songs are in different keys and utilize different chord progressions. In other words, the success of Gaye’s infringement claim depended largely on the average juror’s inability to see past the similarities between the songs’ unprotectable characteristics (tempo, use of cowbell and Rhodes piano, use of syncopation, similar bass groove) to realize that “Got to Give It Up” and “Blurred Lines” are in fact two different songs whose similarities are mainly limited to characteristics that cannot be protected by copyright.

Had the jury been comprised of the defendants’ peers in the music profession, there is a strong possibility that Thicke and Williams would have prevailed. In light of this huge verdict, however, artists should be increasingly vigilant in their endeavors to emulate the sounds of other artists, genres, and eras in furtherance of their own art. Although the result of this case seems to blur the lines between what is protectable by copyright and what isn't, it nonetheless serves as a reminder that copyright infringement can lead to costly outcomes.

Frank Gulino is an award-winning composer and attorney with Berenzweig Leonard, LLP. He can be reached at FGulino@BerenzweigLaw.com.

Big Verdict for Funk Legend Sly Stone Puts Royalties in the Spotlight

Rock and Roll Hall of Famer Sly Stone has been awarded $5 million by a Los Angeles jury in a breach of contract case claiming that Stone’s former manager and business partners cheated Stone out of more than a decade’s worth of royalties. Stone is best known as the leader of the funk group Sly and the Family Stone, which he led to fame in the 1960s and 1970s with a number of big hits, including “Dance to the Music” and “Everyday People.”

Photo: www.slystonemusic.com

In 1989, a then-destitute Sly Stone was approached by manager Gerald Goldstein, who promised to revitalize Stone’s career. Goldstein proceeded to form Even St. Productions Ltd., of which Stone was made an employee and co-owner, and to which all royalties from Stone’s music were assigned. Although Sly Stone was supposed to receive a share of the royalties that Even St. Productions collected on his behalf, Goldstein and his attorney allegedly redirected and misappropriated the royalty revenue, and Stone received no royalty payments between 1989 and 2000. With evidence of alleged shady accounting practices coming out during trial, the defense’s argument that the royalty revenue went to paying off Stone’s IRS debt failed to convince the jury, who awarded Stone $5 million in damages.

This is an important verdict for artists, entertainers, and composers of all kinds; not only does it reinforce the importance of a creator’s rights to work generally, but also the strength of a creator’s rights to royalties specifically. This case also brings attention to the oppressive, one-sided deals many entertainers are presented with on a routine basis. In desperate times, the promise of a revitalized career sounds too good to pass up. However, it is certainly in every artist’s best interest to dig deeply into the terms of any management agreement to ensure that someone who promises you the world isn't trying to take the shirt off your back. A verdict of this size reminds us that, even in an age rife with music piracy and digital consumption, the public recognizes an artist’s right to profit from his or her work, and disapproves of those who would take advantage of the artistic community.

Frank Gulino is an award-winning composer and attorney with Berenzweig Leonard, LLP. He can be reached at FGulino@BerenzweigLaw.com.

Could Rappers Face Jail Time Over Lyrics?

San Diego-based rapper Tiny Doo, whose real name is Brandon Duncan, faces prosecution on nine counts of alleged criminal street gang conspiracy, which collectively carry a sentence of 25 years to life in prison. The charges arise from a rash of shootings in California that were allegedly carried out in 2013 by the Lincoln Park gang, of which prosecutors allege Duncan is a member. Duncan does not have a criminal record, and prosecutors haven’t even suggested that Duncan pulled a trigger or was involved in any shootings. The charges against him are simply based upon rap lyrics that the district attorneys allege helped increase the Lincoln Park gang’s stature in the San Diego gang community.

