Copyright

The case that seemingly would never end, has finally ended. The long running battle between the Randy Wolfe Trust and Led Zeppelin over "Stairway to Heaven" concluded in the most unusual fashion, with the full panel of the 9^th Circuit reversing its own previous panel's ruling reversing the jury verdict.[ref]Skidmore v. Zeppelin 2020 WL 1128808 9^th Circuit Court of Appeal 2020[/ref] This blog has written about the Led Zeppelin case twice before,[ref]Stairway to Nowhere: Court Reverses Verdict in Favor of Led Zeppelin & The "Stairway to Heaven" Guitar Melody Is In the Public Domain! But Does This Get Led Zeppelin Off The Hook?[/ref] most recently criticizing the earlier 9^th Circuit decision reversing the jury verdict. The two main takeaways from this latest decision is that the 9^th Circuit has made it harder to win copyright infringement suits. First and foremost, the decision repeals the "inverse ratio rule" that had previously been binding precedent within the 9^th Circuit, albeit a precedent that was less than perfectly adhered to. This rule stood for the proposition that a lowered standard of proof of substantial similarity between the two works is required where there is a high degree of access. As the Court notes, the "inverse ratio rule" has been rejected by the Second, Fifth, Seventh and Eleventh Circuits.[ref]2020 WL 1128808 at 9[/ref] Outside of the 9^th Circuit, only the 6^th Circuit has approved the rule.[ref]Id.[/ref] In abrogating the rule, the Court does not mince words. "[T]he inverse ratio rule, which is not part of the copyright statute, defies logic and creates uncertainty for the court and the parties…"[ref]Id.[/ref] and quoting the Second Circuit "The logical outcome of the claimed principle is obviously that proof of actual access will render a showing of similarities entirely unnecessary."[ref]Id. at 10, quoting Arc Music Corp. v. Lee 296 F.2d 186 (2d Cir. 1961)[/ref] Which was precisely the case here. Under oath, Jimmy Page admitted that he had a copy of the Spirit album that contained "Taurus," the song at issue.[ref]Id. at 8[/ref] Further, the trial jury found that both Page and Robert Plant had access to "Taurus,"[ref]Id.[/ref] but ruled that the songs were not substantially similar to each other.[ref]Id.[/ref] The inverse ratio rule might have mandated a different result. Then there is the question of the relevancy of the rule to the internet age. "[A]ccess is increasingly diluted in our interconnected world. Access is often proved by the wide dissemination of the copyrighted work…Given the ubiquity of ways to access media online…access may well be established by showing the work is available on demand."[ref]Id. at 11[/ref] Are you listening Katy Perry? But I digress. Further, the Court reaffirms the rule that the Wolfe Trust's copyright claim in Taurus was limited to the sheet music deposited with the Copyright Office, in concurrence with the ruling in the Blurred Lines case. "The text is clear-for unpublished works the author must deposit one complete copy of such work. The purpose of the deposit is to make a record of the claimed copyright, provide notice to third parties and prevent confusion about the scope of copyright."[ref]Id. at 6 (emphasis original)[/ref] And "Because the deposit copy defines the four corners of the Taurus copyright, it was not error…to decline [Plaintiff's] request to play the sound recordings of the Taurus performance that contain further embellishments or to admit the recordings on the issue of substantially similarity."[ref]Id.[/ref] This has led to speculation that many famous rock riffs may not be under copyright at all. These riffs, including Lynyrd Skynrd's Free Bird, The Eagles Hotel California and The Door's Riders on the Storm, are not found in the deposit copies filed with the Copyright Office. Thus, the argument goes, they are not protected by copyright.[ref]Rock Riff Rip-Off: The Legal Loophole That May Leave Some of Rock's Greatest Riffs Up For Grabs[/ref] Well, not quite. Section 303 0f the Copyright Act provides the answer. "Copyright in a work created before January 1, 1978, but not theretofore in the public domain or copyrighted, subsists from January 1, 1978, and endures for the term provided by section 302…The distribution before January 1, 1978, of a phonorecord shall not for any purpose constitute a publication of any musical work, dramatic work, or literary work embodied therein." So the copyright in the full version of Freebird, written over a period of time but recorded in its final version in 1973,[ref]Free Bird[/ref] but never published and not registered for copyright, will last for the life of the authors plus 70 years after death. Credited to Ronnie Van Zant and Allen Collins, both of whom are deceased, gives us a copyright that will last until 2060.[ref]Allen Collins[/ref] Notice that Section 303 of the statute simply says "created" not created and "fixed," as Section 102 does. So the portions of these songs not reflected in the deposit copy, are most certainly still protected by copyright. Certainly the sound recordings are proof enough of that. But in order to file an infringement lawsuit on those previously unregistered portions, an amended registration would be required. So the great rock and roll free-for-all, will not be happening anytime soon.

