Dear NYCC members,

I recently noticed in the Financial Times the following article discussing recent music copyright cases that the columnist John Gapper believes are examples of judicial overreaching and of cases wrongly decided.  I agree with his reasoning.

John de Clef Pineiro Esq

Sat 8/10/2019 3:23 AM

BUSINESS

Music is more than the sum of its parts

Efi Chalikopoulou

The musical magpie is under threat. Legal judgments in both the US and Europe last week have made it harder for songwriters and producers to adopt samples, tunes or even moods from other people’s music in creating their own.

Katy Perry and her team of songwriters were ordered by a US jury to pay $2.8m in damages for copying part of an 11-year-old Christian rap song in her 2013 hit “Dark Horse”. Meanwhile, the pioneering German electronic band Kraftwerk won a long-running case in the European Court of Justice over the sampling of a two-second rhythm from their 1977 track “Metall auf Metall”.

The balance of freedom of artistic expression versus copyright protection has swung heavily to the latter, after the free-for-all era of musical copying and sampling in the early 2000s. The old philosophy was that creative property is theft; today’s is that composers control each note they write.

Singers and writers deserve protection but the trajectory of legal cases, particularly in the US, is worrying. It is turning into open season for entertainment lawyers on even tiny snatches of melody or beats in hit songs, with writers trying to nab a share of what they inspired more profitably in others.

If that were how classical music worked, Dvorak would have been in trouble for so admiring Wagner that he followed the “great little man” around Prague in 1863 and wrote works influenced by him and other composers. Richard Strauss might also have heard from Verdi’s estate for throwing a perfect pastiche of an Italian tenor aria into Der Rosenkavalier.

In some ways, courts are responding to the way that many pop hits are now created, with teams of writers and producers taking components of melody, harmony and hooks and assembling them into products for singers including Ms Perry. The modern incarnation of Tin Pan Alley was pioneered by the Swedish musician Max Martin, who co-produced and co-wrote “Dark Horse”.

The assembly method of songwriting has some similarities to sampling, which literally involves copying parts. The ECJ ruled in the Kraftwerk case that permission is required for any sample, although it does not count as a reproduction if it is modified so much that it is unrecognisable. This fits with a US ruling in 2016 on a horn fragment in Madonna’s 1990 song “Vogue”.

No one should be surprised that a lot of hits constructed in this manner sound rather similar. Like any company that calls in a management consultancy to mimic what it has done for others, a singer who employs (or is employed by) Mr Martin or Lukasz Gottwald, the US co-producer and co-writer of “Dark Horse” also known as Dr Luke, is not seeking pure originality.

But it also means that such songs can be reverse engineered into their components, and each compared with all that went before. So it proved with “Dark Horse”, which is little like “Joyful Noise”, the song on which it infringed, except for one element — an eight note ostinato beat. This led the jury to hand the writers of “Joyful Noise” 22.5 per cent of the “Dark Horse” profits.

The most egregious example of a song getting into expensive trouble over a single element was Robin Thicke and Pharrell Williams’ 2013 hit “Blurred Lines”, which a US appeals court agreed last year had taken its feel (although differing in melody, harmony and rhythm) from Marvin Gaye’s 1977 “Got To Give it Up”. The Gaye family was awarded $5m and half of future royalties.

This is a terrible precedent that allowed the family, as Judge Jacqueline Nguyen wrote in her dissenting opinion, “to accomplish what no one has before: copyright a musical style”. One professor observed that “if you’re not influenced by Marvin Gaye, there must be something wrong with you”, and that there is nothing wrong in learning from genius and building on it.

At a minimum, the writers are being overcharged for their debts to history. Half of the “Blurred Lines” royalties is absurdly inflated and even a 22.5 per cent levy on “Dark Horse” for one element defies common sense — at such valuations, the songs are worth less than the sum of their parts.

The broader principle is that, taken as a whole, both are substantially different from the songs of which they fell foul. These are creative works that, even if they borrowed aspects from others, turned them into something quite new. Only looked at narrowly, broken into little pieces, did they copy.

A striking aspect of these cases is that no one claims that the first work’s popularity suffered as a result of the second. Indeed, a recent study of US charts found that sales of sampled works tended to rise, especially if the originals were old and from a different genre. The impact of sampling or the magpie use of beats and hooks is unlike that of wholesale file-sharing.

All of this suggests that courts should take a broader view of music copyright than they recently have. The fair use exemption for works that are trans-formative needs to be applied more generously if the entertainment industry is not to become a vast tournament of tiny infringement claims. When lawyers are becoming more creative than writers, something is going wrong. john.gapper@ft.com

The assembly method of songwriting has similarities to sampling, which literally involves copying sections.

Yours for new music, 

JOHN