Intellectual Property In the Music Industry: Stairway To Heaven, or Highway To Hell?

Another copyright verdict charging plagiarism against a prominent musician in a case filed by an obscure one reinforces the music industry's copyright paranoia. JL

Bill Hochberg reports in Forbes:

The case follows a trend in the courts that troubles the music industry because of fears that the simplest musical motif might be found by a jury to belong to someone else. The case proves yet again that any song that hits the Top Ten becomes a top target. At this year’s Grammys, four of the eight songs nominated for Song of the Year were already in copyright lawsuits, and two of the remaining four were under threat of litigation. Songwriters used to feel secure standing on the shoulders of giants who inspired them. Today, when it comes to music copyright cases, there’s big money in it.

A federal jury’s ruling that Katy Perry and her song team stole six notes from a Christian rapper’s track—a musical pattern that strikes some as so common and monotonous that a metronome could have produced it—comes as another plague on the music industry and may rain riches down on the holy hip-hopper.

The case follows a trend in the courts that troubles the music industry because of fears that songwriters may suffer writer’s block from nervousness that the simplest musical motif that pops into their mind might be found by a jury to belong to someone else.
Plaintiff Marcus Gray aka Flame claims Perry swiped the simplistic sequence of six even quarter notes from his track Joyful Noise, released in 2009, for her 2013 mega-hit Dark Horse, which has had 2.6 billion views on YouTube and is sure to spike again after the ruling. You can hear the two songs here and here.
The rapper also claimed the former gospel singer, who has publicly renounced her Christian faith, tainted his song and reputation with lyrics about the Illuminati and other allusions offensive to some Christians. He seeks millions in damages and an injunction halting distribution of Dark Horse in a complaint that—unnecessarily and perhaps with intent to strike fear—lists the apparent addresses of Perry and her team for public view.
The case proves yet again that any song that hits the Top Ten becomes a top target, including Miley Cyrus’ We Can’t Stop, Ariana Grande’s One Last Time, Justin Bieber’s Sorry, Demi Lovato’s Stars, and Ed Sheeran’s Photograph and Thinking Out Loud, among many others. At this year’s Grammys, no less than four of the eight songs nominated for Song of the Year were already in copyright lawsuits, and two of the remaining four were reportedly under threatof litigation.
So how did today’s epidemic of music copyright suits break out?
Copyright lawsuits against top pop stars went viral after a $5.3 million verdict in 2015 against Robin Thicke and Pharrell Williams from a jury convinced and confused by skilled musicologist Judith Finnell, who testified that Blurred Lines infringed Marvin Gaye’s Got To Give It Up although the songs share no melody, harmony or rhythmic sequences, only a similar “vibe” that many experts agree is not something you can copyright.
In Dark Horse v. Joyful Noise, at least we hear a common sequence of six even quarter notes, although in different keys, where Blurred Lines v. Got To Give It Up displays no real melodic similarity. But the Joyful Noise beat is so basic that this week’s jury ruling seems as blurry as the Blurred Line’s “vibe” verdict.
In past decades, you didn’t see much of this. Bruce Springsteen didn’t sue John Cafferty because On the Dark Side had a Bruce vibe; Van Morrison didn’t sue Bruce because Spirit in the Night had a Van vibe; Curtis Mayfield didn’t sue Van because Crazy Love cut a Curtis impression; and so on.
Today, anything goes when it comes to music copyright cases and there’s big money in it. A recent annual report says global recorded music revenue in 2018 is up 9.7% over 2017 figures, for a fourth consecutive year of hikes.
Songwriters used to feel secure standing on the shoulders of giants who inspired them. Scientists often share the sentiment. Isaac Newton said in 1675 that he was “standing on the shoulders of Giants.” That wasn’t original. Five centuries earlier, Bernard of Chartres said we were all “dwarfs perched on the shoulders of giants … [so we] see more and further than our predecessors.”
Now some giants are shrugging, and some pop stars are falling off their shoulders and getting shaken upside down until money pours out.
To be clear, lifting a substantial and original melody line or verse is, was and always should have been unlawful. In 1976, a jury found George Harrison’s My Sweet Lord copied (even though subconsciously, as Harrison testified) the entire verse and chorus of the Chiffons’ hit He’s So Fine. In 1963, the Beach Boys settled quickly with Chuck Berry when he accused them of swiping Sweet Little Sixteen for their Surfin’ USA. More recently, Sam Smith settled up fast with Tom Petty and Jeff Lynne because Stay With Me had the same melody as I Won’t Back Down. Likewise, John Legend’s Save Room was too close for comfort to the Classics IV’s Stormy, and now the classic hits’ writers share credit and publishing revenues.
Few cases with such copious copying ever get to a jury, or even to a court clerk’s filing window, because they settle swiftly, with legacy writers getting a share of the new hit song’s income and writing credits.
Dark Horse’s writers and producers weren’t willing to settle, perhaps assuming that what sounds plainly obvious to music professionals like them would be understood by a jury.
As Perry’s attorney Christine Lepera correctly argued, “you can’t copyright musical building blocks.”
Likewise, Perry’s music expert, NYU music professor and musicologist Lawrence Ferrara, showed that two earlier songs, Jolly Old St. Nicholas and Merrily We Roll Along, have almost identical note sequences, which he said was commonplace. But the arguments apparently went in Juror 1’s ear and out Juror 9’s, as the panel quickly found for Flame regardless.
It seems hard for music litigators to convince jury members—often with no musical background—that while some tone-and-rhythm sequences are original enough to warrant copyright protection, others are simply musical building blocks or “vibes” that don’t belong to anyone.
One famous recent case went the other way. A jury in the Led Zeppelin Stairway to Heaven case, Skidmore v. Led Zeppelin, threw out a song claim based largely on a simple motif, but one far more complex than the line in Joyful Noise. That jury found that an A minor chord and a descending bass line, common in many compositions going back to Bach and before, were not copyrightable. A Ninth Circuit three-judge appellate panel ordered a new trial, finding an “erroneous jury instruction.” But last June, an 11-judge panel decided to take another look and listen. That decision is pending.
So songwriters keep songwriting and singers keep singing, even as more clouds like the Dark Horse verdict form and raindrops keep falling on their heads … oops, that one’s taken.