Gimme Some Lovin'

            Sometimes I am  oblivious to the battles being fought by giants in my  own backyard.  I have just  aware of a case that was disposed of in the Middle District of Tennessee involving Willa Dean Parker and the widow of Homer Banks suing, among others, Stevie Winwood, his brother, Muff Winwood (real name "Mervyn" – who knew?) and Spenser Davis over the alleged copyright infringement of the song "Ain't That a Lot of Love" by the Spenser Davis Group's "Gimme Some Lovin".  There are a number of side issues in this case, as there often are, but the facts boil down to the following:

            1.         Willa Dean Parker and Homer Banks wrote "Ain't That a Lot of Love" in 1965.

            2.         The Spenser Davis Group created "Gimme Some Lovin" on April 5, 1966, and began recording it on June 9, 1966. And released it on October 28, 1966. 

            3.         “Ain't That a Lot of Love” was first released in the United Kingdom by Homer Banks on October 7, 1966 (prior to the famous Sam and Dave version). Sam and Dave did not release their version of the song until 1968. 

            In order to prove copyright infringement of a musical composition, the burden is on the Plaintiff to prove that the Defendant had "access" to the work and that the two works are "substantially similar" enough to prove that the second work was copied from the first work.  In this case, access seemed impossible to prove, since the Sam and Dave recording had not been released in England at the time the Spenser Davis Group created their iconic song.

            It seems that Parker and Banks tried to circumvent this by proving that there was an earlier version of the song by David Porter which could have been heard in the United Kingdom.  They also tried to introduce newspaper interviews by Spencer Davis, himself, where he allegedly admitted that "Gimme Some Lovin" was based on "Ain't That A Lot of Love".  The court rejected the articles as inadmissible hearsay ("a statement, other than one made by the declarant while testifying at the trial or hearing offered in evidence to prove the truth of the matter asserted").  Hence, with no proof of access , the Plaintiff's case was thrown out.  There were other fascinating aspects of the case, - like the fact that Universal Music Group was sued as a Defendant, yet it actually had partial ownership of both songs in question and, hence, could not be sued for infringement under settled copyright law.

            It's kind of a strange thing.  I listen to the famous Sam and Dave recording of "Ain't That a Lot of Love" (as well as the Webb Wilder version) and don’t hear any real similarity to "Gimme Some Lovin".  Then I listen to the Homer Banks' version and the famous riff is, in fact, nearly identical. I couldn't find the David Porter version of the song, but Taj Mahal's recording from 1968 utilizes the riff as well.  I don’t know if experts were used in this case to prove that the riff itself could have come from an earlier source, as is often the case.

            The part that I find sad is that this  battle was taking place in 2017, 51 years after the records were first released.  It reminds me of the dispute between the Estate of Randy California and Led Zeppelin over the song "Taurus".  Why didn't the writers take action when the songs were new?  In my cynical moments, I wonder if this is what has become of the music industry and that these type of lawsuits will continue until we have no surviving songwriters of the rock era, just estates suing other estates over ancient riffs. 

Stairway to Bad Precedent

Several years ago I wrote a blog post about Jake Holmes finally suing Led Zeppelin for copyright infringement of his composition Dazed and Confused after 41 years (http://tripaldredgelaw.blogspot.com/2010/08/dazd-and-confused-41-years-later.html)  I thought that was some kind of record, but that record has now been broken by Michael Skidmore who has sued Jimmy Page, Robert Plant, and other entities for copyright infringement claiming that the introduction to Stairway to Heaven infringes upon the late Randy California's song Taurus. 

            The case just survived a summary judgment motion and appears headed for a jury trial next month but there are a number of odd angles to this dispute.

            First, it is obviously not Randy California (real name Randy Craig Wolfe) bringing the suit nor is it his music publisher.  California died in 1991.  The suit was filed by the trustee of the trust established for California's son.  In fact during his lifetime, California was quoted as saying that he had no interest in suing over the similarities between the two songs: “I’ll let Led Zeppelin have the beginning of Taurus for their song without a lawsuit.”

            Further, as the suit progresses the trustee can only sue as the "beneficial owner" of the copyright since California had assigned his rights to a publisher during his lifetime. The court determined that the trust is only entitled to recover one-half of any potential damages.  There is actually a good discussion of the concept of beneficial ownership in the court’s opinion.

In plagiarism cases such as this, the plaintiffs have to prove not only that the two works are "substantially similar" but that the defendant had access to the underlying work.   Access has been defined as “the opportunity to view a work”. Usually in a case like this where both songs were released by popular groups (and Spirit was a very popular group in its day) access might be presumed, so it is interesting that in their summary judgment motion the defendants spent a lot of time trying to prove that they were not familiar with California’s song.  This sounds disingenuous at best and I think that even casual Led Zeppelin collectors know about a bootleg recording that features the group jamming enthusiastically on the riff to Spirit's Fresh Garbage, a song which like Taurus is on Spirit’s debut album. There is interesting testimony about the different festivals that the bands played together and where they may have met each other so I don't believe that access could seriously be an issue in this case.

