Appeals Court Says It's Okay To Copyright An Entire Style Of Music

from the this-is-really,-really-bad dept

Oh boy. We had hoped that the 9th Circuit might bring some sanity back to the music copyright world by overturning the awful “Blurred Lines” ruling that has already created a massive chilling effect among musicians… but no such luck. In a ruling released earlier this morning, the 9th Circuit largely affirmed the lower court ruling that said that Pharrell and Robin Thicke infringed on Marvin Gaye’s copyright by writing a song, “Blurred Lines,” that was clearly inspired by Gaye’s “Got To Give It Up.”

No one has denied that the songs had similar “feels” but “feeling” is not copyrightable subject matter. The compositions of the two songs were clearly different, and the similarity in feel was, quite obviously, paying homage to the earlier work, rather than “copying” it. For what it’s worth, there appears to be at least some hesitation on the part of the majority ruling, recognizing that this ruling could create a huge mess in the music world, so it tries (and mostly fails) to insist that this ruling is on narrow grounds, specific to this case (and much of it on procedural reasons, which is a kind way of suggesting that the lawyers for Pharrell and Thicke fucked up royally). As the court summarizes:

We have decided this case on narrow grounds. Our conclusions turn on the procedural posture of the case, which requires us to review the relevant issues under deferential standards of review.

Throughout the majority ruling, you see things like the following:

We are bound by the ??limited nature of our appellate function? in reviewing the district court?s denial of a motion for a new trial.? Lam, 869 F.3d at 1084 (quoting Kode, 596 F.3d at 612). So long as ?there was some ?reasonable basis? for the jury?s verdict,? we will not reverse the district court?s denial of a motion for a new trial. Id. (quoting Molski, 481 F.3d at 729). ?[W]here the basis of a Rule 59 ruling is that the verdict is not against the weight of the evidence, the district court?s denial of a Rule 59 motion is virtually unassailable.? Id. (quoting Kode, 596 F.3d at 612). When that is the case, we reverse ?only when there is an absolute absence of evidence to support the jury?s verdict.? Id. (quoting Kode, 596 F.3d at 612). ?It is not the courts? place to substitute our evaluations for those of the jurors.? Union Oil Co. of Cal. v. Terrible Herbst, Inc., 331 F.3d 735, 743 (9th Cir. 2003). Of note, we are ?reluctant to reverse jury verdicts in music cases? on appeal, ?[g]iven the difficulty of proving access and substantial similarity.? 17 Three Boys Music, 212 F.3d at 481.

The Thicke Parties face significant, if not unsurmountable, hurdles. First, we are generally reluctant to disturb the trier of fact?s findings, and have made clear that ?[w]e will not second-guess the jury?s application of the intrinsic test.? Id. at 485. Second, our review is necessarily deferential where, as here, the district court, in denying the Rule 59 motion, concluded that the verdict was not against the clear weight of the evidence. Finell testified that nearly every bar of ?Blurred Lines? contains an area of similarity to ?Got To Give It Up.? Even setting aside the three elements that trouble the Thicke Parties (?Theme X,? the bass line, and the keyboard parts), Finell and Dr. Monson testified to multiple other areas of extrinsic similarity, including the songs? signature phrases, hooks, bass melodies, word painting, the placement of the rap and ?parlando? sections, and structural similarities on a sectional and phrasing level. Thus, we cannot say that there was an absolute absence of evidence supporting the jury?s verdict.

That’s just one example of many where the court more or less says “our hands are tied to review the jury’s decision.”

The whole thing is a mess, though, and is going to create lots of problems. And, honestly, I don’t think I can do a better job than the one dissenting judge, Judge Jacqueline Nguyen, who seems to fully understand the issues at play and what a disaster this ruling is.

The majority allows the Gayes to accomplish what no one has before: copyright a musical style. ?Blurred Lines? and ?Got to Give It Up? are not objectively similar. They differ in melody, harmony, and rhythm. Yet by refusing to compare the two works, the majority establishes a dangerous precedent that strikes a devastating blow to future musicians and composers everywhere.

