Written by: Kirkman Ridd
Guitarist Robert White performed on some of the most memorable R&B song recordings of the past six decades. He is arguably best known for creating the iconic “guitar riff” heard in the Temptations’s 1964 hit song My Girl. A “riff” is a short sequence of notes that is often repeated throughout a song and may become highly identified with the song. White’s riff in My Girl was not written by the credited songwriters; White improvised those notes in the recording studio as a “session musician” (a member of the studio band) performing on the song. Session musicians are often hired specifically for their ability to enhance a song with their spontaneous creations. In the case of My Girl, White’s riff has been described as “one of the most famous guitar riffs ever recorded.” The arrangement of those notes is unique and original. But is White’s riff a protectable musical expression? Is it copyrightable?
When White was most active as a studio guitarist (mid-1950s through mid-1970’s), songwriting credit was not typically shared with session musicians or music producers. Their work was considered “work for hire” owned by the record company, and their musical input was not considered songwriting. Today, musicians and music producers are often credited as songwriters based on their input during the creative process. So, what approach do courts take when a creator contributes a “riff” to a song, is credited as a songwriter based at least in part on that contribution, and then the copyright in that song is allegedly violated because another song contains a similar riff?
Courts answer this question by determining whether the riff itself is “protectable expression.” Courts have held that the basic “building blocks” of music (commonly used notes and rhythms) do not justify individual protection under copyright law. But, if the arrangement of those building blocks is sufficiently unique and original, then even a short musical phrase such as White’s guitar riff may be protectable. Recently, a federal court ruled that a short ostinato (a repetitive musical phrase) heard throughout the song Joyful Noise by the recording artist Flame was not protectable expression, and therefore an allegedly infringing ostinato in the Katy Perry song Dark Horse did not violate copyright law regardless of subjective similarity. The court used an objective “extrinsic test” to determine that Flame’s ostinato contained basic building blocks of music that were not copyrightable individually nor as an arrangement, and therefore could not be infringed upon. White’s guitar riff is also a short phrase used as an ostinato throughout My Girl. Would White’s riff pass the extrinsic test for uniqueness and originality?
There are significant musical differences between White’s riff and Flame’s ostinato, but they are both fundamental components of the songs they enhance. Over time, a phrase such as White’s may become impressed in the popular music collective consciousness and have great impact when used in another song. White’s riff has been legally duplicated in dozens of other popular songs, both by artists reproducing the riff or using a sample (a short recording) from the original recording, with credit to the songwriters of My Girl. In 1998, the Temptations themselves used a sample from My Girl featuring White’s guitar riff in their song Stay. White’s riff is heard at the beginning of and occasionally throughout Stay and contributes an identifiable musical presence. Regardless of the uniqueness and originality of his contribution, White is not credited as a composer on Stay or on any of the other songs his riff has enhanced, just as he is not credited as a composer on My Girl.
Given the currently accepted practice of crediting contributors to the creation of a recorded song as songwriters when they contribute significant musical elements beyond the melody and lyrics, White might well claim and receive songwriting credit on My Girl if the song were originally recorded today. Additionally, the author is of the opinion that White’s guitar riff itself is sufficiently original and unique to warrant copyright protection. As creators and courts continue to ask what short musical phrases may be protectable expressions, somewhere between White’s guitar riff and Flame’s ostinato is a line many courts draw using the extrinsic test.
 Robert White (guitarist), Wikipedia, https://en.wikipedia.org/wiki/Robert_White_(guitarist) [https://perma.cc/JY8C-2BZH].
 Marc Myers, Making Sunshine on a Cloudy Day, Wall St. J. (Oct. 21, 2011), https://www.wsj.com/articles/SB10001424052970203476804576615250196742630 [https://perma.cc/SC3Q-JDJ9]; The Temptations, My Girl, YouTube, https://www.youtube.com/watch?v=qEztui18cA8 [https://perma.cc/T86N-6TCC].
 Riff, Cambridge Dictionary, https://dictionary.cambridge.org/us/dictionary/english/riff [https://perma.cc/D4XQ-3YEW].
 Myers, supra note 2.
 Alexandra El-Bayeh, Comment, They Could Be Back: The Possibility of Termination Rights for Session Musicians, 64 Am. Univ. L. Rev. 285, 287, 291–292, 295, 322 (2014).
 Myers, supra note 2.
 See Gabriel J. Fleet, What’s in a Song? Copyright’s Unfair Treatment of Record Producers and Side Musicians, 61 Vand. L. Rev. 1235 (2019); El-Bayeh, supra note 5 at 287–289, 293–294; Are Producers Considered Songwriters?, Songtrust, https://help.songtrust.com/knowledge/are-producers-considered-songwriters [https://perma.cc/J3XX-ZG24].
 See Fleet, supra note 7; El-Bayeh, supra note 5 at 287–289, 293–294, 305 n.117.
 See Dorlan Lynskey, How Many People Does it Take to Write a Hit Song in 2019?, GQ (Nov. 1, 2019), https://www.gq-magazine.co.uk/culture/article/long-songwriting-credits [https://perma.cc/D55N-C5KT].
 Skidmore v. Led Zeppelin, 952 F.3d 1051, 1069, 1070 (9th Cir. 2020).
 Gray v. Perry, No. 2:15-CV-05642-CAS-JCx, 2020 U.S. Dist. Lexis 46313 1, 23, 30 (C.D. Cal. Mar. 16, 2020).
 Ben Dunnett, Ostinato, Music Theory Acad., https://www.musictheoryacademy.com/understanding-music/ostinato/ [https://perma.cc/DUD7-6Q57] (explaining that ostinatos are often used in musical compositions and may comprise a fundamental musical basis for a composition).
 Gray, 2020 U.S. Dist. Lexis, at 34, 36, 39–40; Crossmovementrecords, Joyful Noise – Official Music Video: FLAME feat. Lecrae & John Reilly, YouTube, https://www.youtube.com/watch?v=MllhC0qyEjY [https://perma.cc/AW22-CGFB]; Katy Perry, Katy Perry – Dark Horse (Official) ft. Juicy J, YouTube, https://www.youtube.com/watch?v=0KSOMA3QBU0 [https://perma.cc/B3UX-R2E6].
 Gray, 2020 U.S. Dist. Lexis, at 13, 23–24, 36; See also Christopher Jon Sprigman & Samantha Fink Hedrick, The Filtration Problem in Copyright’s “Substantial Similarity” Infringement Test, 23:2 Lewis & Clark L. Rev., 571 (2019) (discussing the origin and applications of the extrinsic test).
 Walter Everett, The Beatles as Musicians: The Quarry Men Through Rubber Soul 316 (Oxford University Press 2001).
 Crossmovementrecords, supra note 13; The Temptations, supra note 2.
 Samples of My Girl, Who Sampled, https://www.whosampled.com/The-Temptations/My-Girl/sampled/ [https://perma.cc/4GZ3-NE2S].
 Elias Leight, The Last Temptation, Rolling Stone (Aug. 13, 2018, 2:28 P.M.), https://www.rollingstone.com/music/music-features/the-last-temptation-2-707557/
 The Temptations, Stay, YouTube, https://www.youtube.com/watch?v=jstq2GqAS2k [https://perma.cc/996S-VNN3].