Recent high-profile song sound-alike suits have cast a shadow over artists and songwriters concerned about allegations of copying basic elements of songs they may have never even heard. That danger for artists and songwriters has been highlighted by victories for plaintiffs protecting what might be properly considered unprotectable basic elements of music. In 2015, a jury entered a verdict against Robin Thicke and Pharrell Williams for copying the “vibe” from Marvin Gaye’s “Got to Give it Up” in their song, “Blurred Lines.” With the looming threat of an infringement suit for “copying” even the basic feeling or vibe of an earlier song, artists and songwriters are justifiably concerned about crossing the minefield this area of law has become.
The tide may be turning, however, in the wake of two recent decisions. In July 2019, a federal jury in Los Angeles awarded $2.78 million to Christian rapper Marcus Gray, professionally known as Flame, against pop artist Katy Perry. Flame claimed Perry’s song, “Dark Horse,” copied his earlier-written song, “Joyful Noise,” particularly by Perry’s use of two ostinato patterns in her song. Perry and the writers of “Dark Horse” argued that Gray did not have a protectable interest in those patterns, and, even if he did, the patterns used in the two songs are sufficiently distinct as to preclude a finding of copying.
The Copying Basics
By definition, copyright infringement requires actual copying, though copying can be inferred from indirect evidence. Public domain aside, if a parent were to hand their six-year-old daughter a paintbrush, some paint, and a canvas, and, by some miracle, she were to create an exact brush-stroke by brush-stroke duplicate of “Starry Night,” under the copyright doctrine of independent creation she would not have infringed van Gogh’s copyright because she has never seen it (admittedly a failure of parenting)—and therefore she did not “copy” his work. Although this example is beyond improbable, the principle holds: an artist may independently duplicate an already-created work without infringing the prior artist’s copyright. (As a practical matter, though, courts and juries rarely honor this principle.) Absent direct evidence of actual copying by the defendant (which is rare), the plaintiff in such a case must then establish actual copying by showing that the later artist had access to the prior work, and that the works are “substantially similar.” In addition, the alleged copying must involve some protectable element. In general, the generic building blocks of music, such as basic chord progressions, melodic or rhythmic tropes, etc., should not, standing alone, be considered protectable elements. In order to be protectable, those basic elements must be numerous enough, and their selection and arrangement novel enough, that the combination comprises an original, protectable work. This is the battleground upon which Katy Perry and Marcus Gray fought.
In March 2020, Judge Christina Snyder overturned the earlier jury verdict against Perry, finding that the allegedly infringing element was not protectable as a matter of law. Judge Snyder found that “the signature elements of the 8-note ostinato in ‘Joyful Noise’ [are] not a particularly unique or rare combination,” noting the same sequence of notes appears frequently in other songs. To allow an individual to monopolize notes such as these or other commonly occurring elements of music would muzzle artists and songwriters and impermissibly restrain new works.
Many song sound-alike suits involve allegations that the defendant had access to the plaintiff’s earlier work because the plaintiff’s work was available on the internet, typically on YouTube or other streaming platforms such as Spotify or Apple Music. For example, in 2017, The Walt Disney Company and Frozen song-writers Kristen Anderson-Lopez and Robert Lopez were accused of infringing virtually unknown Chilean singer Jaime Ciero’s 2008 song, “Volar,” with the release of “Let It Go” in 2013. Ciero argued, in part, that defendants had opportunity to access his song through streaming platforms. That suit was voluntarily dismissed with prejudice in May 2019. Similarly, Gray argued that Katy Perry and her “Dark Horse” songwriting team had access to “Joyful Noise” as shown by over one million views of “Joyful Noise” on YouTube from 2008 to 2012.
Only a week before Judge Snyder overturned the “Dark Horse” jury verdict, the Ninth Circuit addressed the issue of access in a long-litigated copyright infringement suit involving Led Zeppelin’s “Stairway to Heaven.” Wolfe’s estate alleged that the opening of “Stairway to Heaven” infringed the opening of Wolfe’s song, “Taurus.” Led Zeppelin had, on several occasions, played at the same venue as Randy Wolfe’s band, Spirit, and accordingly had access to the song. The Ninth Circuit held that even a high degree of access to an earlier work does not diminish the plaintiff’s burden of showing substantial similarity between the works. This overturned precedent known as the inverse ratio rule, wherein the greater a defendant’s degree of access to an earlier work, the less the plaintiff’s burden is to show similarity. Whether or not Katy Perry was one of the one million viewers of Gray’s “Joyful Noise” video, the “Stairway” decision means that Gray still has to prove substantial similarity between any protectable elements of “Joyful Noise” and “Dark Horse.”
Although Gray has appealed Judge Snyder’s ruling to the Ninth Circuit, there is reason for artists and songwriters to be hopeful that it just got harder for copyright plaintiffs to climb that stairway to payday heaven based on song sound-alike claims and an inference of access due to online plays. We will be following developments closely as the appeal progresses and will keep you updated, as the effect on artists and songwriters, as well as on those who license music for their projects, could well be significant.
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