Judge Nguyen isn’t pulling any punches.

The majority, like the district court, presents this case as a battle of the experts in which the jury simply credited one expert?s factual assertions over another?s. To the contrary, there were no material factual disputes at trial. Finell testified about certain similarities between the deposit copy of the ?Got to Give It Up? lead sheet and ?Blurred Lines.? Pharrell Williams and Robin Thicke don?t contest the existence of these similarities. Rather, they argue that these similarities are insufficient to support a finding of substantial similarity as a matter of law. The majority fails to engage with this argument.

Finell identified a few superficial similarities at the ?cell? level by focusing on individual musical elements, such as rhythm or pitch, entirely out of context. Most of these ?short . . . pattern[s]? weren?t themselves protectable by copyright, and Finell ignored both the other elements with which they appeared and their overall placement in each of the songs. Her analysis is the equivalent of finding substantial similarity between two pointillist paintings because both have a few flecks of similarly colored paint. A comparison of the deposit copy of ?Got to Give it Up? and ?Blurred Lines? under the extrinsic test leads to only one conclusion. Williams and Thicke were entitled to judgment as a matter of law.

Also, I’m glad to see a judge recognize this point (even if it’s in a dissent) that many in the legacy copyright industries deny (even though it’s actually to their benefit):

The purpose of copyright law is to ensure a robust public domain of creative works…. While the Constitution authorizes Congress to grant authors monopoly privileges on the commercial exploitation of their output, see U.S. Const. art. I, § 8, cl. 8, this ?special reward? is primarily designed to motivate authors? creative activity and thereby ?allow the public access to the products of their genius.?… Accordingly, copyrights are limited in both time and scope. See U.S. Const. art. I, § 8, cl. 8 (providing copyright protection only ?for limited Times?); Sony Corp., 464 U.S. at 432 (?This protection has never accorded the copyright owner complete control over all possible uses of his work.?); see also Berlin v. E.C. Publ?ns, Inc., 329 F.2d 541, 544 (2d Cir. 1964) (?[C]ourts in passing upon particular claims of infringement must occasionally subordinate the copyright holder?s interest in a maximum financial return to the greater public interest in the development of art, science and industry.?).

Judge Nguyen also points out a key point that you would hope that any judge hearing a copyright case would actually understand: copyright only covers the actual author’s expression (and only the new and unique parts of it — and only in limited ways). But that’s not what the ruling in this case says:

An important limitation on copyright protection is that it covers only an author?s expression?as opposed to the idea underlying that expression…. Copyright ?encourages others to build freely upon the ideas and information conveyed by a work.? Feist Publ?ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 349?50 (1991) (citing Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 556?57 (1985))….


Such accommodations are necessary because ?in art, there are, and can be, few, if any, things, which in an abstract sense, are strictly new and original throughout.? Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 575 (1994) (quoting Emerson v. Davies, 8 F. Cas. 615, 619 (C.C.D. Mass. 1845) (Story, J.)). Every work of art ?borrows, and must necessarily borrow, and use much which was well known and used before.? Id. (quoting Emerson, 8 F. Cas. at 619); see 1 Melville D. Nimmer & David Nimmer, Nimmer on Copyright § 2.05[B] (rev. ed. 2017) (?In the field of popular songs, many, if not most, compositions bear some similarity to prior songs.?). But for the freedom to borrow others? ideas and express them in new ways, artists would simply cease producing new works?to society?s great detriment.

And while the dissent points out that two songs may share the same “groove,” that’s not nearly enough for it to be copyright infringement.

?Blurred Lines? clearly shares the same ?groove? or musical genre as ?Got to Give It Up,? which everyone agrees is an unprotectable idea. See, e.g., 2 William F. Patry, Patry on Copyright § 4:14 (2017) (?[T]here is no protection for a communal style . . . .?). But what the majority overlooks is that two works in the same genre must share at least some protectable expression in order to run afoul of copyright law.

