Earning rave reviews, the six-part thriller “Baghdad Central” has been called “refreshingly original,” and Zuaiter’s role, one that finally “does justice to his star quality and soulful eyes.” Read The Guardian’s review here, and tune in.
By Scott J. Sholder
Following hot on the heels of the Ninth Circuit’s en banc decision clearing Led Zeppelin of copyright infringement allegations relating to the classic “Stairway to Heaven” (which we reported here), a California federal judge last week overturned a jury’s finding of copyright infringement against Katy Perry regarding the pop hit “Dark Horse.” Songwriters still nervous in a post-“Blurred Lines” world will likely take solace in two decisions that – while in many ways different from Pharrell Williams’ and Robin Thicke’s case – solidify certain aspects of copyright law that may help musicians rest and write a bit easier.
The genesis of the “Dark Horse” case is not unlike any other you-copied-my-song litigation. Plaintiffs, successful songwriters and musicians in their own right, sued pop star Katy Perry, several other songwriters, and the record labels and publishers behind “Dark Horse,” claiming that an eight-note ostinato – a “short musical phrase or rhythmic pattern repeated in a musical composition” – in “Dark Horse” was substantially similar to one in plaintiffs’ song “Joyful Noise.” The alleged similarity between musical phrases as opposed to full musical compositions makes the “Dark Horse” case more like “Stairway to Heaven” than “Blurred Lines,” which dealt with infringement of an entire song. This distinction informed the court’s legal analysis as well, as discussed further below.
The court primarily addressed the evidence presented in support of the jury’s finding that the defendants’ ostinato was “substantially similar” to that of plaintiffs. As we discussed in connection with the “Stairway to Heaven” case [here], courts in the Ninth Circuit apply a two-step test to determine whether two works are substantially similar. Part one, the “extrinsic” test, sets forth a question of law for the court (often aided by experts) whether protected elements of the plaintiff’s work are objectively similar to corresponding elements of the defendants’ work. Part two, the “intrinsic” test, asks the jury to decide whether an ordinary reasonable person would find that the “total concept and feel” of the works was substantially similar. The court spent most of its analysis on part one.
As a threshold matter, the court explained that, where the work at issue consists of a combination of unprotected elements, an enforceable right in that combination only exists if the “elements are numerous enough and their selection and arrangement original enough that their combination constitutes an original work of authorship.” This nuance is particularly relevant in music cases; citing “Stairway to Heaven,” the court explained that where “there is a narrow range of available creative choices” (such as notes in a scale or pleasing combinations of sounds) copyright protection is “thin” and to infringe, the allegedly infringing copy must be virtually identical. The difference between this case and the “Blurred Lines” case, according to the court, is that the “thin copyright” doctrine typically will not apply to entire musical works (as opposed to constituent elements). Citing its obligation to balance the First Amendment against the Copyright Act, the court also noted that the inherent nature of music as an art form was to borrow and build upon what had previously been created given that “many if not most of the elements that appear in popular music are not individually protectable.”
With this backdrop, the court first analyzed the constituent elements of plaintiffs’ ostinato, including the key, phrase length, pitch sequence, rhythm “shape,” and musical texture. Finding these elements to be individually common or even ubiquitous in pop music, the court held that “the uncontroverted evidence points to only one conclusion: that none of these individual elements are independently protectable.” This conclusion was supported by testimony from the plaintiff’s own expert musicologist.
The same conclusion was apparent when analyzing the elements taken together as combined: their selection, arrangement, and coordination was not original enough to warrant protection as an original work of authorship. The court held that the ostinato in “Joyful Noise” did not contain enough musical elements arranged in a “sufficiently original manner to warrant copyright protection.” While it is possible that a musical phrase as short as eight notes could be protected, the court noted the dearth of on-point cases where “an otherwise unprotected musical phrase, isolated from the rest of the musical composition, in fact warranted copyright protection.” The court explained that it was undisputed in light of the evidence at trial that “the signature elements of the 8-note ostinato in ‘Joyful Noise’” including its pitch sequence and rhythm, were “not a particularly unique or rare combination,” and that prior works composed by the parties and many others contained similar elements. The ostinato’s musical timbre, its “pingy synthesizer sound,”’ and its use of minor key did not tip the scales.
