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Nothing is Truly Original: When does a pop star’s use of artists’ work cross the line?

Written By: Brienne Johnson

In an age where social media is prevalent, artists’ works are more easily dispersed and accessible to the public. Pop stars’ album art and links to music videos are displayed on various platforms, such as Instagram, Snap Chat, and Twitter. Many artists use these same platforms to share their art and gain a following. Artists, due to the crucial role of social media in society, are faced with the problem of choosing between protecting their intellectual property and posting their work online to stay active and relevant within the art community. [1] While creative industries take inspiration from life, the line between inspiration is a fine one. At what point do the concepts and ideas of others taken from the internet and social media cross the line from inspiration to theft?

Recently, many pop stars have been called out for using concepts of other artists’ work in their videos and album art without permission or credit. [2]For example, Chris Brown imitated multiple artists’ works in his recent music video, Wobble Up; Ariana Grande imitated  another artist’s image for her God is Woman video; and Kendrick Lamar imitated another artist’s work in his All the Stars video. [3] Both Kendrick Lamar and Ariana Grande settled with the artists over their claims where their imagery was used without permission. [4]

Tim Maxwell, a recognized lawyer in the field of art law, cites ignorance as the main cause. Music video directors and the pop stars’ creative teams assume once art is placed in the public domain, everyone is able to use it without any objections from the original artist. [5] However, young artists who publish their art on Instagram do not have the resources to hire a lawyer and pay the legal costs associated with copyright protections. [6] For an artist to bring an infringement claim, there must be copying that satisfies the requirement of “substantial similarity.” [7] Unfortunately, as long as the artists remain silent, nothing will be done to further the protection of their intellectual property.

[1] Sydney Gore, Artists Speak Out Against Chris Brown Over Copyright Allegations in “Wobble Up”, HIGHSNOBIETY (May 22, 2019), https://www.highsnobiety.com/p/chris-brown-wobble-up-video-copyright-allegations/.

[2] Lanre Bakare, ‘Not Again’: the online artists accusing pop stars of stealing work, THE GUARDIAN (June 6, 2019, 07:43 AM), https://www.theguardian.com/music/2019/jun/06/not-again-the-online-artists-accusing-pop-stars-chris-brown-of-stealing-their-work.

[3] Id.

[4] Sarah Cascone, Kendrick Lamar Denies Ripping Off the Artist Who’s Suing Him Over His ‘Black Panther’ Music Video, ART WORLD (May 22, 2018), https://news.artnet.com/art-world/artists-accuse-chris-brown-of-copying-1554196.

[5] Bakare, supra note 2.

[6] Id.

[7] Ringgold v. Black Entertainment TV, Inc., 126 F.3d 70, 75 (2d Cir. 1997).

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The Rising Issue of Current Patent Infringement Remedies

Written By: Ashley Kim

Today, it is questionable whether current patent infringement remedies are adequately furthering the goal of patent law – that is, “[promoting] the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” [1] An exponential progress in the field of science has produced an overwhelming number of fledgling start up tech companies that have contributed to the development of valuable innovation.

However, recent scholars have expressed a concern over excessive damages for patent infringement to inventors at the expense of infringers. [2] It is well admitted that the progress in science has provided “too great a degree of protection to patents” and as a result, such excessive damages would “reduce the overall incentive for firms to develop commercial products.” [3] Therefore, coming up with an efficient assessment for patent infringement damages has always been an issue. [4]

Traditionally, when a patent is infringed, compensation was thought to “[put] the patent holder in the position it would have been in had its patent rights not been infringed.” [5] Generally, lost profits or actual damages and reasonable royalty damages have been the two pillars of remedies for patent infringement. [6] In fact, due to the difficulty in proving lost profits, courts usually refer to the “reasonable royalty” damages, and specifically to the Georgia-Pacific Factors when actual damages cannot be ascertained. [7]

The most problematic issue of using Georgia-Pacific Factors is that they assess “ex post considerations.” [8] Ex post considerations inflate the value of the patent due to the fear of litigation (especially for small companies). [9] In addition, “lock-in” costs pertaining to “the investments made in the allegedly infringing product and the cost to switch to a non-infringing alternative,” ultimately overestimate the value of the patent. [10]

Rather than focusing on the value of the technology, current damages focus on reasonable royalties based on ex post considerations, such as an infringer’s investment. [11] Therefore, the practice perpetuates excessive damages in favor of patent holders that negatively incentivize firms from actualizing the products. It is imperative for courts to carefully consider the impact of implementing ex post considerations when deciding reasonable royalty and thus should balance incentives of patent holders and would-be infringers to further the goal of the Patent Act.

