When one reads that the author of a Supreme Court majority opinion on copyright is soon-to-be-retired Justice Stephen Breyer, a copyright attorney might fairly cringe as to what is to come. Dating way back to the SCOTUS' opinion in Campbell v, Acuff-Rose, the Court has sided with the alleged infringer every single time. Breyer was the author of the Court's terrible (and nearly incomprehensible) opinion in Google v. Oracle and was a notable dissenter in the case of Eldred v. Ashcroft, which approved Congress' extension of copyright terms.
Yet, this time, Breyer and the SCOTUS gives creative artists a break. In a surprisingly brief (9 page) opinion, the Court decides that inadvertent errors in a copyright registration application do not invalidate the registration.
This is not an insignificant decision. Even though the Berne Convention (to which the US is a signatory) mandates that Berne countries not demand that artists comply with "formalities" in order to secure copyright protection,[ref]Article 5, Berne Convention Treaty[/ref] the U.S. persists in requiring creative artists to file for copyright registration in order to secure certain benefits, such as the ability to file suit and seek certain remedies such as statutory damages and attorney's fees.
The case, Unicolors, Inc. v. H&M Hennes,[ref]142 S.Ct. 941 (2022)[/ref] was going to turn on the question of whether the inclusion of 31 works in a single application violated the Copyright Office requirement that the works needed to be published in the "same unit of publication." Some of the works apparently had been published individually.[ref]Id. at 945-946[/ref]
If this seems a little nit-picky, it is. But the remedy sought was huge. H&M, the loser in a jury trial for copyright infringement wanted that entire case dismissed because of that one mistake, which H&M contends invalidated the registration, and with it the ability of Unicolors to sue. The District Court rejected that argument, but on Appeal, the Ninth Circuit reversed, stating that errors of fact could be excused under the savings clause of Section 411(b)(1) but not errors of law.[ref]Id.[/ref]
Section 411(b)(1) states that a registration is valid:
"regardless of whether the certificate contains any inaccurate information, unless—
"(A) the inaccurate information was included on the application for copyright registration with knowledge that it was inaccurate; and
"(B) the inaccuracy of the information, if known, would have caused the Register of Copyrights to refuse registration."(emphasis added)
The opinion holds that this language is straightforward and unambiguous.
"Unicolors says that, when it submitted its registration application, it was not aware (as the Ninth Circuit would later hold) that the 31 designs it was registering together did not satisfy the ‘single unit of publication' requirement. If Unicolors was not aware of the legal requirement that rendered the information in its application inaccurate, it did not include that information in its application ‘with knowledge that it was inaccurate.' § 411(b)(1)(A) (emphasis added). Nothing in the statutory language suggests that this straightforward conclusion should be any different simply because there was a mistake of law as opposed to a mistake of fact."[ref]Id. at 947[/ref]
The Court also notes that a copyright registration asks for many items which contain mixed questions of fact and law, including the highly contentious, and frequently litigated, issue of when is a work a "work made for hire."[ref]Id.[/ref]
"Inaccurate information in a registration is therefore equally (or more) likely to arise from a mistake of law as a mistake of fact. That is especially true because applicants include novelists, poets, painters, designers, and others without legal training. Nothing in the statutory language suggests that Congress wanted to forgive those applicants' factual but not their (often esoteric) legal mistakes."[ref]Id.[/ref]
What Congress really should do is eliminate registration requirement in its entirety, and come into full compliance with Berne. In the intensely anti-copyright environment we find ourselves in, the "internet age," we need one less trap for the unwary, and one less "get out of jail free" card for infringers.
It's not unusual for hit songs to attract copyright infringement lawsuits. The 2014 hit "Uptown Funk" attracted three filed lawsuits, with several others publically claiming infringement.[ref]Uptown Funk - Controversies and Lawsuits[/ref] As a result, "Uptown Funk" has 10, that's right, 10, credited songwriters.[ref]Id.[/ref]
It was, therefore, not unexpected that Dua Lipa's 2020 hit "Levitating" attracted a copyright infringement lawsuit. What was unusual was that two separate lawsuits were filed within a week of each other. The first alleged that "Levitating" lifted from Florida reggae group Artikal Sound System's 2017 song "Live Your Life." The second alleged that the 1979 disco song "Wiggle and Giggle All Night" had been copied by "Levitating."
Most of the commentary has focused on how similar the songs are, and whether these similarities are the result of commonly used musical tropes, which we will discuss later. But before we get there, the primary question, as with all copyright infringement lawsuits, is the question of access. How did the songs in question get into the ears of the "Levitating" songwriters? Because you can't copy what you have never heard.
