Thursday, February 15, 2018

suit against Taylor Swift dismissed on grounds that phrases that appear in Swift lyric too banal to be considered infringeable material

For anyone who has heard "Shake it Off" the suit that was recently dismissed had to do with

A federal judge dismissed a lawsuit Tuesday that accused Taylor Swift of copyright infringement on her hit song “Shake It Off.”
Songwriters Sean Hall and Nathan Butler brought the suit last fall, arguing that the chorus of the song borrowed from their 2001 composition, “Playas Gon’ Play.”
In his ruling, Judge Michael W. Fitzgerald held that combining the phrases, “Playas gonna play” and “haters gonna hate,” does not entail sufficient originality to warrant copyright protection.
“By 2001, American popular culture was heavily steeped in the concepts of players, haters, and player haters,” Fitzgerald wrote. “The concept of actors acting in accordance with their essential nature is not at all creative; it is banal.”
The plaintiffs’ song includes the following line in the chorus: “Playas, they gonna play, and haters, they gonna hate.” “Shake It Off” includes the line, “Players gonna play, play, play, play, play, and haters gonna hate, hate, hate, hate, hate.”
Though short phrases are generally immune from copyright infringement claims, the plaintiffs argued that combining the two thoughts was sufficiently original to claim copyright protection. Fitzgerald disagreed.
“It is hardly surprising that Plaintiffs, hoping to convey the notion that one should persist regardless of others’ thoughts or actions, focused on both players playing and haters hating when numerous recent popular songs had each addressed the subjects of players, haters, and player haters,” he wrote. “In short, combining two truisms about playas and haters, both well-worn notions as of 2001, is simply not enough.”
“In sum, the lyrics at issue – the only thing that Plaintiffs allege Defendants copied – are too brief, unoriginal, and uncreative to warrant protection under the Copyright Act,” Fitzgerald concluded.
The case was dismissed with leave to amend, but Fitzgerald advised the plaintiffs not to refile the suit unless there are as-yet-undiscovered similarities between the two songs.
It doesn't really seem like there's a clear similarity beyond a couple of repeated phrases.
there's this ...
and then this ...
"The verdict in this case threatens to punish songwriters for creating new music that is inspired by prior works," states the artists' brief authored by Ed McPherson. "All music shares inspiration from prior musical works, especially within a particular musical genre. By eliminating any meaningful standard for drawing the line between permissible inspiration and unlawful copying, the judgment is certain to stifle creativity and impede the creative process. The law should provide clearer rules so that songwriters can know when the line is crossed, or at least where the line is."

The amici say this case is "unique" because the two works at issue "do not have similar melodies; the two songs do not even share a single melodic phrase."

Instead, they suspect that the jury perceived similarity in the overall "feel" or "groove," which harks backs to the very first filing in the lawsuit. They point out that Gaye himself was heavily influenced by Frank Sinatra, Smokey Robinson, Nat "King" Cole, James Brown and others. They tell the 9th Circuit that there's a "bright line" in film, television and book copyright cases, but that the realm of music hasn't produced any legal clarity about what are "ideas" free to be used by anyone and what's "expression" that's off-limits to be misappropriated.


One of the things I hadn't read from the side that has been against the "Blurred Lines" verdict was how the case got catalyzed.

With the caveat that lawyers are lawyers ...


How did the “Blurred Lines” case come to you and why did you decide to take it?

It was referred to me by Mark Levinsohn, the transactional lawyer for the Gaye family. If you remember correctly, Pharrell Williams and Robin Thicke sued the Gaye family [seeking a declaratory judgment that “Blurred Lines” didn’t infringe Gaye’s “Got to Give It Up.”] We had a very strong musicology report, and I felt it was a strong claim.

Some of the media coverage focused on the idea that a win for your side would open up a can of worms, so more current songwriters could be sued by the owners of old compositions.

I could not disagree more. You have to check the source and realize that those who say that in an article may have an agenda. That was their pitch at trial and it has been the entire story of their legal team. It’s just not true. It is based on standards that have been in place for decades. When the Isley Brothers sued Michael Bolton [for infringing their copyright to the song “Love Is a Wonderful Thing” on his song of the same name], there was the same outcry: "This is going to stop the original creation of music." It didn’t happen then, and it’s not going to happen now.

Where’s the line between influence and infringement?

There are real standards. I can’t tell you how many people have come to me saying someone copied their song and I sent it to a musicologist and they said it wasn’t original or it wasn’t compositionally similar -- I turn down 80 to 90 percent of the cases that come to me. But we have a case involving Lil Jon and DJ Snake [who are being sued over "Turn Down For What" by Golden Crown Publishing for infringing the Freddie GZ song of the same name]. And we just settled a case involving Ed Sheeran [that involved a lawsuit brought by songwriters Martin Harrington and Thomas Leonard over his song "Photograph"]. There are standards you have to meet -- and the “Blurred Lines” case met them.

One of the conundrums of our era is that so much popular culture is under copyright or trademark in some fashion.  Rather than argue, as some people do, that intellectual property itself is the problem or bad, some better education on what is in the public domain and what the public domain is for seems like a good idea.  But then as a classical guitarist and a composer I guess I'm already steeped in a style of music that goes back for a century or two.  I'm not sure, I'm afraid, that many people want to immerse themselves in the styles of music for which nearly every identifiable thing is public domain. 

Theodore Gracyk once made a distinction between music that is "ontologically thick" and "ontologically thin".  It's an academic distinction in that kind of jargon but the easiest examples would be classical music and pop music in the 20th century.  To say a music is "ontologically thin" is to say that it is transmitted and preserved and presented in a way that involves a communication system that is not hugely dependent on any one performer, any one style, and can be retained over a long period.  A music score for a string quartet would be considered "ontologically thin". 

"Ontologically thick" music would be basically any Beatles song or a pop song, music that is concretely tied to specific sounds, specific people, particular ways of generating sounds and that there is some "definitive" version.  You can identify that Prince himself as distinct from anyone else is performing a Prince song.  Similar specificity applies with any other pop star.  This is rather broadly what Gracyk's definition of "ontologically thick" music is.

Well, one of the biggest legal pitfalls with ontologically thick music is stuff like license and copyright.  If popular music could gain (or retain, really) connections to ontologically thinner music than itself and if, in turn, the concert music or "classical" idioms or post-classic idioms retained some connection to ontologically "thicker" performance idioms both styles of music would seem to have a better chance of retaining some vitality.    One of my soap box concerns for anyone who's read this blog in the last twelve years. 
So, anyway, a bit of musical news

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