Monday, January 26, 2015

Tom Petty Does Not Back Down

“What happened? I conclude that the composer, in seeking musical materials to clothe his thoughts, was working with various possibilities. As he tried this possibility and that, there came to the surface of his mind a particular combination that pleased him as being one he felt would be appealing to a prospective  listener; in other words, that this combination of sounds would work. Why? Because his subconscious knew it already had worked in a song that his conscious mind did not remember. Having arrived at this pleasing combination of sounds, the recording was made, the lead sheet prepared for copyright and the song became an enormous success.”  Judge Richard Owen, Bright Tunes Music v. Harrisongs Music 420 F.Supp 177 (1976)

I am in the process of preparing to teach my Music Business law class tonight and re-reading my notes on copyright infringement. Taking an ill advised break to look at Facebook, I see that British singer songwriter Sam Smith has apparently settled an infringement claim by Tom Petty and Jeff Lynne over his song “Stay With Me” and Petty’s “I Won’t Back Down”. According to an article posted on the Consequence of Sound website, Petty and Lynne now share a 25% interest in Smith’s “Stay With Me”.

Since there was no lawsuit, we have no record of what happened but my guess is that Petty and his lawyers, armed with at least one expert witness musicologist made a demand upon Smith et. al. claiming infringement of the Petty composition. It probably helped that Petty is known for not backing down.  An equitable settlement was reached.

The quote above is from the trial Judge in the well known  case involving Petty and Lynne’ s fellow Wilbury George Harrison, in which the plaintiff proved that Harrison subconsciously infringed upon the hit “He’s So Fine.”  I don’t know if the general public is aware of the fact that subconscious infringement is a viable cause of action. As Judge Owen concluded in the Bright Tunes case, “Did Harrison deliberately use  the music of “He’s So Fine”? I do not believe he did so deliberately. Nevertheless, it is clear that “My Sweet Lord” is the same song as “He’s So Fine” with different words….That is, under the law, infringement  of copyright and is no less so even though subconsciously  accomplished.”

The  two songs are similar. The two things you need to prove in a copyright infringement case are access and substantial similarity. Clearly, Smith had access to “I Won’t Back Down”.  Had the case continued the battle would have been waged over the legal elements of substantial similarity and it would have involved musicologists arguing about the similarities between the two songs and most important, whether  those  alleged similarities are capable of copyright protection?  In other words, just because we can hear similarities between the two songs, it does not mean that they are “substantially similar” from a legal standpoint.  Many litigants have learned this the hard way.

The case would have been ugly and expensive with no clear cut result. All involved should be commended for settling this dispute.  On another note, this gives me the opportunity to post my favorite Petty video of my favorite Petty song:

Monday, January 5, 2015

You Really Got a Hold On Me

            I recently read that Smokey Robinson had settled a dispute with his ex-wife Claudette over his right to exercise the termination of copyright assignment in his songs under the 1976 Copyright Act.  While I am all for both marital harmony and post-marital harmony it would have been fascinating to see how a court might have interpreted this intersection of federal copyright law and domestic relations.
            Robinson had taken the somewhat unusual step of filing an action for a declaratory judgment apparently after receiving a letter from his former wife's counsel asserting a community property interest in the compositions in question, despite the fact that the couple  had been divorced nearly for three decades.  He wanted the court to confirm the fact that the Copyright Act gives the right to terminate assignments and recapture copyrights to the author alone and not an ex-spouse and presumably, despite whatever economic effect this might have on the ex-spouse).

            The Copyright Act is pretty clear in this particular area but it does provide some fairly troublesome questions for divorcing spouses.  One wonders if when divorcing in 1985, the Robinsons even contemplated that Smokey would be able to recapture the copyrights to his greatest hits.  Was there a duty of disclosure (of an event that might occur 29 years in the future)?  We often see how divorce settlements can be impacted by the Copyright Act but I think that this might have presented a different take on the issue.  As the clock begins to run on some of these massive hits from the 60s and beyond we will no doubt see more of these cases and they are tremendously important.