Copyright

On July 30, 2019, a Federal Jury returned a verdict that Katy Perry, along with co-writers Jordan Houston (p/k/a Juicy J) Lukasz Gottwald (p/k/a Dr. Luke) Sarah Hudson, Max Martin and Henry Walter (p/k/a Cirkut)[ref]Dark Horse (Katy Perry song)[/ref] were all guilty of copyright infringement.[ref]A jury said Katy Perry's "Dark Horse" copied another song. The $2.8 million verdict is alarming.[/ref] Then, on August 1, 2019, that same jury decided that: "…Ms. Perry must pay $550,000, while her label, Capitol Records, owes nearly $1.3 million. Ms. Perry's five collaborators in writing the song were also ordered to pay, including the star producers Max Martin, who owes $253,000, and Dr. Luke, who owes $61,000 personally, while his company, Kasz Money Inc., owes $189,000."[ref]Katy Perry and Others Must Pay $2.8 Million Over 'Dark Horse,' Jury Says[/ref] The criticism was quick and unyielding. "The [offending melody is] a starkly simple phrase, six descending notes that a marginally talented toddler could bang out on a toy xylophone."[ref]Katy Perry's 'Dark Horse' Case and Its Chilling Effect on Songwriting[/ref] "…Charlie Harding of the Vox podcast Switched on Pop explains that the striking similarities should be free to use by both artists, despite their similarities. Both "Joyful Noise" and "Dark Horse" use derivative descending minor scales in a basic rhythm, Harding said, and both use staccato downbeat rhythms on a high voiced synthesizer which is common in many trap beats. Harding also says the songs are in different keys and BPMs (beats per minute), and that the melodies are not the same notes."[ref]A jury said Katy Perry's "Dark Horse" copied another song. The $2.8 million verdict is alarming.[/ref] Here are the two songs so you can compare for yourself: Here's Plaintiff's song, "Joyful Noise": [embed]https://www.youtube.com/watch?time_continue=1&v=jTLeHuvHXuk[/embed] Here's Defendant's Song, "Dark Horse": [embed]https://www.youtube.com/watch?v=0KSOMA3QBU0[/embed] Even on a first listen, the beds of the songs are very similar. But just how similar are they? First, let's take on the criticism that "the songs are in different keys." From a music theory standpoint, this does not matter. As long as the two keys remain of the same type (major, minor etc.), the relationship between the notes and the most important notes in the scale (the tonic, sub-dominant and dominant) remain the same. We will talk more about this later. In addition, that the songs have different tempos, expressed above as "beats per minute," also does not matter. If it's the same song, it's the same song, no matter how fast or slow it is played. The version of "You Keep Me Hangin' On" by the Vanilla Fudge is the same song as "You Keep Me Hangin' On" by The Supremes, in spite of the vastly different tempos. If you read music, Vox.com has a transcription of the two songs.[ref]A jury said Katy Perry's "Dark Horse" copied another song. The $2.8 million verdict is alarming.[/ref] All thanks and credit to them. The differences between JN and DH are reflected in color. The similarities are noted by black notes. Just from a visual sense you can readily observe that the two songs are very similar. Even though I'm afraid I'm about to lose 70% of my readership, here goes: The first six notes of both JN and DH are exactly the same, when you take into account the harmonic relationship to the key the song is in. DH is in D flat major. JN is in C major. The first four notes of JN are the note C played in quarter notes. In music theory this is called the "tonic note" or the note that starts the musical scale. The next two notes are the note B also played in quarter-notes, which is the note immediately adjacent to C, or what music theory calls a "half-step." "Dark Horse" does the exact same thing. The first four notes are the tonic D flat in quarter-notes with the next two notes being a half-step down, or the note C, also in quarter notes. Now let's look at the last two bars of each songs' phrase. The phrases are identical except for one note. The last two notes of JN are B and E. The last two notes of DH are B flat and F. In JN this would be a distance of a half –step and a minor 6^th. In DH this would be a distance of a minor 3^rd and a minor 6^th. So, in each case the first four notes are the tonic, the next two notes are a half-step down and the final note is the exact same harmonic distance, a minor 6^th. So in sum, out of the 16 notes in each phrase, only three notes are different harmonically, and the rhythm of the notes is exactly the same. And in the third bar, while the final note in JN is a minor 3^rd apart (A), and while in DH a minor 6^th apart in (F), in harmony terms, this is not a big difference. The 3^rd or the 6^th notes of a major scale are very similar in their harmonic effect and are considered "tonic substitutes." Now, the phrase that is in dispute is not exactly a Beethoven symphony. Like "Stairway to Heaven" before it, it has musical predecessors that sound very similar. Take, for example, this song from the band "Art of Noise" titled "Moments in Love": [embed]https://www.youtube.com/watch?time_continue=14&v=ux3u31SAeEM[/embed] The main defense, of course, is that the composers of DH claim to have never heard JN. If this is true, then the doctrine of independent creation comes into play: you can't copy what you have never heard. This is what got the Bee Gees off the hook from a similar shocking verdict over the song "How Deep Is Your Love." "Look at the first three bars of music. Out of the eight notes played, six are the exact same pitch, and the timing of all the notes is identical. All counted, there are 30 instances of notes sharing the same pitch and time value."[ref]The "Blurred Lines" Verdict: What It Means For Music Now and In the Future[/ref] Yet, the Plaintiff was unable to prove the Bee Gees had ever heard his song. Beyond sending it to a few music publishers and record companies, the song had no commercial distribution. The trial judge reversed the jury's verdict and the 7^th Circuit affirmed.[ref]Selle v. Gibb, 741 F. 2d 896  (7^th Cir. 1984)[/ref] This is not the case with JN. The song was widely distributed. It had 5 million YouTube views.[ref]Katy Perry Loses 'Dark Horse' Copyright Trial[/ref] The album which contained JN was nominated for a Grammy.[ref]Id.[/ref] The song itself was nominated for a Gospel Music Award.[ref]Flame (rapper)[/ref] The problem here is that the songs, when taken at their totality, are very different and not substantially similar. After all, JN is a rap song, and DH is most certainly not a rap song. Yet, countering that, is that the parts that are similar, are nearly identical. To a jury's ears, this could easily tip the balance, much more so than the similarities that occur in the "Blurred Lines" case.[ref]The "Blurred Lines" Verdict: What It Means For Music Now and In the Future[/ref] And then there's this. Go back and listen to the opening seconds of each song. At the 00:11 mark of JN, a male voice shouts out "You know what it is?" At the 00:11 mark of DH, a male voice shouts out "Y'all know what it is?" Now if the Defendants had never heard the song "Joyful Noise," how the heck did that happen?

