Tis the season of listicles, so here are the top five copyright cases of the year. Two aren’t even music copyright cases, though one of those does have Prince in it. Know what? Make it six. The first one is a bonus.
The bar for the responsible application of music copyright has been raised and lowered a lot in the past several years. A couple of 2022 cases did or eventually should give it a good shove upward or downward.
The first is one that helped give it a much-needed shove upward.
It’s the bonus sixth case because Gray v Hudson seems like a while ago. But the final ruling occurred in 2022. And that’s the most important part, especially since it righted a wrong. The initial decision was a debacle. Katy Perry’s “Dark Horse,” a huge hit a decade ago, was ruled to have infringed on “Joyful Noise,” a Christian rap song. And the judgment was an astonishing $2.8 million in damages, really a shocker. The element in focus was an eight-note ostinato that closely resembled a scale and all eight were the same duration. Do Ti La Mi, over and over, more or less. The judgment, affirming the one on the penultimate appeal, was that Joyful Noise’s ostinato enjoyed very little in the way of protectable originality. And thus, arguably, some sanity was restored to the state of things in music copryight.
I chose this and not the “Shake It Off” case because Taylor Swift, we presume, settled that one, and it was dismissed. If it had gone to trial, we might have a lot more to talk about; something that moved or at least affected the metaphorical bar. The Shape Of You case, Sheeran v Chokri, does, and like Dark Horse, it raised it.
The judge found that the similarities between Ed Sheeran’s “Shape of You” and Sam Chokri’s “Oh Why” were, as Musicologize put it, “neither lengthy, nor complex, nor novel enough,” to infer that Sheeran had copied them from “Oh Why” or from anywhere. And in the judge’s words:
“…so short, simple, commonplace and obvious in the context of the rest of the song that it is not credible that Mr. Sheeran sought out inspiration from other songs to come up with it”.
An article here on Musicologize.com explored whether the Shape Of You verdict “stems the tide,” and the tide we’re referring to is not very different from what Sheeran complained publicly about following this case. He finds himself in a lot of what he would surely characterize as unreasonable copyright disputes. And Musicologize agrees, on the whole. But as we wrote in that article, the processes that create a ton of the music we hear on Spotify and Apple Music these days have played a role in bringing “the tide” about in the first place.
This one came along just in time to make the year-end list. A long time ago, Dennis Fugnetti took a picture of a menacing-looking pigeon in flight. (It’s actually pretty beautiful, but it’s a pigeon, and I’m from New York.) Back in the 1990’s Fugnetti evidently did a bunch of graphic design work on a freelance basis for a bird spike company called Bird B Gone, and he implemented his photo in some of Bird B Gone’s visual materials. Fugnetti and Bird B Gone stopped working together around 2003. If the complaint is accurate: In 2003, Bird B Gone, unbeknownst to Fugnetti, applied for and was granted a trademark for the image! Further, it’s possible Fugnetti might never have given the matter another thought, except that Bird B Gone contacted him in 2017 to say they’d been using his photo the whole time and wanted to register their copyright for it. All of this would lead one to believe Bird B Gone thought the photo was theirs as part of his design work. Fugnetti believed they had rights to only the designs in which he had placed it, not the pigeon image itself. So, they were probably taken aback when he offered to license it to them for $5k or so with a finite list of ways they could use it. Bird B Gone evidently ignored that idea and didn’t respond until a year later when they offered through a lawyer to pay the $5k, but for full ownership. Fugnetti registered the copyright himself about a month later, and shortly thereafter sued Bird B Gone for using his image without securing the rights. Fugnetti passed away about a year later, but last week the case was decided and Fugnetti’s estate was awarded real damages of about $1.2 million.