And, incredibly, as Judge Nguyen points out, the majority fails to even attempt to say what copyrightable expression was duplicated in Blurred Lines:

The majority doesn?t explain what elements are protectable in ?Got to Give It Up,? which is surprising given that our review of this issue is de novo. See Mattel, Inc. v. MGA Entm?t, Inc., 616 F.3d 904, 914 (9th Cir. 2010). But by affirming the jury?s verdict, the majority implicitly draws the line between protectable and unprotectable expression ?so broadly that future authors, composers and artists will find a diminished store of ideas on which to build their works.? Oravec v. Sunny Isles Luxury Ventures, L.C., 527 F.3d 1218, 1225 (11th Cir. 2008) (quoting Meade v. United States, 27 Fed. Cl. 367, 372 (Fed. Cl. 1992)).

Worse still, the majority invokes the oft-criticized ?inverse ratio? rule to suggest that the Gayes faced a fairly low bar in showing substantial similarity just because Williams and Thicke conceded access to ?Got to Give It Up.?… The issue, however, isn?t whether Williams and Thicke copied ?Got to Give It Up??there?s plenty of evidence they were attempting to evoke Marvin Gaye?s style. Rather, the issue is whether they took too much. Copying in and of itself ?is not conclusive of infringement. Some copying is permitted.? … Copying will only have legal consequences if it ?has been done to an unfair extent.? … In determining liability for copyright infringement, the critical and ultimate inquiry is whether ?the copying is substantial.? Id.

And of course, what has been “copied” to create the “groove” is not subject to copyright protection. Which you would think would be important in court. But the majority didn’t bother.

The Gayes don?t contend that every aspect of ?Blurred Lines? infringes ?Got to Give It Up.? Rather, they identify only a few features that are present in both works. These features, however, aren?t individually protectable. And when considered in the works as a whole, these similarities aren?t even perceptible, let alone substantial.

Judge Nguyen then goes through, in fairly great detail, to explain (including with sheet music examples) why the copyright-protectable elements of the composition have not been copied here. This is the kind of analysis that should have been done before, and should have happened at the lower court. But it did not.

Judge Nguyen then points out that ruling this way on narrow procedural grounds is also nonsense.

The majority insists that the verdict is supported by the evidence but tellingly refuses to explain what that evidence is. Instead, it defends its decision by arguing that a contrary result is impossible due to Williams and Thicke?s purported procedural missteps…. While the procedural mechanism for granting relief is beside the point given the majority?s holding, there?s no such obstacle here.

I agree that we normally are not at liberty to review the district court?s denial of summary judgment after a full trial on the merits…. This rule makes eminent sense. Once a trial has concluded, any issues relating to the merits of the parties? dispute ?should be determined by the trial record, not the pleadings nor the summary judgment record.? … However, there is little difference between reviewing a summary judgment ruling and a jury verdict other than the source of the factual record… and here there are no material factual disputes. A completed trial does not prevent us from reviewing the denial of summary judgment ?where the district court made an error of law that, if not made, would have required the district court to grant the motion.?

Nguyen really hits back on the majority for suggesting that this is just a dispute between competing experts over what was similar and what was not. As she rightly points out, that’s a question that comes up only after you’ve shown that the elements being copied are actually copyrightable subject matter. And the lower court totally failed to do that, meaning this is an issue of law, not one of disputed facts. The law says these elements aren’t protected. And that’s important, but the court ignored it entirely.

No one disputes that the two works share certain melodic snippets and other compositional elements that Finell identified. The only dispute regarding these similarities is their legal import?are the elements protectable, and are the similarities substantial enough to support liability for infringement? …

By characterizing these questions as a factual dispute among experts, the majority lays bare its misconception about the purpose of expert testimony in music infringement cases. As with any expert witness, a musicologist can?t opine on legal conclusions, including the ultimate question here?substantial similarity…. Her role is to identify similarities between the two works, describe their nature, and explain whether they are ?quantitatively or qualitatively significant in relation to the composition as a whole,?…. The value of such testimony is to assist jurors who are unfamiliar with musical notation in comparing two pieces of sheet music for extrinsic similarity in the same way that they would compare two textual works.