The court accordingly held that the ostinato did not constitute protectable expression and therefore the extrinsic test (step one) failed, entitling the defendants to judgment as a matter of law notwithstanding the jury verdict to the contrary. Although arguably not strictly necessary in light of this threshold ruling, the court went on to explain that, even if the plaintiffs’ ostinato was protectable, the defendants’ ostinato was not substantially similar. Owing to the “thin” nature of the protection that would have been afforded to the plaintiff’s composition had it been deemed copyrightable, the degree of similarity would have had to have been “virtually identical” for a finding of infringement, and the evidence did not support such a conclusion given “a number of undisputed objective distinctions,” as corroborated by plaintiffs’ own musicologist.
Interestingly, despite the court’s conclusion that defendants were entitled to judgment as a matter of law on the extrinsic test (arguably obviating the need to address the intrinsic test), the court proceeded to opine on the jury’s finding of intrinsic similarity. Because the intrinsic test is fact-sensitive and a question solely for the jury, the court held that, despite the court’s reversal on extrinsic liability, a reasonable jury could have found that the “total concept and feel” of the two ostinatos were “intrinsically” similar. This of course did not change the outcome of the decision.
The court also found that there had been enough evidence to support the jury’s conclusion that the plaintiffs had accessed the defendants’ song. Citing “Stairway to Heaven,” the court noted that reasonable minds could find that defendants “had a reasonable opportunity to [hear] plaintiff’s work” particularly in light of the current ubiquity of musical content and ready access to digital media online. In such circumstances access could be established “by a trivial showing that the work is available on demand,” and “Joyful Noise” had garnered more than 6 million plays online, hundreds of concert performances, and a Grammy nomination. But again, this did not change the result.
The “Dark Horse” case follows in the footsteps of “Stairway to Heaven” in establishing stricter boundaries around what musical elements are protectable but indirectly diminishing the importance of access in light of digital media and technological advancements. As the decision is applicable to song elements like ostinatos, and arguably by analogy guitar riffs or solos, basslines, synthesizer accompaniments and the like – as opposed to entire compositions – it will likely cabin future claims concerning these discrete musical structures and reduce the likelihood that a songwriter or performer will be hit with a multi-million-dollar jury verdict for creating a single song element. Decisions like “Dark Horse” and “Stairway to Heaven” will likely provide some comfort to musicians in being able to rely on those who came before them in writing their parts, but at the same time the decisions leave undisturbed the lessons from “Blurred Lines” when it comes to similarity of musical compositions in the aggregate whether one agrees with the outcome of that case or not.
Congratulations to Andrea Cannistraci client and award-winning author Judy Blume, who is executive producing the resulting limited drama series, entitled “Best Day Ever“ along with Tigelaar and Stacey Silverman.
By Sara Gates
In a decision that will likely be seen as a victory for photojournalism, a judge in the Eastern District of New York recently rejected the legal argument that an iPhone photograph, taken by a passerby who was in the right place at the right time, lacked originality. The decision represents a turn away from what the photography community would undoubtedly perceive as a slippery slope, i.e., if a court embraced a broad view that photographs captured by amateur photographers on their iPhones are not entitled to copyright protection.
The case pitted Alex Cruz, a passerby who captured a photograph of police apprehending a terrorist attack suspect in the Tribeca neighborhood of New York City in October 2017, against Cox Media Group, which holds a large portfolio of TV and radio stations, newspapers, and websites. After the photograph was posted to Instagram, Cruz licensed the image to media companies including CNN and NBC (https://www.nbcnews.com/slideshow/terrorist-truck-attack-shocks-new-york-city-n816236). Cox, without seeking permission, published the photograph in a gallery on one of its websites, accompanying an article about the suspect, as well as on its social media channel. Facing a copyright infringement claim, Cox later argued that Cruz’s photograph lacked sufficient originality to entitle it to copyright protection and support a copyright infringement claim.