According to a recent decision in the Southern District of California:
"To overcome a defense for failure to state a claim on access grounds, ‘a plaintiff must show a reasonable possibility, not merely a bare possibility, that an alleged infringer had the chance to view the protected work[s]." (citation omitted) Where the plaintiff lacks direct evidence of access, such a showing can be made on a circumstantial basis. (citation omitted) Indeed, access may be inferred "through either evidence of a ‘chain of events ... between plaintiff's work[s] and defendants' access to th[ose] work[s]' or evidence that ‘the plaintiff's work[s] ha[ve] been widely disseminated.'"[ref]Segal v. Segal 2022 WL 198699 Southern District of California 2022 at 8 (emphasis added)[/ref]
Clearly, Artikal Sound System is pursuing the latter theory of access. The complaint states that "‘Live Your Life' was commercially released on CD Baby in 2017 and appeared on a variety of streaming services including Spotify, Pandora, Apple Music, Amazon and Sound Cloud."
But is that enough? It does not appear so.
"The Ninth Circuit has previously stated that[,] although [it] recognize[s] the power of the internet to reach a wide and diverse audience, [internet presence is not necessarily] sufficient to demonstrate wide dissemination."[ref]Id. citing Fillmore v. Blumhouse Prods., LLC, WL 4708018, at 5 (C.D. Cal. July 7, 2017) (quoting At Attacks Ink, 581 F.3d at 1145)[/ref]
And
"Put differently, that a work has the capacity to reach anyone with an internet connection by virtue of its presence on the worldwide web renders it merely possible, not reasonably possible, that the alleged infringer viewed that work."[ref]Id.[/ref]
However, Artikal Sound System alleges that the album that contains the song LYL charted on "Billboard Charts at number 2 in the reggae section in 2017." Note that the complaint states the song appears on an album that charted. Not that the song itself charted. Is this enough?
Again, probably not.
"In most cases, widespread dissemination centers on the degree of a work's commercial success and on its distribution through radio, television, and other relevant mediums."[ref]Loomis v. Cornish, 836 F.3d 991, 997 (9th Cir. 2016)[/ref]
"[A]lthough the Ninth Circuit has not identified a specific threshold for the level of public engagement with a work that constitutes ‘wide dissemination,' its precedent indicates that a work's degree of commercial success and/or notoriety must be substantial."[ref]Segal v. Segal 2022 WL 198699 Southern District of California 2022 at 9[/ref]
These instances, however, failed to meet that threshold:
The similarities start with the keys. "Wiggle and a Giggle All Night" is in D Major, "Levitating" is in B minor, but as any musician would tell you, B minor is what is known as a relative minor to D major. This means that they share the same scale, merely with different starting points.
But, "Levitating" starts on F# (the fifth note of the scale) and works its way down in a series of staccato sixteenth notes to B, the tonic or first note of a scale.
Comparably, "Wiggle and Giggle All Night" starts on A (the 5th note of D Major) but then jumps to F#, (the 3rd note of D Major), before working its way down in a series of staccato sixteenth to A, again the 5th note of D Major.
So, beyond the similar ideas of a series of sixteenth notes, descending one interval at a time along the same scale, the notes are actually harmonically different in relation to the key they are in. A non-musician, or a judge, or a jury, might not recognize this.
And what about access?
The attorneys for WAGAN almost repeats verbatim what the attorneys for LYL said.
"Defendants had reasonable access to [Plaintiff's] songs, which can be found on popular streaming services including Spotify, Pandora, Amazon Prime Music and YouTube."
But as we saw before, just because you're on the internet, doesn't equal access for copyright purposes. But also:
"As a part of the Sony Music Family, Defendants also have access to the [Plaintiff's] songs, which were published by labels now under Sony's umbrella."
Yes, and that was 40 years ago. How many thousands of songs has Sony released in the interim? WAGAN was released in 1979. Don Diablo in 1980. Dua Lipa would not be born for another 15 years. How did she, or her co-composers, hear the song? The complaint does not say, and offers no reasonable theory of access, other than WAGAN charted briefly in the Netherlands and "Don Diablo" was performed at a music festival in Chile in 2018 and was used in an advertisement for a South American Department store.
Remember "[t]o overcome a defense for failure to state a claim on access grounds, ‘a plaintiff must show a reasonable possibility, not merely a bare possibility, that an alleged infringer had the chance to view the protected work[s]."[ref]Segal v. Segal 2022 WL 198699 Southern District of California 2022 at 8 (emphasis added)[/ref]
So like LYL, could the similarities be accidental?
Yes, says copyright scholar Aaron Moss over at Copyrightlately.com.[ref]Dua Lipa Faces Another Copyright Infringement Lawsuit Over "Levitating"[/ref]
"There are number of songs that share similar chord progressions, most notably the campy 2002 pop hit "Asereje (The Ketchup Song)" by the Spanish girl group Las Ketchup, [and] "Şımarık," a 1997 song by Turkish singer Tarkan."[ref]Dua Lipa Faces Another Copyright Infringement Lawsuit Over "Levitating"[/ref]
To hear those songs, follow the link in the endnote to Aaron's page, where he has links to the songs in question.