In other words, the lower court, and the majority, both got so caught up in the Gayes’ “expert” talking about the similarities of “the groove” that they forgot to even bother to check if a “groove” is copyrightable.

Finally, Nguyen points out that this disaster is going to haunt lots of people — likely including the Gaye Estate, given how much of Gaye’s own work was built on those who came before him:

The Gayes, no doubt, are pleased by this outcome. They shouldn?t be. They own copyrights in many musical works, each of which (including ?Got to Give It Up?) now potentially infringes the copyright of any famous song that preceded it.

Be careful what you wish for. You just might get it. And then get sued on the same grounds. It seems quite likely that we’ll now see a flood of similar lawsuits (some have started already, but this will open the floodgates).

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Comments on “Appeals Court Says It's Okay To Copyright An Entire Style Of Music”

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Anonymous Coward says:

You worry too much. Millions of other songs clearly not similar.

It’s only when intentionally set out to copy prior and thereby use its fame that is a problem.

You end with only your usual predictive FUD. — If even one percent of all the tangles and limits that you’ve predicted had actually occurred, civilization would be back to fully medieval by now.

You need fire-retardant hair creme.

Ninja (profile) says:

Re: You worry too much. Millions of other songs clearly not similar.

Perhaps it’s because most the things that would cause mayhem have been stopped in their tracks? As an example, when the SOPA debate was in full swing TD penned up many articles detailing the harms it would cause. In the end, a lot of activism and popular engagement prevented it from becoming law. The doomsday scenario TD warned us couldn’t happen if the bill hadn’t made through.

We do have examples of stuff TD predicted that became reality. The best that comes to mind right now is in the broadband front. While the nay-sayers were predicting municipal efforts were a fad Mike was saying they could work and that they were a symptom of the dystopian scenario that broadband is in the US. Or when incumbent ISPs magically started improving where competition arrived from Google Fiber. One thing is to be your usual “OMG THIS NEW THING WAS BORUGHT BY THE DEVIL” like the MAFIAA does to every innovation out there. The other is to give a thorough and balanced analysis of what’s coming. The first is FUD, the second is journalism. I read TD regularly because they do the second quite well.

Anonymous Coward says:

Re: Re: You worry too much. Millions of other songs clearly not similar.

Still reliving that, eh? Like the quarterback that threw the big TD in high school but now is fat and no cares about him? Yeah, like that.

What’s more amusing is that Mike Masnick thinks he can un-ironically spout his opinions about music matters and have people take him seriously. Funny stuff.

Anonymous Coward says:

Re: You worry too much. Millions of other songs clearly not similar.

I’m not sure you understand.

Similar songs are what’s called a genre, because they all share basic similarities in structure, composition, and ‘feel’ or ‘groove’. You can instantly identify a rock and roll song from a jazz song because they have different similarities. Rock and roll was born out of a few different artists all riffing off each other and other styles to create something new. If making similar songs was illegal back then, rock and roll would have died in the 50s.

If it’s now illegal to create a new song that feels or sounds similar to another song, you’ve just made music genre’s illegal and automatically outlawed somewhere around 75% of all music on the market today because it all builds off songs, styles, and artists that came before them.

As an example, consider the I–V–vi–IV chord progression. It’s extremely common in a lot of songs but would likely now be illegal because it gives songs built off of it a similar feel. In fact several comedians have built routines off of this and other chord groupings.

Another famous example that comes to mind is Pachelbel’s Canon. Do you have any idea of the sheer amount of songs and music that are based off of or riff off of that work? It’s used in many works from artists as varied as Trans-Siberian Orchestra to Vitamin C.

TD isn’t spreading FUD, it’s actually pretty on point.

