Copyright

The 9^th circuit has come firmly down against one of copyright's more curious dilemmas: namely, claiming that a purely "factual" work nevertheless contains some elements of fiction. This admission is necessary to sue for copyright infringement, since facts are not protected by copyright under 17 USC 102, but works of original expression are. This blog has written about this problem before.[ref]It's a True Story...Except for the Part That I Made Up[/ref] The weight of the vast majority of the case law has not changed. What has changed is that the 9^th Circuit (who surprisingly had not previously ruled on the issue), has issued a fairly definitive, bright line ruling: If the Work is held out as being true, the author cannot later claim the contrary. The Court finds the term "copyright estoppel" to be unhelpful, and instead rechristens the principle the "asserted truths doctrine."[ref]Corbello v.Valli 2020 WL 5361461 9^th Circuit Court of Appeal 2020 at 9[/ref] The Court states: "It would hinder, not ‘promote the progress of science and useful arts' to allow a copyright owner to spring an infringement suit on subsequent authors who ‘buil[t] freely' on a work held out as factual, contending after the completion of the copyrighted work, and against the work's own averments, that the purported truths were actually fictions. (citation omitted) Copyright protects the creative labor of authors; it does not protect authors' post-completion representations about the lack of veracity of their own avowedly truthful work. We find this copyright-grounded rationale for this principle compelling and so adopt the doctrine. Rather than ‘copyright estoppel,' we will refer to this rule of copyright law as the ‘asserted truths' doctrine, because it is the author's assertions within and concerning the work that the account contained in the book is truthful that trigger its application."[ref]Id.[/ref] The case is Corbello v. Valli, and concerns the long running lawsuit between the co-owner of a copyright in an unpublished "autobiography" of Four Seasons member Tommy DeVito and the producers of the Broadway musical "Jersey Boys." To say the musical was a success is a bit of an understatement. It ran for ten years on Broadway and won four Tony awards. It was also adapted into a motion picture in 2014.[ref]Id. at 1-2[/ref] "The [unpublished] Work reads as a straightforward historical account and is presented as an autobiography, with DeVito listed as a co-author. At the outset of the Work, the first-person narrator, whom the reader understands is DeVito, describes the book as the ‘complete and truthful chronicle of the Four Seasons.' The narrator contrasts the Work with assertedly inaccurate accounts that others had published, and notes his own ‘candor.' In addition, Woodard and [Plaintiff] both emphasized in letters to potential publishers that the Work provided a behind-the-scenes factual look at the Four Seasons."[ref]Id. at 2[/ref] The Court examines six points of contention, where copying is alleged.

• Tommy DeVito's introduction
• Creation of the song "Sherry"
• Creation of the song "Big Girls Don't Cry"
• "Rivalry" between the Beatles and the Four Seasons
• Premiere of the song "Dawn"
• Induction into the Rock and Roll Hall of Fame

The Court's response is:

• [Plaintiff] alleged that this description of DeVito is substantially similar to the one in the Play and so infringing. But DeVito is not a fictional character whose personality was created in the Work. This depiction of DeVito—as Corbello's expert put it, his ‘voice, cool demeanor, and braggadocio'—is not original to the Work, and so not a protectable element.(citation omitted) A character based on a historical figure is not protected for copyright purposes.[ref]Id. at 6[/ref]
• Both the Play and the Work depict Bob Gaudio arriving late to a rehearsal excited about a new song he just wrote, "Sherry," which—no surprise—became a major hit… The only similarities are unprotectable historical facts: Gaudio wrote the song at the last minute, he was late to rehearsal, and the song was ultimately successful.[ref]Id.[/ref]
• The Work recounts that Bob Crewe, a producer and songwriter who worked with the Four Seasons, was inspired to write the song "Big Girls Don't Cry" after watching a movie in which a female character dramatically says exactly that— ‘big girls don't cry.'… As the district court correctly concluded, the ‘only similarity is the unprotectable historical fact that the song was inspired by the Rhonda Fleming line.' That similarity does not include any protectable element of the Work.[ref]Id. at 7[/ref]
• The Work states that ‘[i]n the Beatles we are not just competing against another band; the Beatles come to represent a whole social movement. [The Four Seasons] never aspire to be more than entertainers.'… The similarities between the Work's allusions to the Beatles and the longer, more detailed and more evocative comparison in the Play are the words ‘social movement' and the unprotectable historical fact that the two music groups competed for record sales and chart placements.[ref]Id.[/ref]
• The Work recounts that the Beatles had ‘hit the public consciousness like a load of bricks' when the Four Seasons song "Dawn" was ready for release. The Work then goes on to describe competition between the two bands in the Billboard charts, noting that "Dawn" charted third, ‘sandwiched in by the Beatles at number one, number two, number four and number five!'… Again, it is an unprotectable historical fact that the Beatles and the Four Seasons generally competed for chart placement. That "Dawn" charted against songs by the Beatles is similarly an unprotectable historical fact.[ref]Id. at 7-8[/ref]
• In the Work, DeVito describes ‘reunit[ing] with Frankie Valli, Bob Gaudio, Nick Massi and Bob Crewe for the first time since 1965. I felt like I was stepping from a time machine.' In the play, as the Band performs, DeVito asks, ‘Is this like being in a fuckin' time machine, or what?' The idea that band members performing together after many years apart would evoke the feeling of a time machine flows naturally from the plot premise of a band reuniting and is classic scenes-a-faire. (citation omitted) And as the district court correctly ruled, the words ‘time machine' constitute an ordinary phrase and so is not protectable.[ref]Id. at 8[/ref]