[1] U.S. Const. art. I, § 8, cl. 8.

[2] Hon. Arthur J. Gajarsa, William F. Lee & A. Douglas Melamed, Patent Damages Symposium: Breaking the Georgia-Pacific Habit: A Practical Proposal to Bring Simplicity and Structure to Reasonable Royalty Damages Determinations, 26 Tex. Intell. Prop. L.J. 52, 53 (2018).

[3] Id.

[4] William F. Lee & A. Douglas Melamed, Breaking the Vicious Cycle of Patent Damages, 101 Cornell L. Rev. 385, 391 (2016).

[5] Id. at 394.

[6] Id. at 395.

[7] Id.

[8] Gajarsa, supra note 2 at 54.

[9] Id.

[10] Id.

[11] Lee, supra note 4 at 465.

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Stairway to Heaven: A Copyright Infringement Decades in the Making

Written By: Isaac Arreola

Stairway to Heaven has been acclaimed as one of the most iconic pieces of rock-and-roll history. [1] The opening guitar piece has long been recognized as the work of Led Zeppelin guitarist, Jimmy Page. [2] However, there has been a legal dispute over who actually wrote the famous guitar introduction. [3]

Taurus was written by the Los Angeles based rock band, Spirit, and was released on the band’s debut album in 1968. [4] Randy Wolfe, commonly known as Randy California, was the guitarist and songwriter for the band. [5] Wolfe’s passing in 1997 did not discourage legal action from arising 20 years later.

On May 31, 2014, Michael Skidmore, the trustee of Randy Wolfe, filed a copyright suit against Led Zeppelin, the individual members of the band, the band’s record label, and the record labels associated with the band. [6] Skidmore claimed Led Zeppelin’s song, Stairway to Heaven, infringed on Wolfe’s song, Taurus. [7]

Aside from the dispute over whether the songs really sound alike, the statute of limitations was the real issue. Generally, there is a three-year statute of limitations for copyright cases. [8] Why is Skidmore’s claim not barred if the alleged infringement took place decades ago? When a defendant “commits successive violations, the statute of limitations runs separately from each violation.” [9] Each infringing act will have its own statute of limitations, allowing a party to claim copyright infringement years after the initial infringement. Skidmore can claim copyright infringement every time Led Zeppelin issues a new release. [10]

On October 8, 2014, Skidmore filed his first amended complaint with two claims: (1) Stairway to Heaven infringes the song, Taurus, and (2) a violation of the right of attribution. [11] Zeppelin moved for summary judgement on both claims. [12] On April 8, 2016, the United States District Court for the Central District of California granted Zeppelin’s summary judgment motion on the right of attribution claim but denied the summary judgment motion on the copyright infringement claim due to “sufficient evidence” to proceed to trial. [13] On June 23, 2016, a jury returned a verdict in favor of Zeppelin, finding Zeppelin “had not infringed Wolfe’s copyright in the song, Taurus.” [14]

Skidmore appealed. [15] He argued the district court erred in its jury instruction and abused its discretion by not allowing the defense to play the disputed song to a jury. [16] The song was played to Led Zeppelin guitarist, Jimmy Page, outside the presence of the jury; Page was subsequently questioned about the song in front of the jury. [17] In light of Skidmore’s argument, the Court of Appeals found the district court erred in its judgment. A rehearing en banc was subsequently granted by the Ninth Circuit on June 10, 2019. [18]

The pending rehearing of the case leaves the music world wondering how far this case will go. In a similar case decided in 2018, artists Robin Thicke and Pharrell Williams were found to have infringed on Marvin Gaye’s song, Got to Give it Up. [19] The Marvin Gaye estate was awarded $5.3 million in damages. [20] Although a jury found the songs to be similar, the dissenting circuit judge on appeal, Jacqueline H. Nguyen, did not. [21]

Nguyen voiced her disappointment with the majority’s decision, stating, “The majority allows the Gayes to accomplish what no one has before: copyright a musical style.” [22] Stemming from Nguyen’s statement, the policy behind copyright in a musical style would seek to protect an artist, by not allowing complaints filed any time there was a remote chance of an infringement. This would essentially disrupt the balance of artist creativity and legal rights by forcing artists to carefully consider each piece of their work, so no copyright infringement occurs.

