This post is authored by Rahul Bajaj, SpicyIP Fellow 2016-17.
One of the wisest judges of the 20th century, Judge Learned Hand, once famously observed: “It must be remembered that while there are an enormous number of possible permutations of the musical notes of the scale, only a few are pleasing; and much fewer still suit the infantile demands of the popular ear. Recurrence is not therefore an inevitable badge of plagiarism.” Sadly, far too many copyright lawyers and judges seem to have forgotten this pearl of wisdom.
If there is one common feature that permeates the copyright laws of every country, it is the need to strike a healthy balance between fostering innovation and creativity on the one hand and protecting the rights of those whose ingenuity and vision are chiefly responsible for the advancement of human knowledge on the other.
The idea/expression dichotomy, the scènes à faire doctrine, the fair use exception and compulsory licensing are but 4 key tools through which copyright law seeks to strike this balance.
However, every so often, there emerges a gap in the law that operates to the detriment of one of these two conflicting goals and has the potential of irrevocably tilting this delicate balance to one side if left unchecked.
The standards that govern the determination of copyright infringement in a musical work seem to be the most recent example of this kind.
The need for copyright law to forge new tools for addressing the proper role of the two key forces that drive musical creations, inspiration and perspiration, has been thrown into sharp focus by the imposition of exemplary damages on Robin Thicke for the 2013 song Blurred Lines and the recent infringement suit against Led Zeppelin for the iconic song Stairway to Heaven.
In the suit against Robert Plant and Jimmy Page of Led Zeppelin, the plaintiffs, the heirs of Randy Wolfe, contend that the opening bars of Stairway to Heaven are substantially similar to those of Taurus, a song that Wolfe wrote four years before Stairway to Heaven was released. The plaintiff’s argument is further fortified by the fact that Led Zeppelin had toured with Spirit, the band for which Wolfe wrote Taurus, in 1968-69, which would be sufficient for showing that the defendant had ample access to the plaintiff’s work.
At root, this case raises the same fundamental question that courts are required to confront in every lawsuit involving the infringement of copyright in a musical work: In an industry in which only very few musical notes suit the infantile demands of the popular ear, as Judge Hand so wisely observes, must the badge of plagiarism be attached to every attempt to draw upon a past musical creation, even if the meaning, message and context of the supposedly infringing creation is totally different?
Indeed, as Enrico Banadio notes in this excellent analysis of the issues that this case raises, almost every popular form of music is steeped in a culture of heavy borrowing: Jazz, which builds upon operas; rockabilly, which is based on country music; and rhythm and blues, which is considerably influenced by gospel music– just to name 3.
Closer to home, in his analysis of this problem, Shamnad sir offered 5 concrete examples of songs – including such popular hits as Munni Badnam Hui, Teri Meri Prem Kahani and Pehli Nazar Mein – which have heavily drawn upon prior art in the music industry.
Those disagreeing with this line of thinking may argue that all forms of art are sustained by creators who incorporate features of the existing corpus of art relevant to their work into their creations and, as a result, there is nothing intrinsically different about the music industry – indeed, didn’t Shakespeare heavily rely on the existing body of literature while crafting his plays?
I would submit that there are at least 2 reasons why judges and juries must adopt different standards while assessing claims of copyright infringement in musical works.
First, the idea-expression distinction, which states that copyright law only protects the expression of an idea and not the idea itself, is a powerful tool for ensuring that copyright law does not impede the advancement of art and literature. However, this doctrine has very limited potentiality to perform the same speech-enhancing function in the case of musical works. The difficulty in discerning the underlying idea of a musical work means that there is a high chance of unprotectable elements in such a work being wrongfully monopolized by ambitious plaintiffs.
Second, while it is true that there are certain inherent limits to the kind of art that every artist can create in that there is a finite number of combinations and permutations that one can press into service while creating any work of art, I would submit that these limitations play a far greater constraining role in the music industry than they do in others.
This assertion is based on the fact that a musician typically has to cater to an audience which is accustomed to listening and appreciating a certain kind of music, so a musician does not enjoy the same freedom of experimentation and the liberty to be unconventional that are enjoyed by her counterparts who are writers or painters.
The upshot of this is that the ‘total concept and feel’ test, that was applied by the jury in the Blurred Lines case, and that is likely to be applied in the Stairway to Heaven case as well,is not an accurate barometer for assessing whether the defendant’s work is substantially similar to that of the plaintiff. As Rajiv Choudhry has eloquently argued, it would be inapposite to accept the proposition that every variation of a musical composition amounts to a copy, even without examining the nature, context and scope of the variation.
