May 2018 - Blurred Lines of Copyright Infringement
In this newsletter:
Learn how a court determines what is considered copyright infringement;
East Nashville's favorite artist Diamond Carter dedicates his single to East Nashville's favorite dive bar, Dino's
What is copyright infringement? - Trying to focus through the "Blurred Lines" of the Marvin Gaye-Robin Thick case.
The line to cross for infringement was certainly blurred for the three appellate judges (Ninth Circuit) ruling on the Marvin Gaye/Robin Thicke case. The judges voted 2 to 1, upholding the trial court’s ruling that Thicke’s song “Blurred Lines” infringed Marvin Gaye’s “Got to Give it Up.” The one dissenting judge wrote a scathing dissent, criticizing the majority ruling.
I am constantly asked by musicians and others in the music industry what is considered infringement of a song. There are so many myths and misinformation out there.
So while there are plenty of issues ruled upon by the Appeals Court, I want to breakdown the test used to find infringement. This might help musicians understand the next time a lawyer says “it depends” when asked if a song infringes another. It simply is not black and white (considering three appeals court judges can't agree), and you never know how a judge or jury is going to rule.
First, there are a LOT of two-factor tests to be applied.
The Very Basic Two-Factor Test: (1) he or she owns the copyright in the infringed work (this is where registering your copyrights helps!), and (2) the defendant “copied” protected elements of the copyrighted work.
…Seems simple, but then you have to go down the rabbit hole
How do you prove “copying”?: To prove the defendant in fact copied the protected song, you can use (1) direct evidence of copying, or (2) you can use “circumstantial evidence.”
What is “circumstantial evidence” of copying?: To prove copying by circumstantial evidence, you must establish (1) the defendant had “access” to your work, and (2) both songs are “substantially similar.” A sliding scale is then used to see if there is enough circumstantial evidence. In other words, the more evidence there is of access to the original work, the less similarity needs to be shown, and vice versa.
How do you determine “substantial similarity”?: You guess it, another two-part test. There must be evidence of both (1) extrinsic and (2) intrinsic similarities.
Extrinsic (objective): Whether two works share a similarity of ideas and expression as measured by external, objective criteria. In other words, an “analytical dissection” of a work by experts.
Intrinsic (subjective): This is determined by the jury, and asks whether the ordinary, reasonable person would find the total concept and feel of the works to be substantially similar.i
Analysis only applied to “Protected Elements”: For example, every note in a scale isn’t protectable, but a pattern of notes in a tune may be considered protectable.
Scope of Protection Depends on “Range of Expression”: It’s easier to infringe a work that has a
Wide range of expression rather than a thin range of expression. The Court compares the movie “When Aliens Attack” (wide range of expression) to drawing a red ball on a blank piece of paper (thin range of expression). Because the movie is so much wider, it’s easier to find infringement, while the drawing of a red ball on a white piece of paper would have to be essentially an exact copy to be considered infringement.
NOTE for musicians – Musical compositions are general considered wide ranges of expression!
There are so many other issues that go into the analysis of copyright infringement, but these are the general elements in as simple and few words as I could possibly put it. Also, keep in mind this is one jurisdiction's analysis! The test can be altered throughout the country.
If you want to nerd out on copyright law, here’s the link to the whole opinion.
Diamond Carter's "Ode to Dinos" shows his love for the dive bar, and hits 10,000 Spotify streams in its first month
If you know Diamond Carter, you know he's brutally honest (almost to a point he makes you cringe). But his honesty breeds great music, especially when he's narrating a patron's time at East Nashville's oldest and greatest dive bar, Dino's.
His single "Ode to Dinos" off his new EP, Moon Paradise Vol. 1, quickly hit 10,000 streams on Spotify. Make sure to check out the wonderfully crafted music video at the link below, and make sure to hold on long enough to see the most beautiful flautist serenade a fellow Dino's patron.
Have questions for Colin? Contact him here! He's always open to grab a coffee and meet (at no charge of course).
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Note that the subject matter of this newsletter is not legal advice. If you are in need of legal advice, please contact a lawyer.
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