Anonymous Coward says:

when are people going to learn that the complete US justice system has been bought and paid for by the entertainment industries in order to chip away at everything until they are in control of everything and everyone, the biggest thing being the Internet?

how the hell can a ‘style of music’ be copyrighted? what about all the ‘styles of music’ that have gone before over the centuries and that have inspired countless artists since? soon there will be nothing left to copyright and nothing left to develop because no one will be able to do anything without paying a section of the entertainment industry for doing nothing except to get permission to produce, to perform and to innovate!

Uriel-238 (profile) says:

Well, there goes my musical career.

I had quit some time ago while my work wasn’t very good yet, but my computer and operating system became no longer compatible with my software.

I had gotten to that point when I realized the stuff I was writing wasn’t all that great, and to take a step back I started doing study works, that is, deliberately emulating the styles of past composers to better understand what they did.

And evidently now that’s illegal.

Paul Brinker (profile) says:

Re: Well, there goes my musical career.

It’s 100% legal, as long as you only look at music pree 1920 or so. The entire history of Metal, Punk, Jazz, and a endless other music styles invented after 1920 are however fair game in case you copy anything at all from them.

So your open to Big Band, Classical, and other types, but only if you get your written copy of the sheet music, if you copy by hearing the music at your local establishment then you infringe on the performance.

The situation is less then ideal, but well we have rights damn it!

That One Guy (profile) says:

Re: Re: 'Sounds like my stuff, that's good enough to sue.'

It’s 100% legal, as long as you only look at music pree 1920 or so.

Right until someone claims that your song sounds just a little too much like theirs, which is not out of copyright, and sues you anyway. By allowing lawsuits based upon what something sounds like, whether the ‘infringement’ is based upon something that’s actually covered by copyright, the bar to be sued has not been lowered, it’s been buried.

Anonymous Coward says:

Something that has never made sense to me …

It seems that historically, the only copyrightable elements of a music recording are the sequence of words and the sequence of notes. So two different music tracks having such vastly different styles that don’t even remotely resemble each other can still be legally considered the same song and thus a copyright infringement.

On the other hand (again historically), two recordings can be so similar in almost every definable way that most listeners would automatically confuse the two, but as long as the lyrics and notes don’t exactly match, then legally they’re two separate songs and thus not a copyright infringement. Artists have long complained about others blatantly “ripping off their style” and basically getting a free ride off their hard work.

Why is it that notes and words are copyrightable, even if they differ very little from previous compositions, yet a musical “style” is completely uncopyrightable (or trademarkable), even if it is drastically different from anything ever created before?

Although I’m against the whole concept of copyright in general, it makes sense to me that if a song’s lyrics or melody which took 10 minutes to write is copyrightable, then the other unique elements of the recording — which may have taken many days or weeks to craft — should get some kind of equivalent recognition as a unique artistic creation, and thus property rights of some kind.

It probably comes down to the fact that one situation is easy to quantify in court and the other situation involves evidence that is much too nuanced to quantify in court, at least not without a great effort and expense.

That Anonymous Coward (profile) says:

I do hope that someone sues the Gayes into the ground.
Then I hope some estate sues that estate into the ground.
And so on and so on until the last descendant of the hominoid known as Lev37261 who first banged fscking rocks together in a pleasing way gets ALL the money.

Who owns the style of Film Noir?
Who owns the style of Horror Film?
Who owns the style of Action Film?

While there are a bunch of industry wonks who are celebrating the ruling, I do not think they know what they created.
There are entities who are not them who control rights to things, and now that an entire style is considered covered by copyright they need to start panicking.

We laughed at the studio who wanted to release a game inspired by a game & the lawyers couldn’t be bothered to see if they owned the rights but if they made the new game they would then bother to see if they had the rights & sue them.

The court looked at the insanity of the patent system, seriously rounded corners on icons, and said hold my beer. Of course we could fix this by fixing the law, but the same wonks cheering this decision love the idea of collecting payments for “style”.

Consider, is Uwe Bolle entitled to sue every other maker of shitty films? Why not? He pretty much owns the style.

Anonymous Coward says:

Copyright is too long

This settles it. Copyright lasts too damn long.