With the similarities and differences between songs being subtle, experts are used to help make the distinction. In the Marvin Gaye case, the Gaye family estate used an expert witness to testify to the similarities in Blurred Lines and Got to Give it Up. [23] The court used “analytical dissection of a work and expert testimony,” which “[required] breaking the works ‘down into their constituent elements and comparing those elements for proof of copying as measured by “substantial similarity.”’” [24] In an article by Alex Ross titled, The Unoriginal Originality of Led Zeppelin, Ross similarly breaks apart the elements of the opening guitar piece in dispute:

In the [Taurus], the lower voice descends by chromatic steps while the upper voice repeats notes of the tonic triad (A minor) . . . . In Stairway to Heaven, also in A minor, the lower voice descends by half-steps while the upper voice ascends—up an octave to an A and then further up to B and C. [25]

If the exact notes and pattern have to be argued to prove distinctiveness, then it would seem that the scope of copyright protection has been broadened, not narrowed, to uphold any cognizable element in the copyright claim.

The slippery slope is that some copyright infringement cases potentially broaden the scope to what constitutes copyright infringement. If Skidmore is decided in the same way as the Marvin Gaye case, then we could potentially see the result of an alleged copyright infringement decades in the making.

 

[1] 500 Greatest Songs of All Time, Rolling Stone (April 7, 2011, 4:33 PM), https://www.rollingstone.com/music/music-lists/500-greatest-songs-of-all-time-151127/led-zeppelin-stairway-to-heaven-2-70822/.

[2] Alex Ross, The Unoriginal Originality of Led Zeppelin, The New Yorker (April 14, 2016), https://www.newyorker.com/culture/cultural-comment/the-unoriginal-originality-of-led-zeppelin.

[3] Skidmore v. Led Zeppelin, 2016 U.S. Dist. LEXIS 51006 (C.D. Cal. Apr. 8, 2016).

[4] ALLMUSIC, https://www.allmusic.com/album/spirit-mw0000653465/credits (last visited Sep. 30, 2019).

[5] Skidmore v. Led Zeppelin, 905 F.3d 1116, 1121 (9th Cir. 2018), reh’g en banc granted sub nom. Skidmore as Tr. for Randy Craig Wolfe Tr. v. Zeppelin, 925 F.3d 999 (9th Cir. 2019).

[6] Skidmore v. Led Zeppelin, No. CV15-03462RGKAGRX, 2016 WL 6674985 at 1, (C.D. Cal., Aug. 8, 2016), vacated and remanded sub nom. Skidmore as Tr. for Randy Craig Wolfe Tr. v. Zeppelin, 905 F.3d 1116 (9th Cir. 2018).

[7] Id.

[8] 17 U.S.C.A. § 507(b).

[9] Petrella v. Metro-Goldwyn-Mayer, Inc., 134 S.Ct. 1962, 1969 (2014).

[10] Peter Decherney, Not too Late for a Lawsuit Against Led Zeppelin’s ‘Stairway to Heaven’, Forbes (May 21, 2014, 11:03 AM), https://www.forbes.com/sites/peterdechercherney/2014/05/21/not-to-late-for-a-lawsuit-against-led-zeppelins-stairway-to-heaven/#515084544927.

[11] Skidmore v. Led Zeppelin, No. CV15-03462RGKAGRX, 2016 WL 6674985 at 1.

[12] Id.

[13] Id. at 2.

[14] Id.

[15] Skidmore v. Led Zeppelin, 905 F.3d 1116, 1121 (9th Cir. 2018), reh’g en banc granted sub nom. Skidmore as Tr. for Randy Craig Wolfe Tr. v. Zeppelin, 925 F.3d 999 (9th Cir. 2019).

[16] Id.

[17] Id.

[18] Skidmore as Tr. for Randy Craig Wolfe Tr. v. Zeppelin, 925 F.3d 999 (9th Cir. 2019).

[19] Williams v. Gaye, 895 F.3d 1106, 1115 (9th Cir. 2018).

[20] Id. at 1118.

[21] Id. at 1138.

[22] Id.

[23] Id. at 1124.

[24] Id. (quoting Rice v. Fox Broad. Co., 148 F. Supp. 2d 1029, 1051 (C.D. Cal. 2001), aff’d in part, rev’d in part, 330 F.3d 1170 (9th Cir. 2003).

[25] Ross, supra note 2.