California Penal Code § 182.5 makes it felony for any member of a criminal street gang to benefit in any way from the felonious conduct of any other gang member. Duncan’s album “No Safety,” which includes lyrics such as “ain’t no safety on this pistol I’m holding,” was released shortly before the shootings, and prosecutors now allege that receiving income from album sales and intangible benefits such as increased stature in the gang community somehow provide a basis to charge Duncan with felony conspiracy despite his lack of involvement in the shootings. According to Duncan, he’s just using rap lyrics to paint a picture of urban life. “The studio is my canvas. I’m just painting a picture,” he said in an interview with CNN.

In order for the government to win its case, it will have to prove that Duncan was actually a member of the Lincoln Park gang, that he knew about the gang’s involvement in criminal activities, and that he benefited in some way from the felonious activities of other gang members, whether or not he was directly involved. The most disturbing part of this whole case is that the prosecution’s efforts to turn Brandon Duncan, rapper, into Brandon Duncan, convicted felon, hinge on the state’s opinion that the “No Safety” lyrics were somehow connected to the criminal activities of the Lincoln Park gang. Had Duncan’s album been about sunshine and rainbows instead of urban street life, he’d be busy recording his next disc instead of facing nine counts of felony conspiracy in a criminal prosecution over song lyrics.

If it sounds to you like this law is at odds with the First Amendment right to freedom of speech, you’ve got a good point. While it is noble of the district attorney’s office to try to crack down on the glorification and glamorization of violent gang activity, the prosecutors in this case are sure to face a high Constitutional hurdle in their efforts to turn rap lyrics into a life sentence. In the meantime, rappers, lyricists and songwriters should keep a close eye on this case; with the criminalization of lyrics at stake, the outcome of Tiny Doo’s case could have a profound effect on the entire music industry.

Frank Gulino is an award-winning composer and attorney with Berenzweig Leonard, LLP. He can be reached at FGulino@BerenzweigLaw.com.

A-List Artists Threaten YouTube With Billion-Dollar Lawsuit

Music industry juggernaut Irving Azoff, who manages music licensing for some of the biggest artists in the business, including Pharrell Williams, the Eagles, Van Halen, Steely Dan, and the late John Lennon, has threatened YouTube with a $1 billion copyright infringement lawsuit unless over 20,000 songs are taken down. Azoff says that the infringing content was created by about 40 of his artists, and that YouTube has made them available online without permission to do so.

Azoff’s threatened lawsuit is just the latest instance of artists beginning to resist the streaming culture that makes music available to consumers for little or no compensation. Recently, Taylor Swift elected to remove her entire catalog of songs from the popular streaming radio provider Spotify, citing the disparity in artist compensation between streaming media and purchasing music through conventional means, such as CD.

Indeed, Pharell Williams, one of the leading plaintiffs in Azoff’s threatened lawsuit, is a prime example of why the culture of streaming media has so outraged artists of late. Williams’s 2014 hit song “Happy” has garnered over 525,000,000 YouTube views, for which Azoff alleges no license was purchased. Pandora, another streaming radio station similar to Spotify and the most-used streaming service on the market, did compensate Williams—to the tune of $2,700 for 43,000,000 plays, or just $60 for every million plays.

While streaming services have allowed unknown artists that may never have been discovered to make their music available to the masses, artists at the very top of the industry, including those represented by Azoff, have taken a large revenue hit as a result of exceedingly low per-play royalties and widespread unlicensed streaming of their work.

Azoff has ordered YouTube to pull down 20,000 songs by about 40 of his artists in order to avoid $1 billion in copyright infringement liability. Google, who owns the online streaming video giant, appears ready to go to court rather than give in to Azoff’s request, stating that the allegations are “misguided.” Given the popularity of Azoff’s artists’ music and Google’s ostensible refusal to back down, this is shaping up to be the biggest music-industry legal showdown since the illegal file-sharing litigation of the Napster days. Expect this large-scale development to shed some much-needed light on artist compensation in the world of streaming media, and possibly a tempering of the expectation that music should be available for free.

Frank Gulino is an award-winning composer and attorney with Berenzweig Leonard, LLP. He can be reached at FGulino@BerenzweigLaw.com,