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Music >> The Battle Over ‘Unprotectable’ Elements in Music Copyright Suits Rages On

October 6, 2020

Taylor Swift and Katy Perry joined the growing ranks of famous musicians who have battled copyright infringement suits in recent years. While claims of impermissible copying are nothing new in the music business, the recent spate of suits reflect a new trend where musical elements that may once have been considered ‘unprotectable’ are now being claimed as original and deserving of protection. The ramifications extend far beyond the pop music industry and into every sphere where music is used in a commercial context, including the use of music by marketers and their agencies.

As we discussed in the 2019 edition of Trends in Marketing Communications Law, the lawsuits waged by the estate of Marvin Gaye against Ed Sheeran and Pharrell Williams/Robin Thicke, respectively, included fights over ‘stylistic’ elements, such as drums, tempo and ‘feel’ of a song. Williams and Thicke lost their suit and, along with their co-defendants, were ordered to pay almost $5 million dollars in damages.

This case shook the music industry by appearing to significantly expand the traditional battleground of ‘protectable’ elements, such as lyrics and melodies. For marketers and their agencies who commission original music in the style or feel of a certain artist or song, this meant that additional caution was now warranted. That caution extended to when publicly discussing the ‘inspiration’ behind the commissioned music, since public statements made by Williams may have contributed to the jury’s finding.

However, the Gaye estate has sought to reopen the case and is now seeking millions of dollars in attorneys’ fees due to Williams’ alleged fraud and perjury. Such claims were based on public statements regarding the creative process Williams made long after the case had concluded.

A development that may have swung the pendulum in the other direction occurred when a federal judge overturned a jury verdict that found Katy Perry and co-writers of the song “Dark Horse”, a worldwide smash for Perry, copied a 2008 song by the artist Flame. The judge found Perry’s argument — that both songs simply used common chord structures, i.e., the same ‘musical alphabet’ or ‘building blocks’ — was a winner and should have prevented Flame from being awarded $2.8 million in damages. While it’s possible the jury took into consideration similarities between previously ‘unprotectable’ elements, the judge did not cite those elements and ruled that a short musical phrase was not enough to constitute infringement.

On the other hand, Taylor Swift recently suffered a defeat in a suit accusing her of infringement relating to her hit song “Shake it Off.” The suit focused on the lyric “…the players gonna play…and the haters gonna hate...”, a similar version of which had appeared in a previously released song. The case was initially dismissed, with the judge ruling that the lyrics at issue were ‘short phrases’ without enough originality to qualify for protection. This kept with the generally accepted notion that judges could act as gatekeepers in order to stem the tide of copyright suits based on short, unoriginal (and therefore unprotectable) phrases.

But the ruling was reversed on appeal and the suit will now go back to the trial court. Regardless of the outcome, the appellate ruling may keep the floodgates open to lawsuits focusing on previously unprotectable elements.

Content creators, including marketers and their agencies, must carefully pay attention to how they create and commission original music. Working with legal counsel and musicologists, as well as risk management to ensure appropriate insurance coverage is in place, is vital. Marketers, agencies and the music creators they hire should also exercise caution when publicly discussing the creative process or source(s) of inspiration.

Key Takeaways:

  • Musical elements that were long considered safe to use may carry increased risk.
  • Even the use of short, seemingly unoriginal phrases may warrant additional legal review.
  • Content creators must exercise caution when using music in advertising, marketing and publicity materials, and when publicly discussing the source of any inspiration.