Luna's Lexicon

Lawyers historically have found themselves making the rules for an industry they are not a part of or experts in. Lawyers have played a significant role in drafting laws and regulations in many industries, including medicine, sports, finance, technology, energy, food, and many more. However, this has frequently led to criticism because those shaping an industry should be familiar with it and its nuances. The music industry is not immune to this pattern. But intellectual property lawyers can do better. Approaching music law and policy with an adequate understanding of the law and the foundational principles of music would help lawyers be better advocates for their clients.

Music’s harmonious sounds result from combining multiple elements and principles creatively and intentionally. These basic elements of music alone are not entitled to copyright protection. However, the resulting expression may be entitled to copyright protection when accompanied by different elements. Features such as melody and harmony, rhythm and tempo, hooks, signature phrases, lyrics, chord progressions, instrument choice, rest placement, note sequence, pitch, and more can all be used by artists to create works that garner protection and are differentiated from other creations. This type of protection is crucial to copyright theory because it allows creators to use the same building blocks as others to create their unique works without the fear that they may face future litigation claims for their creations.

Beethoven’s Fifth Symphony is an illustrative example. His famous and well-known “dah-dah-dah-duh” is a G-G-G-F note sequence. That same note sequence predates Beethoven and has been used repeatedly by Mozart and Mendelssohn to Ricky Martin. Artists have used the same building blocks as Beethoven, yet once paired with other musical components, such as changing the tempos, using different instruments, adding lyrics, or changing the meter and emphasizing different beats to create new artistic expressions. If songs can use the same blocks and not infringe on another’s work lawfully, then it’s imperative to understand those blocks to advocate for a client one way or another zealously.

Another way to differentiate work from others is how the artist uses rests. Music is defined as a collection of sounds and silences. The same G-G-G-F from Beethoven’s Fifth is manipulated in different ways, but often the tempo and rest placements are mixed to create various sounding musical works. Even Beethoven’s piece begins with a rest which impacts which notes fall on either strong or weak beats according to the set meter. Silence can help set the tone and overall feel for the music when done in a certain way. Similar note sequences with the same notes falling on the strong and weak beat placements will likely have a similar sound and feel to the listener. Rests can be considered when comparing two words for infringement. A good understanding of the use of silence in music can strengthen an infringement case and potentially avoid litigation by settling out of court. Tom Petty got a writing credit on Sam Smith’s “Stay With Me,” which shares, in addition to other note sequences, a silent rest unusually placed on a downbeat with Petty’s “I Won’t Back Down.” The similarities led to Petty reaching out to Smith, and after hearing the two songs together, Smith agreed that the songs were similar, however, made through independent creation, avoiding an infringement lawsuit.

Copyright law is constantly evolving, and artists are frequently in court trying to narrow the scope of what is copyrightable to protect their intellectual property. In Griffin v Sheeran, the creators of Marvin Gaye’s “Let’s Get It On” are suing Ed Sheeran for his song “Thinking Out Loud.” The case only recently being decided, ended in favor of Sheeran. What’s unique about this case is a video recording of Sheeran playing a live mashup of the two songs. The plaintiffs wanted to enter the video into evidence as proof of copying. However, the defense claimed to allow it would confuse the jury regarding whether or not two unprotected chord progressions can sound similar in more than one work. Historically chord progressions have been uncopyrightable elements, allowing for mashups and compilations of protected works. The results of this case will have a tremendous impact on copyright law and the scope of what is copyrightable.

Random similarities of unprotected elements throughout two works do not necessarily mean one work is copied from the other. A copyright infringement claim can be brought with both direct and circumstantial evidence. Direct evidence isn’t common and is often found when a defendant admits to having access like George Harrison did when sued for infringement by The Chiffons in Brighttunes v Harrisongs. When a claim relies on Circumstantial evidence, then in addition to access, the plaintiff must prove substantial similarity using both the extrinsic and intrinsic test.