The Court goes even further when recollection of events differ from person to person. Regarding the conversation about the creation of the song "Walk Like a Man": "The parties do not dispute that this conversation actually happened, so the event itself is not protectable. They do dispute whether the particular language used in the Work was original expression, rather than a report of what was actually said. [Plaintiff] claims that the dialogue was ‘Woodard's invented banter,' and thus protected expression. DeVito testified that he did not remember supplying Woodard the words ‘anthem' or ‘twisted around a girl's finger.' Gaudio testified that the dialogue does reflect the substance and language of the actual conversation, and that he described the argument using these phrases to the writers of the Play. We need not resolve this factual dispute. Whether the dialogue accurately represents what was actually said does not change our analysis. The dialogue is held out by the Work as a historically accurate depiction of a real conversation. The asserted facts do not become protectable by copyright even if, as [Plaintiff] now claims, all or part of the dialogue was made up."[ref]Id. at 13[/ref] And finally: "At his deposition, [Frankie] Valli testified that DeVito did not in fact introduce him to Mary Mandel, and that he couldn't remember whether DeVito helped set them up. Whether Valli's recollection is correct or not does not affect whether the Work's version is protectable as an original creation of the writers. DeVito may have remembered events differently than Valli did, or he may have reported his memory to Woodard inaccurately, or he or Woodard may have invented the story that he introduced Valli and Mary. Any such inconsistency, inaccuracy, or invention does not transform what was represented in the Work as a completely truthful account into creative fiction protectable by copyright."[ref]Id. at 11[/ref] In other words, if you say "it's a fact," you're stuck with it.

Streaming was supposed to save the music business. It hasn't. Fourteen years into the Spotify experience, music industry revenues are still stuck at half the amount they were in 1999.[ref]Still Down by 50%, The Problem With Streaming 2020 Edition[/ref] Or as the website The Trichordist tersely puts it: "There's absolutely nothing wrong with music streaming, except the economics."[ref]Id.[/ref] Million of songs at your fingertips, all available for free. Which still isn't good enough for some people. I once had a student ask me at a lecture whether is would be a copyright violation to hack the Spotify app so as to gain access to the premium tier. "No, probably not," I replied. "But it certainly would violate your terms of service that you agree to when you signed up for Spotify. But why would you want to do such a thing? Spotify is already free." "Yeah," said the student. "But those ads are so annoying." So, the advertising you have to listen to, the small price you pay for getting something for FREE, is too much for some people. Is this what it has come to? That the value of a great song to the public is essentially zero? I suspect that the reason this thinking persists is that the general public has no idea how much work goes into making a great song. Not just the writing, but the arrangement and the recording. Your great three minute pop song could take days to record properly, perhaps longer. So, let's really tear apart a great song, and note all the component parts. The song is Maroon 5's "Misery," a top 15 hit and a Grammy nominee.[ref]Giving A Little More: The Grippling Tale Behind Maroon 5's 'Hands All Over'[/ref] Hands All Over, the album on which this track appears, took two months to record, even though they used the producer's own studio which was available 24-7.[ref]Id.[/ref] The producer, of course, was the famous (or infamous) Robert John "Mutt" Lange. I say infamous because he is well known for driving his artists very hard, but achieving stellar results, including Def Leppard's Hysteria which sold a mere 25 million copies worldwide,[ref]'Hysteria': How Def Leppard Whipped The World Into A Frenzy[/ref] plus his then wife's Shania Twain's Come On Over, the best selling country music album of all time,[ref]22 Years Ago: Shania Twain's 'Come On Over' Is Released[/ref] and AC/DC's Back In Black, which sold 25 million copies in the US and reportedly 50 million copies worldwide.[ref]40 American Thigh-Shaking Facts About AC/DC's 'Back In Black'[/ref] At the top of this post is a picture of a recording console. Electronics have taken the size of these boards down, but the basic facts are the same. These huge rows of knobs are there because each one does something different. Some adjust the volume of the sounds on that track, some adjust equalization, some adjust the panning, or where the sound appears in the sound field. Complicated, time consuming work. Here's the video for "Misery." N.B. Timing references are to the audio only version. The video lags behind the audio version by 2-3 seconds. [embed]https://youtu.be/6g6g2mvItp4[/embed] And don't forget your headphones.