The Bollywood music industry is infamous for copying large portions of foreign songs in surreptitious ways without any attribution or compensation to the creator of the original music. On the other hand, courts in America are increasingly adopting plaintiff-friendly tests that have the unintended effect of foreclosing bonafide use of musical works and thwarting the incremental growth of the music industry.
The ideal solution, therefore, would lie somewhere in the middle. Such a solution must rest upon a recognition of the fact that musical creations, due to their sui generis features, necessarily involve some copying. A liberal construction of the de minimis doctrine, coupled with a greater willingness to examine the innovative ways in which the copied portion is deployed by defendants, would allow courts to restore the elusive balance between fostering creativity and protecting the rights of musicians.
Great article!
An added consideration is the role of experts when it comes to these musical copyright infringement suits. Do big music companies bring in musical experts to testify to the differences between the songs? Does it matter? I love the quote by Judge Hand, when he said, ” The question, therefore, is whether defendant took from plaintiff’s works so much of what is pleasing to the ears of lay listeners, who comprise the audience for whom such popular music is composed, that defendant wrongfully appropriated something which belongs to the plaintiff ….The impression made on the refined ears of musical experts or their views as to the musical excellence of plaintiff’s or defendant’s works are utterly immaterial on the issue of misappropriation; for the views of such persons are caviar to the general — and plaintiff’s and defendant’s compositions are not caviar.”
I personally believe he is right and the “Overall feel” test adopted in the Thicke case is the right way to go.
Hi Harshavardhan,
Thank you very much for your thoughtful comment. I fully agree with Judge Hand’s view that the opinions of experts cannot be determinative not only for the reason that he puts forth i.e. their appreciation of the music is often hyper-technical, but also because it is hard to glean any meaningful insights from their testimony, considering that their opinion is often dictated by the sole consideration of furthering the case of the party calling them.
I am not sure, however, that I fully agree with your assertion that the total concept and feel test is the right way to go. As I noted in the article, rigorous adherence to such a test has the potential of resulting in the protection of unprotectable elements and tilting the balance of the case heavily in the favour of plaintiffs. Therefore, while I agree with you that the views of lay listeners should be factored into the analysis, I also think that due importance must be given to the sui generis features of the music creation process in order to ensure that defendants do not get punished for bonafide copying of small portions of a song, especially if most of the copied portion consists of unprotectable elements.
Thanks for the reply Rahul!
I think you might be conflating two different arguments. My analysis for the determination of infringement vis-a-vis an overall feel test was simply meant to test the usefulness of the experts in determination of substantial similarity in terms of the music. At no point, should it be construed that the “overall feel” test should supersede the tests of reasonable access and independent creation which have long been tenets of music Copyright law. The use of the test should be limited to the finding of similarity alone. Now, if your argument is that the court needs to use an abstraction filtration test, to sift through the protectible elements and unprotectible elements of the music, we are back to the requirement of “technical standards” falling on technical ears. Therefore I think that courts usually skim over that sort of analysis. In fact in the case of Sid and Marty Krofft Television Prods., Inc. v. McDonald’s Corp., 562 F.2d 1157, 1172 (9th Cir. 1977), the court said that “It is well settled that a jury may find a combination of unprotectible elements to be protectible under the extrinsic test because “‘the over-all impact and effect indicate substantial appropriation.”
They see whether the defendant had reasonable access to the music, whether there was independent creation and if so, whether the music was substantial similarity using an overall feel test. This according to me is the right way for the courts to go, and the way that the courts have dealt with the matter as well, as can be seen in the Three boys Music case, the seminal case of Arnstein v. Porter as well.
Hi Harshavardhan,
I agree with you that the abstraction-filtration test would be quite inappropriate because it would be heavily reliant upon expert testimony and would be much harder to apply in case of music as opposed to computer programmes where it has much greater relevance.
The total concept and feel test may be the most effective method of ascertaining substantial similarity, but I think that juries should factor into their analysis an appreciation of the manner in which music is created, considering that the most popular forms of music heavily draw upon prior art, as I mentioned in the article. Also, I think the de minimis doctrine should be given a wide and liberal construction while determining whether or not there is substantial similarity in order to offset the harm that the protection of unprotectable elements can cause to defendants.