Blurred Lines Infringes Copyright but Stairway to Heaven and Dark Horse Do Not. What Gives? Knowing What These Decisions Mean to Your Copyright Infringement Case.
Key takeaways
- To prevail on a copyright claim, it is not enough to assert “a ‘combination of unprotectable elements’ without explaining how these elements are particularly selected and arranged.
- Don’t think that Dark Horse gives wide latitude to copying musical arrangements that appear to be commonplace since even a slight level of creative variation may be protectible.
Overview
Two notable copyright court cases were handed down in March 2020 involving major music artists, Katy Perry and Led Zeppelin. Taken together with the March 2018 court decision involving the estate of Marvin Gaye and the Robin Thicke-Pharrell Williams duo, these decisions provide artists with little guidance on what arrangements may be copied without copyright infringement.
While they make clear that commonplace individual elements in an arrangement are not protectable, not one of these three cases provides a clear indication of why the infringing arrangement of the commonplace individual elements failed to be protectable as a copyright.
In Zeppelin, the “selection and arrangement” of the unprotectable elements was never considered by the court since plaintiff never made the argument.
In Blurred Lines, the court did not have the opportunity to consider this question of protectability as a matter of law after all the evidence had been presented since the Thicke parties “failed to make a Rule 50(a) motion for judgment as a matter of law at trial.”
In Dark Horse, the court decision never really explains why the arrangement of the musical 8-note ostinato phrase in “Joyful Noise” was not “numerous enough” to warrant copyright protection, and not “arranged” in a sufficiently original manner to warrant copyright protection.
As a result of these three monumental decisions, artists continue to have little guidance on when copying an arrangement that appears to be commonplace amounts to infringement because of slight levels of creative variations in the copied arrangement that may be protectable as a copyright.
The Decisions
On March 16, 2020, the US District Court for the Central District of California, rendered its decision in Marcus Gray v Katheryn Elizabeth Hudson, et al. (“Dark Horse”). The District Court granted defendants’ motion for judgment as a matter of law in favor of defendants and vacated the jury’s verdicts as to liability and damages in a copyright action alleging that the 8-note ostinato in Katy Perry’s Dark Horse infringed upon the instrumental beat of the ostinato in “Joyful Noise,” a song co-authored by Ojukwu and Gray and performed by Flame.
Seven days earlier, on March 9, 2020, the Ninth Circuit Court of Appeals rendered its decision in Michael Skidmore v. Led Zeppelin et al. (“Zeppelin”) The en banc court affirmed the district court’s judgment after a jury trial in favor of defendants in a copyright action alleging that the opening notes of Led Zeppelin’s “Stairway to Heaven” infringed Taurus, a song written by guitarist Randy Wolfe and performed by his band Spirit.
Almost two years earlier, on March 21, 2018, the Ninth Circuit Court of Appeals rendered its decision in Pharrell Williams et al. v. Bridgeport Music. (“Blurred Lines”) The Ninth Circuit affirmed the district court’s judgment after a jury trial in favor of Marvin Gaye’s estate in a copyright action alleging that Robin Thicke’s “Blurred Lines” infringed “Got To Give It Up,” a song written by and performed by Marvin Gaye.
Katy Perry and Led Zeppelin avoided copyright infringement. Robin Thicke did not. What gives?
What gives is this: Marvin Gaye won because the court never had the opportunity to address the question of protectability as a matter of law after all the evidence had been presented since the Thicke parties “failed to make a Rule 50(a) motion for judgment as a matter of law at trial.”
Led Zeppelin won because Skidmore failed to make the “selection and arrangement” of unprotectable elements argument.
Katy Perry won without a clear explanation by the court of why the arrangement of the musical 8-note ostinato phrase in “Joyful Noise” was not “numerous enough” to warrant copyright protection, and not “arranged” in a sufficiently original manner to warrant copyright protection
The Question Before the Courts
In all three cases, the initial query was whether any elements of the copyright are individually protected, and if not, whether the unprotectable elements that make up the combination, taken in combination, are nevertheless entitled to copyright protection. Before reaching that question though, the courts in Zeppelin and Blurred Lines had to decide whether the copyright in the sheet music deposited with the Copyright Office to secure the registration also protected the sound recording. It did not, the Ninth Circuit held, since “sound recordings did not become subject to copyright protection until 1972, and then only for the sound recordings fixed on or after February 15, 1972. 17 U.S.C. § 301(c).” Zeppelin at 18.
Since the copyright registrations in both Zeppelin and Blurred Lines predated this 1972 statutory protection, the Ninth Circuit held that the copyright question turns entirely on the notes in the four corners of the deposited sheet music protected by the copyright. Id. at 22. It does not extend to the layers of sound found in the sound recording by Spirit and Marvin Gaye as argued by the copyright holders.
Individually Protectable Elements
In all three cases, the court found uncontroverted evidence points to only one conclusion: none of the individual elements are independently protectable.