1. The song opens with drums panned center, with just bass drums and high hat playing. The bass drum, the "thump, thump" that drives just about any song forward, likely occupies its own track. Recording live drums sounds takes a long time, in the past, sometimes days. Though judging from the consistency of these sounds they are probably samples. My guess is there are probably at least five tracks of drums: bass, snare, high-hat, and the rest of the kit, though it could be that the cymbals occupy their own track.
2. Funky rhythm guitar is panned left. As this plays for most of the song, it will occupy its own track.
3. There is an extremely distorted guitar, playing staccato rhythms. This is panned right. Even though to my ears this is the only time this sound appears. Again, this could have its own track.
4. Synthesizer bass, double tracked and panned both left and right. Either played twice, or most likely the first track was copy-paste into the second track.
5. "Oh Yeah!" Adam Levine's lead vocal comes in. Panned center.
6. At 0:09, there is a backwards snare drum beat. Undoubtedly a sample. In the analog days this would have taken some work. The tape would have to be lifted out and reversed. The backwards piano introduction to Yes' "Roundabout" was done this way.
7. Immediately after the backward snare drum beat, the "grunge" guitar panned right disappears.
8. Also, after the backwards snare drum beat, the double synth bass panned left and right stops. Bass is now panned center.
9. Lead vocals for the verse start. At 0:29, beginning with the words, "So let me be and I'll set you free" there are two vocal tracks instead of one. As the other vocal track sings a harmony part, and Adam Levine is the only singer on the track, Adam had to sing the part twice. Not as easy as it sounds. The pronunciation, timing and phrasing all have to match perfectly. In the olden days, so would the pitch. Now we have Auto-Tune for that.
10. As we head into the chorus, "I am in misery," a lot happens. The double tracked vocals continue. There is now a new guitar part playing, panned right in place of the "grunge" guitar. Clean guitar continues, panned left. Double tracked synthesizer bass returns, panned left and right. A synth "wash" also starts.
11. At 0:53, a synth making a "whistling" sort of sound appears. Panned to (if you visualize a clock face) 2 o'clock.
12. At 1:08, a synth making a string sound enters, panned to 12 o'clock.
13. At 1:11, the word "didn't" is doubled tracked. At 1:16, this happens again.
14. At 1:52, we head to the bridge, "You say your faith is shaken." All the other parts drop out. Vocals revert to single track. All synth bass disappears. Regular electric bass remains, panned center. A piano enters. The piano, (along with female vocals) traditionally is one of the hardest instruments to record faithfully. Again, with modern technology, this could be a sampling keyboard. But since the piano's range is so broad, again it will occupy its own track.
15. At the same time, panned to 10 o'clock, is an organ. Separate track.
16. At 2:11, "Why do you do what you do to me?" the guitar panned left disappears. Guitar panned right remains, along with two vocal tracks, singing different parts. There seems to be some percussion, panned to 10 o'clock. Too soft to make out exactly what kind.
17. At 2:20, guitar panned left returns.
18. At 2:23, the words "answer me" are doubled tracked.
19. At 2:30, we start to ride the chorus out "You really got me bad." There are numerous vocal tracks that jump in and out with different phrases. Hard to say for sure, but my guess is about four different tracks.
20. The whole thing fades out, known as a "board fade." The music is still being played, but the volume is artificially lowered at the recording board, until it is inaudible.

This just begins to detail the work involved. Each one of those sounds had to be

• Recorded
• Assigned an overall volume
• Assigned an aural location
• Equalized, or adjusting the volume of sounds at particular frequencies

Then, the whole thing has to be adjusted for volume within the song, a process known as "mixing." And we have not even begun to assess the work done in writing and arranging the song. So, why do many people see the need for music to be free? Creating a song such as "Misery" is a lot of hard work. And hard work makes this song valuable.