So, given that at least two other songs have similar musical motifs, the melody of WAGAN is not particularly original. To the two songs cited by Moss, I can add "Hocus Pocus" by the Dutch band Focus, a hit in 1973 (reaching #9 on the Billboard Hot 100), of which the "yodeling" section has the same basic idea as WAGAN.
Doubtlessly, the Defendants here will deny that they have ever heard the songs in question, which if true, eliminates the possibility of copyright infringement.
Plaintiffs here will counter by stating that the works are so similar that they could not possibly have been created independently.
Which begs the question: Why are there other songs with the same melody?
- Sale of 17,000 copies held to be insufficient to prove wide dissemination[ref]Rice v. Fox Broadcasting Co. 330 F.3d 1170 Ninth Circuit 2003 [/ref]
- Sale of 2,000 t-shirts bearing protected design inadequate to establish wide dissemination[ref]Art Attacks Ink, LLC v. MGA Entertainment Inc. 581 F.3d 1138 Ninth Circuit 2009[/ref]
- The two songs are both in the same key: B Minor.
- The chords of "Live Your Life" are B minor 7-F# minor7-E minor7 -E minor 7
- The chords of "Levitating" are B minor7 -F# minor7 - E minor 7 – B minor
- The tempo is almost the same (103 beats per minute compared to 98 beats per minute), so close that by slightly speeding up "Live Your Life" it blends seamlessly with "Levitating."
The similarities start with the keys. "Wiggle and a Giggle All Night" is in D Major, "Levitating" is in B minor, but as any musician would tell you, B minor is what is known as a relative minor to D major. This means that they share the same scale, merely with different starting points.
But, "Levitating" starts on F# (the fifth note of the scale) and works its way down in a series of staccato sixteenth notes to B, the tonic or first note of a scale.
Comparably, "Wiggle and Giggle All Night" starts on A (the 5th note of D Major) but then jumps to F#, (the 3rd note of D Major), before working its way down in a series of staccato sixteenth to A, again the 5th note of D Major.
So, beyond the similar ideas of a series of sixteenth notes, descending one interval at a time along the same scale, the notes are actually harmonically different in relation to the key they are in. A non-musician, or a judge, or a jury, might not recognize this.
And what about access?
The attorneys for WAGAN almost repeats verbatim what the attorneys for LYL said.
"Defendants had reasonable access to [Plaintiff's] songs, which can be found on popular streaming services including Spotify, Pandora, Amazon Prime Music and YouTube."
But as we saw before, just because you're on the internet, doesn't equal access for copyright purposes. But also:
"As a part of the Sony Music Family, Defendants also have access to the [Plaintiff's] songs, which were published by labels now under Sony's umbrella."
Yes, and that was 40 years ago. How many thousands of songs has Sony released in the interim? WAGAN was released in 1979. Don Diablo in 1980. Dua Lipa would not be born for another 15 years. How did she, or her co-composers, hear the song? The complaint does not say, and offers no reasonable theory of access, other than WAGAN charted briefly in the Netherlands and "Don Diablo" was performed at a music festival in Chile in 2018 and was used in an advertisement for a South American Department store.
Remember "[t]o overcome a defense for failure to state a claim on access grounds, ‘a plaintiff must show a reasonable possibility, not merely a bare possibility, that an alleged infringer had the chance to view the protected work[s]."[ref]Segal v. Segal 2022 WL 198699 Southern District of California 2022 at 8 (emphasis added)[/ref]
So like LYL, could the similarities be accidental?
Yes, says copyright scholar Aaron Moss over at Copyrightlately.com.[ref]Dua Lipa Faces Another Copyright Infringement Lawsuit Over "Levitating"[/ref]
"There are number of songs that share similar chord progressions, most notably the campy 2002 pop hit "Asereje (The Ketchup Song)" by the Spanish girl group Las Ketchup, [and] "Şımarık," a 1997 song by Turkish singer Tarkan."[ref]Dua Lipa Faces Another Copyright Infringement Lawsuit Over "Levitating"[/ref]
To hear those songs, follow the link in the endnote to Aaron's page, where he has links to the songs in question.
So, given that at least two other songs have similar musical motifs, the melody of WAGAN is not particularly original. To the two songs cited by Moss, I can add "Hocus Pocus" by the Dutch band Focus, a hit in 1973 (reaching #9 on the Billboard Hot 100), of which the "yodeling" section has the same basic idea as WAGAN.
Doubtlessly, the Defendants here will deny that they have ever heard the songs in question, which if true, eliminates the possibility of copyright infringement.
Plaintiffs here will counter by stating that the works are so similar that they could not possibly have been created independently.
Which begs the question: Why are there other songs with the same melody?
No Subjects