A lot of people assume that when you pay an artist to create a work of art, that you, the person laying out the cash, is the owner of the copyright. This concept is known as "work made for hire" and has been around for a very long time. This concept was totally revamped and codified under the current Copyright Act. But within this revamping of the law is a pitfall, one that reared its head in Court and cost the hiring party copyright it thought that it owned. Because simply calling something a "work for hire" (WFH) does not necessarily make it so. Even if everyone agrees that it is. Why is WFH so desirable that people will litigate about it? Because if something is a WFH, the person paying the money owns the entire copyright as if they had created it themselves, whether they really had any hand in the creation of the work or not. They become the equivalent of the "author" for all purposes under the Copyright Act.[ref]17 USC 201(b)[/ref] And the actual author has no recourse.[ref]17 USC 203(a)[/ref] Work for hire comes in two forms:

• Made by an employee within the scope of employment
• Created by an independent contractor, if certain conditions are met[ref]17 USC 101 "work made for hire"[/ref]

The first part has resulted in numerous litigated cases, mainly revolving around whether the artist in question was an "employee" or not.[ref]Community for Creative Non-Violence v. Reid 490 U.S. 730 (1989)[/ref] The second part has also spawned a number of disputes, usually dealing with whether the required formalities have been met. Under the Copyright Act, an independent contractor retains the copyright to a work the artist is paid to create, unless two things happen:

• The work is one of the "magic nine" kind of works specifically listed by the Copyright Act
• The parties all agree that the work is a work for hire in a written agreement signed by them[ref]17 USC 101 "work for hire"[/ref]

It is the second part of this requirement that came before the Second Circuit Court of Appeals. The case is Estate of Kaufmann v. Rochester Institute of Technology.[ref]2019 WL 3482596 Second Circuit Court of Appeals 2019[/ref] The facts of the case are highly unusual, in that both parties to the case agree on all the facts; except what it should mean legally.