Dua Lipa was sued twice, that I know of, for copyright infringement stemming from the biggest hit of last year, Levitating. The first complaint, from Artikal Sound System, came just days before the second and less credible one. Artikal’s 2017 track “Live Your Life” really does have some similarities to Levitating that could maybe be attributed to copying. They sound quite a bit alike. A very popular music analyst on YouTube, Rick Beato, about whom I couldn’t say enough nice things, suggested that one of the writers of Levitating “must’ve heard Live Your Life because why would you have a song that’s this close?” He’s not wrong about the similarity and he doesn’t overstate it. But I strongly disagree. As in the “Dark Horse” case, it is a matter of the “significance” of the similarities with regard to inferring copying. And in my opinion, it’s far more likely these similarities are coincidental. The chord progression is 75% alike, but it’s a simple and common one. The melody (Sing it with me: “moon light. you’re my. star light.”) is really just a two-note figure over and over, mostly on one pitch, and the rhythm is a dotted eighth followed by a sixteenth, the first half (or the “3 side”) of the clave. This case is still ongoing, and my guess is it will settle.
Well, not really. But it does involve Prince. And it’s not a music copyright case, so I’m a layperson on this one, but it’s The Andy Warhol Foundation v Lynn Goldsmith. Goldsmith is a photographer who took some great photos of Prince that Warhol then used, for lack of a more thoughtful description, to do that Andy Warhol “silkscreen thing” I associate with his famous Jackie O or Marilyn Monroe works for Vanity Fair magazine. Goldsmith sued and The Warhol Foundation claimed “fair use.” And that’s the real reason it makes the list. Fair use is interesting stuff. It is a doctrine in copyright law that allows the use of copyrighted material without permission from the copyright holder for certain purposes such as criticism, commentary, news reporting, teaching, scholarship, or research. And the criteria, four factors, that courts ostensibly use to determine whether a use was “fair” in this way are: purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and the effect of the use on the potential market for or value of the copyrighted work. “The word that gets tossed around most is “transformative.” Copyright law is noble, and it seeks to promote creativity and give us all cool art to enjoy. But it does this partly through protecting people’s right to own and profit from their work. Did Warhol criticize, or comment on Goldsmith’s work? Did he “transform” it significantly into a new work that owes nothing to the original? Not in my opinion. He used her work to do the Warhol thing. That’s the kind of thing I’d expect to require a license, but it seems to me the definition of “transformative” is broadening. And the Supreme Court will let us know.
This is probably the biggest music copyright case in years, but it’s also a years-long process, and the year 2022 didn’t see a ton happen with it. Why is it the biggest? Because it’s Ed Sheeran and Marvin Gaye. And it’s “Thinking Out Loud” and “Let’s Get It On!” It’s also the case Musicologize has perhaps opined about the most. Even more than Stairway To Heaven. Feelings are strong about this one. It’s not Marvin Gaye’s fault we’re here. It’s also not his fault the notorious Blurred Lines verdict happened, or that the memory of it makes this one feel a bit like, “Oh, not again!” But it does feel that way. Perhaps it’s because, like in Blurred Lines, this is about a groove, which used to be thought of as something that copyright wouldn’t let someone monopolize, but maybe now it does allow for it. This “groove” in Thinking and Let’s is essentially a chord progression, not quite identical, but close certainly, and played in the same rhythm. Countless songs, however, share chord progressions played in the same rhythm, and they shouldn’t be, and by and large aren’t, suing each other. This case, I would say, has only a thread of an idea from which it’s hanging, and that thread is just resilient and difficult enough to dismiss, that everything may well remain suspended from it until the very end. It’s about a chord progression that’s simple and common. And it’s about the rhythm in which it’s played that is also both simple and common. And plainly put, that should, I think, be the end of it. But rather confoundingly, I admit, it happens that those common chords and that common rhythm haven’t occurred together in quite the same way hardly at all before in well-known music. So when a forensic musicologist goes looking for a perfect prior art example (something prior to Let’s Get It On) to disprove the originality of this groove, not much appears. I’ve considered dozens of side-arguments, but I keep coming back to that one. That’s the core premise, and it shouldn’t be enough, in my opinion, but here we are.
A couple of these should resolve next year and will surely be on a 2023 list if we compile one. Happy holidays.
