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.
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.
After a two-week trial in the summer of 2019, a jury found the defendants liable for copyright infringement and awarded plaintiffs $2.8 million in damages, and the defendants moved for judgment as a matter of law (or for a new trial). Courts will grant motions for judgment as a matter of law when there are no genuine factual disputes and “a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue.” The court found these standards to be satisfied.
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.
“Anything You Can Use, I Can Use Better: Examining the Contours of Fair Use as an Affirmative Defense for Theatre Artists, Creators, and Producers,” by Benjamin Reiser, Fordham Intellectual Property Media & Entertainment Law Journal, Vol. XXX, No. 3 (2020). Find the article here.
When the full Ninth Circuit Court of Appeals on en banc rehearing issued its opinion in the appeal of the widely reported Led Zeppelin Stairway to Heaven case on March 9, 2020, the court took a substantial step in providing guidance for future copyright infringement claims based on allegations of “substantial similarity” between songs.
The music industry feared a potential seismic shift in how music could be created without exposure to copyright liability after a panel of Ninth Circuit judges voted 2-1 to uphold a jury verdict in favor of the heirs of Marvin Gaye on their claim against Robin Thicke and Pharrell Williams in the Blurred Lines case. In her strong dissent, Circuit Judge Jacqueline Nguyen said the decision let the Gayes “accomplish what no one has before: copyright a musical style,” and warned that the decision expanded the potential for further copyright litigation.
Around the same that the Blurred Lines trial commenced, another seminal case was filed that addressed essentially the same issue – whether basic uncopyrightable elements of song writing, if selected and arranged in a certain manner, could then be deemed copyrightable.
In May 2014, Michael Skidmore, serving as the trustee for the estate of Randy California, late front man for the band Spirit, filed a lawsuit against Led Zeppelin, accusing the band of copying the famous intro to Stairway to Heaven from Spirit’s 1967 instrumental ballad called Taurus. Skidmore claimed the portion of Taurus protected by copyright is the song’s 8-measure descending chromatic scale intro, which is similar to the descending chromatic chord progression in Stairway to Heaven. In Los Angeles federal district court, a jury ultimately sided with Led Zeppelin because Skidmore did not satisfy the “substantial similarity” test, finding that although Zeppelin had access to “Taurus,” the elements of the song that were shared by Stairway to Heaven were not original enough to be protected under copyright law.
Skidmore appealed the verdict to the Ninth Circuit, arguing, among other things,that the district court erred in its decisions to apply the Copyright Act of 1909 to Taurus and not allow Skidmore to play for the jury the actual recorded version of Taurus to buttress his argument of substantial similarity between the songs. The district court had only permitted Skidmore to put into evidence the “bare-bones” sheet music of Taurus deposited at the U.S. Copyright Office to demonstrate that the intro to Stairway was “substantially similar” to Taurus because at the time of its creation and under the 1909 law, sound recordings were not protected by copyright, only musical compositions. In September 2018, a three-judge Ninth Circuit panel sided with Skidmore, in part, and overturned the jury verdict due to its finding that the jury instructions failed to inform the jurors that unprotectable elements of a song could be protected by copyright law when “selected” or “arranged” in creative ways.
However, before the case went back to district court, the Ninth Circuit agreed to vacate the panel ruling and rehear the case en banc, indicating that the case presented many open questions for the future of music law. In its decision, the full Ninth Circuit analyzed the two factors required by Skidmore to prove copyright infringement: (1) he owned a valid copyright in Taurus; and (2) that Led Zeppelin copied protected aspects of the work.
In consideration of the first factor, the court first had to decide whether copyright protection of Taurus would fall under the Copyright Act of 1909, or the 1976 revision and limited protection afforded sound recordings created after February 15, 1972. This issue proved to be pivotal in the case because it was only with the passage of the 1971 amendment, followed by the Copyright Act of 1976, that Congress opened the door for artists (or labels) to obtain copyright protection over master sound recordings of musical compositions. Up until this time, artists like Spirit could only submit sheet music for copyright registration under the 1909 Act. The Ninth Circuit upheld the district court’s holding by concluding “that the 1909 Act controls and the deposit copy [registered in 1967] defines the scope of the Taurus copyright.” With this finding the Ninth Circuit closed the door on Skidmore’s argument that he should be able to play the recorded version of Taurus for the jury, since Skidmore did not own a valid copyright in the sound recording.
Armed only with copyright protection in a single page of sheet music, the Ninth Circuit then turned to the facts applicable to whether Skidmore had put forth sufficient evidence to satisfy the test that Stairway to Heaven was similar enough to Stairway to Heaven for unlawful copying to have occurred. The Ninth Circuit uses a two-part test to determine whether works are substantially similar. The first part compares the objective similarities of specific expressive elements in the works at issue, referred to as the “extrinsic test” and typically involves expert witnesses. The second part, known as the “intrinsic test,” looks at similarity of expression from the standpoint of the ordinary reasonable observer, with no expert assistance.
At trial, the jury had found in favor of Led Zeppelin on the question of whether “original elements of the musical composition Taurus are extrinsically similar to Stairway to Heaven,” and as a result did not move on the intrinsic test. The Ninth Circuit upheld the district court’s approach stating that “because the extrinsic test was not satisfied, the jury did not [need to] reach the intrinsic test.”
