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.

Blurrred Lines

I have been trying to write something cogent about the “Blurred Lines” verdict since last week.  Several clients and students have asked me my opinion.  Admittedly, I really did not pay too much attention to the case, except to watch that video (for research purposes of course) and play the great American parlor game of listening to the song “Blurred Lines” and “Got to Give It Up” back to back like a Monday morning musicologist.

            I have read lots of commentary on the verdict from a host of experts, who all have differing opinions as to why the jury was wrong.  Most believe that the case will not survive appeal, or will be settled and disappear.

            I personally hope that a great legal journalist like Stan Soocher can get hold of the transcript, talk to the key players and tell us what really happened, because procedurally the case is fascinating. 

            I can’t help but think that there must be something there. Otherwise the case would not have survived summary judgment (the pre-trial procedure whereby a moving party seeks to establish that there are no genuine issues of material fact at issue). 

            It seems that once the case moved beyond that phase and into the hands of the jury then there were multiple possible outcomes.  The most fascinating thing I read all week was an interview with the Marvin Gaye Estate lawyer Richard Busch (a member of the Nashville Bar) in the Hollywood Reporter where he detailed in very specific terms the reasons why he thinks he won the case.  I believe that at the end of the day the plaintiffs were able to convince the jury of the substantial similarity of the two works and this prevailed over the defendant’s insistence that there were “note per note differences” between the two songs.  As Busch states in the interview “this was a straight up copyright claim over compositional elements that we believed had been taken.”  Interestingly, Busch highlighted the assistance of two musicologists he employed as expert witnesses, Judith Finell and Ingrid Monson.  I am sure that their testimony was extremely important to the jury, as were the apparent inconsistencies in the testimony of Robin Thicke and Pharrel Williams. Something must also be said for the fact that Thicke and Williams essentially started the lawsuit by filing a declaratory judgment action against the Gaye Estate (seeking a court judgment that there was no copyright infringement).  I can’t help but believe that this strong arm tactic must have had some effect on the jury.

           

            Will the case have the “chilling effect” on creativity that many commentators are concerned with?  Will it encourage a rash of lawsuits from aggrieved composers and artists now emboldened by this decision?  I don’t really think so. I think that as Busch said, this was a straightforward case of copyright infringement and the plaintiffs did a better job of proving their case.If the jury went too far then  I think that this is going to be an important case to watch on appeal.

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