Copyright is supposed to be a limited time. If you can’t even say how many years it will last when a copyright is issued, then that copyright should be invalid.

I would like to see a return to 14-year copyright period, with one 14-year extension. At the outside, I would support 70 years from the date of issue. Period. (This term would be made up of an initial 14-year term, and 4 non-automatically renewing 14-year terms.)

The heirs and estates didn’t create the work. They should have no special copyright control for longer than the lifetime of the majority of the population.

Anonymous Coward says:

Re: Copyright is too long

(This term would be made up of an initial 14-year term, and 4 non-automatically renewing 14-year terms.)

At least where the AAs are concerned, that would mean a 70 year term for almost all the works that they control. Long copyrights are not primarily intended to to keep up income from older works, but rather to keep them put of circulation so that the public domain is not competing for eyeballs. Shifts in tastes, language, along with events becoming history reduce the attraction of old works in most cases.

John85851 (profile) says:

Re: Re:

Do some research on Weird Al. 😉
Even though all of his parody songs are covered by the parody defence, he pays the license-holders a cut of the royalties. In an episode of “Behind the Music”, Weird Al told a story about how the original artist got upset by his “Amish Paradise”… until the royalty checks from Weird Al started coming in.

In this case, Weird Al paid Pharrell and Robin Thicke since they were the owners of the song, so I’m sure he’s probably safe from being sued by the Gaye estate.

PaulT (profile) says:

Re: Re: Re:

Having agreed to pay royalties doesn’t mean they won’t come after him at some point for more money. Also, being authorised by someone does not protect you from also facing infringement claims once they have been found to infringe. To use the overused and flawed “stealing” analogy – just because you bought the goods fair and square, that doesn’t mean you keep them if they are found to be stolen by the person who sold them to you.

Sure, Al does seem to go above and beyond to protect himself but then so did Spotify before launching in the US, and they still seem to keep finding new things to demand. If someone can sniff enough money in the air, they’ll find an excuse to sue.

A Non-Moose Cow Herd says:


Is it really “really, really bad” though, when there is blood in the water and the sharks start attacking one another? That thing copyright maximalists love so much will most likely be the thing that also leads them to their ultimate downfall. Just a few more dumb laws and idiotic rulings to go. Never give someone a loaded gun when you’re not at all sure who they’ll point it at lol.

tp (profile) says:

Re: Ha...ha...HAH!

That thing copyright maximalists love so much will most likely be the thing that also leads them to their ultimate downfall.

This paperwork must be the best thing since sliced bread. Obviously the 2013 song, being one of the best selling song on the planet, is clearly replacing the market for some 1977 hit song. Given that this is about serious amount of cash, they obviously chose to decide this on narrow grounds. This means that author’s subconsious “copying” of the song is enough to make them liable for copyright infringement. Given that they already got millions from the song’s release (probably the labels got the money, and authors have nothing), these few million at issue in this lawsuit are peanuts. Dunno what exactly are the procedural mistakes, but I bet lawyers worked hard for their fees, given that there’s big money at stake.

John85851 (profile) says:

Other industries

How long will it take this decision to affect other industries? I’m thinking about comic books in particular.

It’s been an accepted practice by artists to “homage” (or copy) previous artists’ works. Will this come to an end, not because another artist will sue, but because the artist or publisher doesn’t want to take a risk?

Here’s a good example:

That One Guy (profile) says:

Re: "Inspired by who? Sorry, never heard of them."

I doubt it will go that far, people have been creating pretty much for the entirety of human history(even before copyright strangely enough), but one possible outcome will be that not a single song in that part of the country will be inspired by a song before it.

Overnight every song will be entirely new, thought up purely in the songwriter’s head with any similarities with other music being entirely coincidental, and if someone tries to argue otherwise well clearly any comparisons are entirely in their head, because being inspired by someone and incorporating something similar as tribute is simply not allowed in the 9th Circuit.

Tributes and declarations of inspiration, which previously would have driven attention back to the source, will all but dry up, it being too legally risky to admit that yeah, you liked X so you wanted to make something like it.

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