In Skidmore v Zeppelin, the classic rock band was sued for the opening notes of Stairway to Heaven for infringement on an 8-measure passage of another song. In that case, the trial courts explicitly chose not to give the jury the inverse ratio rule as a jury instruction. The rule requires a lower standard for similarity when a higher degree of access is shown. On appeal of that choice, again, the test was rejected because of the increased access to musical works in a digital age. Over time access has become easier to prove because access to music has grown. Subconscious plagiarism, as recognized in Brighttune, is becoming increasingly likely as individuals are no longer limited to access in their geographical region. Rather the court held that substantial similarity must satisfy both an extrinsic and intrinsic test. The extrinsic test is an objective look at specific expressive elements for comparison. The intrinsic test is subjective, considering the feel of the works as a whole and whether a reasonable, ordinary person would find them substantially similar.

Skidmore also shows us that not only lawyers but also judges could benefit from having a music theory education if they are to make decisions regarding music intellectual property. Judges are instrumental in jury cases, determining what evidence to include as relevant and deciding what to have in jury instructions. In Skidmore, the judge chose to exclude from evidence a sound recording being heard by a jury regarding the substantial similarity claims based on the interpretation of copyright law. The judge also made an explicit decision to keep the inverse ratio rule out of jury instructions, which guide the jury on applying the law to the evidence facts from the case. Similarly, the Judge in Griffin determined whether or not the video of Sheeran himself playing a mashup of his song with Gaye’s song would be included in evidence or not. In that case, the judge’s determination was based on whether potentially relevant evidence would confuse the jury or not. A Judge with a good understanding of music theory and applicable Intellectual property laws would be the best fit to determine evidence relevancy and how to guide the jury to sound legal determination.

Not only understanding these different principles is important, but also how artists use these principles or decide to use the principles matters. Being able to distinguish a client’s process for creating a work from the process of another work be make or break to a case. In 1984, the Bee Gees were sued for copyright infringement for their song “How Deep is Your Love” by Ronald Selle, who composed “Let it End.” In that case, Selle had sent out his mixtape and sheet music to various recording agencies and relied on this as prior access, making it possible for the copying to occur. However, the court found that plaintiffs must prove that any striking similarities between pieces cannot have happened through coincidence or independent creation. During the trial, it was discovered that the Bee Gees couldn’t read or write music themselves, and they developed their music through jamming and later translated it to sheet music via a staff member. Not being able to read the sheet music increases the possibility for coincidence and supports independent creation regardless of similarities between the works.

The Bee Gees case was also an example of how important it is to have good experts representing your client. In that case, the plaintiff’s expert explicitly declined to say the similarities could only have resulted through copying, as the plaintiff must prove. The jury originally was still convinced by the plaintiff’s expert, but the judge granted a motion for judgment notwithstanding the verdict, siding with the defense. Using experts is a necessary tool for layers in the courtroom. They bring specialized knowledge, help clarify complex issues, and increase an argument’s credibility for the jury and judge, helping them evaluate evidence and make determinations. While experts specialize in an industry, they aren’t experts in the law. It’s a lawyer’s job to prepare experts for trial and understand how their opinion may impact a case. In music intellectual property cases, a lawyer who understands the principles of music will be better able to pick and prepare experts for their case.

However, the experts are not the only ones who need to understand the relevant music; it’s also imperative the jury understands. A portion of a lawyer’s job is presenting the evidence so that the jury can understand these complex musical concepts and make lawful decisions. When Martin O’Donnell sued Bungie for continuing to use the music, he wrote for Halo after his abrupt and unlawful dismissal. In that case, the expert witness for O’Donnell believed it was a part of his role to help the jury understand the musical theory and make the jury capable of making a lawful decision. Thus lawyers should ensure that the experts they choose are not just specialists in their fields but also good teachers, and to determine this, an Intellectual property lawyer should have a good understanding of the concepts themselves. The lawyer helps guide this teaching process by asking the expert witness questions to ensure all the relevant concepts are properly explained to the jury.

A lawyer’s job is to best advocate for their clients. When practicing intellectual property, specifically in music, a foundational understanding of music theory could exponentially improve one’s ability to argue intellectual property cases in the music industry. The future of the music industry is connected to how well lawyers understand the foundational principles of music theory because lawyers’ arguments and judges’ opinions will continue to shape the laws that the music industry must abide by. Only good can come from lawyers having a better understanding of the area they are practicing in.