This story from Vice/Motherboard caught my eye: Musicians Algorithmically Generate Every Possible Melody, Release Them to Public Domain[ref]Musicians Algorithmically Generate Every Possible Melody, Release Them to Public Domain[/ref] According to the article: "Two programmer-musicians wrote every possible MIDI melody in existence to a hard drive, copyrighted the whole thing, and then released it all to the public in an attempt to stop musicians from getting sued. Programmer, musician, and copyright attorney Damien Riehl, along with fellow musician/programmer Noah Rubin, sought to stop copyright lawsuits that they believe stifle the creative freedom of artists. Riehl explained that to get their melody database, they algorithmically determined every melody contained within a single octave. To determine the finite nature of melodies, Riehl and Rubin developed an algorithm that recorded every possible 8-note, 12-beat melody combo. This used the same basic tactic some hackers use to guess passwords: Churning through every possible combination of notes until none remained. Riehl says this algorithm works at a rate of 300,000 melodies per second."[ref]Id.[/ref] They then registered the database with the copyright office and then attempted to inject the results into the public domain by granting a Creative Commons Zero License, which reserves no rights.[ref]Id.[/ref] The theory then goes, "if all possible melodies have been injected into the public domain, can any new song really said to be infringing?" Having watched the TED Talk which accompanies the article, Riehl has significant experience in both copyright law and music and puts forward a very intriguing proposition. But from where I sit, it doesn't work. The first problem is that Riehl and Rubin are not authors and cannot claim a copyright in the database. Under the rules of the Copyright Office, in order for a work to be copyrightable it must have a human author. As noted previously on this blog: "The authority for this is the U.S. Copyright Office's Compendium of US Copyright Office Practices, Section 305: U.S. Copyright Office will register an original work of authorship, provided that the work was created by a human being. The copyright law only protects ‘the fruits of intellectual labor' that ‘are founded in the creative powers of the mind.' (citation omitted) Because copyright law is limited to ‘original intellectual conceptions of the author,' the Office will refuse to register a claim if it determines that a human being did not create the work."[ref]Should Music Created by Artificial Intelligence Be Protected by Copyright?[/ref] Riehl and Rubin wrote a program. It did all the work. Recall their claim that the program "created" 300,000 melodies per second. This is far beyond the point where there is any meaningful human interaction in the creative process. So, not having a copyright in the first place, there is no way that they could have "injected" the work into the public domain, because there was no copyright to begin with. Now, since the database lacks a human author, it may be instantly in the public domain, and they get where they want to go, albeit by taking a different route. But it still doesn't work. Note the limiting factor of only 8 notes within a single octave. Granted, many pop songs are within that range, mainly because they're easier to sing, and in many cases the singer is not a particularly adept vocalist. But I didn't have to dig very far to find a very popular song that greatly exceeded the octave limit. Consider Elton John's "Goodbye Yellow Brick Road." The lyric …too young to be singing the blues Starts on F and then soars a minor 14th to D Flat. Way over an octave. "Goodbye Yellow Brick Road" is full of large jumps. Take the lyric: I should have stayed on the farm, I should have listened to my old man The first note is E flat. The last note is F. This is a distance of a major 9^th, which, again, is over an octave. When we get to the very next line You know you can't hold me forever The words "…know you can't hold…" are sung to a B Flat, a major 12^th above the E Flat. In addition, the limitation of just 8 notes make the database notably smaller than actual melodic practice, as the last two samples demonstrate. Suffice to say, Riehl's and Rubin's database does not contain the melody of "Goodbye Yellow Brick Road." Or how about Tears For Fears "Head Over Heels"? The very first line I wanted to be with you alone Starts on A and on the eighth note soars up to B, a major 9^th above where the melody started. And let's not even get started on "Bohemian Rhapsody" (Galileo! Galileo!) I fully understand that there's a bit of media puffery going on here, and as Riehl notes in his TED Talk, this is merely a question of expanding the variables to the entire piano keyboard and enlarging the number of bars until an even bigger database is generated. This article in The Atlantic posits that number to be 216 sextillion melodies.[ref]The Hard Drive With 68 Billion Melodies[/ref] So, this database, even with 69 billion melodies,[ref]Id.[/ref] is not every possible melody. But does this stop, or even slow down, copyright infringement suits? I don't think so. And the problem lies with access, namely you must have heard the song in order to have copied it. Clearly Riehl, being a copyright attorney, understands the concept of access very well, and clearly has a lot of sympathy for George Harrison, who famously got tagged for over a million dollars for copying "He's So Fine" with "My Sweet Lord." But the problem was that Harrison admitted that he had heard the song. He hardly could have plausibly denied it. It was a worldwide hit, as recounted in the Judge's opinion. But just because someone previously came up with the same melody, and that melody is now in the public domain, does not mean you are off the hook for copyright infringement. If you copied it from a work under copyright, you're an infringer. If you copied it from the public domain, you are not. Two people can, and have, come up with vastly similar melodies, totally independent of each other. Therein lies the problem. The database does not infringe any existing melodies, because it created them without any reference to the prior melodies. This is the doctrine of independent creation at work. But conversely, being independently created does not have the effect of placing the prior melody in the public domain, or prevent copyright in a melody created later that does not copy it from the database. So, even though there is now a database of 68 billion melodies that are claimed to be in the public domain, a Defendant in a copyright suit would have to show that it went to the database and copied it from there. This is the only way you could foreclose the possibility of access and copying, especially where the song in question is a song that is famous as "He's So Fine," or "I Won't Back Down," or "Got to Give It Up," or "Stairway To Heaven." It's an interesting exercise, but one that I think ultimately does not work. Plus, as a musician myself, I would be much more inclined to sit down at my (musical) keyboard than try to plow through a 68 billion melody database in search of something useable.