The final key issue in this case is that the full Ninth Circuit abrogated the “inverse ratio rule,” which had permitted a lower standard of proof to satisfy the “substantial similarity” test if a plaintiff could demonstrate that the alleged infringer had a high degree of access to the protected work. During trial, neither party disputed the fact that, during the late-1960s/early-1970s, Spirit and Led Zeppelin played at various venues together on at least three occasions, but there is no evidence the groups never toured together. One of Skidmore’s key arguments was that the district court erred by not submitting the “inverse ratio rule” to the jury. The Ninth Circuit stated that “the Second, Fifth, Seventh, and Eleventh Circuits have rejected the rule”. And, in agreement with the district court, the Ninth Circuit further stated that “[b]ecause the inverse ratio rule, which is not part of the copyright statue, defies logic, and creates uncertainty for the courts and the parties, we take this opportunity to abrogate the rule in the Ninth Circuit and overrule our prior cases to the contrary.”
The court’s elimination of the reverse-ratio rule is a significant development and substantial clarification of the law in California that will likely be seen as a boon to creators of modern music. Access to music is now more ubiquitous than ever, so it stands to reason that plaintiffs would inevitably be able to seize on the lesser standard of similarity in cases involving modern music. Of course, for those cases arising out of “classic” works like Stairway to Heaven, the abrogation of the reverse-ratio rule, may be seen as one less arrow in the copyright protection quiver. How creators synthesize this ruling, whether in defense or pursuit of copyright claims, remains to be seen, but the impact will likely be a significant one.
The case is Michael Skidmore v. Led Zeppelin, et al, case number 16-56057, in the U.S. Court of Appeals for the Ninth Circuit.
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.
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.
See the attached article from TeenVogue in which Nicole Elizabeth Berger talks about her working with Cameron Boyce in their first starring roles. Distribution and release of “Runt” are still pending.
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.
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?
- Contemplate Flexible Formats: Given the rise of episodic content, and taking into consideration the massive amount of footage that documentary filmmakers often create, it is no surprise that there have been several examples of projects that were originally planned as one-off documentary films being reformatted into two-part documentaries or even multi-episode series. Moreover, several projects that were planned as feature documentaries have been reformatted into multiple episodes of ten minutes in order to premiere on Quibi, while other documentary projects have been developed in tandem with a tie-in series of podcasts (for instance, the “McMillions” podcast promises to allow listeners to ‘go deeper inside the story’).
Accordingly, filmmakers should try to structure their deals and negotiate their paperwork in a manner that permits some flexibility with respect to the final form of the project. It is best not to be put in the position of having to determine whether a release that was signed with respect to a “documentary motion picture” would apply to an entire episodic series, especially if the subject at hand is very high level or somewhat tricky (such a subject who withdraws cooperation with the film during the course of production).
- Make Room for Buyers: Traditionally, documentary filmmakers have often adhered to the mantra that “credits are free” when according individual credits and company credits to financiers and collaborators (meaning, that filmmakers will often offer an enhanced credit in lieu of a financial entitlement). However, the new group of premium buyers strongly disfavor logos and company credits, in part because their business is predicated on keeping viewers engaged, and they don’t want people to be discouraged by long opening credits. Accordingly, it is not uncommon to see only one company logo at the top of the production – that of the platform. Filmmakers should bear this in mind, and may want to build in contractual language stipulating that all credits are “subject to network, distributor or other licensee approval” (which has been commonplace in television for some time). Likewise, most of the newer platforms do not approve of according any kind of paid advertising credit to third parties (unless it’s a very high level celebrity-like figure), so filmmakers need to be cautious when agreeing to any such obligations.
- Where’s My Backend?: Most documentary filmmakers (and many documentary financiers) would agree that nobody is in docs for the money. With that said, there have been multiple examples of extremely successful documentaries over the past twenty years that have generated profits for filmmakers and financiers. Under the new structure, whereby the conglomerates that own most of the platforms and outlets are seeking to acquire all rights and build their IP libraries, there is usually one “buyout” payment and no backend profit participation, while other forms of “upside” such as box office bonuses are also effectively rendered moot. Filmmakers need to bear this in mind, and may need to revise their financial structures to account for this (in consultation with experienced counsel, of course).
- Remakes, Remakes, Remakes: The dirty secret of documentary acquisitions is that, at least some of the time, buyers are acquiring the documentaries in order to secure the remake and other derivative rights. The right unscripted material can be fodder for a highly successful scripted series or series of scripted motion pictures – or can be used as the basis for an unscripted series spinoff format. Indeed, circumstances have sometimes arisen where potential buyers have withdrawn their interest in a documentary when it became apparent that remake rights were not available.
Accordingly, filmmakers should pay attention to remake and derivative rights when putting together their projects. They may wish to seek to acquire life rights – or an option to acquire life rights – from subjects, although this is not always possible. They may want to consider how their collaborators and financiers participate in derivatives, if at all. And when it comes time to sell the project, filmmakers should be cognizant of the potential value of derivative rights to certain types of projects. Ultimately, for documentary filmmakers the documentary should come first – but selling remake rights can be a good way to help finance the next doc!