• Stanley Kaufmann wrote movie reviews for The New Republic magazine
• Everyone agrees that Kaufman was not an employee of The New Republic
• Everyone agrees that his reviews were a "contribution to a collective work" and thus one of the "magic nine" kind of works that can be considered a WFH created independently
• Both Kaufman and The New Republic granted licenses as if they were the copyright owner
• Everyone agrees that five years after he stopped writing reviews Kaufman executed an agreement with the literary editor of The New Republic that the reviews that he wrote were "works for hire"
• Kaufmann died in 2013
• Subsequent to his death, the Rochester Institute of Technology published 44 of the articles, based upon a license from a 3^rd party that later turned out to be fraudulent[ref]Id. at 2[/ref]

The Estate of Stanley Kaufmann now sues RIT for copyright infringement. But if the Estate does not own the copyrights, they have no basis for filing a claim. If the Estate does own the copyrights, RIT's license would be useless no matter who issued it. The question before the Court centers around the written agreement. Does the agreement make the articles "works for hire," even though it was executed after the fact? Three previous Courts of Appeals have examined this question, and come to different results, creating a split of opinion between three Circuit Courts of Appeals. The Seventh and Ninth Circuits have held that in order to make the agreement of an independent contractor work a WFH, the agreement must be executed before the work is created.[ref]Schiller & Schmidt, Inc. v. Nordisco Corp., 969 F.2d 410, 412-13 (7th Cir. 1992); Gladwell Government Services, Inc. v. County of Marin, 265 F. App'x 624, 626 (9th Cir. 2008)[/ref] However, the Second Circuit ruled differently in the case of Playboy Enterprises v. Dumas,[ref]53 F.3d 549, 558-59 (2d Cir. 1995)[/ref] a case arising out of artwork created by Patrick Nagel that appeared in Playboy magazine. While not a household name, you would instantly recognize Nagel's work due to his distinctive style. The cover of Duran Duran's Rio album is a good example of his work. In the Playboy case, Playboy did not have any written agreement with Nagel except for transfer language placed on the back of the payment checks and Playboy did not pay Nagel until after it had received the artwork. Under the rulings of the 7^th and 9^th circuits, this would end the case. However, the 2^nd Circuit ruled that there was evidence of an ongoing agreement between Nagel and Playboy by endorsing checks that had legends of transfer of ownership on them. "[w]hile Nagel's endorsement of Playboy's first check bearing [one version of the legend] may not evidence [Nagel's] pre-creation consent to a work-for-hire relationship, Nagel's subsequent pre-creation consent to such a relationship may be inferred from his continued endorsements."[ref]Id. at 560[/ref] But here the Court finds that while Nagel's conduct indicated an ongoing agreement with Playboy, the evidence fails to support a finding that there was a similar ongoing agreement between Kaufman and The New Republic. The agreement, executed five years after the fact, is simply too remote in time and ineffective to vest copyright in TNR. "In the pending case, the agreement alleged to satisfy the writing requirement was not executed until five years after the year in which the articles were written, and there are no circumstances even approaching the Playboy scenario of a series of writings executed by check endorsements right after payment for each work. It is not ‘paperwork [that] remained not fully executed until after creation of the subject work.' Id. at 559 (quoting 1 Nimmer § 5.03[B][2][b] (1994)). The 2004 Agreement does not satisfy the writing requirement of section 101(2)."[ref]2019 WL 3482596 at 4[/ref] What is left to question is why TNR avoided one of the primary rules of drafting agreements: the "belt and suspenders" approach. If TNR was at all uncertain about whether the articles of Kaufman were in fact "works for hire," it should have provided that if the agreement failed to establish a work for hire arrangement, the copyright in the articles would be deemed transferred by the same instrument. So for now, in the 7^th and 9^th circuits, the agreement must be executed before the work is created. In the 2^nd Circuit (and the four district courts that have relied on Playboy[ref]They are: Kid Stuff Marketing, Inc. v. Creative Consumer Concepts, Inc., 223 F. Supp. 3d 1168, 1180-81 (D. Kan. 2016); Campinha-Bacote v. Rearden, No. 3:10-CV-00139-JDR, 2011 WL 1343343, at *3 (D. Alaska Apr. 8, 2011); Looney Ricks Kiss Architects, Inc. v. Bryan, No. CIV.A. 07-572, 2010 WL 4068885, at *6 (W.D. La. Oct. 14, 2010); TMTV, Corp. v. Mass Productions, Inc., 345 F. Supp. 2d 196, 206 (D.P.R. 2004), aff'd on other grounds, 645 F.3d at 464, 469-70 (1st Cir. 2011).[/ref]) the agreement must be somewhat contemporaneous with the creation of the work, and five years is simply too long. Even if everyone agrees.