            The most disturbing issue to me is the "substantially similar" claim because while I find the introductions to both songs to be similar, I do not hear a substantial similarity here. Obviously this is a battle for  expert witnesses and both sides have their experts.  What worries me is that a jury could gloss over the expert’s testimony and expand upon what the jury did in the Blurred Lines case and find "compositional elements" in the recording similarities between the two songs. Yes, the arrangement of the two compositions and the instrumentation and overall "feel" of the introductions to the two recordings is similar but to my mind being influenced by another musician's style or the way they chose to record a certain passage is not the same thing as infringing upon an underlying copyright.  Also, as copyright lawyers know, the similar elements of both works may be found to be either generic or from a common source. While   Jimmy Page's long history of borrowing riffs (or in some cases whole songs) from others is well documented. I just don't think that in this case the two songs meet the criteria of being "substantially similar".

It will be interesting to see how this case plays out but it also worries me that given the fact that the lawsuit was not even filed by the original creator of the work, we're going to start seeing more cases like this as other income generators in the music industry continue to shrink.

I see several potential dangerous precedents on the horizon.

The Soft Kitty Consternation

A couple of months ago, I tried to write a blog post concerning a lawsuit over the  theme song for the television show The Big Bang Theory.  (Trivia answer:  the theme song is apparently called "The History of Everything").  I gave up on this task because the blog  was just kind of boring and I thought to myself, "who cares about a lawsuit involving a song used on The Big Bang Theory"? 

            Okay, I was wrong.  On December 28 two sisters, Ellen Newlin Chase and Margaret Chase Perry sued the producers and broadcasters of the show for copyright infringement for using their late mother's copyrighted composition "Soft Kitty" without a license.  Fans of the show (my wife and I are near- obsessive fans) know the thematic importance of this song.  It has been used on the show numerous times and apparently is used in all types of merchandise associated with the show.

            “Warm Kitty" , written in 1937 by Edith Newlin was first published by a company called Willis Music in a book entitled "Songs for the Nursery School".  Apparently Warner Brothers Television licensed the work from Willis Music even though it appeared that Ms. Newlin never assigned the copyright to the composition to Willis. As late as last summer, Willis Music was proudly touting its association with the song  and the show on its website.

            Much like the "Happy Birthday" case, the resolution of this case may depend on a review of old documents (for example, is there a contract somewhere giving Willis Music the right to issue synchronization licenses for television shows?)  This kind of situation must be a nightmare for people who work in music licensing- trying to ascertain who has the rights to a particular musical work.

            If the case goes forward, it might also be of interest to those of us who worry about indemnity clauses all day.  Certainly somebody warranted to Warner Brothers Television that they own the rights to license this composition and I am sure they backed up this warranty with an indemnity clause.  This will be an interesting case to watch.

            However, until this is resolved I am more concerned with how Sheldon will get to sleep. 

Don't Mess With the Black Eyed Peas or 17 USC 505

It sometimes happens that potential plaintiffs are dismayed by my reticence in taking their copyright infringement case – even when they assume they have a clear-cut case.  From now on I may suggest to these potential litigants that they read the sad case of Bryan Pringle v. William Adams Jr., et al. 

            In that case, Pringle sued Adams, better known as Will.i.am  and his band, the Black Eyed Peas (as well as their producer and record label and various other publishers) claiming that their hit "I Gotta  Feeling," infringed upon his song “Take a Dive”. 

            I have not read the entire procedural history of the case but it seems that Pringle's cause of action was doomed from the beginning due to an issue regarding an improper copyright registration.  Sections 411 and 412 of the Copyright Act mandate registration as a prerequisite of a copyright infringement lawsuit. 

            However, after Pringle lost the case on summary judgment,  Will.i.am  and his compatriots asked the court to order Pringle to pay their attorney's fees incurred in  defending the action. This  resulted in an award of $1 million to Will.i.am, $1.3 million to producer David Guetta and $500,000.00 to the band's label Interscope.  For some reason Fergie lost out on recovering her attorney's fees. 

            This is the harsh reality of the Copyright Act.  Section 505 of the Act states, ". . . the court may also award a reasonable attorney's fee to the prevailing party as part of the cost" and since John Fogerty successfully defended  his case against Saul Zaentz, this has been a key ingredient of infringement litigation and a deterrent to anyone considering bringing all but the strongest cases.  Conversely, it can also serve as an incentive to settle early if you are the defendant in other types of infringement litigation. 

            It is often hard to convince a songwriter that what he hears as a "substantial similarity" between his song and someone else's song may to the ears of an expert musicologist not be similar at all – or while similar may not be original enough to qualify for copyright protection.  If you add to this the specter of having to pay the other side's attorney's fees the concept of seeking justice (real or perceived) becomes much less attractive. 

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:

https://www.youtube.com/watch?v=nvlTJrNJ5lA