Specifically, Cox alleged that Cruz did not make any creative choices in capturing the photograph, arguing that the photograph therefore did not possess a “modicum of creativity,” citing the oft-used language from Feist Publications, Inc., v. Rural Telephone Service Co., 499 U.S. 340 (1991). Judge Garaufis did not agree with this argument, finding that Cruz’s photograph reflected several creative choices, including timing (i.e., being in the right place at the right time) and his decision to take the photograph when he did (when law enforcement was apprehending the suspect, who was lying on the ground).
The judge applied the law of the Second Circuit, citing precedents such as Mannion v. Coors Brewing Co., 377 F. Supp. 2d 444 (S.D.N.Y. 2005), in which the Southern District of New York held that a photograph may be original in three respects: (1) rendition, (2) timing, and (3) creation of the subject, and Rogers v. Koons, 960 F.2d 301 (2d Cir. 1992), in which the Second Circuit recognized that “original” elements of a photograph may include “posing the subjects, lighting, angle, selection of film and camera, evoking the desired express, and almost any other variant involved.”
Though there may be instances in which a photograph is a slavish copy (such as in cases involving a photograph of a photograph), or a photograph serves a purely utilitarian purpose (such as showing what a standard Chinese menu item dish contains), where a photographer (whether amateur or professional) exercises any creative choices to capture the photograph, this decision supports the principle that photographers should be deprived of copyright protection. Judge Garaufis recognized at least two creative choices relating to the timing of the photograph, but there were likely others, such as the angle and set-up of the shot. With technological advances, the abilities of iPhone (or other mobile device) users to capture creative photographs with their devices, rather than a traditional camera, are greatly increased. Aspects like depth of field, lighting, and frame can all be adjusted with a click of a button. In this instance, notwithstanding whether Cruz used additional iPhone features to capture the photograph, the court found that he still exercised sufficient creative choices in deciding when, where, and from what angle to take the photograph to capture an inherently newsworthy event. Indeed, some of the most memorable moments of photojournalism are based on the photographer being at the right place at the time and knowing how to frame a compelling image (https://www.digitalphotomentor.com/20-most-famous-photographs/).
Lack of originality is a difficult defense particularly in photo cases, as most photographs will be protected by copyright law, even if that protection is thin. Though judges should not place themselves in the situation of being arbiters of what is and is not art, oftentimes they are faced with the question of whether a work contains sufficient creative authorship to qualify for copyright protection, one of the prima facie elements of a copyright infringement claim. This case represented a reasoned application of well-settled law despite an unconventional defense that may have prevailed under different circumstances and as applied to different forms of art.
This case is Alex Cruz v. Cox Media Group, LLC, Case No. 2:18-cv-01041-NGG-AKT (E.D.N.Y. March 13, 2020).
Having recently attended a symposium co-sponsored by the United States Copyright Office and the World Intellectual Property Organization on Copyright & Artificial Intelligence, Nancy noted that as AI infiltrates modern life, the effects on the content licensing industry, creators and copyright will be enormous. Read all about it here.
Shown in 8-minute segments, “I Promise” documents the first year of the I Promise School that LeBron James opened in his hometown of Akron, Ohio in an effort to close the achievement gap by creating a new model of urban public education. Executive produced by James and CDAS client Marc Levin, among others, “I Promise” will serve as the public launch of the Quibi platform when it goes live in April. Watch the trailer.
Briana Hill, Co-Head of the Beverly Hills office of Cowan DeBaets Abrahams & Sheppard LLP, joins Fred Bimbler and Simon Pulman in leading the firm’s Entertainment group, which includes televison (traditional to broadband), streaming, film, new media, talent, theatre and podcasting. The group assists clients with their entertainment projects through early development, the solicitation of investment, production and ultimate distribution, securing all necessary rights and negotiating agreements with top-tier talent.
Ben Jaffe joins Joshua Sessler in leading the Digital Media & Technology group that represents top digital talent, including game developers and distributors, digital agencies, production houses, broadband video networks, mobile app developers, podcasters and social media ventures. The group provides counsel to a wide range of social media, transmedia and mobile plays that are using emerging software and hardware technologies to create, develop and distribute content in new ways.