In Dark Horse, the nine individual elements that plaintiffs identified and were found to be precisely the kinds of commonplace elements that courts have routinely denied copyright protection, at least standing alone, as a matter of law were: (1) the key or scale in which a melody is composed; (2) a phrase length of eight notes; (3) a pitch sequence; (4) the way that the “Joyful Noise” ostinato resolves which is determined by rules of consonance common in popular music; (5) a “rhythm of eighth notes”; (6) an evenly-syncopated rhythm, standing alone; (7) an ostinato which is a “basic musical device” that is common in popular music; (8) the “pingy” synthesized timbre of the ostinato in “Joyful Noise” since a synthesized timbre is a commonplace element of contemporary popular music; (9) a composition’s texture which refers to the way a composition is “mixed” to reveal “different elements” of sound and its absence is an inherent feature in any kind of music. Dark Horse at 13, 14.
In Zeppelin, the five categories of similarities that plaintiffs identified and were found to be building blocks belonging in the public domain and so cannot be exclusively appropriated by any particular author were: (1) the descending chromatic scales in the two compositions skipping the note E and returning to the tonic pitch, A; (2) the notes in the scale having the same durations; (3) three two-note sequences—AB, BC, and CF#—that appear in both compositions; (4) successive eighth-note rhythms in both compositions; (5) the two compositions having the same “pitch collection,” explaining that certain notes appear in the same proportions in the beginning sequence of both works. Zeppelin at 12, 33.
In Blurred Lines, the trial court explained that “[w]here music is concerned, fundamental building blocks, such as individual notes and chords, do not warrant copyright” and thus, for example “Defendants’ use of an A7 chord is not protected by copyright.” Blurred Lines at 23, aff’d in Blurred Lines at 78, 79.
Protection for Combination of Unprotected Elements
It is hornbook law that copyright protection will be extended to “a combination of unprotectable elements — only if those elements are numerous enough and their selection and arrangement original enough that their combination constitutes an original work of authorship.” Zeppelin at 45.
In Zeppelin, the “selection and arrangement” of the unprotectable elements was never considered by the court since plaintiff never made the argument. Since plaintiff never argued how these musical components related to each other to create the overall design, pattern, or synthesis, there was no error of the lower court on which the Ninth Circuit could reverse based on selection and arrangement. Zeppelin at 39, 43.
For more on the Ninth Circuit earlier panel decision ruling against Led Zeppelin, SEE JUHASZ BLOG
In Blurred Lines, the court did not have the opportunity to consider the question of protectability as a matter of law after all the evidence had been presented since the Thicke parties “failed to make a Rule 50(a) motion for judgment as a matter of law at trial.” Blurred Lines at 22-24.
For more on the Ninth Circuit panel decision on Blurred lines, SEE JUHASZ BLOG
In Dark Horse, the court stated that “In considering this issue, the Court is “guided by relatively little precedent.” Dark Horse at 15. However, absent further litigation, Dark Horse would appear to provide the same since while providing guidance on elements standing alone (Id. at 13, 14) the court decision provides little guidance on why the arrangement of the musical 8-note ostinato phrase in “Joyful Noise” was not “numerous enough” to warrant copyright protection (Id. at 19, 20), and not “arranged” in a sufficiently original manner to warrant copyright protection (Id. at 20).
Problematic too may be the court’s finding that the 8-note ostinato in “Joyful Noise” is “not particularly unique” (“the signature elements of the 8-note ostinato in “Joyful Noise”—the 3-3- 3-3-2-2 pitch sequence, the resolution of that sequence with a 3-2-1-5 sequence, the even rhythm without syncopation, and its development across a sparse texture—is not a particularly unique or rare combination, even in its deployment as an ostinato. Prior compositions, including prior works composed by the parties, as well as what all agree is a separate non-infringing ostinato in “Dark Horse,” all contain similar elements. Id. at 20.)
In the seminal case of Feist, although the telephone directory lacked sufficient creativity, the Supreme Court indicated that for a copyright to subsist in a work, “the requisite level of creativity is extremely low; even a slight amount will suffice”. Feist at 345. While the level of required creativity is extremely low, there are rare works, such as the telephone directory in Feist that fail to meet this extremely low level of creativity. The court’s finding the combination in Dark Horse to be “not a particularly unique combination” suggests a finding by the court of some creativity and “some creativity” may be all that is needed for the arrangement to be protectable under the Feist precedent.
What These Mean To Your Copyright Infringement Case?
The Supreme Court has made clear that even a work “that contains absolutely no protectible . . . expression” can meet “the constitutional minimum for copyright protection if it features an original selection or arrangement.” Feist at 348.
For copyright holders, the takeaway from the Dark Horse, Zeppelin, and Blurred Lines decisions is this: to prevail on a copyright claim, it is not enough to assert “a ‘combination of unprotectable elements’ without explaining how these elements are particularly selected and arranged.
For artists, the take-away is this: don’t think that Dark Horse gives wide latitude to copying musical arrangements that appear to be commonplace since even a slight level of creative variation may be protectible.