By Simon Pulman
One thing is clear from Sundance 2020: the current market for documentary and quality unscripted projects is extremely strong. Among several eye-catching deals, the $10m paid by Apple to acquire the documentary “Boys State” matched the sum paid by Netflix to acquire “Knock Down the House” in 2019. Concurrently, premium cable outlets and SVOD platforms ranging from HBO, Netflix, Amazon and Hulu to new players HBO Max (scheduled to launch in May 2020), Peacock (July) and Quibi (April) are commissioning a diverse range of quality documentaries, either as one-off pictures or episodic documentary series such as “Cheer,” “McMillions,” “All or Nothing” and “Making a Murderer.”
In the context of this new exciting marketplace, some of the traditional rules have changed. What do producers need to know?
By Novika Ishar
Amid concerns over a weak market and the impact of streamers on the independent film industry, the 2020 Sundance Film Festival closed with the exhibition of several highly anticipated films, some record-breaking sales and the upsurge of important new deal makers. See below for some key trends that emerged from this year’s festival.
Slower Initial Sales
As new buyers continue to flood the Sundance Film Festival each year, including big budget-backed streamers such as Disney Plus and Amazon Studios (which purchased the 2019 Sundance hit comedy “Late Night” starring Mindy Kaling and Emma Thompson for $13 million, to little box office success), the festival has witnessed an overall resurgence of record-setting sales. Nevertheless, opening weekend sales were largely sluggish. Unlike previous years, where multiple sales might be completed during opening weekend, the first sale this year took place four days into the festival and current sales can often take days or even weeks to resolve. Perhaps due to the lackluster commercial performance of films like “Late Night,” distributors are choosing to be more selective and are waiting to view a wider variety of projects before undertaking an expensive acquisition. Slower initial sales could also be attributed to the fact that more films are entering the festival with distributors already attached, like the documentary “Mucho Mucho Amor,” which was acquired by Netflix before the festival opened, or the popular entry “Promising Young Woman” (starring Carey Mulligan and produced by Margot Robbie), which was set up at Focus Features; consequently there are fewer projects in contention.
Genre-Based Films and Documentaries Still a Hit
Initial sales notwithstanding, this year was a big hit for documentaries. Beginning with Netflix’s pre-festival purchase of “Mucho Mucho Amor,” documentaries continued to drive sales at Sundance, perhaps even more so than in previous years. Some of the most buzzed-about films included the star-studded Taylor Swift and Hillary Clinton biopics. Most notably, Apple and A24 teamed up to acquire the Concordia Studio-produced “Boys State” for a staggering $12 million, a new sales record for documentaries at Sundance.
Another standout success was the Andy Samberg-led romantic comedy “Palm Springs,” which set a new festival sales record thanks to a $22 million deal with Neon and Hulu, dethroning the record previously held by “Birth of a Nation” by a substantial amount. The deal reportedly includes an acquisition fee of approximately $17.5 million along with a guaranteed bonus compensation, the details of which have not yet been disclosed.
There are a few possible explanations as to why these record-breaking sales were feasible in the current risk-averse climate:
Where Does Sundance Go From Here?
What does all this mean for the future of Sundance? On the one hand, the festival’s trajectory seems somewhat uncertain. Unlike Cannes or the Toronto International Film Festival, which benefit from a larger international market, Sundance focuses primarily on small-budget independent films and documentaries, which historically have not performed well at the domestic box office. Moreover, as streamers such as Netflix continue to develop and produce original content, there is less demand for third-party content. In that respect, Sundance may begin to look more like a showcase of distribution-ready films rather than a traditional marketplace.
However, there could be a few potential developments that offer reason to be optimistic about the future of festival sales:
Regardless of sales, Sundance continues to attract droves of industry veterans and movie enthusiasts alike. Furthermore, the festival’s reputation as a prestigious launching point for rising talent supports its ongoing relevance in the contemporary market. Nonetheless, given the unpredictable trends of the past few years and the ever-evolving digital media landscape, it will be worth keeping an eye on the direction of future Sundance sales, perhaps as an indicator of larger trends in the industry.